Ex Parte Seligsohn et al

Patent Trial and Appeal Board

Feb 26, 2013

10307116 (P.T.A.B. Feb. 26, 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.
10/307,116 11/26/2002 Sherwin I. Seligsohn 2648/304 3142
26646 7590 02/27/2013
KENYON & KENYON LLP
ONE BROADWAY
NEW YORK, NY 10004
EXAMINER
HARPER, KEVIN C
ART UNIT PAPER NUMBER
2462
MAIL DATE DELIVERY MODE
02/27/2013 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SHERWIN I. SELIGSOHN and SCOTT SELIGSOHN
____________

Appeal 2011-001378
Application 10/307,116
Technology Center 2400
____________

Before JOSEPH F. RUGGIERO, MARC S. HOFF, and
ELENI MANTIS MERCADER, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-001378
Application 10/307,116

2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a non-final rejection
of claims 1-79, 81-121, and 123-133. We have jurisdiction under 35 U.S.C.
§ 6(b).
We reverse.

THE INVENTION
Appellants’ claimed invention is directed to a telecommunications
network having suborbital, high altitude relay stations 28 which are located
at an altitude of about 12 to 35 miles above the earth. Each of the nodes has
antennae 20, 118, and 138 which send and receive telecommunications
signals. See Spec. 5; Fig. 1.
Independent claim 1, reproduced below, is illustrative of the subject
matter on appeal.
1. A wireless, telecommunications network system comprising:
a plurality of telecommunications nodes,
said nodes being located in a sub-orbital plane at about 12 to 35 miles
above the earth,
means for maintaining said nodes in preselected geographic locations
in the sub-orbital plane,
each of said nodes comprising means for sending and receiving
broadband, digital radio telecommunications signals over a wireless
telecommunications channel between said node in the sub-orbital plane and
a mobile ground communication device, said radio telecommunications
signals being modulated by broadband code division multiple access spread
spectrum technology,
said means for sending and receiving said radio telecommunications
signals further including a plurality of antennae that are operative to receive
relatively weak telecommunications signals from said mobile ground
communication device,
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means for decoding the telecommunications signals received by each
of said antennae so that said node can identify said mobile ground
communication device and its location, and
said antennae and said decoding means being operative to increase the
sensitivity of said node to signals identifying said mobile ground
communication device and its location so that it can detect and receive
relatively weak telecommunications signals, so that maximum utilization of
a spectrum is made available for use by said telecommunications signals
without interference.

REFERENCES and REJECTIONS
The Examiner rejected claims 1, 2, 4 to 22, 24 to 41, 45 to 60, 64 to
79, 81 to 83, 87 to 102, 106 to 121, and 123 to 133 under 35 U.S.C. § 103(a)
as unpatentable over Freeburg (US 5,327,572; July 5, 1994) in view of
McNulty (GB 2 082 995 A; Mar. 17, 1982), Piasecki (US 4,995,572; Feb.
26, 1991), Laurance (US 4,860,352; Aug. 22, 1989), and Wang (US
5,343,512; Aug. 30, 1994).
The Examiner rejected claims 3 and 23 under 35 U.S.C. § 103(a) as
unpatentable over Freeburg in view of McNulty, Piasecki, Laurance, Wang,
and Gilhousen (US 4,901,307; Feb. 13, 1990).
The Examiner rejected claims 42 to 44, 61 to 63, 84 to 86, and 103 to
105 under 35 U.S.C. § 103(a) as unpatentable over Freeburg in view of
McNulty, Piasecki, Laurance, Wang, and Waterbury (US 3,971,454; July 27,
1976).

ISSUE
The issue is whether the Examiner erred in finding that the
combination of Freeburg, McNulty, Piasecki, Laurance, and Wang teaches
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Application 10/307,116

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the limitation of “nodes being located in a sub-orbital plane at about 12 to 35
miles above the earth” as recited in claim 1.

PRINCIPLE OF LAW
The Supreme Court stated that “‘[r]ejections on obviousness grounds
cannot be sustained by mere conclusory statements; instead, there must be
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.’” KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).

ANALYSIS
Appellants argue that Freeburg discloses a system to increase spectral
efficiency by limiting interference between satellite and terrestrial uses of
the same frequency (App. Br. 15; col. 2, ll. 46-62). Appellants explain that
the system of Freeburg limits the power of subscriber transmissions intended
for terrestrial networks sufficiently below the power of signals intended for
satellite reception, thereby reducing interference at the satellite due to
differential path loss of the lower power signal, while still allowing effective
transmission on the terrestrial level (App. Br. 15; col. 2, l. 63–col. 3, l. 10).
Appellants argue that it is the relatively large distance between the satellites
and the terrestrial users that allows the system of Freeburg to operate in the
efficiency-increasing manner (App. Br. 15).
We agree with Appellants that there does not appear to be any reason
or rationale for one of ordinary skill in the art at the time of the invention to
substantially reduce the communication distance between the terrestrial
system and the satellites by replacing the orbiting satellites that operate at an
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altitude above about 60 miles, with atmospheric nodes at a distance of about
12 to 35 miles above the earth. As argued by Appellants, this would plainly
lead to substantially increased interference to the satellites due to reduced
differential path loss of the lower power terrestrial transmissions intended
for terrestrial networks (App. Br. 15). The Examiner did not articulate
reasoning with some rational underpinning to support the legal conclusion of
obviousness. See KSR, 550 U.S. at 418.
The additional references of McNulty, Piasecki, Laurance, and Wang,
alone or in combination, do not cure the above cited deficiency.
Accordingly, we reverse the Examiner’s rejection of claim 1 and for the
same reasons the rejections of claims 2-38, 123-126, and 128-133. We also
reverse the Examiner’s rejections of claims 39-79, 81-121, and 127 because
while these claims do not recite nodes being located in a sub-orbital plane at
about 12 to 35 miles above the earth, they nonetheless recite airborne
platforms or base stations which are maintained stationary or supported by
aircrafts thereby excluding orbiting satellites.

CONCLUSION
The Examiner erred in finding that in finding that the combination of
Freeburg, McNulty, Piasecki, Laurance, and Wang teaches the limitation of
“nodes being located in a sub-orbital plane at about 12 to 35 miles above the
earth” as recited in claim 1.

DECISION
The Examiner’s decision rejecting claims 1-79, 81-121, and 123-133
is reversed.
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REVERSED

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