11829036 (P.T.A.B. Sep. 25, 2012)

Ex Parte Husted et al

Patent Trial and Appeal BoardSep 25, 2012

11829036 (P.T.A.B. Sep. 25, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte PAUL J. HUSTED and WILLIAM J. McFARLAND ____________________ Appeal 2010-003248 Application 11/829,036 Technology Center 2600 ____________________ Before ERIC S. FRAHM, KALYAN K. DESHPANDE, and JASON V. MORGAN, Administrative Patent Judges. FRAHM, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-003248 Application 11/829,036 2 STATEMENT OF CASE Introduction Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-19, 21-28, and 30-35. Claims 20 and 29 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Exemplary Claims Exemplary claims 1 and 18 under appeal read as follows, with emphases and bracketed numbering added: 1. A method of mitigating interference between desired signals and undesirable signals operating on the same channel, comprising: [1] determining one or more power profiles from the desired signals and the undesirable signals, each power profile including a plurality of received signal strengths whose signals identify a basic service set (BSS); [2] establishing a receiver signal reception threshold based on the one or more power profiles; and filtering signals on the channel using the receiver signal reception threshold. 18. A method of selectively disregarding co-channel signals in a communications network, the method comprising the steps of: initiating a search sequence for a signal with a packet thereon; receiving the signal; processing the received signal, including determining a power level of the received signal; Appeal 2010-003248 Application 11/829,036 3 detecting an in-band signal from the processed signal; and activating a signal reception sequence for the detected in- band signal, the signal reception sequence including [3] a stomping sequence that allows reception of a second in-band signal on top of the in-band signal, the in-band signal and the second in-band signal being transmitted from different basic service sets (BSSs) . Rejections on Appeal (1) The Examiner rejected claims 18, 19, 21, 22, 24-28, 30, 31, and 33-35 under 35 U.S.C. § 102(b) as being anticipated by Jaszewski (US 5,933,420). Ans. 3-5. (2) The Examiner rejected claims 1, 6-8, and 10 as being unpatentable under 35 U.S.C. § 103(a) over the combination of Karlsson (US 5,640,677) and Khayrallah (US 6,047,171). Ans. 5-6. (3) The Examiner rejected claims 2-5, 9, 11-17, 23, and 32 as being unpatentable under 35 U.S.C. § 103(a) over the combination of Karlsson, Khayrallah, and Kil (US 2001/0046855 A1).1 Ans. 6-7. 1 The Examiner improperly included claims 23 and 32 in the rejection based on the combination of Karlsson and Khayrallah, further in view of Kil. Claim 23 ultimately depends from claim 18, and claim 32 ultimately depends from claim 27. Both claims 18 and 27 are only rejected under § 102(b) as being anticipated by Jaszewski, and were not rejected over the base combination of Karlsson and Khayrallah (as claims 1, 6-8, and 10 were). We consider the inadvertent inclusion of claims 23 and 32 in the rejection over Karlsson, Khayrallah, and Kil to be harmless error in view of our reversal of all of the Examiner’s rejections. However, we request that this error be addressed in the event of further prosecution. Appeal 2010-003248 Application 11/829,036 4 Appellants’ Contentions (1) Appellants contend that the Examiner erred in rejecting claims 18, 19, 21, 22, 24-28, 30, 31, and 33-35 because Jaszewski fails to disclose the “stomping sequence” limitation, element [3], as recited in claim 18 (App. Br. 8-12; Reply Br. 2 and 4-6). Appellants also contend that Jaszewski’s conflict tables server to prevent reception of signals on the same channel, as opposed to allowing reception of in-band signals on the same channel as required by claim 1 (Reply Br. 2 and 4-6). (2) Appellants contend that the Examiner erred in rejecting claims 1, 6-8, and 10 because the combination of Karlsson and Khayrallah fails to teach or suggest limitations [1] and [2] as recited in claim 1 (App. Br. 12-17; Reply Br. 6-9). Specifically, Appellants contend that