Ex Parte 6327523 et al

Board of Patent Appeals and Interferences

Apr 30, 2010

90008646 (B.P.A.I. Apr. 30, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte The DIRECTV GROUP, INC.1
____________________

Appeal 2009-010259
Reexamination Control 90/008,646
Patent US 6,327,523 B22
Technology Center 3900
____________________

Decided: May 3, 2010
____________________

Before JOHN C. KERINS, KEVIN F. TURNER and DANIEL S. SONG,
Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL

1 The DIRECTV Group, Inc. is the real party in interest (App. Br. 2).
2 Issued December 4, 2001 to Cellier from Application Number 09/235,112,
filed January 21, 1999.
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The Patent Owner (hereinafter “Appellant”) appeals under 35 U.S.C.
§§ 134(b) and 306 (2002) from a Final Rejection of claims 1-10. We have
jurisdiction under 35 U.S.C. §§ 134(b) and 306 (2002).
The present appeal is related to Reexamination Control 90/008,656,
Appeal 2009-010179, the decision for which is being mailed concurrently
with the present decision.
The Patentee claims a satellite communication system that includes a
service area on the surface of planet Earth having a predetermined minimum
elevation angle from the horizon, and a method for providing such a system.
Independent claims 1 and 9 read as follows (Ans., Claims App’x,
emphasis added):
1. (Amended) A satellite communications system comprising:
a service area on a surface of the earth having a
predetermined minimum elevation angle from the horizon;
a ground station located within said service area;
a first satellite having a first eccentric, substantially 24-
hour period geosynchronous orbit with respect to the earth
having a first skytrack when viewed from within said service
area, said first orbit having first inclination relative to an
equatorial plane of the earth;
a second satellite having a second eccentric, substantially
24-hour period geosynchronous orbit with respect to the earth
having a second skytrack when viewed from within said service
area, said second orbit having a second inclination different
from the first angle of inclination relative to an equatorial plane;
said first satellite having a first operating arc defined by
a first subset of points on said first skytrack over said service
area, said first satellite operating within the service area; and
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said second satellite having a second operating arc
defined by a second subset of points on [the] said second
skytrack within said service area, said second satellite
operating within the service area.

9. (Amended) A method of providing a system of satellite
orbits, the method comprising:
specifying at least one geographic service area within
which satellite coverage is to be provided, said service area
having a minimum elevation angle thereabove;
defining a pair of inclined eccentric, substantially 24-
hour period geosynchronous satellite orbits, [each satellite orbit
defining the orbit,] each satellite orbit defining an orbital plane
having a different angle of inclination with respect to the
equatorial plane of the Earth, each orbit having a subset of
points with a skytrack over the service area, each skytrack
having an operating arc corresponding to the region for which
each of said pair of satellites operates.

The prior art relied upon by the Examiner in rejecting the claims is:
Dulck 4,943,808 Jul. 24, 1990
Briskman US 6,223,019 B1 Apr. 24, 2001
Dennis Roddy, Satellite Communications, Ch. 13.8, pp. 422-423 (2nd Ed.,
1989) (hereinafter “Roddy”)

The Examiner rejected claims 1-10 under 35 U.S.C. § 103(a) as
unpatentable over Briskman in view of Roddy.
The Examiner also rejected claims 1-10 under 35 U.S.C. § 103(a) as
unpatentable over Briskman in view of Dulck.
We AFFIRM-IN-PART.

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ISSUES
The following issues have been raised in the present appeal.
1. Whether the evidence of record supports the Examiner’s finding
that Briskman describes a service area on a surface of the earth having a
predetermined minimum elevation angle from the horizon.
2. Whether the combination of Briskman and Roddy renders
obvious a system that operates a satellite in an operation arc over a service
area having a predetermined minimum elevation angle.
3. Whether the combination of Briskman and Dulck renders
obvious a system that operates a satellite in an operation arc over a service
area having a predetermined minimum elevation angle.
4. Whether the Examiner erred in finding that Briskman discloses
skytracks of satellites that are coincident as recited in dependent claim 2.
5. Whether the Examiner set forth a prima facie case of
obviousness in rejecting dependent claim 3 which recites first and second
handover points.
6. Whether the Examiner erred in finding that Briskman discloses
synchronization of satellites so that they are equally spaced in time as recited
in dependent claim 4.
7. Whether the Examiner set forth a prima facie case of
obviousness in rejecting dependent claim 7 which recites a planar antenna.

