Ex Parte Wentink

Patent Trial and Appeal Board

Mar 11, 2014

10689018 (P.T.A.B. Mar. 11, 2014)

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.
10/689,018 10/20/2003 Maarten Menzo Wentink 088245-2591 4108
23524 7590 03/11/2014
FOLEY & LARDNER LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
EXAMINER
TAYLOR, NICHOLAS R
ART UNIT PAPER NUMBER
2441
MAIL DATE DELIVERY MODE
03/11/2014 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 MAARTEN MENZO WENTINK
____________

Appeal 2011-009333
Application 10/689,018
Technology Center 2400
____________

Before GAY ANN SPAHN, MICHAEL C. ASTORINO, and
NINA L. MEDLOCK, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
rejections of claims 1-14, 17, 18, 21-23, and 25-32. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

Appeal 2011-009333
Application 10/689,018
2
Claimed Subject Matter
The claimed subject matter relates to local area network based access
to “a shared resource that is governed by contention-based access without
the receiver power consumption disadvantages in the prior art.” Spec.,
para. [0009]. Claim 1, reproduced below, with paragraph identifiers added,
is illustrative of the appealed subject matter.
1. A method for accessing a shared resource comprising:
(a) a first station sharing a resource with a plurality of
other stations;
(b) the first station determining a first average backoff
interval by measuring an average wait time that the first station
incurred during a plurality of previous access attempts to the
shared resource; and
(c) once it is determined that the first station desires
access to the shared resource and the shared resource first
becomes available, the first station refraining from contending
for access to said shared resource for at least an interval
substantially equal to the first average backoff interval.

Evidence Relied Upon
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Li US 2002/0163929 A1 Nov. 7, 2002
Cali, Conti, and Gregori, IEEE 802.11 Protocol: Design and Performance
Evaluation of an Adaptive Backoff Mechanism, IEEE Journal on Selected
Areas in Communications, Vol. 18, No. 9, September 2000, 1774-1786
(hereinafter “Cali”).

Singh and Raghavendra, PAMAS – Power Aware Multi-Access protocol with
Signalling for Ad Hoc Networks, Computer Communication Review,
January 1998 (hereinafter “Singh”).

Appeal 2011-009333
Application 10/689,018
3
Rejections
The following Examiner’s rejections are before us for review:
I. claims 1, 2, 4-7, 13, 17, 22, 25, 28, 30, and 32 under 35 U.S.C.
§ 103(a) as unpatentable over Li and Cali; and
II. claims 3, 8-12, 14, 18, 21, 23, 26, 27, 29, and 31 under
35 U.S.C. § 103(a) as unpatentable over Li, Cali, and Singh.

OPINION
Rejection I – Obviousness based on Li and Cali
Appellant argues claims 1, 2, 4-7, 13, 17, 22, 25, 28, 30, and 32 as a
group and we select independent claim 1 as the representative claim. See
App. Br. 25; see also 37 C.F.R. 41.37(c)(1)(vii) (2011). Claims 2, 4-7, 13,
17, 22, 25, 28, 30, and 32 fall with claim 1.
With respect to paragraph (b) of claim 1 as quoted supra, the
Examiner finds that Li “measur[es] an average wait time that is based on the
present collision rate that is determinative of successful network throughput
to determine a first backoff interval,” but “is silent as to the measuring of an
average wait time that the first station incurred during a plurality of previous
access attempts to the shared resource.” Ans. 5 (citing Li, paras. [0014]-
[0016]). The Examiner turns to Cali to disclose “an improved method of
calculating an average backoff interval value using average wait time”
which “is determined based on the station’s plurality of previous attempts to
access the shared resource,” and “is measured from a time that the station
determines the resource has become idle to a time . . . that a pending frame is
transmitted, and calculating an average of the wait times.” Id. (citing Cali,
p. 1774, section I, for “description of author[s’] proposal,” p. 1776, section
II, subsection B, for “describing calculating the backoff window,” and p.
Appeal 2011-009333
Application 10/689,018
4
1778, for “discussion of observing prior channel access” and “calculation of
timing, including basing the calculation on a moving average”). The
Examiner concludes that it would have been obvious to one of ordinary skill
in the art “to have combined Li and Cali to provide the average backoff
interval calculation of Cali in the system of Li, because doing so would
provide a transmission interval that approaches the theoretical capacity
limits of the IEEE[1] 802.11 MAC[2] protocol capacity.” Ans. 5-6 (citing
Cali, Abstr.).
Appellant references paragraph [0007] of Li as disclosing that
“throughput is the amount of data transferred from one user to another user
in a specified amount of time,” and “throughput is often measured as a ratio
of the number of successful transmissions to the total number of
transmission opportunities” and argues that Li fails to teach “determining a
first average backoff interval by measuring an average wait time that the
first station incurred during a plurality of previous access attempts to the
shared resource.” App. Br. 18. Appellant also references the Examiner’s
statement that “[a] broadest reasonable interpretation of the claim term
‘average wait time’ would include a measurement of network[] throughput,
as the successful transmission ratio[] of the network would determine the
amount of time that a station could have to wait for successful access” (Final
Rej. 3), and argues that “the Examiner’s ‘broad interpretation’ is simply not
supported by the teachings of Li.” Id.
We are not persuaded by Appellant’s arguments, because the
Examiner did not rely upon Li to disclose “measuring an average wait time

