Ex Parte CainDownload PDFBoard of Patent Appeals and InterferencesAug 28, 200610400998 (B.P.A.I. Aug. 28, 2006) Copy Citation The opinion in support of the decision being entered today was not written for publication and is not binding precedent of the Board. UNITED STATES PATENT AND TRADEMARK OFFICE _______________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES _______________ Ex parte JOSEPH BIBB CAIN _______________ Appeal No. 2006-1697 Application No. 10/400,998 _______________ ON BRIEF _______________ Before KRASS, JERRY SMITH, and BARRY, Administrative Patent Judges. JERRY SMITH, Administrative Patent Judge. DECISION ON APPEAL This is a decision on the appeal under 35 U.S.C. § 134 from the examiner’s rejection of claims 1-22, which constitute all the claims pending in this application. The disclosed invention pertains to a wireless communication network with multiple mobile nodes that each comprises a wireless transceiver, directional antenna, omni-directional antenna, and a controller. The controller (1) establishes an omni-directional communication link with another mobile node, (2) determines a link quality value for the omni-directional link, and (3) establishes a directional communication link if the link quality value for the omni-directional link Appeal No. 2006-1697 Application No. 10/400,998 is greater than a quality threshold. Requiring nodes to have sufficient quality values for the omni-directional link before establishing the directional link provides a good indication that the directional link will also be of a desired quality. Representative claim 1 is reproduced as follows: 1. A wireless communication network comprising: a plurality of mobile nodes each comprising at least one wireless transceiver, a directional antenna and an omni-directional antenna connected to said at least one wireless transceiver, and a controller for controlling said at least one wireless transceiver, said controller also for establishing an omni-directional communication link with another mobile node, determining a link quality value for the omni-directional communication link, and establishing a directional communication link with said other mobile node if the link quality value for the omni-directional communication link is greater than a quality threshold. The examiner relies on the following references: Seiki 2002/0119808 Aug. 29, 2002 Mortensen (European Application) 1 067 730 Jan. 10, 2001 Pritchett 5,767,807 Jun. 16, 1998 Ko et al. (Ko), Medium Access Control Protocols Using Directional Antennas in Ad Hoc Networks, IEEE Infocom, p. 13-21, 2000. Lott et al. (Lott), Medium Access and Radio Resource Management for Ad Hoc Networks Based on UTRA TDD, ACM, Proc. of the 2d ACM Int’l Sym. on Mobile Ad Hoc Networking Computing, MobiHOC 2001, p. 76-86, 2001. The following rejections are on appeal before us: 1. Claims 1, 2, 10, 17, and 18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ko in view of Seiki. 2 Appeal No. 2006-1697 Application No. 10/400,998 2. Claims 3, 4, 11, 12, 19, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ko in view of Seiki and further in view of Mortensen. 3. Claims 5, 6, 13, 14, 21, and 22 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ko in view of Seiki and further in view of Lott. 4. Claims 7 and 15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ko in view of Seiki, Lott, and further in view of Mortensen. 5. Claims 8, 9, and 16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ko in view of Seiki and further in view of Pritchett. Rather than repeat the arguments of appellant or the examiner, we make reference to the briefs and the answer for the respective details thereof. OPINION We have carefully considered the subject matter on appeal, the rejections advanced by the examiner and the evidence of obviousness relied upon by the examiner as support for the rejections. We have, likewise, reviewed and taken into consideration, in reaching our decision, the appellant's arguments set forth in the briefs along with the examiner’s rationale in support of the rejections and arguments in rebuttal set forth in the examiner’s answer. It is our view, after consideration of the record before us, that the evidence relied upon and the level of skill in the particular art would have suggested to one 3 Appeal No. 2006-1697 Application No. 10/400,998 of ordinary skill in the art the obviousness of the invention as set forth in the claims on appeal. Accordingly, we affirm. We first consider the rejection of claims 1, 2, 10, 17, and 18 under 35 U.S.C. § 103(a) as being unpatentable over Ko in view of Seiki. 