Ex Parte Tseng et alDownload PDFPatent Trial and Appeal BoardAug 29, 201612649344 (P.T.A.B. Aug. 29, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/649,344 12/30/2009 109673 7590 08/31/2016 McClure, Qualey & Rodack, LLP 3100 Interstate North Circle Suite 150 Atlanta, GA 30339 FIRST NAMED INVENTOR Yu-Chee Tseng 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 251812-7040 5368 EXAMINER PHUNKULH, BOB A ART UNIT PAPER NUMBER 2412 NOTIFICATION DATE DELIVERY MODE 08/31/2016 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): uspatents@mqrlaw.com dan.mcclure@mqrlaw.com gina.silverio@mqrlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte YU-CHEE TSENG, SHU-HSIEN LU, and CHIH-YULIN Appeal2014-008235 Application 12/649,344 Technology Center 2400 Before JOSEPH L. DIXON, NORMAN H. BEAMER, and SCOTT B. HOWARD, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL Appeal2014-008235 Application 12/649,344 STATEMENT OF THE CASE Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1---6 and 10-15, which constitute all the claims pending in this application. Claims 7-9 and 16 are objected to. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. CLAIMED SUBJECT MATTER The claims are directed to a wireless mesh network (WMN) communication technology. (Spec. 2). Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A predetermined wireless router with gateway functionality, for accessing an external network; and a plurality of wireless routers, each having a single transceiver only, the wireless routers comprising: at least one wireless router which only uses a single fixed channel to communicate with any other directly upstream and directly downstream devices in the wireless network for forwarding network packets through the at least one wireless router; and at least one wireless router which uses a plurality of different channels to communicate with other devices in the wireless network for forwarding network packets. 1 Appellants indicated that Realtek Semiconductor Corporation is the real party in interest. (App. Br. 2). 2 Appeal2014-008235 Application 12/649,344 REFERENCE The prior art relied upon by the Examiner in rejecting the claims on appeal is: Kozat et al. ("Kozat'') US 2008/0123579 Al May 29, 2008 REJECTION The Examiner made the following rejection: Claims 1---6 and 10-15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kozat. ANALYSIS With respect to independent claim 1, the Examiner relies upon the Kozat level of reference and maintains "[a]s shown in figure[s] 1 and 2, any of the routers B-D communicate with at least two channels with other devices in the wireless network for forwarding network packets (see figure 1 and 2)." (Ans. 8). Appellants contend that the Examiner's finding evidences "the Examiner has fundamentally ignored the claim language. NOTE: claim 1 does not specify that ALL wireless routers use only a single fixed channel to communicate, but instead that "at least one wireless router ... uses a single fixed channel to communicate." (Reply Br. 2). The Examiner further maintains: KOZET [sic, Kozat] discloses channel can be physical such as timeslot, frequency band, spreading code, etc ... (see paragraph 0004 ), the network arrangement can be either tree or mesh topology (see paragraph 0033 or abstract). Therefore, it would have been obvious to one having ordinary skill in the art at the time of invention was made to cause one wireless router uses a 3 Appeal2014-008235 Application 12/649,344 single fixed channel to communicate with upstream and downstream in order to maximize the channel usage. (Ans. 9). The Examiner provides no factual basis underlying the conclusion to modify the Kozat reference as applied by the Examiner in the grounds of rejection to change the "wireless router which uses a plurality of different channels to communicate with other devices" to be a "wireless router uses a single fixed channel to communicate with upstream and downstream." Consequently, we cannot sustain the obviousness rejection of independent claim 1 and its respective dependent claims. Id. With respect to independent claim 10, the Examiner provides an initial correlation of the prior art teachings of the Kozat reference (Final Act. 5), but subsequently in the Examiner's response to arguments section of the Examiner's Answer relies upon the prior art as applied to independent claim 1 (Ans. 8-9) in the discussion regarding the independent claim 10 (Ans. 10). Consequently, the Examiner provides contradictory statements in the regarding the rejection of claim 10. The Examiner maintains that the routers are single channel, but in the response to argument section contends that the routers use multiple channels and that it would be obvious to assign a single wireless router a first fixed channel. (Ans. 10). In an ex parte appeal, the Board "is basically a board of review - we review ... rejections made by patent examiners." Ex parte Gambogi, 62 USPQ2d 1209, 1211 (BPAI 2001). More specifically, "[i]n rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden of presenting a primafacie case of obviousness." In re Rijckaert, 9 F.3d 1531, 1532 (Fed. Cir. 1993) (citing In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)). "The review authorized by 35 U.S.C. Section 134 is not a process 4 Appeal2014-008235 Application 12/649,344 whereby the examiner ... invite[ s] the [B]oard to examine the application and resolve patentability in the first instance." Ex parte Braeken, 54 USPQ2d 1110, 1112 (BP AI 1999). As a result, the Examiner has not set forth in a sufficient showing of obviousness supported by reasonable underlying factual findings for independent claim 10 and its respective dependent claims 11-15. CONCLUSIONS The Examiner erred in rejecting independent claims 1 and 10 based upon obviousness under 35 U.S.C. § 103(a). As a result, we also cannot sustain the obviousness rejection of dependent claims 2---6 and 11-15. DECISION For the above reasons, we cannot sustain the Examiner's rejection of claims 1---6 and 11-15. REVERSED 5 Copy with citationCopy as parenthetical citation