“E-HICH information is BPSK-modulated with on/off keying and the modulation depends on which cell is transmitting the E-HICH.”
“[0012] The present invention is directed to the establishment, maintenance, and utilization of a non-contention based (NCB) channel in a wireless communication system comprising at least one Evolved Node-B (eNB) and a plurality of wireless transmit/receive units (WTRUs). Each NCB channel is dedicated and allocated for use by a particular WTRU in the system for utilization in a variety of functions, and the allocation is communicated to the WTRUs in the system by the eNB. The wireless communication system analyses the allocation of each NCB channel as required, and each NCB channel is reallocated as required.”
“A patent specification must be construed as at the date of its publication …”
“The correct date for construction of the claims therefore still merits further specific review. The leading contender is the date of publication of the granted patent. It is submitted that this is further supported by the consideration that the specification and claims may be amended up until grant, and this would also be consistent with the express provision in s.27(3) that if a patent is subsequently amended, different dates may be relevant for obviousness (priority), for sufficiency (filing), and for construction (publication) may be inconvenient but it is submitted that it is not so anomalous as to be rejected: it merely reflects the different underlying policies.”
“As counsel for the Claimants pointed out, however, that statement was obiter since there does not appear to have been any issue as to the correct date in that case. Furthermore, counsel for MSD referred me to the discussion in Terrell on the Law of Patents at 9-27 to 9-33, in which the editors note that it was held in Dyson Appliances Ltd v Hoover Ltd[2001] RPC 26 at [48(k)] (Michael Fysh QC, as he then was) that the relevant date was the application date and recognise that the law is not settled, although they argue in favour of the publication date. As at present advised, I have to say that I do not find the editors’ arguments convincing. I would add that it can be seen from reading decisions of this Court and the Court of Appeal over at least the past decade or two that the general practice is to construe patent claims as at the priority date (or the application date if priority is lost).”
“Section 72(l)(c) can only give effect to this principle if the relevant date for compliance is the date of application. It would be illogical if a patent which ought to have been rejected under section 14(3) is rendered immune from revocation under section 72(1)(c) by advances in the art between the date of application and the publication of the specification. The provisions for amendment, so far from detracting from this view, seem to me to support it. Section 76(2) says that the amended application shall not disclose matter which extends beyond that previously disclosed. In other words, the application may not add new matter to make an insufficient application sufficient. It seems to me in accordance with this scheme that an insufficient application should also not become sufficient because of general developments in the state of the art after the filing date. I therefore agree on this point with the Court of Appeal.”
“… Both the Court of Appeal and the House of Lords held that the claim failed, inter alia for insufficiency, but for different reasons. Apart from holding that sufficiency is to be tested as at the priority date (a rule which is not in dispute in this appeal) the case is of importance [to the issues in Regeneron for reasons which Lord Briggs went on to explain].”
“The patent must be construed as of its filing date (see Biogen Inc v Medeva plc[1997] RPC 1 , at 53-54).”
“[0064] The present invention may be implemented in any type of wireless communication system, as desired.”
“the prior publication must contain clear and unmistakeable directions to do what the patentee claims to have invented”, see General Tire and Rubber Co Firestone Tyre and Rubber Co Ltd[1972] RPC 457 , at 485-486. In Synthon BV v Smithkline Beecham plc[2005] UKHL 59 Lord Hoffmann drew together what the House of Lords had said in that passage and from Hill v Evans (1862) 31 LJ (NS) 457, at 463: “[22] If I may summarise the effect of these two well-known statements, the matter relied upon as prior art must disclose subject-matter which, if performed, would necessarily result in an infringement of the patent. That may be because the prior art discloses the same invention. In that case there will be no question that performance of the earlier invention would infringe and usually it will be apparent to someone who is aware of both the prior art and the patent that it will do so. But patent infringement does not require that one should be aware that one is infringing: “whether or not a person is working [an] … invention is an objective fact independent of what he knows or thinks about what he is doing”: Merrell Dow Pharmaceuticals Inc vHN Norton & Co Ltd[1996] RPC 76 , 90. It follows that, whether or not it would be apparent to anyone at the time, whenever subject-matter described in the prior disclosure is capable of being performed and is such that, if performed, it must result in the patent being infringed, the disclosure condition is satisfied. The flag has been planted, even though the author or maker of the prior art was not aware that he was doing so.”
