Ex Parte Khan

Board of Patent Appeals and Interferences

Aug 26, 2010

10310769 (B.P.A.I. Aug. 26, 2010)

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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/310,769 12/06/2002 Farooq Ullah Khan 29250-000819/US 6554
7590 08/27/2010
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. Box 8910
Reston, VA 20195
EXAMINER
HANNON, CHRISTIAN A
ART UNIT PAPER NUMBER
2618
MAIL DATE DELIVERY MODE
08/27/2010 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 FAROOQ ULLAH KHAN
____________

Appeal 2009-007125
Application 10/310,769
Technology Center 2600
____________

Before MAHSHID D. SAADAT, CARLA M. KRIVAK, and KARL D.
EASTHOM, Administrative Patent Judges.

EASTHOM, Administrative Patent Judge.

DECISION ON APPEAL1

STATEMENT OF THE CASE

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-007125
Application 10/310,769

2
Appellant appeals2 under 35 U.S.C. § 134 from the rejection of claims
1, 3-19 and 36. Claims 2, 20-35, and 37 have been cancelled. No other
claims are pending. (App. Br. 2.) We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
The Disclosed Invention3
The disclosed invention transmits, on a single control channel,
information for scheduling transmission by wireless mobile units and
information indicating whether data packets sent by the mobile units were
properly received. (Spec. ¶ [0003].) In other words, “[i]n the method
according to the present invention, the forward control channel for
scheduling transmission by mobiles over the reverse link is also used to
supply acknowledgement information regarding packets sent by those
mobiles on the reverse link.” (Id.)

Exemplary claim 1 follows:
1. A method of managing packet transmission by a mobile,
comprising:
transmitting a forward control channel that includes scheduling
information and acknowledgement information, the scheduling information
scheduling transmission by a mobile and the acknowledgement information
indicating successful or unsuccessful receipt of at least one packet sent by

2 Appellant’s Appeal Brief (filed July 7, 2008) (“App. Br.”) and Reply Brief
(filed October 31, 2008) (“Reply Br.”), and the Examiner’s Answer (mailed
October 1, 2008) (“Ans.”) are referenced herein.
3 The ensuing description constitutes findings of fact.
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the mobile, wherein the forward control channel includes scheduling and
acknowledgement information for more than one mobile.
The Examiner relies on the following prior art references:

Childress US 4,905,234 February 27, 1990
Bims US 6,557,134 B2 April 29, 2003
Vollmer US 6,983,409 B1 January 3, 2006
Pitcher US 2002/0131387 A1 September 19, 2002
Love US 2004/0116143 A1 June 17, 2004
Nakahira JP 2000-236337 August 29, 2000
Claims 1, 19, and 36 stand rejected as obvious based on Bims and
Pitcher.
Claim 3 stands rejected as obvious based on Bims, Pitcher, and Love.
Claims 4-9 and 18 stand rejected as obvious based on Bims, Pitcher,
Love, and Nakahira.
Claims 11 and 17 stand rejected as obvious based on Bims, Pitcher,
Love, Nakahira, and Vollmer.
Claims 10 and 12-13 stand rejected as obvious based on Bims,
Pitcher, Love, Nakahira, and Childress.
Claim 14 stands rejected as obvious based on Bims, Pitcher, and
Nakahira.
Claim 15 stands rejected as obvious based on Bims, Pitcher, and
Love.
ISSUE
Appellant’s responses to the Examiner’s positions present the
following issue: Did the Examiner err in finding that the combination of
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Application 10/310,769

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Bims and Pitcher renders obvious a “forward control channel [that] includes
scheduling and acknowledgement information for more than one mobile” as
recited in claim 1?

FINDINGS OF FACT (FF)
Bims
1. Bims discloses a “system having a mobile unit and a network
terminal for two way communication with the mobile unit using forward and
reverse channels with the network terminal controlling the timing and
bandwidth allocation for the reverse channel.” (Col. 2, ll. 36-40.)
2. Bims performs “automatic repeat request (ARQ) sessions in a
communication system.” (Col. 1, ll. 6-8.) Communications systems like the
one disclosed in Bims perform ARQ “as a way of providing reliable
transmission of information over a lossy channel.” (Col. 1, ll. 28-33; col. 2,
ll. 28-31.)
3. Bims discloses transmitting scheduling information for a wireless
mobile unit and information indicating whether transmissions from the
mobile unit were properly received on the same control channel: “In one
embodiment, the ‘Start of Forward Channel ARQ’ command is defined in a
vector with a message type allowing the system to specify response
scheduling information while providing command or acknowledgment
information to the mobile unit. This command may be used for ARQ
acknowledgments with mobile unit transmissions required for requesting
status information from the mobile unit while providing scheduling
information for the response.” (Col. 5, ll. 30-37.)

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Pitcher
5. Pitcher discloses a communication system including a wireless
home network, a broadband modem, and a cyber base station for servicing
calls from a mobile terminal when the mobile terminal is in the vicinity of
the home network, and a radio base station for servicing calls from a mobile
terminal when the mobile terminal is not in the vicinity of the home
network. (¶ [0005]; Fig. 3).
6. “[W]hile a radio base station 28 transmits the forward control
channel so that all mobile terminals in that cell 26 can listen for broadcast
system information and individual commands, the cyber base station 128
may mimic the radio base station . . . .” (¶ [0039].)

