Ex Parte Tenny et al

Board of Patent Appeals and Interferences

Mar 14, 2012

11293526 (B.P.A.I. Mar. 14, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte NATHAN EDWARD TENNY, MASATO KITAZOE, and
FRANCESCO GRILLI
____________________

Appeal 2010-001881
Application 11/293,526
Technology Center 2600
____________________

Before HOWARD B. BLANKENSHIP, ST. JOHN COURTENAY, III,
and THU A. DANG, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-001881
Application 11/293,526

2
I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-31. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

A. INVENTION
Appellants’ invention is directed to a system and method of
broadcasting a disperse command from a base station to a plurality of mobile
User Equipment (UEs) that prompts the UEs to select a channel and cell for
service using a pseudorandom hash function to result in a uniform
distribution, whereby the load is balanced across the channels and cells
(Abstract; Spec. ¶¶ [0009], [0010], and [0031]-[0035]).

B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary:
1. A remote station apparatus comprising:

a communication circuit configured to receive a disperse
command directing the remote station apparatus to select a
channel from a plurality of channels including a current
channel; and

a channel selector configured to randomly or
pseudorandomly select the channel in response to the disperse
command.

C. REJECTION
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Su US 5.398,258 Mar. 14, 1995
Appeal 2010-001881
Application 11/293,526

3
Raith US 5,729,531 Mar. 17, 1998
Hebeler US 6,304,756 B1 Oct. 16, 2001

3GPP, 3rd Generation Partnership Project; Technical Specification
Group Radio Access Network; UE Procedures in Idle Mode and
Procedures for Cell Reselection in Connected Mode (Release 4)
(2002)

Claims 1, 3, 13, 15, 21, 27, and 30 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over Raith in view of Hebeler.
Claims 2, 14, 22, and 28 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Raith in view of Hebeler and Su.
Claims 4-12, 16-20, 23-26, 29 and 31 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over Raith in view of 3GPP and Hebeler.

II. ISSUES
The dispositive issues before us are:
1. whether the Examiner has erred in finding that the combination of
Raith and Hebeler teaches or would have suggested “a communication
circuit configured to receive a disperse command directing the remote
station apparatus to select a channel from a plurality of channels including a
current channel” (claim 1) (emphasis added) and
2. whether the Examiner’s support for a rejection, reciting that “[t]he
above combination discloses the limitations” (Fin. Rej. 7), is an omnibus
rejection.

Appeal 2010-001881
Application 11/293,526

4
III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Raith
1. Raith discloses a base station that sends a message to the
mobile stations which indicates that the mobile stations should change to a
new channel such that there is an approximately even distribution of mobile
stations on the available channels (Fig. 4; Abstract; col. 10, ll. 52-56).
2. A cellular mobile radiotelephone system having a control
channel transceiver 160 that broadcasts control information over the control
channel of the base station 110 or cell to mobile stations 120; wherein, each
base station 110 includes transceivers 150 and 160 liken unto the voice and
control transceiver 170 within mobile station 110 for use of transmitting
signals over the Digital Control Channels (DCCHs) and Digital Traffic
Channels (DTCs) that have the same radio carrier frequency (Fig. 4; col. 6,
ll.7-12).
Hebeler
3. Hebeler discloses a method of determining the appropriate
subset of available channels on which to initiate communications including
the current channel (Fig. 5 - steps 504 and 508; col. 4, ll. 46-47).
3GPP
4. 3GPP discloses a process for cell selection and cell reselection
if the initial cell is not capable or a better cell is found (Fig. 5; Section
5.2.2.).
Appeal 2010-001881
Application 11/293,526