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FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. Briskman discloses a satellite system that includes
geosynchronous satellites having inclinations, orbital planes, right
ascensions and eccentricities chosen to optimize coverage of a particular
service area, region or country located at high latitudes. (Col. 1, ll. 30-34).
2. With respect to the elevation angle, Briskman states:
A. “[A] satellite constellation of two, three or more satellites
can provide[,] during all or most of every day[,] 50º-60º elevation
angles throughout a large service area located at high latitudes.” (Col.
1, ll. 34-41).
B. “The design of the constellation is configured to optimize
the elevation angle coverage of a particular geographical high latitude
service area for achieving minimum physical blockage, low tree
foliage attenuation and small probabilities of multipath fading.” (Col.
1, ll. 49-53).
C. “The desired satellite elevation angles for minimizing
outage from single path physical blockage can be derived from
calculations similar to those graphically shown in FIG. 14. Similarly,
the desired satellite elevation angles for minimizing outage from
tree/foliage attenuation can be derived . . ..” (Col. 4, ll. 35-44).
D. “Using known computer analysis programs, an
optimization is performed of the elevation angles for the mobile
receivers throughout the service area to the constellation's satellites
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throughout a day (i.e., since the satellites are geosynchronous, the
elevation angles will repeat every day if perturbations are ignored).”
(Col. 4, ll. 53-60).
E. “The selection of the number of satellites in the
constellation from the analyses’ data is based on the criteria adopted
for the minimum required number of satellites visible to mobile
receivers throughout the service area at the selected minimum
elevation angles.” (Col. 5, ll. 11-16; emphasis added).
F. With respect to one example satellite broadcasting
system, “[t]he input requirements were to have one satellite in the
northern portion of the service area always in view with at least 60º
elevation angle to mobile receivers in the area and a second satellite
always visible with at least 25º elevation angle.” (Col. 5, ll. 54-58).

3. With respect to the inclination angle, Briskman states “[t]he
inclination of the satellites is generally chosen between about 40º and about
80º so they cover the desired high latitude service areas during their transit
overhead.” (Col. 1, l. 66-col. 2, l. 2).
4. With respect to ground trace, Briskman states “[i]n the
preferred embodiment, the satellites follow the same ground trace and pass
over a given point on the earth at approximately equal time intervals.” (Col.
2, ll. 39-42).
5. Roddy describes a satellite system named “Iridium” having a
plurality of satellites, each satellite having a multi-beam antenna under
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separate control so that at high latitudes where considerable overlap occurs,
certain beams can be switched off to minimize overlap (pgs. 424).
6. Roddy further states “in regions where operation is prohibited
by the telecommunications administration, the beams can be switched off.”
(Pgs. 424-425).
7. Dulck describes a communications system with at least two
geosynchronous satellites, each satellite entering into, and exiting from, an
operational zone of the satellites at points E and S, respectively (Col. 3, l.
67-col. 4 l. 3; col. 4, ll. 39-48; Figs. 1 and 2).
8. With respect to elevation angle, Dulck states “[m]oreover, in
area Z, the elevation of the satellite seen from a moving body is always
between 55º and 90º. Therefore the satellite is always seen within a
vertically axed cone, which cone semi-angle is less than 35º.” (Col. 4, ll. 48-
52; Fig. 1 and 2).
9. Dulck also discloses an embodiment of the system having a
constellation of two satellites S-A and S-B which are in orbit offset with
each other by 180º so that satellite S-A is above the coverage area from 0
hour to 12 hour to relay communications, and satellite S-B is above the
coverage area from 12 hour to 24 hour to relay communications (Col. 5, ll.
1-8; Fig. 4).
10. Dulck further claims an embodiment in which the “coverage
area on the ground has means for remotely controlling the starting up of the
transmission-reception means of the satellite when one of said satellite
enters the coverage area and to shut down said satellite when the satellite
leaves the coverage area.” (Col. 7, ll. 13-18).
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PRINCIPLES OF LAW
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). In KSR, the Supreme Court reaffirmed 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, 550 U.S. at 415-16.
The Court further explained “[w]hen a work is available in one field of
endeavor, design incentives and other market forces can prompt variations of
it, either in the same field or a different one.” Id. at 417. The Court also
noted that “[t]o facilitate review, this analysis should be made explicit.”
KSR, 550 U.S. at 418.
In rejecting claims under 35 U.S.C. § 103(a), the Examiner bears the
initial burden of establishing a prima facie case of obviousness. In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); see also In re Piasecki, 745
F.2d 1468, 1472 (Fed. Cir. 1984). If this initial burden is met, the burden of
coming forward with evidence or argument shifts to the appellant. See
Oetiker, 977 F.2d at 1445; see also Piasecki, 745 F.2d at 1472. Obviousness
is then determined on the basis of the evidence as a whole and the relative
persuasiveness of the arguments. Oetiker, 977 F.2d at 1445.

