Ex Parte Kruys et al

Board of Patent Appeals and Interferences

May 24, 2010

10636429 (B.P.A.I. May. 24, 2010)

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
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Decided: May 24, 2010
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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.
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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
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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:
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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.
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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).
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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.

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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).

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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

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