10422286 (B.P.A.I. Jun. 20, 2011)

Ex Parte Borst et al

Board of Patent Appeals and InterferencesJun 20, 2011

10422286 (B.P.A.I. Jun. 20, 2011)

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 22313-1450 www,uspto.gov APPLICATtON NO FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO, CONFIRMATION NO 10/422,286 04/24/2003 Simon C. Borst 1002460 5863 27997 7590 06/24/2011 EXAMINER PRIEST & GOLDSTEIN PLLC 5015 SOUTHP ARK DRIVE LEE, JUSTIN YE SUITE 230 ART UNIT PAPER NUMBER DURHAM, NC 27713-7736 2617 MAIL DATE DELIVERY MODE 06/24/2011 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) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte SIMON C. BORST, KRISHNAN KUMARAN, KAVITA RAMANAN and PHILIP A. WHITING ____________ Appeal 2009-009884 Application 10/422,286 Technology Center 2600 ____________ Before MAHSHID D. SAADAT, MARC S. HOFF, and BRADLEY W. BAUMEISTER, Administrative Patent Judges. SAADAT, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the rejection of claims 1-5, 8-10, and 12-19. Claims 6, 7, and 11 have been objected to for being dependent upon a rejected claim, but otherwise allowable. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2009-009884 Application 10/422,286 2 STATEMENT OF THE CASE Appellants’ invention relates to a network planning system which computes user performance parameters for a wireless network based on traffic statistic information and an analytical model (Spec. 4:9-17). Claims 1 and 8, which are illustrative of the invention, read as follows: 1. A network planning system for determining specifications for a wireless network, comprising: an input module for receiving traffic statistics for the wireless network; a processing module for receiving the traffic statistics and generating the specifications for an intended network, the processing module being operative to construct a design for the intended network and generate the specifications for the intended network, the constructed design of the intended network comprising a layout of base stations and antennae configurations of the base stations, the processing module being operative to compute user level performance parameters for the intended network using a processor sharing queuing model, the processing module being operative to directly compute the user level performance parameters based on the traffic statistics and the generated network specifications, the processing module being further operative to compare the user level performance parameters against predetermined requirements and to repeatedly adjust the generated network specifications, compute new user level performance parameters and compare the user level performance parameters against the predetermined requirements until a set of generated network specifications produces user level performance parameters meeting the requirements; and an output module for presenting the network specifications generated by the processing module. 8. A user level performance module for determining user level performance parameters for a wireless network, comprising: Appeal 2009-009884 Application 10/422,286 3 a network specifications module for receiving and assembling network information for use in computing the user level performance parameters and in constructing a network design including a layout of a plurality of base stations and antennae configurations for the plurality of base stations; a model selection and processing module for using the network information to compute user level parameters, the model selection and processing module being operative to select and employ one or more analytical models to compute the user level parameters, the models including processor sharing queuing models; and a results output module for assembling and storing the results generated by the model selection and processing module. The Examiner’s Rejections The Examiner relies on the following prior art in rejecting the claims: Markus US 5,561,841 Oct. 1, 1996 Barberis US 2004/0014476 A1 Jan. 22, 2004 Radpour US 2004/0068556 A1 Apr. 8, 2004 Liang Qiu Liu et al. (Herein referred to as “NPL”), QoS Aware Queuing Analysis for UMTS, IEEE, 2002. Claims 1-5 and 12-19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Barberis, NPL, and Markus. Claims 8-11 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Radpour, NPL, and Markus.1 1 The Examiner inadvertently includes claim 11 in the rejection, whereas claims 6, 7, and 11 have been objected to as being dependent upon a rejected base claim, but otherwise allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims (Final Rejection, 9). Appeal 2009-009884 Application 10/422,286 4 Appellants’ Contentions With respect to the 35 U.S.C. § 103 rejection of claims 1-5, Appellants contend that Barberis does not address a processing module constructing a design for an intended network and generating specifications for the intended network, as recited in claim 1 (App. Br. 8; Reply Br. 2-3). Appellants further contend that NPL does not cure the deficiencies of Barberis because NPL does not address the disputed processing module (App. Br. 9). Regarding the Examiner’s reliance on columns 4 and 5 of Markus for teaching the constructed design comprising a layout of base stations and antennae configurations of the base stations, Appellants assert that Markus describes placement of network elements by an operator instead of using a processing module and provides no suggestion for modifying Barberis and NPL (App. Br. 9-10; Reply Br. 4). Appellants argue the patentability of claims 12-19 based on arguments similar to those presented for claims 1-5 (App. Br. 10-11) allowing these claims to fall with the representative claim 1. See 37 C.F.R. § 41.37(c)(1)(vii). With respect to the rejection of claims 8-10, Appellants argue that Radpour’s modeling for packet data communications system does not address the claimed construction of the network, as recited in claim 8 (App. Br. 12-14; Reply Br. 5-6). Appellants further present arguments similar to those provided for claim 1 to challenge the teachings of NPL and Markus (App. Br. 15). Appeal 2009-009884 Application 10/422,286 5 ISSUES 1. Did the Examiner err in rejecting claim 1 as being obvious because the combination of Barberis, NPL, and Markus fails to teach or suggest all the claim limitations? 2. Did the Examiner err in rejecting claim 8 as being obvious because the combination of Radpour, NPL, and Markus fails to teach or suggest all the claim limitations? ANALYSIS We have reviewed the Examiners’ rejections in light of Appellants’ arguments in the Appeal Briefs that the Examiner has erred. We disagree with Appellants’ conclusion. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner’s Answer (Ans. 9-14) in response to Appellants’ Appeal Brief. More specifically, with respect to claim 1, the Examiner has properly relied on paragraph 48 of Barberis for disclosing automated network design which is further described in paragraphs 13, 24, and 76 of Barberis (Ans. 9- 10). Similarly, the Examiner’s reliance on Radpour for design and implementation of broadband network which, in combination with the network design of Markus, meets the recitation of claim 8. Therefore, we concur with the conclusions reached by the Examiner. CONCLUSIONS 1. The Examiner has not erred in rejecting claim 1 under 35 U.S.C. § 103(a) as being obvious over Barberis, NPL, and Markus. Appeal 2009-009884 Application 10/422,286 6 2. The Examiner has not erred in rejecting claim 8 under 35 U.S.C. § 103(a) as being obvious over Radpour, NPL, and Markus. 3. Claims 1-5, 8-10, and 12-19 are not patentable. DECISION 2 The Examiner’s decision rejecting claims 1-5, 8-10, and 12-19 is affirmed. 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 ke 2 We have decided the appeal before us. However, should there be further prosecution of claims 1-11, the Examiner’s attention is directed to recently issued guidance from the Director to consider whether the claims comply with 35 U.S.C. § 112, first paragraph (Suppl. Examination Guidelines for Determining Compliance with 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications), Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336 (CAFC 2010)(en banc), and 76 Fed. Reg. 7162, 7170-71 (Feb. 9, 2011) at Part 2.I., and Aristocrat Techs. Australia Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328 (CAFC 2008), and 76 Fed. Reg. 7162, 7167-68 (Feb. 9, 2011) at Part 1.III. C.1-3.