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ANALYSIS
Rejections Based on the Combination of Briskman and Roddy
The Examiner rejected all of the pending claims contending that
Briskman describes all of the recited limitations except for the specific
operating arc (Ans. 4; see generally, FF 1-3). The Examiner relies upon
Roddy to cure this deficiency and states “[i]t would have been obvious to
one of ordinary skill in the art to have controlled the satellites of Briskman
to be operational during operating arcs in view of the teaching of Roddy so
as to conserve power in the satellites.” (Ans. 4).
The Appellant initially contends that the Examiner erred in applying
the inclination angle of Briskman as the recited elevation angle, and argues
Briskman does not describe “a service area on a surface of the earth having a
predetermined minimum elevational angle from the horizon” as recited in
claim 1 (App. Br. 8; Reply Br. 2). We disagree with the Appellant.
Briskman discloses both an inclination angle and an elevation angle
(FF 1, 2A and 3). With respect to the elevation angle, Briskman specifically
discloses “selected minimum elevation angles” (FF 2E), an elevation angle
range of 50º-60º throughout the service area (FF 2A), that such a range
achieves minimal physical blockage, attenuation and fading (FF 2B), and
that calculation of such minimum elevation angle is a well known technique
in the satellite art (FF 2C-2E). Briskman further describes an embodiment
with two satellites, one of which is in view with “at least 60º elevation
angle” (FF 2F).
The Appellant’s contends that the described 50º-60º elevation angle
refers to an approximation of the high elevation angles (Reply Br. 2), but we
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fail to see how Briskman does not disclose the claim recitation for “a
predetermined minimum elevation angle,” especially in view of the fact that
in Briskman, the elevation angle is referred to as being a “selected
minimum,” is disclosed as a range, and is described as achieving minimal
physical blockage, attenuation and fading (FF 2A, 2B, 2E).
We further note that while we have referenced other disclosures in
Briskman in addition to that referenced by the Examiner, citation of
additional portions of the same reference relied upon by the Examiner does
not constitute a new ground of rejection since we must consider a reference
in its entirety for what it fairly suggests to one skilled in the art. In re
Meinhardt, 392 F.2d 273, 280 (CCPA 1968); In re Hedges, 783 F.2d 1038
1039 (Fed. Cir. 1986). Thus, we agree with the Examiner that Briskman
discloses the “predetermined minimum elevation angle from the horizon”
recited in claim 1.
The Appellant also argues that Briskman does not describe the
relationship between the service area on the Earth’s surface having a
predetermined minimum elevation angle to the recited “operating arc” (App.
Br. 10; Reply Br. 2-3). In this regard, the Appellant argues that “the
operating arcs are related to the area at which the satellites are at or above
the predetermined minimum elevation angle from the horizon that defines
the service area.” (App. Br. 10). In other words, “the operating arc is related
to the predetermined minimum elevation angle since the operating arc is
defined by a subset of points on the sky track over the service area.” (Reply
Br. 2-3). We agree with the Appellant.
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To be clear, we observe that the Examiner has conceded that
Briskman does not disclose an operating arc (Ans. 4). The Examiner argues
that the claimed operating arc and the operation of the satellites thereon, are
disclosed in Roddy (Ans. 4). Hence, in accordance with the Examiner’s
rejection, a purported relationship is established by the combination of
Briskman and Roddy, not by Briskman alone. In this regard, Roddy does
suggest an operating arc by virtue of its disclosure that the satellite beams
can be switched off “in regions where operation is prohibited.” (FF 6). In
such an instance, each of the satellites of Roddy would not be operating for a
portion of its orbital skytrack, so that the remainder of the skytrack in which
the satellite is operated can be considered to be an “operating arc.”
However, we fail to see how the Examiner’s articulated reason
renders obvious an operating arc that is recited to be over a service area
having a predetermined minimum elevation angle. In particular, the
Examiner’s rationale for combining Briskman and Roddy does not account
for specifically locating the operating arc over the service area which has the
predetermined minimum elevation angle. The Examiner’s analysis appears
to be based on a presumption that the satellites perform no functions beyond
the service area so that it would be desirable to switch off the satellites to
conserve power as suggested. As such, in our view, the Examiner’s
articulated rationale is insufficient to support the conclusion of obviousness
based on the combination of Briskman and Roddy.
In view of the above, we do not sustain the Examiner’s rejection of
claim 1 based on the combination of Briskman and Roddy. The Examiner’s
rejection of claims 2-8 based on the combination of Briskman and Roddy is
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also not sustained, these claims depending from claim 1. The Examiner’s
rejection of independent claim 9 which similarly recites a service area
having a minimum elevation angle and an operating arc, as well as
dependent claim 10 depending therefrom, is also not sustained for
substantially the same reason as claim 1.

