Ex Parte Ovard et al

Board of Patent Appeals and Interferences

Nov 16, 2006

09265073 (B.P.A.I. Nov. 16, 2006)

The opinion in support of the decision being entered today was not written for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID K. OVARD and ROY GREEFF
____________

Appeal No. 2006-2048
Application No. 09/265,073
____________

ON BRIEF
____________

Before RUGGIERO, BARRY, and MacDONALD, Administrative Patent Judges.

BARRY, Administrative Patent Judge.

A patent examiner rejected claims 1-42, 46, and 49-66. The appellants appeal
therefrom under 35 U.S.C. § 134(a). We affirm-in-part.

I. BACKGROUND
The invention at issue on appeal concerns wireless interrogation. Wireless
interrogation systems are used to monitor inventories. In such an application, a radio
frequency identification device ("RFID") is attached to an object of interest. Responsive
to receipt of a polling signal, the RFID outputs a signal that identifies the presence or
location of itself and the attached object. (Spec. at 2.)

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For their part, the appellants desire to communicate with devices located at
"greater distances in particular applications." (Id.) Accordingly, their wireless
interrogation system features an interrogator for generating a forward link signal.
Cabling carries the signal to a communication station that generates a wireless signal
corresponding to the forward link signal and transmits the wireless signal to at least one
remote identification device. (Abs.)

A further understanding of the invention can be achieved by reading the following
claims.
1. A wireless communication system comprising:

an interrogator including:

a housing including circuitry configured to generate a
forward link communication signal;

communication circuitry configured to communicate the
forward link communication signal; and

a communication station remotely located with respect to the
housing and configured to receive the forward link communication
signal from the communication circuitry and to radiate a forward link
wireless signal corresponding to the forward link communication
signal;

a remote communication device configured to receive the forward
link wireless signal; and

wherein the circuitry of the housing comprises a transmitter
configured to generate the forward link communication signal comprising a
modulated signal.
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26. An interrogator of a radio frequency identification system comprising:

a housing including:

circuitry configured to generate a forward link communication
signal; and

a driver amplifier coupled with the circuitry and configured to
increase the power of the forward Iink communication signal;

a coaxial RF cable outside of the housing and coupled with the
driver amplifier and configured to communicate the forward link
communication signal; and

a communication station remotely located with respect to the
housing and including:

automatic gain control circuitry coupled with the coaxial RF
cable and configured to monitor the power of the forward link
communication signal, compare the power with a predetermined
threshold value, and adjust the power of the forward link
communication signal responsive to the comparison;

a power amplifier coupled with the automatic gain control
circuitry and configured to increase the power of the forward link
communication signal; and

an antenna coupled with the power amplifier and configured
to radiate a forward Iink wireless signal corresponding to the
forward Iink communication signal.

49. An interrogator of a wireless communication system comprising:

a housing including circuitry configured to generate a forward Iink
communication signal;

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communication circuitry outside of the housing and coupled with the
circuitry of the housing and configured to communicate the forward Iink
communication signal;

a communication station remotely Iocated with respect to the
housing and including an antenna coupled with the communication
circuitry and configured to radiate a forward Iink wireless signal
corresponding to the forward Iink communication signal; and

wherein the communication circuitry includes a coaxial RF cable.

50. An interrogator of a wireless communication system comprising:

a housing including circuitry configured to generate a forward Iink
communication signal;

communication circuitry outside of the housing and coupled with the
circuitry of the housing and configured to communicate the forward Iink
communication signal;

a communication station remotely Iocated with respect to the
housing and including an antenna coupled with the communication
circuitry and configured to radiate a forward Iink wireless signal
corresponding to the forward Iink communication signal; and

wherein the communication circuitry includes a plurality of
transceivers individually coupled with one of the housing and the
communication station.

