Ex Parte Bu et al

Patent Trial and Appeal Board

Feb 3, 2014

11635678 (P.T.A.B. Feb. 3, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte TIAN BU, LI LI, and RAMACHANDRAN RAMJEE
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Appeal 2011-008184
Application 11/635,678
Technology Center 2600
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Before KEN B. BARRETT, LARRY J. HUME, and
CATHERINE SHIANG, Administrative Patent Judges.

SHIANG, Administrative Patent Judge.

DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-10 and 15-24.1 We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.

1 The Examiner also objects to claims 9 and 22 based on informalities, and
Appellants request their proposed amendment to those claims be entered.
See Br. 3-4. The request is a petitionable—not appealable—matter and
therefore, not before us. See Manual of Patent Examining Procedure
(MPEP) § 1002.02(c) (8th ed., rev. 9, Aug. 2012) (Petitions and Requests
Decided by the Technology Center Directors); see also MPEP § 1201 (“The
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In reaching the decision, we have considered only the arguments that
Appellants actually raised. Arguments that Appellants did not make are
deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii) (2010).

STATEMENT OF THE CASE
The present invention relates to associating users to base stations in
third generation wireless networks using fairness considerations. See
generally Spec., 1. Claim 1 is exemplary:
1. A method for generating user-to-base station
associations in a wireless network comprising:
partitioning the network into one or more regions, each
region including one or more wireless devices and base
stations; and
associating each device with a base station within its
partitioned region,
wherein the associations are made within a polynomial
time period.

Board will not ordinarily hear a question that should be decided by the
Director on petition . . . .”).
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THE REJECTIONS
Claims 1, 5-10, 15, and 19-24 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Sharma (US 2005/0215265 A1), and Yucel (US
2006/0002417 A1).
Claims 2-4 and 16-18 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Sharma, Yucel, and Ramakrishnan (US 2006/0251011
A1). Final Rej. 6.

ISSUES
1. Under 35 U.S.C. § 103, has the Examiner erred by finding Sharma
teaches “partitioning the network into one or more regions, each region
including one or more wireless devices and base stations” as recited in
claim 1?
2. Has the Examiner erred by finding one skilled in the art would have
combined Sharma and Yucel to teach the limitation “the associations are
made within a polynomial time period” as recited in claim 1?

ANALYSIS
On this record, we find the Examiner did not err in rejecting claim 1.
Issue 1
Appellants assert Sharma does not teach “partitioning the network
into one or more regions, each region including one or more wireless devices
and base stations.” See App. Br. 4-5; Reply Br. 1. Appellants contend
Sharma does not discuss partitioning a network, and the Examiner merely
argues Sharma’s network has been partitioned. See App. Br. 4-5; Reply
Br. 1.
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We disagree with Appellants’ arguments (App. Br. 4-5; Reply Br. 1),
and agree with the Examiner’s conclusions. We adopt the Examiner’s
reasoning and findings on pages 3, 7, and 9 of the Answer as our own. We
emphasize the following: As pointed out by the Examiner, the claim does
not require a specific method of partitioning. See Ans. 9. The Examiner
correctly finds Sharma’s Figures 1 and 2 teach partitioning the network into
one or more regions, each region including one or more wireless devices and
base stations. See Ans. 3, 7, 9; Sharma, Figs. 1-2. Specifically, Sharma’s
Figures 1 and 2 teach a wireless network with multiple access points
(mapped to the recited base stations), each access point forms (mapped to
the recited partitioning) a region (mapped to the recited region), and each
such region includes one or more mobile stations and access points (mapped
to the recited one or more wireless devices and base stations, respectively).
See Ans. 3, 7, 9; Sharma, Figs. 1-2.

Issue 2
Appellants assert one skilled in the art would not have combined
Sharma and Yucel for the limitation “the associations are made within a
polynomial time period.” See App. Br. 5; Reply Br. 1-3.2 Appellants
contend Sharma teaches wireless communications, while Yucel teaches
Virtual Private Networks in wired networks, and the combination would

2 Appellants contend “‘polynomial time periods’ are not just some generic
time taken to solve a problem. . . . when such techniques are actually
implemented the computations required take days if not years to complete;
both of which are unsatisfactory in a realistic, network environment.” See
Reply Br. 2. Appellants’ argument does not persuasively rebut the
Examiner’s findings, as it is undisputed Yucel teaches “a polynomial time
period.”
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have changed the references’ principle of operation. See App. Br. 5; Reply
Br. 1-3. Appellants further argue one skilled in the art would recognize
Sharma’s load balancing techniques could not operate with Yucel’s
polynomial time frames. See App. Br. 5; Reply Br. 1-3.
We disagree with Appellants’ arguments (App. Br. 5; Reply Br. 1-3),
and agree with the Examiner’s conclusions. We adopt the Examiner’s
reasoning and findings on pages 3-4, 6, 7 (first paragraph), 8 (first three
paragraphs), and 10-11 of the Answer as our own. We emphasize the
following: First, although Appellants and the Examiner disagree on the
interpretation of the term “a polynomial time period,” it is undisputed that
Yucel teaches that term. See Ans. 4; Yucel ¶¶ 41, 65; App. Br. 5.
Second, contrary to Appellants’ argument that the combination would
have changed the references’ principle of operation, it is well settled that “a
determination of obviousness based on teachings from multiple references
does not require an actual, physical substitution of elements.” In re Mouttet,
686 F.3d 1322, 1332 (Fed. Cir. 2012) (citations omitted). Nor is the test for
obviousness whether a secondary reference’s features can be bodily
incorporated into the structure of the primary reference. See In re Keller,
642 F.2d 413, 425 (CCPA 1981).
Third, we agree with the Examiner that the concept of using a
polynomial time period is known in the art and can be applied to
communications networks, and both Sharma and Yucel relate to
communications networks. See Ans. 10-11. Combining the teachings of
Sharma and Yucel would have predictably used prior art elements according
to their established functions—an obvious improvement. See KSR Int’l Co.
v. Teleflex, Inc., 550 U.S. 398, 417 (2007). Further, under KSR, “[w]hen a
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work is available in one field of endeavor, design incentives and other
market forces can prompt variations of it, either in the same field or a
different one. If a person of ordinary skill can implement a predictable
variation, . . . § 103 likely bars its patentability.” Id. (emphasis added).
Accordingly, we sustain the Examiner’s rejection of claim 1, claim 15
for similar reasons, and corresponding dependent claims that Appellants do
not separately argue or Appellants argue should be allowed for the same or
similar reasons as claims 1 and 15 (claims 2-10 and 16-24). See In re King,
801 F.2d 1324, 1325 (Fed. Cir. 1986) (When Appellants do not separately
argue the patentability of dependent claims, such claims stand or fall with
the claims from which they depend.).

DECISION
The Examiner’s decision rejecting claims 1-10 and 15-24 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

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