APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 10/835,085 04/29/2004 Alexei Ashikhmin

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1 UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 10/835,085 04/29/2004 Alexei Ashikhmin /01/2012 Ryan, Mason & Lewis, LLP Suite Post Road Fairfield, CT ART UNIT 2611 EXAMINER KIM, KEVIN PAPER NUMBER MAIL DATE DELIVERY MODE 08/01/2012 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07)

2 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES Ex parte ALEXEI ASHIKHMIN and JUNG-TAO LIU Appeal Technology Center 2600 Before LANCE LEONARD BARRY, THU A. DANG, and JAMES R. HUGHES, Administrative Patent Judges. HUGHES, Administrative Patent Judge. DECISION ON APPEAL 1 Application filed April 29, The real party in interest is Lucent Technologies, Inc. (App. Br. 1.)

3 STATEMENT OF THE CASE Claims 1-28 are pending. Appellants appeal from the Examiner s rejection of claims 1-6, 8, 9, 11-16, 18-20, 22, 23, and The Examiner indicates that claims 7, 10, 17, 21, 24, and 28 contain allowable subject matter. (App. Br. 2.) We have jurisdiction under 35 U.S.C. 6(b). We affirm. Appellants Invention The invention at issue on appeal concerns a communication method, system and apparatus (transmitter) for generating a code book for use in a code division multiple access (CDMA) communication system where the amplitude and polarity for each vector in the code book are selected to provide a reduced peak-to-average power ratio. (Spec. 1:7-9, 1:32-2:6; Abstract.) 3 Representative Claim Independent claim 1, reproduced below, with disputed limitations italicized, further illustrates the invention: 2 Appellants indicate that they appeal only claims 1, 4, 5, 11, 18, and 25. (App Br. 2.) Appellants, however, address each of the pending claims in their Statement of Grounds of Rejection to be Reviewed on Appeal (see Appeal Br. 3) and appeal the Examiner s entire decision (see Notice of Appeal). Therefore, we deem Appellants to appeal each of the pending claims and waive argument with respect to all claims except claims 1, 4, 5, 11, 18, and 25. Accordingly, this appeal does not present an issue under Ex Parte Ghuman, 88 USPQ2d 1478, 1480 (BPAI 2008). 3 We refer to Appellants Specification ( Spec. ); Appeal Brief ( App. Br. ) filed July 16, 2009; and Reply Brief ( Reply Br. ) filed November 25, We also refer to the Examiner s Answer ( Ans. ) mailed November 3,

4 1. A method for generating a code book for use in a CDMA system, said code book comprised of a plurality of vectors, said method comprising: selecting an amplitude and polarity value for each vector of said code book to provide a reduced peak-to-average power ratio for transmissions that include data transmissions comprising one or more data symbols. Rejections on Appeal 1. The Examiner rejects claims 1, 2, 6, 8, 9, 11, 12, 15, 16, 18, 20, 23, 25, 26, and 27 under 35 U.S.C. 102(b) as being anticipated by U.S. Patent No. 6,310,869 B1, issued Oct. 30, 2001 ( Holtzman ). 2. The Examiner rejects claims 3-5, 13, 14, 19, and 22 under 35 U.S.C. 103(a) as being unpatentable over Holtzman. 4 ISSUE Based on our review of the administrative record, Appellants contentions, and the Examiner s findings and conclusions, the pivotal issue before us is as follows: Does the Examiner err in finding that Holtzman discloses selecting an amplitude and polarity value for each vector of said code book to provide a reduced peak-to-average power ratio for transmissions that include data transmissions comprising one or more data symbols within the meaning of 4 As pointed out by Appellants (see App. Br. 6), the Examiner s 103 rejection in the Final Office Action (dated October 30, 2008) (see Fin. Rej. 3-4) fails to mention claim 5. The Examiner does address claim 5 in the Answer (Ans. 5-6). Appellants do not object to the omission in either the Appeal Brief or Reply Brief. Accordingly, we find this omission to be harmless error. 3

5 Appellants claim 1 and the commensurate limitations of claims 11, 18, and 25? FINDINGS OF FACT We adopt the Examiner s findings in the Answer and the Final Office Action as our own. ANALYSIS Based on Appellants arguments (App. Br. 4-6) and statement of the Status of Claims (App. Br. 2 (see note 2 (supra)) we select independent claim 1 as representative of Appellants arguments and groupings with respect to claims 1-6, 8, 9, 11-16, 18-20, 22, 23, and C.F.R (c)(1)(vii). Claim 1 Appellants contend that Holtzman does not disclose the disputed limitation selecting an amplitude and polarity value for each vector of said code book to provide a reduced peak-to-average power ratio for transmissions that include data transmissions comprising one or more data symbols (claim 1). (App. Br. 4-6; Reply Br. 2-6.) Specifically, Appellants contend that the method disclosed by Holtzman et al. cannot be used for reduction of peak-to-average ratio in the case of conventional transmissions that include data transmissions (App. Br. 5), and that the claims require the amplitude and polarity values to be selected to provide a reduced peak-toaverage power ratio for transmissions that include data transmissions comprising one or more data symbols (App. Br. 4). Further Appellants maintain that pilot symbols are not data symbols. (App. Br. 4.) 4