Claims 1-3, 6-8, 11-13, 16-22, 24, 25, 27-29, 33-37, 41, 42, 51-53, 55-57,
and 64-65 stand rejected under 35 U.S.C. § 103(a) as obvious over U.S. Patent
No. 5,842,118 ("Wood"); U.S. Patent No. 5,649,296 ("MacLellan"); and U.S. Patent
No. 3,733,602 ("Cuckler"). Claims 4, 5, 14, 15, 23, 26, 30-32, 38-40, 46, and 54 stand
rejected under § 103(a) as obvious over Wood; MacLellan; Cuckler; and U.S. Patent
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Application No. 09/265,073

No. 5,799,010 ("Lomp"). Claims 9, 10, 49, and 50 stand rejected under § 103(a) as
obvious over Wood; MacLellan; Cuckler; and U.S. Patent No. 6,353,729 ("Bassirat").
Claims 58-63 and 66 stand rejected under § 103(a) as obvious over Wood; MacLellan;
Cuckler; and U.S. Patent No. 6,084,530 ("Pidwerbetsky").

II. OPINION

Our opinion addresses the claims in the following order:

• claims 49 and 50
• claims 26 and 46
• claims 1-25, 27-42, and 51-66.

A. CLAIMS 49 AND 50
"When multiple claims subject to the same ground of rejection are argued as a
group by appellant, the Board may select a single claim from the group of claims that
are argued together to decide the appeal with respect to the group of claims as to the
ground of rejection on the basis of the selected claim alone. Notwithstanding any other
provision of this paragraph, the failure of appellant to separately argue claims which
appellant has grouped together shall constitute a waiver of any argument that the Board
must consider the patentability of any grouped claim separately." 37 C.F.R.
§ 41.37(c)(1)(vii) (Sep. 30, 2004).

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Here, the appellants argue claims 49 and 50, which are subject to the same
ground of rejection, as a group. (Appeal Br. at 6-16, 21.) Therefore, we select claim 49
as the sole claim on which to decide the appeals of the group. "With this representation
in mind, rather than reiterate the positions of the examiner or the appellants in toto, we
focus on the following three points of contention therebetween," Ex Parte Massingill,
No. 2003-0506, 2004 WL 1646421, at *2 (Bd.Pat.App & Int. 2004):
- motivation to combine Wood and MacLellan
- separation of modulation and transmission
- relevance of Cuckler.

1. Motivation to Combine Wood and MacLellan
The examiner finds, "MacLellan teaches a communication station to
communicate the remote device to extend the range of communication." (Examiner's
Answer at 4.) The appellants "have failed to uncover any teachings in the prior art to
support the bald allegation . . . that MacLellan extends the range of communication."
(Reply Br. at 3.)

"The presence or absence of a motivation to combine references in an
obviousness determination is a pure question of fact." In re Gartside, 203 F.3d 1305,
1316, 53 USPQ2d 1769, 1776 (Fed. Cir. 2000) (citing In re Dembiczak, 175 F.3d 994,
1000, 50 USPQ2d 1614, 1617 (Fed. Cir. 1999)). A suggestion to combine teachings
from the prior art "may be found in explicit or implicit teachings within the references
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themselves, from the ordinary knowledge of those skilled in the art, or from the nature of
the problem to be solved." WMS Gaming Inc. v. Int'l Game Tech., 184 F.3d 1339, 1355,
51 USPQ2d 1385, 1397 (Fed. Cir. 1999) (citing In re Rouffet, 149 F.3d 1350, 1355, 47
USPQ2d 1453, 1456 (Fed. Cir. 1998)).

Here, we find that Wood relates to "[r]adio frequency (wireless) communications
systems," (col. 1, l. 10), that employ "[r]adio frequency identification devices," (id. at
l. 62), i.e., RFIDs. We also find that MacLellan "relates to wireless communication
systems. . . ." (Col. 1, l. 13.) More specifically, the latter reference discloses "an RFID
system that achieves synchronization rapidly, even with a relatively low-speed Downlink
and having a relatively high-speed Uplink to send the necessary Tag data rapidly even
in the presence of multiple Tags in the reading field." (Col. 3, ll. 17-21.) MacLellan
adds that its wireless communication system is "able to a) have the Tag detect the
presence of the Interrogator in a very short period of time, and b) have the Tag to
Interrogator data rate be sufficiently large such that the communications can be
completed within the time period available." (Col. 2, ll. 62-66.)