PRINCIPLES OF LAW
The Examiner bears an initial burden of factually supporting an
articulated rejection. In re Oetiker, 977 F.2d 1443 (Fed. Cir. 1992).
“‘[T]here must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.’” KSR Int’l
Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (citation omitted). On appeal,
Appellant may rebut the Examiner’s findings and reasoning with opposing
evidence or argument. Failure to do so may constitute a waiver of potential
arguments. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010),
(precedential) (“If an appellant fails to present arguments on a particular
issue — or, more broadly, on a particular rejection — the Board will not, as
a general matter, unilaterally review those uncontested aspects of the
rejection.”); Hyatt v. Dudas, 551 F.3d 1307, 1313-14 (Fed. Cir. 2008) (the
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Board may treat arguments appellant failed to make for a given ground of
rejection as waived); 37 C.F.R. § 41.37(c)(1)(vii).

ANALYSIS
Claims 1, 3-19, and 36
Appellant states that claims 1, 3-19, and 36 “rise and fall together,”
(App. Br. 8) and relies on arguments presented for patentability of claim 1
(Id. at 9-16). Accordingly, claim 1 is selected to represent claims 1, 3-19,
and 36. See 37 C.F.R. § 41.37(c)(1)(vii).
With respect to claim 1, the Examiner found that Bims discloses
transmitting a forward control channel that includes scheduling information
and acknowledgement information. (Ans. 6.) The Examiner also found that
Pitcher discloses “a forward control channel having control information
multicast to a plurality of mobile stations (paras. 3, 21, 39).” (Ans. 4.)
Appellant does not contest the Examiner’s finding that Bims discloses
a forward channel having scheduling and acknowledgement information but
does contest the Examiner’s finding with respect to Pitcher. (See App. Br.
9-13.) In particular, Appellant asserts that “Pitcher does not teach one
control channel being transmitted to ‘more than one mobile,’ as recited in
claim 1.” (Id. at 10 (emphasis omitted).) But contrary to Appellant’s
description of Pitcher and as found by the Examiner, “Pitcher states that a
‘radio base station 28 transmits the forward control channel so that all
mobile terminals in … cell [26] can listen for broadcast system information
and individual commands’ (Paragraph 39).” (Ans. 12 (quoting Pitcher,
emphasis by the Examiner, bracketed information added by the Board
according to Pitcher); accord FF 6.)
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Appellant also asserts that “a skilled artisan would not be motivated to
combine Pitcher with Bims.” (App. Br. 10.). Appellant argues that Pitcher
teaches away from Bims because Pitcher teaches cybercells using internet
protocol while Bims teaches ARQ (Automatic Repeat reQuest)
communications. (App. Br. 11; Reply Br. 2.) Appellant also argues that
“Pitcher’s internet protocol, by definition, uses a best-efforts delivery system
which makes no guarantees that a packet is transmitted, from base to
mobile.” (App. Br. 11.) Appellant further argues that “[i]nternet protocol
does not deal with data corruption, out of order packets, duplicate
transmittals, or lost/dropped packets in the same way as Bim’s ARQ
communication.” (Id.)
But the communication system in Pitcher is not limited to those
portions referenced by the Appellant (e.g., the cyber base station, the
Internet Protocol). Rather, as found by the Examiner, Pitcher also discloses
a radio station (identified as item 28 in Fig. 3) and a mobile station
(identified as item 22 in Fig. 3) “wherein handoff is activated when the
mobile stations roam and each of the mobile stations switches to the control
channel of the radio base station based on its current locations [sic] (paras. 3,
21).” (Ans. 12-13; see FF 5-6.)
Appellant dismisses this finding with respect to Pitcher’s radio base
station 28 because, according to Appellant, it is incidental to Pitcher’s
system. (See Reply Br. 2 (“the entire focus of Pitcher is directed toward a
cellular system of cybercells”).) However, radio base station 28 is an
integral component of Pitcher’s system, with the cyber station mimicking the
base station. (See FF 6.) Further, it is discussed more than incidentally in
Pitcher at paragraphs 19, 20, 22-24, 33, 35, 37, 39, 40, 41, 56, 59, 64-68, 71,
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73, 76, and 78-80. Appellant’s failure to address the Examiner’s findings
with respect to item 28 because item 28 is allegedly incidental is not
supported factually and also is not supported by a legal foundation provided
by Appellant for the premise that an incidental teaching does not support
obviousness. See 37 C.F.R. § 41.37(c)(1)(vii) (requiring a citation by
appellants to authorities relied upon to support arguments).
Appellant’s arguments of record, including those alleging “teaching
away” and a lack of motivation noted supra, focus on Pitcher’s cyber base
station as opposed to Pitcher’s radio station 28 upon which the Examiner
relies. Based on the foregoing discussion, the arguments are not persuasive.
Therefore, we will sustain the Examiner’s rejection of claim 1 and
claims 19, and 36, based on the combination of Bims and Pitcher, and also,
the separate rejections of claims 3-18 based on the prior art combinations as
listed supra, because Appellant did not present separate patentability
arguments for claims 3-19 and 36. In re Nielson, 816 F.2d 1567, 1572 (Fed.
Cir. 1987).

CONCLUSION
The Examiner did not err in finding that the combination of Bims and
Pitcher renders obvious a “forward control channel [that] includes
scheduling and acknowledgement information for more than one mobile” as
recited in claim 1.
DECISION
We affirm the Examiner's decision rejecting claims 1, 3-19, and 36.
Appeal 2009-007125
Application 10/310,769

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136. See 37 C.F.R.
§ 1.136(a)(1)(v).

AFFIRMED

ack

HARNESS, DICKEY & PIERCE, P.L.C.
P.O. Box 8910
Reston, VA 20195