1 IEEE is the abbreviation for the Institute of Electrical and Electronic
Engineers.
2 MAC is the abbreviation for Medium or Media Access Control.
Appeal 2011-009333
Application 10/689,018
5
that the first station incurred during a plurality of previous access attempts to
the shared resource,” but rather relied upon Cali to teach this portion of the
limitation in paragraph (b) of claim 1. See Ans. 5 and 15-16.
Appellant also argues that Cali fails to disclose “measuring an average
wait time that the first station incurred during a plurality of previous access
attempts to the shared resource.” App. Br. 20. More particularly, Appellant
points out that Cali “teaches a station monitoring a wireless medium and
calculating a moving average window of ‘average idle period length’ and
‘average collision cost,’” and argues that “neither of these values
corresponds to an ‘average wait time that the first station incurred during a
plurality of previous access attempts to the shared resource.” Id.
We are not persuaded by Appellant’s argument, because Appellant
has failed to explain, nor is it readily apparent, why Cali’s “average idle
period length” cannot correspond to the claimed “average wait time that the
first station incurred during a plurality of previous access attempts to the
shared resource.”
Moreover, we note that all of Appellant’s aforementioned arguments
address the Li and Cali references individually and nonobviousness cannot
be established by attacking the references individually when the rejection is
predicated upon a combination of prior art disclosures. See In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Appellant has not explained why
the combination of Li and Cali fails to disclose the disputed limitation.
Thus, we are not persuaded of Examiner error by Appellant’s arguments
with respect to paragraph (b) of claim 1.
With respect to the “refraining from contending for access” limitation
in paragraph (c) of claim 1, Appellant argues that “[b]ecause Li . . .
explicitly teaches re-transmitting during the back-off window” Li cannot be
Appeal 2011-009333
Application 10/689,018
6
interpreted to read on a “a first station refraining from contending for access
to said shared resource for at least an interval substantially equal to the first
average backoff interval.” App. Br. 19.
We are not persuaded by Appellant’s argument, because paragraph (c)
of claim 1 recites a conditional step and conditional steps in a method claim
need not be found in the prior art if, under the broadest scenario, the method
need not invoke the steps. See Ex parte Katz, 2010-006083, 2011 WL
514314, *4 (BPAI 2011) (non-precedential) (citing In re Am. Acad. Of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (The scope of claims in
patent applications is determined by giving claims “their broadest reasonable
interpretation consistent with the specification” and “in light of the
specification as it would be interpreted by one of ordinary skill in the art.”)).
Claim 1’s limitation of “refraining from contending for access” in
paragraph (c) is conditioned upon the language “once it is determined that
the first station desires access to the shared resource and the shared
resource first becomes available.” App. Br., Clms. App’x. (emphasis
added). In other words, the “once it is determined” language limits claim 1
such that the “refraining” limitation of paragraph (c) is only invoked after
two affirmative determinations are made3. However, claim 1 does not
require these two determinations to be made, because claim 1 lacks a
positive step directing the performance of these determinations. Id. The
broadest reasonable interpretation of claim 1 includes the interpretation that
the “desire access” and “the shared resource” determinations never occur.
As such, any limitations of claim 1 that depend on these two determinations