Rejections Based on the Combination of Briskman and Dulck
In the alternative rejection, the Examiner relies on Dulck as describing
an “operating arc” to contend that “[i]t would have been obvious to one of
ordinary skill in the art to have controlled the satellites of Briskman to be
operational during operating arcs in view of the teaching of Dulck so as to
conserve power in the satellites.” (Ans. 5).

Claim 1
Initially, the Appellant again relies on the argument that Briskman
does not disclose a predetermined minimum elevation angle from the
horizon (App. Br. 13; Reply Br. 2). However, this argument is not
persuasive for the reasons already discussed supra. In addition, we observe
that Dulck also describes a predetermined minimum elevation angle of 55º
(FF 8).
The Appellant argues that Briskman fails to describe the relationship
of “a service area on a surface of the earth having a predetermined minimum
elevation angle from the horizon” to the operating arc (App. Br. 13; Reply
Br. 3). However, we observe that the Examiner has conceded that Briskman
does not disclose an operating arc (Ans. 5). The Examiner asserts that the
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claimed operating arc and the operation of the satellites thereon, are
disclosed in Dulck (Ans. 5). Hence, in accordance with the Examiner’s
rejection, a purported relationship is established by the combination of
Briskman and Dulck, not by Briskman alone.
In the above regard, we note that the geosynchronous satellites of
Dulck have an elevation angle between 55º and 90º in service area Z (FF 8),
and enter and exit the service area (FF 7 and 9), much like that of the
Appellant’s satellites. Importantly, Dulck describes shutting down the
transmission-reception means of the satellite when the satellite leaves the
service area at point S during its geosynchronous orbit (FF 10). Hence,
unlike Roddy, Dulck specifically describes operating the satellites in an
operating arc that is positioned over the service area having a specified
elevation angle range, and shutting down the satellites as they leave the
service area having the desired elevation angle. As such, the combination of
Briskman and Dulck results in operating the satellites along only a portion of
the orbital skytrack that is over a desired service area (i.e., operating arc)
having the desired elevation angle, thereby satisfying the argued limitations
of claim 1. The Examiner has also articulated the reason for operating the
satellites of Briskman in the manner suggested by Dulck as “to conserve
power in the satellites” (Ans. 5) which is rational and sufficient for
concluding obviousness of claim 1.
Turning to the remaining claims, while not entirely clear from the
record based on the Appellant’s use of the headings, it appears that the
Appellant is also relying on the same arguments submitted in response to the
rejection based on Briskman and Roddy, for patentability of claims 2-8
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under this rejection based on Briskman and Dulck (App. Br. 9-13; Reply Br.
2). Hence, we consider these arguments below.

Claim 2
Claim 2 requires first and second skytracks to be coincident. The
Examiner rejected the claim stating that the “satellites [of Briskman] have
coincident ground track and thus have coincident sky tracks. They are in the
same orbit.” (Ans. 6; FF 4). The Appellant argues that claim 1, from which
claim 2 depends, specifically recites that the first and second satellite orbits
have different angles of inclination, and thus have different orbits (Reply Br.
3). However, while challenging the Examiner’s assertion that the satellites
have the same orbit, the Appellant does not specifically address the
Examiner’s finding that the satellites have coincident skytracks in view of
the disclosed coincident ground track. Indeed, the Specification of the
reexamined ‘523 itself states “[o]f course, the sky track has a ground track
which corresponds thereto[,]” (col. 2, ll. 26-27), thereby establishing the
correlation between the skytrack and the ground track.
Hence, in view of the absence of explicit evidence to the contrary, we
agree with the Examiner’s finding that a coincident sky track is disclosed in
Briskman through the disclosure of coincident ground track. In re Preda,
401 F.2d 825, 826 (CCPA 1968) (In considering the scope and content of the
prior art, “it is proper to take into account not only specific teachings of the
reference but also the inferences which one skilled in the art would
reasonably be expected to draw therefrom.”). Therefore, the Appellant’s
argument fails to persuade us of Examiner error.
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Claim 3
The Appellant argues that Briskman fails to describe operating arcs
with first and second handover points recited in claim 3 (App. Br. 9) and that
because the Examiner merely relies upon Briskman for this limitation in this
rejection, the Examiner’s rejection must be reversed (App. Br. 10; Reply Br.
3). Indeed, the rationale presented in the Examiner’s rejection merely
references Briskman in view of Roddy, this combination not being pertinent
to the rejection at hand based on Briskman and Dulck. We fail to see where
the Examiner set forth a prima facie case of obviousness with respect to
claim 3 based on Briskman and Dulck. See In re Oetiker, 977 F.2d at 1445;
see also In re Piasecki, 745 F.2d at 1472. We will not speculate as to the
basis of the Examiner’s rejection. Hence, we do not sustain the Examiner’s
rejection of claim 3.