5

IV. ANALYSIS
Claims 1, 13, 21, 27, and 30
Appellants do not provide separate arguments with respect to
independent claims 1, 13, 21, 27, and 30 (App. Br. 15-19). Accordingly, we
select claim 1 as being representative of the claims. See 37 C.F.R. §
41.37(c)(1)(vii).
Appellants contend that the Examiner’s “proposed modification of
Raith, according to the teachings of Hebeler, would render Raith
‘unsatisfactory for its intended purpose’ by allowing Raith’s mobile stations
to receive a message indicating the mobile stations should select a channel
from a plurality of channels including the current channel” (App. Br. 16).
Appellants argue that neither “Raith nor Hebeler teach or suggest
Appellant[s’] claimed invention including the ‘disperse command directing
[] select[ion] [of a] channel from a plurality of channels including a current
channel’” because “Raith teaches ‘a message can also be sent to mobile
stations … indicating that the mobile stations should change to a new
channel’” (App. Br.18-19). Appellants argue that “Raith teaches away from
including the current channel by clearly teaching of a message ‘indicating
that the mobile stations should change to a new channel’” (App. Br. 19).
However, the Examiner finds that, since “Raith’s intended purpose is
to approximately evenly distribute the mobile stations on the available
channels,” “[m]odifying Raith to include selecting a channel from a plurality
of channels including a current channel would not render Raith
unsatisfactory for its intended purpose” because “[t]he modification would
still allow Raith to approximately evenly distribute the mobile stations on
Appeal 2010-001881
Application 11/293,526

6
the available channels” (Ans. 18). The Examiner notes that “Hebeler [not
Raith] is relied upon to disclose selecting a channel from a plurality of
channels including a current channel” (Ans. 18). The Examiner finds that
“Raith does not exclude the use of a current channel” and, thus, does not
teach away from inclusion of a current channel (Ans. 19).
Raith discloses a base station that sends a message to the mobile
stations indicating that the mobile stations should change to a new channel
(FF 1). We find that a message sent by the base station to the mobile
stations comprises a disperse command directing the mobile stations to
select another channel. That is, we find that “a disperse command directing
the remote station apparatus to select a channel from a plurality of channels”
(claim 1) reads on Raith’s message.
In addition, Hebeler discloses a method of determining the appropriate
subset of available channels on which to initiate communications including
the current channel (FF3). We find that the subset of available channels
includes the current channel. That is, we find that “a plurality of channels
including a current channel” (claim 1) reads on Hebeler’s subset of available
channels.
Accordingly, we find that the combination of Raith and Hebeler at
least suggests providing “a communication circuit configured to receive a
disperse command directing the remote station apparatus to select a channel
from a plurality of channels including a current channel,” as specifically
required by claim 1.
Though Appellants also contend that the combination “teaches away”
(App. Br. 19), our reviewing court has held that “‘[a] reference may be said
to teach away when a person of ordinary skill, upon [examining] the
Appeal 2010-001881
Application 11/293,526

7
reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was
taken by the applicant.’” Para-Ordnance Mfg., Inc. v. SGS Importers Int’l.,
Inc., 73 F.3d 1085, 1090 (Fed. Cir. 1995) (quoting In re Gurley, 27 F.3d
551, 553 (Fed. Cir. 1994)).
Appellants have identified no express support for a direction
divergent from the claimed invention. Here, the Appellants appear to have
viewed the reference from a different perspective than the Examiner. The
issue here is not whether the available channels in Raith includes the current
channel but rather whether a person of ordinary skill, upon reading Raith,
would be discouraged from selecting the current channel as taught by
Hebeler. We note further that Appellants’ Specification discloses Admitted
Prior Art (APA) that uses a reselection algorithm which tends to favor the
selection of the current channel and cell (Spec. ¶ [0005]).
Similarly, we adopt the Examiner’s position, as noted supra, and find
no error in the Examiner’s finding that “[t]he modification [of Raith] would
still allow Raith to approximately evenly distribute the mobile stations on
the available channels” (Ans. 18) and not render it unsatisfactory for its
intended purpose.
The Supreme Court has stated that “[t]he combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 416 (2007).
Thus, we find no error in the Examiner’s finding that the combination
of Raith’s base station that sends a message to the mobile stations to change
to another channel with the subset of available channels including the
Appeal 2010-001881
Application 11/293,526

