Ex Parte Kruys et alDownload PDFBoard of Patent Appeals and InterferencesMay 24, 201010636429 (B.P.A.I. May. 24, 2010) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte JAN P. KRUYS and AMIRAM LEVI ____________ Appeal 2009-003824 Application 10/636,429 Technology Center 2600 ____________ Decided: May 24, 2010 ____________ Before JOHN C. MARTIN, JOSEPH F. RUGGIERO, and MAHSHID D. SAADAT, Administrative Patent Judges. RUGGIERO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection of claims 1-20, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2009-003824 Application 10/636,429 2 Rather than reiterate the arguments of Appellants and the Examiner, reference is made to the Appeal Brief (filed January 25, 2008), the Answer (mailed March 7, 2008), and the Reply Brief (filed May 7, 2008) for the respective details. Only those arguments actually made by Appellants have been considered in this decision. Arguments which Appellants could have made but chose not to make in the Briefs have not been considered and are deemed to be waived (see 37 C.F.R. § 41.37(c)(1)(vii) (2008)). Appellants’ Invention Appellants’ invention relates to the identification of radar signals in a wireless network and for providing the wireless network with a radar- avoidance capability. The radar signal identification system includes a pulse analyzer which makes a determination whether a received pulse is a radar pulse and not a wireless network pulse. Further included is a pulse reporter which, upon a positive determination of a radar pulse, generates a report for transmission over the wireless network. (See generally Spec. ¶¶ [0011]- [0013]). Claim 1 is illustrative of the invention and reads as follows: 1. For use in a wireless network, a system, comprising: a pulse analyzer, associated with a wireless device in said wireless network, configured to make a determination whether a pulse received at said wireless device is a suspected radar pulse and not a wireless network pulse; and a pulse reporter, coupled to said pulse analyzer, configured to generate a report, if said received pulse is said suspected radar pulse, for transmission Appeal 2009-003824 Application 10/636,429 3 over said wireless network to an (sic, a) device of said wireless network that employs said report to determine if said suspected radar pulse is a radar pulse. The Examiner’s Rejection The Examiner relies on the following prior art reference to show unpatentability: McFarland US 6,697,013 B2 Feb. 24, 2004 (filed Dec. 31, 2001) Claims 1-20, all of the appealed claims, stand rejected under 35 U.S.C. § 102(e) as being anticipated by McFarland. ISSUES The pivotal issues before us are whether the Examiner erred in determining that McFarland discloses a wireless network which provides radar detection and includes: a) a pulse analyzer for making an initial determination of the presence of suspect radar pulses, and b) a pulse reporter for reporting the presence of the suspected radar pulses and for sending a report to another device on the wireless network for a final determination of the existence of radar pulses. FINDINGS OF FACT The record supports the following findings of fact (FF) by a preponderance of the evidence: Appeal 2009-003824 Application 10/636,429 4 1. McFarland discloses (Fig. 1, col. 3, ll. 21-56) a wireless local area network (WLAN), including access points 102 and 104, which receives signals from multiple sources of network traffic including radar system 107. 2. McFarland further discloses (Fig. 2, col. 4, l. 18-34, and col. 5, ll. 16-33) that the access points include a WLAN receiver including a processor 206 which performs an initial screening of potential radar signals by detecting signal noise levels and reports the results to Media Access Control (MAC) circuit 208. 3. The MAC circuit 208 described by McFarland (col. 4, ll. 34-54) further analyzes the screened pulses and provides a report which is “sent from the MAC layer 208 to the radar detection process 210.” 4. McFarland further discloses (col. 13, ll. 65-66) that the WLAN access point could delegate the radar detection process to another node of the wireless network. PRINCIPLES OF LAW Anticipation “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 (Fed. Cir. 1986); Lindemann Maschinenfabrik GMBH v. Am. Hoist & Derrick Co., 730 F.2d 1452, 1458 (Fed. Cir. 1984). In rejecting claims under 35 U.S.C. § 102, “[a] single prior art reference that discloses, either expressly or inherently, each limitation of a claim invalidates that claim by anticipation.” Perricone v. Medicis Pharm. Corp., 432 F.3d 1368, 1375 (Fed. Cir. 2005) (citing Minn. Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc., 976 F.2d 1559, 1565 (Fed. Appeal 2009-003824 Application 10/636,429 5 Cir. 1992)). “Anticipation of a patent claim requires a finding that the claim at issue ‘reads on’ a prior art reference.” Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1346 (Fed. Cir. 1999) (“In other words, if granting patent protection on the disputed claim would allow the patentee to exclude the public from practicing the prior art, then that claim is anticipated, regardless of whether it also covers subject matter not in the prior art.”). ANALYSIS Independent claims 1 and 8 Appellants’ arguments initially focus on the contention that, in contrast to the claimed invention, the WLAN access point receiver in McFarland does not employ a received report to make a determination if a suspected radar pulse is in fact a radar pulse. According to Appellants (App. Br. 8), that determination has already been made in McFarland by the delegated node to which the radar detection process was delegated. According to Appellants, therefore, only a single device in McFarland, i.e., the delegated node, is used to find the presence of radar. We do not agree with Appellants. We find no error in the Examiner’s finding (Ans. 11-12) that the digital processor 206 in the WLAN receiver, which performs an initial screening of received pulses for possible presence of radar signals by detecting signal noise levels, corresponds to the claimed “pulse analyzer.” (FF 2). We further agree with the Examiner (id.) that the MAC circuit 208 in McFarland, which further analyzes the initial screened pulses and a provides a report of the existence of potential radar pulses to the radar detection process 210, corresponds to the claimed “pulse reporter.” (FF 3). Appeal 2009-003824 Application 10/636,429 6 Lastly, we agree with the Examiner (Ans. 12) that McFarland discloses that the report of the existence of potential radar pulses is sent to another device on the wireless network since McFarland discloses that the radar detection process can be delegated by the WLAN access point to another node on the network. (FF 4). While Appellants contend (Reply Br. 2-3), to the contrary, that the radar detection process in McFarland is not divided between the access point and the delegated node, i.e., McFarland’s radar detection process takes place in a single device, this contention is contradicted by the disclosure of McFarland. As previously discussed, we find ample evidence within the disclosure of McFarland to support the Examiner’s determination that the complete radar determination process is separated into an initial pulse screening, which takes place at the WLAN receiver access point, and a final radar determination process, which takes place in radar detection process 210. As disclosed by McFarland, the reported packets, after MAC circuit 208 has further process the initial screened pulses, are “sent from MAC layer 208 to the radar detection process 210.” (FF 3). It is this final radar detection process that is delegated to another network node since McFarland discloses (FF 4) that “the access point could delegate the radar detection process to one of the nodes.” (Emphasis added). In view of the above discussion, we find that the Examiner did not err in concluding that all of the limitations of independent claims 1 and 8 are present in the disclosure of McFarland. Accordingly, the Examiner’s 35 U.S.C. § 102(e) rejection of independent claims 1 and 8, is sustained. Appeal 2009-003824 Application 10/636,429 7 Independent claim 15 We also sustain the Examiner’s anticipation rejection, based on McFarland, of independent claim 15. We agree with the Examiner (Ans. 13- 14), Appellants’ arguments (App. Br. 10-11; Reply Br. 3) to the contrary notwithstanding, that McFarland discloses that the WLAN access point receiver (102, Fig. 2) provides an initial screening for potential radar pulses from multiple sources of network traffic signals. (FF 1). The results of the initial screening are reported to the report receiver (MAC circuit 208), which sends the reports to the radar detection process 210, which sorts through the reported sequence of events to make an analyzed determination to identify the existence of radar pulses. Dependent claims 2-7, 9-14, and 16-20 The Examiner’s anticipation rejection, based on McFarland, of dependent claims 2-7, 9-14, and 16-20 is sustained as well. We find no error in the Examiner’s finding of correspondence (Ans. 4-9) between the disclosed features of McFarland and the claimed limitations. Aside from merely repeating the language of the dependent claims, Appellants’ only arguments reiterate those made with respect to independent claims 1, 8, and 15, which arguments we found to be unpersuasive for all the reasons discussed supra. Simply pointing out what a claim requires with no attempt to point out how the claim patentably distinguishes over the prior art does not comply with 37 CFR § 41.37(c)(1)(vii) and does not amount to a separate argument for patentability. See In re Nielson, 816 F.2d 1567, 1572 (Fed. Cir. 1987). Appeal 2009-003824 Application 10/636,429 8 CONCLUSION Based on the findings of facts and analysis above, we conclude that the Examiner did not err in rejecting claims 1-20 for anticipation under 35 U.S.C. § 102(e). DECISION The Examiner’s decision rejecting claims 1-20 under 35 U.S.C. § 102(e) is affirmed. 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) (2007). AFFIRMED tkl HITT GAINES, PC LSI Corporation PO BOX 832570 RICHARDSON, TX 75083 Copy with citationCopy as parenthetical citation