Regarding the examiner's finding of motivation, MacLellan teaches that "[a]n
Application Processor 101 communicates over Local Area Network (LAN) 102 to a
plurality of Interrogators 103-104." (Col. 3, ll. 28-30.) Of course, "'[e]very patent
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application and reference relies to some extent upon knowledge of persons skilled in the
art to complement that [which is] disclosed. . . .'" In re Bode, 550 F.2d 656, 660, 193
USPQ 12, 16 (CCPA 1977) (quoting In re Wiggins, 488 F.2d 538, 543, 179 USPQ 421,
424 (CCPA 1973)). Those persons "must be presumed to know something" about the
art "apart from what the references disclose." In re Jacoby, 309 F.2d 513, 516, 135
USPQ 317, 319 (CCPA 1962). Here, we find that those skilled in the art would have
known that employing a local area network extends a range of communications to the
(local) area encompassed by the LAN.

Because MacLellan's teachings offer an extended range of communications,
rapid synchronization and detection, and a large data rate, we agree with the examiner's
finding that those skilled in the art would have been motivated to combine teachings of
Wood and MacLellan.

2. Separation of Modulation and Transmission
The examiner finds that Wood teaches the following features:
an interrogator (col. 5, Iines 25-27, the host computer acting as a master
or interrogator) including: a housing (col. 5, lines 34-38, common housing)
including circuitry configured to generate a forward link communication
signal (col. 5, Iines 30-33 and Iines 45-47, forward link command (or
function) generated at the host computer acting as master or interrogator);
communication circuitry configured to communicate the forward link
communication signal (Fig. 5, col. 12, lines 28-44, RF circuitry) and to
radiate a forward Iink wireless signal corresponding to the forward Iink
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communication signal (Fig. 5, col. 12, lines 28-44, antennas - X1 and X2);
and a remote communication device (col. 3, lines 53 to col. 4, Iine 16,
device or transponder (1 6)). . . .

(Examiner's Answer at 3-4.) He also finds that "MacLellan discloses, in the art of tag
identification system, a communication station remotely Iocated with respect to the
housing (Fig. 1, interrogator (103) remotely connected via LAN (102)) to extend the
range of communication with the tag or transponder." (Id. at 4.) The appellants argue,
"Apart from improper reliance upon Appellants' disclosure, there is no motivation to
modify either Wood nor MacLellan to separate the modulation and transmission
functions as positively recited in the claims." (App. Br. at 15.)

"In addressing the point of contention, the Board conducts a two-step analysis.
First, we construe the representative claim at issue to determine its scope. Second, we
determine whether the construed claim would have been obvious." Ex Parte Massingill,
No. 2003-0506, 2004 WL 1646421, at *2 (Bd.Pat.App & Int. 2004).

a. Claim Construction
"Analysis begins with a key legal question — what is the invention claimed?"
Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1567, 1 USPQ2d 1593, 1597 (Fed.
Cir. 1987). In answering the question, "the PTO gives claims their 'broadest reasonable
interpretation.'" In re Bigio, 381 F.3d 1320, 1324, 72 USPQ2d 1209, 1211 (Fed. Cir.
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2004) (quoting In re Hyatt, 211 F.3d 1367, 1372, 54 USPQ2d 1664, 1668 (Fed. Cir.
2000)). "Moreover, limitations are not to be read into the claims from the specification."
In re Van Geuns, 988 F.2d 1181, 1184, 26 USPQ2d 1057, 1059 (Fed. Cir. 1993) (citing
In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989)).

