11963658 (P.T.A.B. May. 7, 2013)

Ex Parte PARE et al

Patent Trial and Appeal BoardMay 7, 2013

11963658 (P.T.A.B. May. 7, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte THOMAS E. PARE, CHIEN-CHENG TUNG, and KIRAN ULN ____________ Appeal 2011-002153 Application 11/963,658 Technology Center 3600 ____________ Before PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and BART A. GERSTENBLITH, Administrative Patent Judges. GERSTENBLITH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-002153 Application 11/963,658 2 STATEMENT OF THE CASE Thomas E. Pare, Chien-Cheng Tung, and Kiran Uln (“Appellants”) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-3, 5-20, 22, 23, and 25. We have jurisdiction under 35 U.S.C. § 6(b). The Claimed Subject Matter Claims 1, 15, and 22 are independent. Claim 1 is illustrative of the claimed subject matter and is reproduced below. 1. A configurable radar detection system comprising: one or more radar detector modules each module capable of detecting radar signals of radar types different from one another, a detection and analysis module to determine radar presence from one or more detected radar signals of one or more radar detector modules wherein the detection and analysis module is configured to report detected radar signals via a report signal, the detection and analysis module further configured to disqualify radar detection events if energy bursts associated with data packets are detected; and an automatic gain controller for controlling one or more detection parameters of one or more radar detector modules. Claims 15 is directed to a system for detecting radar signals on an unlicensed radio band comprising, inter alia, a medium access control module configured “to disqualify radar detection events if energy bursts associated with data packets are detected.” Claim 22 is directed to a wireless access device on a communication network capable of detecting radar signals comprising, inter alia, a computer-readable program code portion that, when executed, causes the wireless access device to identify “a status of the filtered one or more radar signals as being false or true whereby Appeal 2011-002153 Application 11/963,658 3 a false status is a status whereby energy bursts associated with related data packets are determined.” References The Examiner relies upon the following prior art references: Lemberger US 2006/0209972 A1 Sept. 21, 2006 Tehrani US 7,129,884 B1 Oct. 31, 2006 Rejections The Examiner makes the following rejections: I. Claims 1-3, 5-11, 15-20, 22, 23, and 25 are rejected under 35 U.S.C. § 102(b) as anticipated by Tehrani; and II. Claims 12-14 are rejected under 35 U.S.C. § 103(a) as unpatentable over Tehrani and Lemberger. SUMMARY OF DECISION We REVERSE. OPINION Rejection I – Anticipation The Examiner found that Tehrani discloses each and every element of claims 1-3, 5-11, 15-20, 22, 23, and 25. Ans. 3-4. In addressing claim 1, the Examiner cited column 13, lines 36-46, of Tehrani as disclosing “wherein the detection and analysis module is configured to disqualify radar detection events based on a predetermined criteria.” Id. at 3. In addressing claim 15, the Examiner cited the same portion of Tehrani as disclosing “disqualifying radar detection events based on a predetermined criteria.” Id. at 4. For Appeal 2011-002153 Application 11/963,658 4 claim 22, the Examiner referred to the findings made with respect to, inter alia, claim 15. Id. A determination that a claim is anticipated under 35 U.S.C. § 102(b) involves two analytical steps. First, we interpret the claim language, where necessary, giving the claims their broadest reasonable interpretation in light of the Specification. In re Crish, 393 F.3d 1253, 1256 (Fed. Cir. 2004). Second, we compare the construed claim to a prior art reference and make factual findings to determine whether “each and every limitation is found either expressly or inherently in [that] single prior art reference.” Id. (citation omitted). An Examiner’s factual finding regarding what a reference discloses must be supported by a preponderance of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (“preponderance of the evidence is the standard that must be met by the PTO in making rejections”); see also In re Oetiker, 977 F.2d 1443, 1449 (Fed. Cir. 1992) (Plager, J., concurring) (“In rejecting an application, factual determinations by the PTO must be based on a preponderance of the evidence, and legal conclusions must be correct.”) (citation omitted). In analyzing each claim, the Examiner altered the claim language from “disqualify[ing] radar detection events if energy bursts associated with data packets are detected,”1 to disqualifying radar detection events “based on a predetermined criteria.” Compare Claims 1 and 15 with Ans. 3-4. “Based on a predetermined criteria” is not claimed and is not commensurate in 1 Claim 22 contains a similar requirement calling for a “false status,” when “energy bursts associated with related data packets are determined.” The Examiner’s analysis reveals that the language of claim 22 was similarly altered. See Ans. 4 (relying on the Examiner’s findings for claims 15-21 when addressing claim 22). Appeal 2011-002153 Application 11/963,658 5 scope with “if energy bursts associated with data packets are detected.” Thus, whether Tehrani discloses disqualifying radar detection events based on a predetermined criteria (as found by the Examiner) is inapposite to whether Tehrani discloses the limitations recited by the claims. Accordingly, because the Examiner failed to establish by a preponderance of the evidence that Tehrani discloses each and every element of the claims, we do not sustain Rejection I.2 Rejection II – Obviousness The Examiner concluded that the combination of Tehrani and Lemberger rendered obvious the subject matter of claims 12-14. Ans. 5. Claims 12-14 indirectly depend upon claim 1. The Examiner did not find that Lemberger discloses or renders obvious “disqualify[ing] radar detection events if energy bursts associated with data packets are detected.” Accordingly, because Rejection II suffers from the same deficiency as Rejection I, we do not sustain Rejection II. DECISION We reverse the Examiner’s decision rejecting claims 1-3, 5-20, 22, 23, and 25. REVERSED mls 2 Based on our independent review of Tehrani, column 13, lines 36-46, we do not find that it discloses the claim limitations noted supra.