Ex Parte Chekuri et al

Board of Patent Appeals and Interferences

Jun 19, 2006

09628378 (B.P.A.I. Jun. 19, 2006)

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written for publication and is not binding precedent of the Board.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 CHANDRA S. CHEKURI
LAWRENCE M. DRABECK
and YIHAO L. ZHANG
__________

Appeal No. 2005-2704
Application No. 09/628,378
___________

ON BRIEF
___________

Before BARRY, BLANKENSHIP, and MACDONALD, Administrative Patent
Judges.
MACDONALD, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal from the final rejection of
claims 1-6, 8-9, and 23-25. Claims 7 and 10-22 have been
indicated as containing allowable subject matter.1

1 The rejection of claim 7 was withdrawn in the Examiner’s Answer at page 2,
section (6).
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Invention

Appellants’ invention relates to a method, apparatus, and
article of manufacture for designing or adjusting a wireless
network.
In accordance with one aspect of the invention, an
optimization process is applied to a set of information
characterizing a wireless network. The optimization process
includes at least a pre-frequency-assignment optimization stage,
which is applied prior to assignment of frequencies to one or
more communication channels of the wireless network. The pre-
frequency-assignment optimization stage may be configured to
utilize a derivative-based optimization of a specified objective
function, and may determine a particular network configuration
for specified values of network capacity and network coverage.
An output of the optimization process is utilized to determine
one or more operating parameters of the wireless network, such as
a base station transmit power or antenna orientation.

Claim 1 is representative of the claimed invention and is

reproduced as follows:

1. A processor-implemented method for providing a desired
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level of performance for a wireless network, the method
comprising the steps of:

applying an optimization process to a set of
information characterizing the network, the optimization process
comprising at least a pre-frequency-assignment optimization
stage, the pre-frequency-assignment optimization stage being
applied prior to assignment of frequencies to one or more
communication channels of the wireless network; and

utilizing an output of the optimization process to
determine at least one operating parameter of the wireless
network.

References

The references relied on by the Examiner are as follows:
Markus 5,561,841 Oct. 1, 1996

Faruque 6,128,497 Oct. 3, 2000
(Filed Mar. 10, 1998)

Rejections At Issue

Claims 1-4, 8, 9, and 23-25 stand rejected under 35 U.S.C.
§ 102 as being anticipated by Markus.
Claim 6 stands rejected under 35 U.S.C. § 103 as being
obvious over Markus.

Claim 5 stands rejected under 35 U.S.C. § 103 as being
obvious over the combination of Markus and Faruque.
Throughout our opinion, we make references to the
Appellants’ briefs, and to the Examiner’s Answer for the
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respective details thereof.2
OPINION

With full consideration being given to the subject matter on
appeal, the Examiner’s rejections and the arguments of the
Appellants and the Examiner, for the reasons stated infra, we
reverse the Examiner’s rejection of claims 1-4, 8, 9, and 23-25
under 35 U.S.C. § 102; and we reverse the Examiner’s rejection of
claims 5 and 6 under 35 U.S.C. § 103.
I. Whether the Rejection of Claims 1-4, 8, 9, and 23-25
Under 35 U.S.C. § 102 is proper?

It is our view, after consideration of the record before us,
that the disclosure of Markus does not fully meet the invention
as recited in claims 1-4, 8, 9, and 23-25. Accordingly, we
reverse.

It is axiomatic that anticipation of a claim under § 102 can
be found only if the prior art reference discloses every element
of the claim. See In re King, 801 F.2d 1324, 1326, 231 USPQ 136,
138 (Fed. Cir. 1986) and Lindemann Maschinenfabrik GMBH v.
American Hoist & Derrick Co., 730 F.2d 1452, 1458, 221 USPQ 481,

2Appellants filed an appeal brief on September 13, 2004. Appellants filed a
reply brief on March 14, 2005. The Examiner mailed an Examiner’s Answer on
January 11, 2005.
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485 (Fed. Cir. 1984).
With respect to independent claim 1, Appellants argue at
page 5 of the brief:
Since these post-processing programs are applied after
assignment of frequencies to communication channels of
the system, they cannot reasonably be characterized as
anticipating the claimed pre-frequency-assignment
optimization stage of claim 1.
The Examiner responds at page 8 of the answer:
Independent claims 1 and 23-25 are very broad;
therefore the Examiner interprets the assignment of
frequencies as distributing designated frequencies to
communication channels during system turn-up (sic).
Appellants then argue at page 3 of the reply brief:
There is no teaching or suggestion in Markus to the
effect that the frequency scheme of the network is
altered as a result of the particular optimization
processes described therein.

We agree with Appellants. Our review of Markus finds that
the initial optimization process includes frequency allocation
(col. 5, lines 61-64). Thus, contrary to the Examiner’s
position, there is no pre-frequency-assignment optimization stage
in Markus.
Therefore, we will not sustain the Examiner’s rejection
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under 35 U.S.C. § 102.
II. Whether the Rejection of Claim 6 Under 35 U.S.C. § 103 is
proper?

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 not have suggested to one of ordinary skill
in the art the invention as set forth in claim 6. Accordingly,
we reverse.
In rejecting claims under 35 U.S.C. § 103, the Examiner
bears the initial burden of establishing a prima facie case of
obviousness. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443,
1444 (Fed. Cir. 1992). See also In re Piasecki, 745 F.2d 1468,
1472, 223 USPQ 785, 788 (Fed. Cir. 1984). The Examiner can

satisfy this burden by showing that some objective teaching in
the prior art or knowledge generally available to one of ordinary
skill in the art suggests the claimed subject matter. In re
Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).
Only if this initial burden is met does the burden of coming
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forward with evidence or argument shift to the Appellants.
Oetiker, 977 F.2d at 1445, 24 USPQ2d at 1444. See also Piasecki,
745 F.2d at 1472, 223 USPQ at 788.
An obviousness analysis commences with a review and
consideration of all the pertinent evidence and arguments. “In
reviewing the [E]xaminer’s decision on appeal, the Board must
necessarily weigh all of the evidence and argument.” Oetiker,
977 F.2d at 1445, 24 USPQ2d at 1444. “[T]he Board 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 agency’s conclusion.” In re Lee, 277
F.3d 1338, 1344, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002).

With respect to dependent claim 6, Appellants state at page
8 of the brief, “claim 6 is believed allowable for at least the
reasons identified above with regard to independent claim 1.”
Thus, we find that claim 6 stands or falls with claim 1.
Therefore, we will not sustain the Examiner’s rejection
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under 35 U.S.C. § 103 for the reason noted above with respect to
claim 1.
III. Whether the Rejection of Claim 5 Under 35 U.S.C. § 103 is
proper?

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 not have suggested to one of ordinary skill
in the art the invention as set forth in claim 5. Accordingly,
we reverse.
With respect to dependent claim 5, we note that the Examiner
has relied on the Faruque reference solely to teach “a frequency
reuse factor greater than one” [answer, page 6]. The Faruque
reference in combination with the Markus fails to cure the
deficiencies of Markus noted above with respect to claim 1.
Therefore, we will not sustain the Examiner’s rejection under 35
U.S.C. § 103 for the same reasons as set forth above.
Conclusion
In view of the foregoing discussion, we have not sustained
the rejection under 35 U.S.C. § 102 of claims 1-4, 8, 9, and 23-
25; and we have not sustained the rejection under 35 U.S.C. § 103
of claims 5 and 6.

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REVERSED

LANCE LEONARD BARRY )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
HOWARD B. BLANKENSHIP )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
ALLEN R. MACDONALD )
Administrative Patent Judge )

ARM/ce
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