Here, claim 49 recites in pertinent part the following limitations:
a housing including circuitry configured to generate a forward Iink
communication signal;

communication circuitry outside of the housing and coupled with the
circuitry of the housing and configured to communicate the forward Iink
communication signal;

a communication station remotely Iocated with respect to the housing and
including an antenna coupled with the communication circuitry and
configured to radiate a forward Iink wireless signal corresponding to the
forward Iink communication signal. . . .

Contrary to the appellants' argument, the representative claim does not recite
modulation, let alone separation of modulation and transmission. Giving claim 49 its
broadest, reasonable construction, the limitations merely require circuitry for generating
a signal, a remotely located station for transmitting a wireless forward Iink signal, and
communication circuitry connecting the generating circuitry and the transmitting station.

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b. Obviousness Determination
"Having determined what subject matter is being claimed, the next inquiry is
whether the subject matter would have been obvious." Massingill, at *3. The question
of obviousness is "based on underlying factual determinations including . . . what th[e]
prior art teaches explicitly and inherently. . . ." In re Zurko, 258 F.3d 1379, 1383, 59
USPQ2d 1693, 1696 (Fed. Cir. 2001) (citing Graham v. John Deere Co., 383 U.S. 1, 17-
18, 148 USPQ 459, 467 (1966); In re Dembiczak, 175 F.3d 994, 998, 50 USPQ2d 1614,
1616 (Fed. Cir. 1999); In re Napier, 55 F.3d 610, 613, 34 USPQ2d 1782, 1784 (Fed.
Cir. 1995)). "'A prima facie case of obviousness is established when the teachings from
the prior art itself would appear to have suggested the claimed subject matter to a
person of ordinary skill in the art.'" In re Bell, 991 F.2d 781, 783, 26 USPQ2d 1529,
1531 (Fed. Cir. 1993) (quoting In re Rinehart, 531 F.2d 1048, 1051, 189 USPQ 143,
147 (CCPA 1976)).

Here, we find that Wood's "communications system 10 includes . . . an
interrogator unit (interrogator) 26 and a host computer 48 in communication with the
interrogator 26." (Col. 3, ll. 54-57.) "The host computer 48 includes an applications
program for controlling the interrogator 26 and interpreting responses, and a library of
radio frequency identification device applications or functions. Most of the functions
communicate with the interrogator 26." (Col. 5, ll. 27-31.) Because the host computer
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communicates with the interrogator to control the interrogator, we find that the reference
teaches the claim's circuitry for generating a signal.

The aforementioned communications between Wood's host computer and
interrogator "effect radio frequency communication between the interrogator 26 and the
device 12." (Col. 5, ll. 32-33.) More specifically, "the interrogator 26 transmits an
interrogation signal or command 27 ('forward link') via one of the antennas X1, X2, etc."
(Id. at ll. 45-47.) Figure 1 of the reference, moreover, shows that the interrogator 26 is
housed separately from the host computer 48. Because the interrogator is housed
separately from the host computer, and the interrogator transmits a forward link signal
via an antenna, we find that Wood teaches the claim's remotely located station for
transmitting a wireless forward Iink signal.

As aforementioned, the reference's "host computer 48 [is] in communication with
the interrogator 26." (Col. 3, ll. 56-57.) Figure 1, moreover, shows a connection
between the two elements. Because a person of ordinary skill in the art would have
understood from the reference that the communication connection is embodied by
communication circuitry, we find that Wood's teaches communication circuitry
connecting the generating circuitry and the transmitting station. Therefore, we affirm the
rejection of claim 49 and of claim 50, which falls therewith, based on Wood.
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Alternatively, as mentioned regarding the first point-of-contention, MacLellan
employs a LAN to connect its Application Processor 101 and its Interrogators 103-104.
Because employing a LAN extends a range of communications to a (local) area
encompassed by the LAN, as also mentioned regarding the first point-of-contention, we
also agree with the examiner's finding that those skilled in the art would have been
motivated to employ a LAN to connect Wood's host computer 48 and interrogator 26.
Therefore, we affirm the rejection of claim 49 and of claim 50, which falls therewith
based on Wood and MacLellan.1