“(1) (a) Identify the notional ‘person skilled in the art’; (b) Identify the relevant common general knowledge of that person; (2) Identify the inventive concept of the claim in question or, if that cannot readily be done, construe it; (3) Identify what, if any, differences exist between the matter cited as forming part of the ‘state of the art’ and the inventive concept of the claim or the claim as construed; (4) Viewed without any knowledge of the alleged invention as claimed, do those differences constitute steps which would have been obvious to the person skilled in the art or do they require any degree of invention?”
“The question of obviousness must be considered on the facts of each case. The court must consider the weight to be attached to any particular factor in the light of all the relevant circumstances. These may include such matters as the motive to find a solution to the problem the patent addresses, the number and extent of the possible avenues of research, the effort involved in pursuing them and the expectation of success.”
“[27] Patentability is justified because the prior idea which was thought not to work must, as a piece of prior art, be taken as it would be understood by the person skilled in the art. He will read it with the prejudice of such a person. So that which forms part of the state of the art really consists of two things in combination, the idea and the prejudice that it would not work or be impractical. A patentee who contributes something new by showing that, contrary to the mistaken prejudice, the idea will work or is practical has shown something new. He has shown that an apparent ‘lion in the path’ is merely a paper tiger. Then his contribution is novel and non-obvious and he deserves his patent. [28] Where, however, the patentee merely patents an old idea thought not to work or to be practical and does not explain how or why, contrary to the prejudice, that it does work or is practical, things are different. Then his patent contributes nothing to human knowledge. The lion remains at least apparent (it may even be real) and the patent cannot be justified. [29] This analysis does not require a different way of looking at the inventive concept depending on whether or not the patentee has shown the prejudice is unjustified as the judge thought at [67]. It is simply that in the former case the patentee has disclosed something novel and non-obvious, and in the latter not. The inventive concept, as I have said, is the essence of what is in the claim and not dependent on any question about a prejudice being overcome.”
“The principle is that you cannot have a patent for doing something which the skilled person would regard as old or obvious but difficult or impossible to do, if it remains equally difficult or impossible to do when you have read the patent. To put it another way, the perceived problem must be solved by the patent.”
“[201] The Defendants rely on post-Priority Date contributions from LG and Lucent to WG1 meeting 23 in Espoo on 8-11 January 2002 as confirming that differential ACK/NACK powers was obvious. But that pre-supposes that LG and Lucent came up with the invention independently from Philips (and each other). The Defendants did not adduce any evidence from either LG or Lucent to establish this, however. Counsel for the Defendants simply relied upon the absence of any reference to Philips' contributions R2-24(01)2366 and R2-24(01)2368 to the WG2 meeting in New York on 22-26 October 2001 which disclosed the invention to 3GPP as showing this (or at least as being sufficient to shift the onus of proving the contrary onto Philips, which had not led any evidence of fact on the question). I do not accept this, since it is possible that LG and Lucent were aware of Philips' contributions despite the absence of such reference. For example, Dr Farooq Khan of Lucent attended both the October 2001 WG2 meeting and presented the Lucent paper at Espoo. In any event, I agree with counsel for Philips that the mere fact, if fact it be, that LG and Lucent came up with the same invention shortly after the Priority Date is insufficient to establish that it was obvious at the Priority Date.”
“3.2 LTE_ACTIVE ˂-˃ LTE_ACTIVE It is our assumption that in the LTE_ACTIVE state, the UE can have a large variety of activity both in UL and in DL. Thus power saving mechanisms should be in place to not waste power in case a UE has low activity but is still in LTE_ACTIVE state. In ref [1] this ‘power-reduced-state’ was named ‘dormant substate’. For the DL, we assume that using different DRX cycles while in active state can cope with a variety of DL activity levels. For the UL, the situation is a bit different, since the initiator of the traffic and the scheduler are not ‘on the same side of the radio interface’. The main issue for UL transport thus becomes how quickly a UE can ask for UL resources. We see in principle 2 mechanisms for asking for additional UL traffic capacity: a) Sending an ‘E-DCH SI-like’ msg added to other traffic for which an UL resource allocation has been received. b) Sending an ‘E-DCH SI-like’ msg on a non-contention resource which is provided periodically (i.e. use a ‘NC-SI’ channel). We assume that every UE in LTE_ACTIVE will be able to use the NC-SI.”