3 In particular, first, a determination that access is “desired,” and second, a
determination that the resource “first becomes available.” See App. Br.,
Clms. App’x.
Appeal 2011-009333
Application 10/689,018
7
occurring are not invoked. The “refraining” limitation in paragraph (c) of
claim 1 is therefore not invoked because it depends on these two
determinations as noted supra.
Accordingly, we sustain the Examiner’s rejection of independent
claim 1, and claims 2, 4-7, 13, 17, 22, 25, 28, 30, and 32 which fall
therewith, under 35 U.S.C. § 103(a) as obvious over Li and Cali.

Rejection II – Obviousness based on Li, Cali, and Singh
Appellant argues claims 3, 8-12, 14, 18, 21, 23, 26, 27, 29, and 31 as a
group and we select independent claim 8 as the representative claim. See
App. Br. 25-29. Claims 3, 9-12, 14, 18, 21, 23, 26, 27, 29, and 31 fall with
claim 8.
Similar to claim 1, claim 8 is directed to “[a] method for accessing a
shared resource” and recites the identical steps of paragraphs (a), (b), and (c)
of claim 1 as quoted supra. App. Br., Clms. App’x.
To reject claim 8, the Examiner relies on the same findings and
conclusion as discussed supra with respect to claim 1. Ans. 8. Appellant
presents the same arguments for the rejection of claim 8 as those discussed
supra with respect to the rejection of claim 1. App. Br. 26. For the same
reasons as discussed supra with respect to the rejection of claim 1, we are
not persuaded by Appellant’s arguments for the rejection of claim 8.
Claim 8 additionally recites the limitation of “the first station
powering down a receiver circuit for at least a portion of said first average
backoff interval while the first station is refraining from contending for
access to the shared resource.” App. Br., Clms. App’x. Emphasis added.
Appellant argues that Singh does not disclose the “powering down”
limitation of claim 8. See App Br. 27. Since the “powering down”
Appeal 2011-009333
Application 10/689,018
8
limitation only occurs concurrent with the performance of the “refraining”
limitation, and since, under the broadest scenario, the “refraining” limitation
is not invoked, the “powering down” limitation is also not invoked. The
Examiner is not required to show that prior art reads on claimed limitations
that are not invoked. In other words, because we do not construe the
“powering down” limitation to be a requirement of claim 8, the Examiner’s
rejection does not have to account for this limitation in order to be sustained.
Thus, Appellant’s argument regarding alleged deficiencies of the teachings
of Singh with respect to the “powering down” limitation is not persuasive.
Appellant also argues that the Examiner erred by improperly
combining Singh with Li and Cali because “these references teach away
from any reasonable combination.” App. Br. 26. More particularly,
Appellant notes Li and Cali disclose “methods and systems that require a
receiver to stay powered on in order to monitor the wireless medium and
calculate/update an optimum backoff window.” Id. Then, Appellant argues
that powering down the receiver of the combination of Li and Cali when
there are no frames to transmit as taught by Singh “would render the . . .
combination of Li . . . and Cali . . . unable to monitor the medium and
modify the backoff window to optimize the efficiency of the protocol.”
App. Br. 27. However, prior art does not teach away from claimed subject
matter merely by disclosing a different solution to a similar problem unless
the prior art also criticizes, discredits or otherwise discourages the solution
claimed. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Appellant’s argument is not persuasive because Appellant fails to identify
any portions of Li, Cali, or Singh that criticize, discredit or otherwise
discourage the solution claimed, i.e., powering down a receiver circuit for a
Appeal 2011-009333
Application 10/689,018
9
portion of the first average backoff interval while the first station is
refraining from contending for access to the shared resource.
Accordingly, we sustain the Examiner’s rejection of independent
claim 8, and claims 3, 9-12, 14, 18, 21, 23, 26, 27, 29, and 31 which fall
therewith, under 35 U.S.C. § 103(a) as unpatentable over Li, Cali, and
Singh.

DECISION
We affirm the Examiner’s rejections of claims 1-14, 17, 18, 21-23,
and 25-32.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

mls