3. Relevance of Cuckler
The examiner finds that the "prior arts of Wood, MacLellan and Cuckler are
common in the art of remote or wireless communication, and therefore, they are
analogous and are combinable to teach to teach extended range of data transmission."
(Examiner's Answer at 19-20.) The appellants argue, "Cuckler is directed towards
intrusion detection (not for communicating data signals as disclosed in Wood or
MacLellan) and there is no evidence of record that the disparate teachings of Cuckler

1The Board may rely on less than all of the references applied by an examiner in an
obviousness rationale without designating it as a new ground of rejection. In re Bush,
296 F.2d 491, 496, 131 USPQ 263, 266-67 (CCPA 1961); In re Boyer, 363 F.2d 455,
458, n.2, 150 USPQ 441, 444, n.2 (CCPA 1966).

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can be combined with the teachings of Wood or MacLellan or that any improvements
would result from the combination." (Reply Br. at 4.)

Having affirmed the rejection of claims 49 and 50 based on Wood or on the
combination of Wood and MacLellan, we consider Cuckler cumulative to the teachings
of the former references and decline to address the contentions about Cuckler.

B. CLAIMS 26 AND 46
When the patentability of dependent claims in particular is not argued separately,
the claims stand or fall with the claims from which they depend. In re King, 801 F.2d
1324, 1325, 231 USPQ 136, 137 (Fed. Cir. 1986); In re Sernaker, 702 F.2d 989, 991,
217 USPQ 1, 3 (Fed. Cir. 1983). Here, the appellants argue claims 26 and 46, which
are subject to the same ground of rejection, as a group. (Appeal Br. at 6-16, and 21.)
We select claim 26 as the sole claim on which to decide the appeal of the group.

The examiner finds, "Lomp teaches, in the art of communication power control
system, the adjustment circuitry comprises automatic gain control circuitry (Figs. 29-30,
col. 66, Iines 44-65, AGC is a power control associated with feedback control for
forward communication) for the purpose of power control of subscriber unit and base
stations within communication system." (Examiner's Answer at 21.) The appellants
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argue that "there is no evidence of record that the combination of Wood, MacLellan and
Cuckler are deficient with respect to power control or that the combination has concerns
or problems related to power control to motivate one of skill in the art to Iook to yet
another reference for meaningful teachings." (App. Br. at 21.)

1. Claim Construction
Claim 26 recites in pertinent part the following limitations:
automatic gain control circuitry coupled with the coaxial RF cable
and configured to monitor the power of the forward link
communication signal, compare the power with a predetermined
threshold value, and adjust the power of the forward link
communication signal responsive to the comparison. . . .

Giving the representative claim its broadest, reasonable construction, the limitations
merely require automatic gain control ("AGC") circuitry.

b. Obviousness Determination
As found by the examiner, Lomp applies "an input signal to the Automatic Gain
Control (AGC) Circuit 2911. The AGC 2911 produces a variable gain amplifier control
signal into the VGA1 2910. This signal maintains the level of the output signal of
VGA1 2910 at a near constant value." (Col. 66, ll. 53-58.) We find that the reference
also discloses that "[t]he output signal of VGA1 is detected by the Automatic Gain
Control Circuit (AGC1) 3004 which provides a variable gain amplifier control signal to
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VGA1 3003 to maintain the level of the output signal of VAG1 at a near constant value,"
(col. 68, ll. 37-41), and that "[t]he output signal of VGA3 is detected by the Automatic
Gain Control Circuit (AGC2) 3021 which produces a variable gain amplifier control
signal for the VGA3 3020. This signal maintains the output power level of the VGA3
3020 at a near constant value." (Col. 69, ll. 22-27.) In summary, Lomp teaches that
AGC circuitry offers the benefit of maintaining the level of an output signal at a near
constant value.

