Ex Parte Vogel

Board of Patent Appeals and Interferences

Jul 23, 2007

09659864 (B.P.A.I. Jul. 23, 2007)

The opinion in support of the decision being entered today is not binding
precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte J. LESLIE VOGEL III
____________

Appeal 2007-1121
Application 09/659,864
Technology Center 2100
____________

Decided: July 23, 2007
____________

Before KENNETH W. HAIRSTON, JEAN R. HOMERE, and
JOHN A. JEFFERY, Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s Final
Rejection of claims 1 through 51. We have jurisdiction under 35 U.S.C.
§ 6(b) to decide this appeal.

Appeal 2007-1121
Application 09/659,864

2
II. ILLUSTRATIVE CLAIM
Claim 46 is illustrative of the invention. It reads as follows:
An apparatus comprising:
a means for accessing a wireless network, the means for accessing operable
for receiving a connection request from a means for messaging through a
setup connection, for sending a security preference that specifies one
authentication protocol from a set of authentication protocols supported by
the means for access, for validating authentication information sent by the
means for messaging, and for connecting the means for messaging to the
wireless network through a channel secured with a shared channel key; and
a means for messaging operable for sending the connection request to the
means for accessing, and for generating the authentication information to
send to the means for accessing.

III. PRINCIPLE OF LAW
The following rule applies to appeal briefs.
A concise explanation of the subject matter defined in each of
the independent claims involved in the appeal, which shall refer
to the specification by page and line number, and to the
drawing, if any, by reference characters. For each independent
claim involved in the appeal and for each dependent claim
argued separately under the provisions of paragraph (c)(1)(vii)
of this section, every means plus function and step plus function
as permitted by 35 U.S.C. 112, sixth paragraph, must be
identified and the structure, material, or acts described in the
specification as corresponding to each claimed function must be
set forth with reference to the specification by page and line
number, and to the drawing, if any, by reference characters.

Appeal 2007-1121
Application 09/659,864

3

(37 C.F.R. § 41.37(c)(1)(v)(2005)).1 Such identification is "considered
important to enable the Board to more quickly determine where the claimed
subject matter is described in the application." M.P.E.P. § 1205.02 (8th ed.,
Rev. 2, Aug. 2005). 2

IV. ANALYSIS
Here, claims 46 through 51 comprise means-plus-function elements.
In addressing the cited claims, the Summary of the Claimed Subject Matter3
cites to Figure 2 and pages 10 through 14 of the Specification. Particularly,
at page 2 of the Brief, Appellant’s Summary states the following:
“ Claims 46-51 are claims under 35 U.S.C. 112, sixth paragraph, and the
corresponding structures are station 201 and access point 203 of Figure 2 as
described on page 10, line 14 through page 14, line 10.”
The cited portions of the Specification discuss the establishment of a secure
wireless network connection between a user station 201 and a wireless
access point 203 while Figure 2 illustrates the same. (Specification 10: ll.
15-16.) The Summary, however, fails to particularly identify which of the
disclosed structures (201 and 203) actually corresponds to the claimed
“means for accessing a wireless network” and the claimed “means for
messaging through the setup connection.” The Specification does not clarify

1 We cite to the version of the Code of Federal Regulations in effect at the
time of the Appeal Brief.
2 We cite to the version of the Manual of Patent Examining Procedure in
effect at the time of the Appeal Brief.
3 We further note, in connection with the discussion of claims 1 through 45
that the Summary does not refer to the drawings by reference characters.
Appeal 2007-1121
Application 09/659,864

4
this ambiguity either. Consequently, we decline to substitute speculation
about where the structure corresponding to the claimed subject matter is
described in the application for the greater certainty that should come from
the Appellant.
Appellant should identify, in independent claim 46 and any separately
argued dependent claims, each "means plus function" limitation and provide
a mapping to the specification and drawings. In particular, the mapping of
each of the claimed limitations should be clarified to include specific
reference characters of the drawings and pages and lines of the specification.
This clarification is needed for a meaningful review.

V. CONCLUSION

Under 37 C.F.R. § 41.50(d)(2006), Appellant is given a
non-extendable time period of thirty days within which to respond to this
order. Failure to comply with the order within that time may result in the
sua sponte dismissal of the appeal. (37 C.F.R. § 41.50(d)). No time for
taking any action connected with this appeal may be extended under 37
C.F.R. § 1.136(a)(1)(iv).

Appeal 2007-1121
Application 09/659,864

5
ORDERED
41.50(d)

eld

Sheryl Sue Holloway
Blakely Sokoloff Taylor & Zafman LLP
12400 Wilshire Boulevard 7th Floor
Los Angeles CA 90025