“[233] The Skilled Person would have recognised that an ‘E-DCH’ was an uplink transport channel (the ‘Enhanced Dedicated Transport Channel’) in HSUPA. They would also understand that ‘SI’ stood for Scheduling Information. They would therefore probably assume that the authors of Samsung had in mind that an ‘E-DCH SI’ message was a Scheduling Information message sent on a transport channel that was specified in an HSUPA standard, although there is no actual cross-reference to any standards within Samsung.”
“The main issue for UL transport thus becomes how quickly a UE can ask for UL resources.”
“Q. Just focusing on the point about sending on the control channel a short 1-bit message with a subsequent allocation of resources to send the uplink scheduling information, we have seen all these companies proposing as one option that signalling arrangement, have we not? A. Well, they seem to be running to a consensus of sending small amounts on a RACH channel and then receiving an allocation and then sending more information about what they want, what the UE wants.”
“Q. And one of the proposals we see from all of them is the suggestion I have put to you that because of the potential for the waste of resources on a non-contention resource, one obvious thing to do is to send a very small message on the non-contention resource, receive an allocation and then subsequently send in-band on the shared channel the fuller scheduling information? A. Yes, well, the starting point is the Samsung document. Samsung presents something quite clear, clearly something that is going to work, and I do not think the skilled person, the uninventive skilled person would have come up with all of these, would have brainstormed it with colleagues to come up with all of these alternatives and weighed them all up. The fact that there were several companies coming up with many alternatives, many of which were based on the RACH does not necessarily mean that any of them are necessarily obvious to the skilled person.”
“A. … Of course it would be a combination of elements from HSUPA, but it would also be elements of LTE. Yes, it would be different. That part I do agree with. This is a system that would be different than an HSUPA system.”
“A. The channel is called NC-SI, but that is just a short term that is used for the definition, which is that it is a non-contention-based access channel and that it is used for users who do not have to compete and have unique resources in the frequency or code domain. So I would interpret NC-SI channel as just being aki nd of a shorthand for that kind of a non-contention-based channel.”
“During the hold state … the mobile node is also allocated a dedicated control uplink communication resource, e.g., dedicated uplink control communications channel, which it can use to request changes to other states.”
“… when the mobile transitions from the hold state to the on state it can transmit data without much delay, e.g. as soon as the requested uplink resource is granted, ...”
“Of the four states, the on state requires the highest amount of control signaling resources, e.g., bandwidth used for control signaling purposes. In this state, the mobile node is allocated bandwidth on as needed basis for transmitting and receiving traffic data, e.g., payload information such as text or video. Thus, at any given time in the on state a mobile node may be allocated a dedicated channel for transmitting payload information.”
“In another embodiment, the mobile node uses an on/off signaling in its dedicated uplink communication channel, where the mobile node sends a fixed signal (on) when it intends to migrate to another state and does not send any signal (off) when it does not intend to migrate to any other state. In this case, the transmission of the fixed signal can be interpreted as a migration request to the on state if the transmission occurs at certain time instances, and as a migration request to the sleep state if the transmission occurs at some other time instances.”
“Q. Just focusing on Laroia's use of the phrase "on-off signalling", that is not the same as on-off keying, is it? A. No, this would probably be more general. I mean, on-off keying is an example of on-off signalling: you either transmit the signal or you do not. Here he is calling it on-off signalling. I think maybe the difference would be this is a little broader; basically, you could send pretty much any signal you want, it could be a BPSK-modulated PN-code or something like that. I mean, some people would even consider that type of a transmission to be on-off keying, but, yes, there is a -- I mean, it is very similar.”
“Q. … I am sure you remember Dr. Moss gave evidence that there were three possibilities for the fixed signal, which were the coded predefined message, the signal whose presence could be detected by the base station without decoding and an unmodulated tone of fixed frequency. Do you remember Dr. Moss saying these were the three possibilities? A. Yes, I do. Q. And they are all possible, are they not? A. Certainly, yes. Each one of those could be a possibility. He was talking about a coded message and that could be a case where a signal is sent and after its presence is detected it could be decoded, or it could just be a fixed signal conveying a single bit of information that is either detected or not.”