6 The Examiner sets forth a detailed explanation of the anticipation rejection in the Examiner s Answer with respect to each of the claims so rejected and, in particular, the rejection of claim 1. (Ans. 3, 6-8.) Specifically, the Examiner submits that Holtzman explicitly reducing the peak-to-average power ratio for transmissions including pilot signals. (Ans. 3, 6-8 (citing Holtzman, col. 3, ll ; col. 8, ll ); see also Holtzman, col. 8, ll ). Upon consideration of the evidence on this record and each of Appellants contentions, we find that the preponderance of evidence on this record supports the Examiner s findings and ultimate legal conclusion that Holtzman discloses the disputed features of claim 1. Accordingly, we sustain the Examiner s rejection of claim 1 for the reasons set forth in the Answer, which we incorporate herein by reference. (Ans. 3, 6-8.) Our additional analysis will be limited to the following points of emphasis. We understand Appellants to argue that Holtzman does not disclose data symbols (but instead discloses pilot symbols), or reducing the peak-toaverage power ratio for data transmissions, generally. We disagree. We initially note that the limitation at issue to provide a reduced peak-to-average power ratio for transmissions that include data transmissions comprising one or more data symbols is merely a statement of intended use or purpose of the recited selecting process (the process of selecting an amplitude and polarity value for each vector of said code book ) (claim 1). Further, the recited data symbols are merely nonfunctional descriptive material that is indistinguishable from Holtzman s pilot symbols. In this instance, Appellants statement of intended use does not further limit the scope of the claim. See Boehringer Ingelheim 5

7 Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003) (a statement of intended use usually will not limit the scope of the claim because such statements usually do no more than define a context in which the invention operates ). As the Examiner explains, Appellants claimed data symbols are not distinguishable from Holtzman s pilot symbols. (Ans. 6-7; see Advisory Action, dated January 12, 2009 at p. 2.) Further, the non-functional descriptive material ( data symbols ) is not expressly utilized in the claim to do anything. The act of selecting an amplitude and polarity value for each vector is the same regardless of what the data (data symbols) constitutes or how the data may be named and do not further limit the claimed invention either functionally or structurally. As such, the data symbols merely corresponds to data and the terminology is a name or label for the information this data represents. It does not lend patentability to an otherwise unpatentable computer-implemented product or process. Ex parte Nehls, 88 USPQ2d 1883, 1889 (BPAI 2008) (precedential). See Ex parte Curry, 84 USPQ2d 1272, 1274 (BPAI 2005) (informative) (Fed. Cir. Appeal No ), aff d, (Rule 36) (June 12, 2006) ( wellness-related data in databases and communicated on distributed network did not functionally change either the data storage system or the communication system used in the claimed method). See also In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004); Nehls, 88 USPQ2d at (discussing nonfunctional descriptive material). Even if we, arguendo, were to ascribe some weight to this statement of intended use and the non-functional descriptive material, Holtzman discloses the disputed features. We broadly but reasonably construe data 6

8 symbols, at most, to represent data. Holtzman describes selecting amplitude and polarity values for vectors that reduce the peak-to-average power ratio for data transmissions that include data as well as pilot symbols (which are also data). A method for reducing transmission signal power of transmitted communication signals includes: (a) receiving channel data for transmission on several channels, wherein the channel data includes pilot symbol data; (b) combining orthogonal codes with the received channel data, wherein each orthogonal code has at least one common chip position, and wherein the common chip position has a same value for each orthogonal code; and (c) before transmitting the channel data combined with the orthogonal codes, altering the common chip position of at least one of the orthogonal codes to reduce a combined amplitude resulting from simultaneous transmission and addition of the common chip position for the several channels. (Col. 3, ll (emphasis added).) To attenuate this peak to average increase, under a first class of solutions, the modulator 200 of FIG. 2 employs the phase rotator 206 to randomly multiply a plus or minus one value to the orthogonal codes output from the orthogonal code generator 204. (Col. 8, ll ; see ll ) Thus, we find Appellants contrary arguments unpersuasive of error in the Examiner s anticipation rejection of representative claim 1. Appellants also do not persuade us of error in the Examiner s anticipation rejection of independent claims 11, 18, and 25, which include limitations of commensurate scope, and dependent claims 2, 6, 8, 9, 12, 15, 16, 19, 20, 23, and not separately argued with particularity (supra). Accordingly, we affirm the Examiner s anticipation rejection of claims 1, 2, 6, 8, 9, 11, 12, 15, 16, 18, 20, 23, 25, 26, and 27. 7

9 Claims 3-5, 13, 14, 19, and 22 Appellants merely reiterate the claim limitations and state that Holtzman does not disclose or suggest recited features for claims 4 and 5. (App. Br. 6-7). Appellants do not address claims 3, 13, 14, 19, or 22. We find these arguments unavailing of error in the Examiner s obviousness rejections of these claims. This form of argument (simply reiterating the claim limitations) does not amount to a separate patentability argument. See Ex parte Belinne, No , 2009 WL at *3-4 (BPAI Aug. 10, 2009) (informative); see also 37 C.F.R (c)(1)(vii). Appellants argument do[es] not... explain why the Examiner s explicit fact finding is in error. Belinne, 2009 WL at *4. Accordingly, we affirm the Examiner s obviousness rejections of claims 3-5, 13, 14, 19, and 22. CONCLUSIONS OF LAW Appellants have not shown that the Examiner erred in rejecting claims 1, 2, 6, 8, 9, 11, 12, 15, 16, 18, 20, 23, 25, 26, and 27under 35 U.S.C. 102(b). Appellants have not shown that the Examiner erred in rejecting claims 3-5, 13, 14, 19, and 22 under 35 U.S.C. 103(a). DECISION We affirm the Examiner s rejection of claims 1, 2, 6, 8, 9, 11, 12, 15, 16, 18, 20, 23, 25, 26, and 27under 35 U.S.C. 102(b). We affirm the Examiner s rejection of claims 3-5, 13, 14, 19, and 22 under 35 U.S.C. 103(a). 8

10 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R (a)(1)(iv). AFFIRMED Vsh 9