Ex Parte Kitchin

Patent Trial and Appeal Board

Dec 6, 2013

10208995 (P.T.A.B. Dec. 6, 2013)

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.
10/208,995 07/30/2002 Duncan M. Kitchin ITL.2465US (P13598) 4102
47795 7590 12/06/2013
TROP, PRUNER & HU, P.C.
1616 S. VOSS RD., SUITE 750
HOUSTON, TX 77057-2631
EXAMINER
SALAD, ABDULLAHI ELMI
ART UNIT PAPER NUMBER
2456
MAIL DATE DELIVERY MODE
12/06/2013 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 DUNCAN M. KITCHIN
____________

Appeal 2013-009292
Application 10/208,995
Technology Center 2400
___________

Before ROBERT E. NAPPI, CARL W. WHITEHEAD, JR., and
BRADLEY W. BAUMEISTER, Administrative Patent Judges.

WHITEHEAD, JR., Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2013-009292
Application 10/208,995
2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 1, 5, 7, 11, 13-19, and 21. Appeal Brief 8. We have jurisdiction
under 35 U.S.C. § 6(b) (2002). We affirm-in-part.

Introduction
The invention relates to a wireless communications network where
access to a channel is controlled by nodes in the network wherein control
may be limited based upon time. Abstract.

Illustrative Claims
1. A method comprising:
assigning a node one of at least two channels;
controlling, from a particular node in a plurality of nodes, access to at
least two channels by each node in the plurality of nodes in a wireless
network; and
temporarily delegating said controlling, from the particular node to a
first node in said plurality of nodes and assigning one of said two channels
to the first node.

5. The method of claim 1, wherein said delegating comprises:
delegating control of access to the channel to the first node in a first
plurality of time intervals; and
delegating control of access to the channel to a second node in said
plurality of nodes in a second plurality of time intervals,
wherein the first plurality of time intervals and the second plurality of
time intervals are non-overlapping.

Appeal 2013-009292
Application 10/208,995
3
Rejection on Appeal
1

Claims 1, 5, 7, 11, 13-19, and 21 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Beals (U.S. Patent Number 7,190,686
B1; issued March 13, 2007) and Sakakura (U.S. Patent Application
Publication Number 2002/0019880 A1; published February 14, 2002).

Issue on Appeal
Do Beals and Sakakura, either together or alone, teach delegating
control of access to a channel to a plurality of nodes in a plurality of time
intervals wherein the time intervals are non-overlapping as recited in claims
5, 11, and 21?

ANALYSIS
Appellant argues that Beals fails to disclose “the concept of assigning
a series of intervals that do not overlap to each of [the] two nodes.” Appeal
Brief 8. Appellant further argues, “While there is some time interval
discussed in column 5, lines 36-53 [Beals], this relates to transmission, not
to assigning the right to control access to a channel.” Appeal Brief 8. The
Examiner finds that Beals discloses a master node that divides time for
transmission among the various nodes. Answer 13-14.

1
Appellant appeals claims 1, 5, 7, 11, 13-19, and 21. Appeal Brief 8.
Appellant does not appeal claims 2-4, 6, 8-10, 12, and 20. Appeal Brief 8-9.
“If upon filing an appeal brief, the applicants limits the claims to be
considered on appeal, then it is the practice of the Patent and Trademark
Office to treat the claims not pursued in the appeal brief as having been
withdrawn from appeal.” See Ex parte Ghuman, 88 USPQ2d 1478, 1480
(BPAI 2008). Therefore we sustain the Examiner’s obviousness rejections
of claims 2-4, 6, 8-10, 12, and 20.
Appeal 2013-009292
Application 10/208,995
4
Appellant contends:
[T]he claim [5] addresses delegating control of access
in non-overlapping intervals, while the Examiner’s
Answer and the prior art addresses allowing transmission
in different intervals.
The ability to control access is totally different than
the ability to transmit or not transmit. The ability to
transmit does not correspond to the ability to control
access because some other node could still be controlling
access, whether or not it is doing the transmission itself or
not. Thus, allowing transmission in different intervals does
not have anything to do whatsoever with controlling
access to channels during non-overlapping intervals.

Reply Brief 1.
We find Appellant’s arguments to be persuasive. The Examiner has
not established a correlation between allowing transmissions during
schedule intervals (Beals, column 5, lines 35-45) and delegating control of
access to a channel within non-overlapping time intervals as recited in
claims 5, 11, and 21. Once the Examiner has satisfied the burden of
presenting a prima facie case of obviousness, the burden then shifts to
Appellant to present evidence and/or arguments that persuasively rebut the
Examiner's prima facie case. See In re Oetiker, 977 F.2d 1443, 1445 (Fed.
Cir. 1992). However, the Examiner has not presented a prima facie case of
obviousness because Beals, as discussed above, does not disclose the
invention as recited in claims 5, 11, and 21. Further, Sakakura does not
address the deficiency of Beals. See Answer 6. Therefore, we do not sustain
the Examiner’s obviousness rejection of claims 15, 11, and 21.
We sustain the Examiner’s obviousness rejection of claims 1, 7, and
13-19 pro forma because Appellant does not present any arguments to rebut
the noted Examiner’s obviousness rejection. See Answer 3.
Appeal 2013-009292
Application 10/208,995
5
DECISION
The Examiner’s obviousness rejection of claims 5, 11, and 21 are
REVERSED.
The Examiner’s obviousness rejections of claims 1-4, 6-10, and 12-20
are AFFRIRMED.
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). See 37
C.F.R. § 41.50(f).

AFFIRMED-IN-PART

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