“Q. … What I want to suggest to you is looking at the disclosure of Laroia, when it talks about the fixed signal, first, it does not refer to it being a coded message, does it? A. It does not say what it is, no. I read it many times and I could not work out what the fixed signal meant. Q. The last sentence makes it clear that it is the transmission of the fixed signal that indicates the request, not the contents of the signal? A. That is right.”
“Transmission in the assignment channel occurs, in the Fig. 6 embodiment, on a continuous basis. For each time slot, there is a corresponding traffic channel segment or segments. Traffic channel segments are allocated by the base station 12 to mobile nodes 14, 16 by transmitting a mobile node identifier or mobile node group identifier in a time slot to indicate that the corresponding traffic segment or segments have been assigned for use to the mobile node(s) corresponding to the transmitted identifier.”
“[Section 72(1)(c)] requires the skilled man to be able to perform the invention, but does not lay down the limits as to the time and energy that the skilled man must spend seeking to perform the invention before it is insufficient. Clearly there must be a limit. The sub-section, by using the words, clearly enough and completely enough, contemplates that patent specifications need not set out every detail necessary for performance, but can leave the skilled man to use his skill to perform the invention. In so doing he must seek success. He should not be required to carry out any prolonged research, enquiry or experiment. He may need to carry out the ordinary methods of trial and error, which involve no inventive step and generally are necessary in applying the particular discovery to produce a practical result. In each case, it is a question of fact, depending on the nature of the invention, as to whether the steps needed to perform the invention are ordinary steps of trial and error which a skilled man would realise would be necessary and normal to produce a practical result.”
“[2] It is a general requirement of patent law both in this country and under the European Patent Convention (“EPC”) that, in order to patent an inventive product, the patentee must be able to demonstrate (if challenged) that a skilled person can make the product by the use of the teaching disclosed in the patent coupled with the common general knowledge which is already available at the time of the priority date , without having to undertake an undue experimental burden or apply any inventiveness of their own. This requirement is labelled sufficiency. It is said that the invention must be enabled by the teaching in the patent.”
“[20] The mere fact that a word, phrase or other provision in a patent claim is not wholly clear will not, by any means, automatically lead to the conclusion that the claim is objectionable. That would involve setting a far too high and unrealistic standard for drafting in any field; it would be particularly inappropriate to adopt such an approach to the drafting of patents, a notoriously difficult exercise in many cases. A claim needs to be as clear as the subject matter reasonably admits of.”
“On the other hand, a patent defines an intellectual property right and the scope of the patentee's legally protected monopoly, and potential competitors are entitled to fair warning and a reasonable indication from the face of the patent what its scope is.”
“The decision as to whether there was an extension of disclosure must be made on a comparison of the two documents read through the eyes of a skilled addressee. The task of the Court is threefold: (1) To ascertain through the eyes of the skilled addressee what is disclosed, both explicitly and implicitly in the application. (2) To do the same in respect of the patent as granted. (3) To compare the two disclosures and decide whether any subject matter relevant to the invention has been added whether by deletion or addition. The comparison is strict in the sense that subject matter will be added unless such matter is clearly and unambiguously disclosed in the application either explicitly or implicitly.”