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 obviousness. See In re Fine, 837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so doing, the examiner is expected to make the factual determinations set forth in Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966). The examiner must articulate reasons for the examiner’s decision. In re Lee, 277 F.3d 1338, 1342, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002). In particular, the examiner must show that there is a teaching, motivation, or suggestion of a motivation to combine references relied on as evidence of obviousness. Id. 277 F.3d at 1343, 61 USPQ2d at 1433-34. The examiner cannot simply reach conclusions based on the examiner’s own understanding or experience - or on his or her assessment of what would be basic knowledge or common sense. Rather, the examiner must point to some concrete evidence in the record in support of these findings. In re Zurko, 258 F.3d 1379, 1386, 59 USPQ2d 1693, 1697 (Fed. Cir. 2001). Thus the examiner must not only assure that the requisite findings are made, based on evidence of record, but must also explain the reasoning by which the findings are deemed to support the examiner’s conclusion. However, a suggestion, teaching, or motivation to combine the relevant prior art teachings 4 Appeal No. 2006-1697 Application No. 10/400,998 does not have to be found explicitly in the prior art, as the teaching, motivation, or suggestion may be implicit from the prior art as a whole, rather than expressly stated in the references. The test for an implicit showing is what the combined teachings, knowledge of one of ordinary skill in the art, and the nature of the problem to be solved as a whole would have suggested to those of ordinary skill in the art. In re Kahn, 441 F.3d 977, 987-88, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006) citing In re Kotzab, 217 F.3d 1365, 1370, 55 USPQ2d 1313 (Fed. Cir. 2000). See also In re Thrift, 298 F. 3d 1357, 1363, 63 USPQ2d 2002, 2008 (Fed. Cir. 2002). These showings by the examiner are an essential part of complying with the burden of presenting a prima facie case of obviousness. Note In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). If that burden is met, the burden then shifts to the applicant 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 Id.; In re Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 686 (Fed. Cir. 1986); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984); and In re Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA 1976). Only those arguments actually made by appellant have been considered in this decision. Arguments which appellant could have made but chose not to make in the briefs have not been considered and are deemed to be waived [see 37 CFR § 41.37(c)(1)(vii)(2004)]. 5 Appeal No. 2006-1697 Application No. 10/400,998 Regarding independent claims 1 and 17, the examiner's rejection essentially finds that Ko teaches every claimed feature except for (1) determining a link quality value for the omni-directional link, and (2) establishing a directional link with the other mobile node if the link quality value is greater than a threshold [answer, page 4]. The examiner cites Seiki as teaching such features and concludes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify Ko to use link quality to determine when to use directional versus omni-directional antennas to ensure satisfactory antenna gain [answer, pages 4 and 5]. Regarding independent claim 10, the examiner finds that although Seiki teaches discontinuing the directional link if the link quality falls below a certain threshold, neither Ko nor Seiki discloses that this threshold is lower than the first threshold as claimed [answer, page 5]. The examiner, however, notes that it is well known to add hysteresis by using a second threshold lower than a first threshold to add stability and prevent thrashing about the threshold level. The examiner then concludes that it would have been obvious to the skilled artisan at the time of the invention to add hysteresis by adding a second lower threshold to Seiki to add stability by avoiding thrashing between the directional and omni- directional antennas when the link quality is near the threshold [id.]. Appellant argues that no proper motivation or suggestion exists to combine the references in the manner proposed by the examiner since this would change the principle of operation of Ko’s system and render Ko 6 Appeal No. 2006-1697 Application No. 10/400,998 unsatisfactory for its intended purpose [brief, page 9]. Appellant notes that in Ko, if node X experiences good quality of service (i.e., no blockage), then an omni- directional Request-to-Send (RTS) is used (i.e., an omni-directional antenna is preferred). But if node X experiences poor quality of service (i.e., a blockage exists), then a directional RTS is used or none at all [brief, pages 13 and 14]. According to appellant, Ko’s preference for an omni-directional antenna is directly contrary to