For our part, we find that persons skilled in the art would have know that the level
of signals output from circuits inevitably varies over time, temperature, and operating
conditions. Because AGC circuitry maintain the level of an output signal at a near
constant value, we also agree with the examiner's finding that those skilled in the art
would have been motivated to employ AGC circuitry with Wood's interrogator.
Therefore, we affirm the rejection of claim 26 and of claim 46, which falls therewith,
based on Wood, MacLellan, and Lomp (and considering Cuckler cumulative to the
teachings of the former references).

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C. CLAIMS 1-25, 27-42, AND 51-66
The examiner alleges, "One skilled in the art recognizes that data signal or
communication signal is always modulated along its path within the circuit and medium
to be transmitted to the destination. (Examiner's Answer at 19.) The "[a]ppellant[s]
have failed to uncover any teachings in MacLellan that the signals intermediate the
application processor 101 communicated using LAN 102 to processor 103 comprise
modulated signals." (Reply Br. at 8.)

"In addressing the point of contention, the Board conducts a two-step analysis.
First, we construe the independent claims at issue to determine their scope. Second,
we determine whether the construed claims would have been obvious." Ex Parte
Cuomo, No. 2003-0509, 2004 WL 4978831, at *2 (Bd.Pat.App & Int. 2004).

1. Claim Construction
"The Patent and Trademark Office (PTO) must consider all claim limitations when
determining patentability of an invention over the prior art." In re Lowry, 32 F.3d 1579,
1582, 32 USPQ2d 1031, 1034 (Fed. Cir. 1994) (citing In re Gulack, 703 F.2d 1381,
1385, 217 USPQ 401, 403-04 (Fed. Cir. 1983)). Here, claim 1 recites in pertinent part
the following limitations:
a housing including circuitry configured to generate a forward link
communication signal;
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communication circuitry configured to communicate the forward link
communication signal; and

a communication station remotely located with respect to the housing and
configured to receive the forward link communication signal from the
communication circuitry and to radiate a forward link wireless signal
corresponding to the forward link communication signal;

. . .

wherein the circuitry of the housing comprises a transmitter
configured to generate the forward link communication signal comprising a
modulated signal.

(Emphasis added.) Claims 11, 21, 27, 35, and 58 include similar limitations. Although
the wherein clause of claim 1 relates to the second element of the claim, viz., the
"housing including circuitry," placement of the clause at the end of the claim obfuscates
the relationship. 2 In contrast to claim 49, however, claim 1 does specify the separation
of modulation and transmission. Giving claims 1, 11, 21, 27, 35, and 58 their broadest,
reasonable construction, the limitations require circuitry for modulating a signal, a
remotely located station for transmitting a wireless forward Iink signal, and
communication circuitry connecting the modulating circuitry and the transmitting station.

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b. Obviousness Determination
"In rejecting claims under 35 U.S.C. Section 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness." In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993) (citing In re Oetiker, 977 F.2d 1443,
1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992)).

Here, as found regarding claim 49, supra, Wood's host computer 48 is connected
to, and transmits signals to, the reference's interrogator 26, and the interrogator is
housed remotely from the host computer. The examiner does not allege, let alone
show, however, that the host computer modulates the signals it sends to the
interrogator.

As also found regarding claim 49, supra, MacLellan's Application Processor 101
is connected to, and transmits signals to, the reference's remotely located
Interrogators 103 and 104. The examiner does not contest the appellants' failure to
uncover any teachings in MacLellan that the signals the Application Processor
communicates via LAN 102 to the Interrogators comprise modulated signals. Instead,
he alleges that the signals transmitted by the Application Processor to the Interrogators
are inherently modulated.