“To do the same in respect of the patent as proposed to be amended”
“[97] A number of points emerge from this [the Bonzel ] formulation which have a particular bearing on the present case and merit a little elaboration. First, it requires the court to construe both the original application and specification to determine what they disclose. For this purpose the claims form part of the disclosure (s.130(3) of the Act), though clearly not everything which falls within the scope of the claims is necessarily disclosed. [98] Second, it is the court which must carry out the exercise and it must do so through the eyes of the skilled addressee. Such a person will approach the documents with the benefit of the common general knowledge. [99] Third, the two disclosures must be compared to see whether any subject matter relevant to the invention has been added. This comparison is a strict one. Subject matter will be added unless it is clearly and unambiguously disclosed in the application as filed. [100] Fourth, it is appropriate to consider what has been disclosed both expressly and implicitly. Thus the addition of a reference to that which the skilled person would take for granted does not matter: DSM NV's Patent[2001] RPC 25 at [195]-[202]. On the other hand, it is to be emphasised that this is not an obviousness test. A patentee is not permitted to add matter by amendment which would have been obvious to the skilled person from the application. [101] Fifth, the issue is whether subject matter relevant to the invention has been added. In case G1/93, Advanced Semiconductor Products , the Enlarged Board of Appeal of the EPO stated (at paragraph [9] of its reasons) that the idea underlying Art. 123(2) is that that an applicant should not be allowed to improve his position by adding subject matter not disclosed in the application as filed, which would give him an unwarranted advantage and could be damaging to the legal security of third parties relying on the content of the original application. At paragraph [16] it explained that whether an added feature which limits the scope of protection is contrary to Art. 123(2) must be determined from all the circumstances. If it provides a technical contribution to the subject matter of the claimed invention then it would give an unwarranted advantage to the patentee. If, on the other hand, the feature merely excludes protection for part of the subject matter of the claimed invention as covered by the application as filed, the adding of such a feature cannot reasonably be considered to give any unwarranted advantage to the applicant. Nor does it adversely affect the interests of third parties. [102] Sixth, it is important to avoid hindsight. Care must be taken to consider the disclosure of the application through the eyes of a skilled person who has not seen the amended specification and consequently does not know what he is looking for. This is particularly important where the subject matter is said to be implicitly disclosed in the original specification.”
“[56] Turning to intermediate generalisation, this occurs when a feature is taken from a specific embodiment, stripped of its context and then introduced into the claim in circumstances where it would not be apparent to the skilled person that it has any general applicability to the invention . [57] Particular care must be taken when a claim is restricted to some but not all of the features of a preferred embodiment, as the TBA explained in decision T 0025/03 at point 3.3: “According to the established case law of the boards of appeal, if a claim is restricted to a preferred embodiment, it is normally not admissible under Art.123(2) EPC to extract isolated features from a set of features which have originally been disclosed in combination for that embodiment. Such kind of amendment would only be justified in the absence of any clearly recognisable functional or structural relationship among said features (see e.g. T 1067/97, point 2.1.3).” [58] So also, in decision T 0284/94, Neopost/Thermal Printing Mechanism [2000] E.P.O.R. 24, the TBA explained at points 2.1.3-2.1.5 that a careful examination is necessary to establish whether the incorporation into a claim of isolated technical features, having a literal basis of disclosure but in a specific technical context, results in a combination of technical features which is clearly derivable from the application as filed, and the technical function of which contributes to the solution of a recognisable problem. Moreover, it must be clear beyond doubt that the subject matter of the amended claim provides a complete solution to a technical problem unambiguously recognisable from the application. [59] It follows that it is not permissible to introduce into a claim a feature taken from a specific embodiment unless the skilled person would understand that the other features of the embodiment are not necessary to carry out the claimed invention. Put another way, it must be apparent to the skilled person that the selected feature is generally applicable to the claimed invention absent the other features of that embodiment. [60] Ultimately the key question is once again whether the amendment presents the skilled person with new information about the invention which is not directly and unambiguously apparent from the original disclosure. If it does then the amendment is not permissible.”
“Furthermore, the NCB channel may be configured to support a combination of functions. For example, a particular WTRU 120 performing a scheduling request may also be concurrently providing measurement reporting or concurrently providing a synchronization burst to perform timing advance. Accordingly, any combination of these functions may be performed in a common signalling procedure. Therefore, any number of functions may be performed concurrently on a configured NCB channel.”
“[0050] Referring back again to Figure [7], the transmitted request in step 710 of Figure 7 [the scheduling request] may be a burst transmitted by one of the WTRUs 120 on its respective NCB channel (430, 440, or 450) requesting an allocation of UL physical resources whereby the presence of the burst itself is indicative of the resource allocation request for that particular WTRU 120. Alternatively, the burst may be an indication which, for example, may only include one bit of information, such as a ‘zero (0)’ or a ‘one (1)’ that indicates whether or not a resource allocation is needed. The burst may also include information related to the resource allocation request, such as the amount of UL data the particular WTRU 120 will need to transmit, the priority of the data, the QoS, latency requirement, BLER requirement and the like.”
“The first allocation comprises a configuration for transmitting scheduling requests over the NCB uplink control channel, and the configuration indicates a periodicity allocated to the WTRU for transmitting scheduling requests on the NCB uplink control channel and indicates which sub-carrier resource of the NCB uplink control channel are to be used by the WTRU for transmitting the scheduling requests ;”