8
current channel, as disclosed in Hebeler, produces a disperse command
directing the mobile stations to select another channel from a subset of
channels including the current channel which would be obvious (Ans. 4; FF
1 and 3).
Accordingly, we find that Appellants have not shown that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a) over Raith in
view of Hebeler; and independent claims 13, 21, 27, and 30 which have been
grouped therewith.
Claims 3 and 15
Appellants do not provide separate arguments for claims 3 and 15.
Accordingly, we select claim 3 as being representative of the claims.
Appellants argue that the Examiner “does not designate ‘the particular
part relied on’ as required by both 37 C.F.R. and the M.P.E.P” (App. Br. 20),
and therefore, the rejection “is clearly an ‘omnibus rejection” (id.) that
“should be withdrawn” (App. Br. 21).
However, the Examiner finds that “Hebeler is relied upon for the
channel selector” (Ans. 19) and, as set forth for claim 1, “Raith discloses a
communication circuit configured to receive a disperse command” (Ans. 3).
In particular, the Examiner references Figure 4 of Raith (Ans. 3) which
discloses a cellular mobile radiotelephone system having mobile stations that
move from one cell to another by selecting control channels associated with
each cell.
As noted supra, we find that the combination of Raith and Hebeler at
least suggests all the features of claim 1. Additionally, Raith discloses a
cellular mobile radiotelephone system having base stations (cells) that
broadcast control information over a control channel of the base station;
Appeal 2010-001881
Application 11/293,526

9
wherein, the mobile station selects which base station and corresponding cell
(FF 2). We find that the base station selection comprises cell selection.
That is, we find that “a cell selector configured to select a cell based at least
in part on the channel” (claim 3) reads on Raith’s cellular mobile
radiotelephone system including mobile stations that selects a base station
and corresponding cell based upon the control channel. Thus, we find no
error in the Examiner’s reference to the cellular mobile radiotelephone
system of Figure 4 (including a supporting description thereof). That is, we
do not find Appellants’ argument that the Examiner fails to articulate his
findings with regards to the channel and base station selection persuasive.
We therefore affirm the Examiner’s rejection of claims 3 and 15 under
35 U.S.C. § 103 for the same reasons expressed with respect to parent claims
1 and 13, supra.
Claims 2, 14, 22, and 28
Appellants argue that claims 2, 14, 22, and 28 are patentable over the
cited prior art for the same reasons asserted with respect to claim 1 (App. Br.
23).
As noted supra, however, we find that the combination of Raith and
Hebeler at least suggests all the features of claim 1. We therefore affirm the
Examiner’s rejection of claims 2, 14, 22, and 28 under 35 U.S.C. § 103 as
being unpatentable over Raith in view of Hebeler and Su for the same
reasons expressed with respect to parent claims 1, 13, 21, and 27, supra.
Claims 4, 16, 23, 29, and 31
Appellants argue that independent claims 4, 16, 23, 29, and 31 are
patentable over the cited prior art for the same reasons asserted with respect
to claim 1 (App. Br. 25).
Appeal 2010-001881
Application 11/293,526

10
As noted supra, however, we find that the combination of Raith and
Hebeler at least suggests all the features of claim 1. We therefore affirm the
Examiner’s rejection of claims 4, 16, 23, 29, and 31 under 35 U.S.C. § 103
as being unpatentable over Raith in view of 3GPP and Hebeler for the same
reasons expressed with respect to claims 1, supra.
Claims 5-12, 17-20, and 24-26
Appellants do not provide separate arguments for claims 5-12, 17-20,
and 24-26. Accordingly, we select claim 6 as being representative of the
claims.
Appellants argue that the Examiner “does not designate ‘the particular
part relied on’ as required by both 37 C.F.R. and the M.P.E.P.” (App. Br. 30)
and, therefore, the rejection “is clearly an ‘omnibus rejection” (App. Br. 29)
that “should be withdrawn” (App. Br. 30).
However, the Examiner finds that 3GPP “discloses cell selection and
possible reselection if [the] initial cell [is] not capable or [a] better cell [is]
found;” wherein, “a cell can be camped on and then a new cell can be
selected to be camped on” (Ans. 19). The Examiner finds further that “cell
selection is a known procedure for Release 99 standards and specifications”
(id.).
As noted supra, we find that the combination of Raith and Hebeler at
least suggests all the features of claim 1. Additionally, 3GPP discloses a
process for cell selection and cell reselection (FF 4). We find that the
process for cell selection comprises a cell selector that selects a first cell.
That is, we find that “the cell selector is further configured to camp on the
first cell” (claim 6) reads on 3GPP process for cell selection.
Appeal 2010-001881
Application 11/293,526

11
We therefore affirm the Examiner’s rejection of claims 5-12, 17-20,
and 24-26 under 35 U.S.C. § 103 for the same reasons expressed with
respect to parent claims 4, 16, and 23, supra.

V. CONCLUSION AND DECISION
The Examiner’s rejection of claims 1-31 under 35 U.S.C. § 103(a) 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).

AFFIRMED

peb