2 We recommend that the clause be moved adjacent to the second element to clarify the relation.
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"To establish inherency, the extrinsic evidence 'must make clear that the missing
descriptive matter is necessarily present in the thing described in the reference, and that
it would be so recognized by persons of ordinary skill.'" In re Robertson, 169 F.3d 743,
745, 49 USPQ2d 1949, 1950-51 (Fed. Cir. 1999) (quoting Continental Can Co. v.
Monsanto Co., 948 F.2d 1264, 1268, 20 USPQ2d 1746, 1749 (Fed. Cir. 1991)).
"Inherency . . . may not be established by probabilities or possibilities. The mere fact
that a certain thing may result from a given set of circumstances is not sufficient." In re
Oelrich, 666 F.2d 578, 581, 212 USPQ 323, 326 (CCPA 1981) (citing Hansgirg v.
Kemmer, 102 F.2d 212, 214, 40 USPQ 665, 667 (1939)).

Here, the examiner proffers no extrinsic evidence that the signals MacLellan's
Application Processor transmits to the associated Interrogators are modulated.
Although these signals may be modulated, we cannot find that modulation is necessarily
present. To the contrary, we agree with the appellants that the Application Processor
and the Interrogators "may communicate using baseband signals or using LAN
arrangements . . . [that] do not utilize modulation or communicate modulated signals."
(Reply Br. at 8.)

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Furthermore, the examiner does not allege, let alone show, that the addition of
Lomp, Bassirat, or Pidwerbetsky cures the aforementioned deficiency of Wood and
MacLellan. Absent a teaching or suggestion of circuitry for modulating a signal, a
remotely located station for transmitting a wireless forward Iink signal, and
communication circuitry connecting the modulating circuitry and the transmitting station,
we are unpersuaded of a prima facie case of obviousness. Therefore, we reverse the
obviousness rejection of claims 1, 11, 21, 27, 35, and 58 and of claims 2-10, 12-20, 22-
25, 28-34, 36-42, 51-57, and 59-66, which depend therefrom.

III. ADDITIONAL OBSERVATIONS
Although we could not find that MacLellan's LAN 102 necessarily employs
modulation, we observe that some LANs employed broadband transmission before the
filing date of the appellants' application for a patent. "Broadband transmission typically
employs analog transmission using a wider range of frequencies than baseband
transmission." James Martin with Kathleen Chapman, Local Area Networks:
Architectures and Implementations 20 (1989) (copy attached). "Different transmissions
can . . . take place simultaneously over the different [frequency] channels. . . ." (Id. at p.
22.) To employ broadband transmission, a computer connected to the LAN employs a
modem, i.e. a modulator- demodulator. (Id. at p. 25 (emphasis added).) Being
"basically a board of review," Ex parte Gambogi, 62 USPQ2d 1209, 1211 (Bd.Pat.App.
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& Int. 2001), however, we leave the question of whether it would have been obvious to
have used a broadband LAN, with its modems, to connect Wood's host computer 48 to
its interrogator 26.

IV. CONCLUSION
In summary, the rejections of claims 26, 46, 49, and 50 under § 103(a) are
affirmed. The rejections of claims 1-25, 27-42, and 51-66 under § 103(a), in contrast,
are reversed.

"Any arguments or authorities not included in the brief or a reply brief filed
pursuant to [37 C.F.R.] § 41.41 will be refused consideration by the Board, unless good
cause is shown." 37 C.F.R. § 41.37(c)(1)(vii). Accordingly, our affirmance is based only
on the arguments made in the briefs. Any arguments or authorities omitted therefrom
are neither before us nor at issue but are considered waived. Cf. In re Watts, 354 F.3d
1362, 1367, 69 USPQ2d 1453, 1457 (Fed. Cir. 2004) ("[I]t is important that the applicant
challenging a decision not be permitted to raise arguments on appeal that were not
presented to the Board.") No time for taking any action connected with this appeal may
be extended under 37 C.F.R. § 1.136(a)(1)(iv).
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Application No. 09/265,073

AFFIRMED-IN-PART

JOSEPH F. RUGGIERO )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LANCE LEONARD BARRY ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
ALLEN R. MacDONALD )
Administrative Patent Judge )
Appeal No. 2006-2048 Page 24
Application No. 09/265,073

WELLS ST. JOHN P.S.
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SPOKANE, WA 99201