Seiki who uses an omni-directional antenna when the quality of service is poor, and a directional antenna when quality of service is good [id.; reply brief, pages 4 and 5]. The examiner responds that Seiki uses the omni-directional antenna’s signal strength to determine which antenna to use (i.e., directional or omni- directional) [answer, page 11]. The examiner notes that applying Seiki’s teachings to Ko, the directional antenna is not even considered unless the omni- directional link quality is sufficient (i.e., signal strength is greater than a threshold) to ensure satisfactory antenna gain [answer, page 11]. According to the examiner, such a teaching is not contrary to Ko since it is reasonable to use Seiki’s teaching to determine if the omni-directional antenna’s signal strength is high enough to justify using the directional antenna [answer, page 13]. We will sustain the examiner’s obviousness rejection of independent claims 1, 10, and 17. At the outset, we note that the secondary reference, Seiki, discloses essentially all of the subject matter of claims 1 and 17 except for a plurality of mobile nodes. We further note that the broadest reasonable 7 Appeal No. 2006-1697 Application No. 10/400,998 interpretation of the term “mobile node†as claimed does not preclude mobile, user-operated, wireless communications devices such as cellular telephones. Seiki in Fig. 4 discloses (1) establishing an omni-directional link with another node (step S10); (2) determining a link quality value for the omni-directional link (step S22); and (3) establishing a directional link with the other node if the link quality value is greater than a quality threshold (step S30) [Seiki, Fig. 4, ¶ 0029- 0031]. Although Seiki does not disclose that the other node is mobile, communication between mobile nodes using directional and omni-directional antennas to establish a mobile network is amply taught by Ko. Furthermore, although Seiki’s preferred embodiment is a cellular telephone, it is not so limited. Rather, Seiki’s system is applicable to a wide variety of mobile wireless communication devices generally [Seiki, ¶ 0046]. Compare Seiki, claim 1 (broadly reciting a “mobile communications deviceâ€) with claim 5 (narrowing the “mobile communications device†to a cellular telephone device). In view of Ko, it would have been obvious in our view for the skilled artisan to provide an additional mobile node in the system of Seiki to establish a mobile network. In short, the collective teachings of Seiki and Ko amply teach or suggest all limitations claimed in independent claims 1 and 17. Even though we sustain the examiner’s rejection for different reasons than those advanced by the examiner, our position is still based upon the collective teachings of the references and does not constitute a new ground of rejection. In re Bush, 296 8 Appeal No. 2006-1697 Application No. 10/400,998 F.2d 491, 496, 131 USPQ 263, 266-67 (CCPA 1961); In re Boyer, 363 F.2d 455, 458 n.2, 150 USPQ 441, 444 n.2 (CCPA 1966). Regarding independent claim 10, we agree with the examiner that it would have been obvious to the skilled artisan at the time of the invention to add hysteresis by adding a second lower threshold to Seiki essentially for the reasons noted by the examiner. Additionally, appellant has not separately contested this position apart from the arguments noted previously pertaining to independent claims 1 and 17. Accordingly, we will sustain the examiner’s obviousness rejection of independent claim 10 along with independent claims 1 and 17. In addition, since appellant has not separately argued the patentability of dependent claims 2-9, 11-16, and 18-22, these claims fall with independent claims 1, 10, and 17. See In re Nielson, 816 F.2d 1567, 1572, 2 USPQ2d 1525, 1528 (Fed. Cir. 1987). See also 37 CFR § 41.37(c)(vii). Moreover, we find that the examiner has established at least a prima facie case of obviousness for these claims on pages 4-10 of the answer that appellant has not persuasively rebutted. The rejections of the dependent claims are therefore sustained. 9 Appeal No. 2006-1697 Application No. 10/400,998 In summary, we have sustained the examiner's rejection with respect to all claims on appeal. Therefore, the decision of the examiner rejecting claims 1-22 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 CFR § 1.136(a)(1)(iv). AFFIRMED ERROL A. KRASS ) Administrative Patent Judge ) ) ) ) ) BOARD OF PATENT JERRY SMITH ) APPEALS AND Administrative Patent Judge ) INTERFERENCES ) ) ) LANCE LEONARD BARRY ) Administrative Patent Judge ) JS/jaj/eld 10 Appeal No. 2006-1697 Application No. 10/400,998 ALLEN, DYER, DOPPELT, MILBRATH & GILCHRIST P.A. 1401 CITRUS CENTER 255 SOUTH ORANGE AVENUE P.O. BOX 3791 ORLANDO FL 32802-3791 11 Copy with citationCopy as parenthetical citation