Ex Parte Backes

Board of Patent Appeals and Interferences

Jul 8, 2011

10780840 (B.P.A.I. Jul. 8, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte FLOYD BACKES
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Appeal 2009-010548
Application 10/780,840
Technology Center 2400
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Before MARC S. HOFF, CARL W. WHITEHEAD, JR., and BRADLEY W.
BAUMEISTER, Administrative Patent Judges.

WHITEHEAD, JR., Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-010548
Application 10/780,840

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STATEMENT OF THE CASE
Introduction
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claim 1.1 Appeal Brief 2, 5. We have jurisdiction under 35 U.S.C. § 6(b)
(2002). We affirm.

Exemplary Claim
Exemplary independent claim 1 under appeal reads as follows:
1. Apparatus for use by an access point in a wireless communications
environment wherein multiple channels are available for communication,
comprising:

means for selecting a channel on which to provide service to at least
one wireless device by:

sending at least one message indicative of a claim to the selected
channel;

if no message indicative of a claim to the selected channel is received
from another device, commencing operation on the selected channel; and

if a message indicative of a claim to the selected channel is received
from another device, thereby indicating conflict, resolving the conflict by at
least one of:

selecting a different channel on which to provide service, and

reducing transmission power; and

means for determining which wireless devices become associated with
the access point by periodically:

1 There are two dependent claims, however, only the rejection of claim 1 is
being appealed. Appeal Brief 2, 5.
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sending a message to wireless devices to indicate presence and
protocol capability of the access point;

receiving, from wireless devices, messages indicative of requests to
become associated with the access point;

selecting a subset of the wireless devices from which a message was
received indicative of a request to become associated with the access point,
thereby rejecting some of the requests to become associated; and

sending a message to each selected wireless device to indicate that the
access point will allow the selected device to communicate in the wireless
communications environment via the access point.

Rejection on Appeal
Claim 1 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over U.S. Patent Publication 2003/0236064 A1 issued to
Shiohara (“Shiohara”) and U.S. Patent Publication 2003/0083095 A1 to
Liang (“Liang”). Appeal Brief 5.

Appellant’s Contention
Appellant contends that “[t]he cited references fail to describe either
initial channel selection by APs [(Access Points)] or messages indicative of
an intent to utilize a channel.” Appeal Brief 6.

Issue on Appeal
Did the Examiner err in rejecting claim 1?

PRINCIPLE OF LAW
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
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obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966). If the Examiner's burden
is met, the burden then shifts to the Appellant to overcome the prima facie
case with argument and/or evidence. Obviousness is then determined on the
basis of the evidence as a whole and the relative persuasiveness of the
arguments. See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).

ANALYSIS
We have reviewed the Examiner’s rejections in light of the
Appellant’s arguments (Appeal Brief) that the Examiner has erred.
We disagree with the Appellant’s conclusion. We concur with the
conclusion reached by the Examiner.
The point of contention, according to the Appellant, is that “[t]he cited
references fail to describe either initial channel selection by APs [(Access
Points)] or messages indicative of an intent to utilize a channel.” Appeal
Brief 6. Appellant argues that his AP solicits input from other devices with
the “Claim message” prior to beginning normal communications on a new
channel. Appeal Brief 6; claim 1. Appellant further argues that the
references cited in the obviousness rejection fail to describe either the initial
channel selection by APs or the messages indicative of an intent to utilize a
channel, but rather, both cited references describe techniques for responding
to conflict that is already occurring once the devices are actually using the
channel for active communications. Appeal Brief 6-7. Appellant then
concludes that the cited references describe conflict counter measures,
whereas the claimed invention describes conflict avoidance. Appeal Brief 7.
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However, the Examiner points out that Shiohara’s disclosure of a first
wireless communications device (access point) that uses beacon signals
correlates to the message indicative of a claim to a selected channel.
Answer 8. The Examiner further explains that Shiohara discloses that the
access point 10 first determines whether or not the wireless communication
module receives a beacon signal transmitted from another device, and if
there is no reception of a beacon signal, then the access point determines that
there is no conflict of the channel and therefore uses the channel. Answer 8;
Figures 2, 3. If there is a conflict because of the reception of a beacon
signal, then the access point resolves the conflict. The Examiner correlates
this to messages indicative of an intent to utilize a channel. Answer 8.
Because we agree with the Examiner that Shiohara teaches a message
indicative of a claim to a selected channel, we agree with the Examiner that
the combination of Shiohara and Liang discloses the claimed invention and
we will sustain the Examiner’s rejection of claim 1.

CONCLUSION
The Examiner has not erred in rejecting claim 1as being unpatentable
under 35 U.S.C. § 103(a).

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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