Karlsson fails to disclose or suggest limitations [1] and [2] because Karlsson teaches assigning channels based on three categories of neighboring cells, and using a list of neighboring cells (i.e., neighboring classification) to assign preference values and determine signal strength is not the same as determining a power profile to establish a reception threshold (App. Br. 12- 16). (3) Appellants contend that the Examiner erred in rejecting claims 1- 17, 23, and 32 because Kil fails to cure the deficiencies of Karlsson and Khayrallah (App. Br. 17-18; Reply Br. 9). Appeal 2010-003248 Application 11/829,036 5 Issues on Appeal Appellants’ arguments present the following two issues for appeal: (1) Did the Examiner err in rejecting claims 18, 19, 21, 22, 24-28, 30, 31, and 33-35 because Jaszewski fails to disclose the “stomping sequence” limitation, element [3], as recited in representative claim 18 and similarly recited in claim 27? (2) Did the Examiner in rejecting claims 1-17, 23, and 32 because the base combination of Karlsson and Khayrallah fails to teach or suggest limitations [1] and [2] as recited in representative claim 1? ANALYSIS We agree with the Appellants’ above contentions. Jaszewski does not disclose a stomping sequence as recited in claim 18 and similarly recited in claim 27. Figures 1 and 3 and column 7, lines 15- 35 of Jaszewski discloses that network manager 110 operates to change the channel of Access Point (AP) number two from channel “3” (see present channel column for AP2 in conflict level table 370) to channel “1” (see present channel column for AP2 in reduced conflict level table 372) for Access Point (AP) number two (see Fig. 3). In other words, Jaszewski discloses reducing communication conflict by changing channels to reduce interference (see col. 3, ll. 59-63; col. 4, ll. 1-7; col. 7, ll. 16-35; and col. 9, ll. 15-17), not by stomping (i.e., allowing reception of plural in-band signals on the same channel). Therefore, Jaszewski fails to disclose the “stomping sequence” limitation, element [3], as recited in representative claim 18 and similarly recited in claim 27. Karlsson is silent as to calculating any received signal strength indicators (RSSI) or power profile, and/or identifying a basic service set Appeal 2010-003248 Application 11/829,036 6 (BSS), as recited in claim 1. We agree with Appellants that Karlsson teaches assigning channels based on three categories of neighboring cells, and that using a list of neighboring cells (i.e., neighboring classification) to assign preference values and determine signal strength is not the same as determining a power profile to establish a reception threshold . We also agree with Appellants that Khayrallah does not cure the deficiencies of Karlsson. CONCLUSIONS (1) Appellants have established that the Examiner erred in rejecting claims 18, 19, 21, 22, 24-28, 30, 31, and 33-35 as being anticipated under 35 U.S.C. § 102(b). (2) Appellants have established that the Examiner erred in rejecting claims 1-17, 23, and 32 as being obvious under 35 U.S.C. § 103(a). Appeal 2010-003248 Application 11/829,036 7 DECISION2 The Examiner’s § 102 and § 103 rejections of claims 1-19, 21-28, and 30-35 are reversed. REVERSED msc 2 We have decided the appeal before us. However, should there be further prosecution of claim 27, which recites “[a] system of selectively disregarding co-channel signals in a communications network, the method comprising the steps of,” the Examiner’s attention is directed to 35 U.S.C. § 112(b). Claim 27 is a means-plus-function version of the method of claim 18, but may contain cut-and-paste type errors causing it to be indefinite as to whether the claim is a method claim containing step-plus-function elements, a system claim containing means-plus-function elements, or some variation/combination of the former two types of claims, resulting in a hybrid claim. See IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377, 1384 (Fed. Cir. 2005) (holding that “reciting both an apparatus and a method of using that apparatus renders a claim indefinite under section 112, paragraph 2.” (citing Ex parte Lyell, 17 USPQ2d 1548 (BPAI 1990))).