Claim 4
The Appellant argues that Briskman fails to describe that the first and
second satellites are synchronized so that they are equally spaced in time as
recited in claim 4. The Examiner contends that this feature is disclosed in
Briskman by its disclosure that the satellites have the same ground trace and
pass over a given point on the earth at approximately equal time intervals
(FF 4). We agree with the Examiner. In the context of the Briskman’s
disclosure wherein a plurality of satellites is described as following the same
ground trace, we understand “equal time intervals” as referring to the time
interval between the satellites, and not to the fact that the orbits are periodic.
Therefore, the Appellant’s argument does not persuade us of Examiner error.
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Claim 5
The Appellant merely relies on dependency on claim 1 for
patentability of claim 5 and states that claims 1 and 5 stand or fall together
(App. Br. 10). Hence, claim 5 falls with claim 1 as discussed supra.

Claim 6
The Appellant contends that Briskman does not disclose a minimum
elevation angle greater than 30º as required by claim 6 (App. Br. 11; Reply
Br. 4). This contention is based on the unpersuasive argument that
Briskman does not disclose a minimum elevation angle. As noted by the
Examiner (Ans. 5 and 7) and as already discussed, Briskman discloses a
minimum elevation angle which is greater than 30º (FF 2A and 2F).
Briskman also clearly establishes that selection of a minimum elevation
angle is well known in the satellite art and merely requires routine skill (FF
2B-2F). Furthermore, Dulck also discloses a minimum elevation angle
greater than 30º (FF 8). Hence, we find no error in the Examiner’s
obviousness rejection.

Claim 7
The Appellant contends that Briskman does not disclose a ground
station which comprises a planar antenna as required by claim 7 (App. Br.
11). The Examiner relies on the disclosure in Briskman that mobile
receivers will have “antennas configured to view the sky where satellites
would be visible[,]” and states that “the signals of Briskman are receivable
by any type of antenna” and that “[a] planar (flat) antenna is one such type
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of antenna.” (Ans. 5 and 7). While the assertions of the Examiner might
well be true, the Examiner has not appropriately presented evidence
supporting the assertions in the appeal record before us. As the Appellant
points out, Briskman does not specifically disclose a planar antenna. The
Examiner has thus not established through evidence, or through Official
Notice, that planar antennas are known in the art and are suitable for
receiving signals in the mobile receivers of Briskman. Mere argument by
the Examiner is not evidence and the Examiner has not set forth a prima
facie case. Therefore, we do not sustain the Examiner’s rejection of claim 7.

Claim 8
The Appellant merely relies on dependency on claim 1 for
patentability of claim 8, and states that claims 1 and 8 stand or fall together
(App. Br. 12). Hence, claim 8 falls with claim 1 as discussed supra.

Claim 9
The Appellant does not provide specific arguments directed to the
patentability of independent claim 9, but instead, merely refers to arguments
submitted with respect to independent claim 1 (App. Br. 12-13; Reply Br. 4).
Thus, we sustain the Examiner’s rejection of claim 9 based on the
combination of Briskman and Dulck for the reasons already discussed supra
relative to claim 1.

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Claim 10
The Appellant relies on the same arguments submitted with respect to
claim 2 in arguing patentability of claim 10 which recites that each orbital
track is defined to be coincident (App. Br. 12-13; Reply Br. 4). Hence, we
sustain the Examiner’s rejection of claim 10 for substantially the same
reasons set forth relative to claim 2.

CONCLUSIONS
1. The Examiner did not err in finding that Briskman describes a
service area on a surface of the Earth having a predetermined minimum
elevation angle from the horizon.
2. The Examiner’s articulated combination of Briskman and
Roddy does not render obvious a system that operates a satellite in an
operation arc over a service area having a predetermined minimum elevation
angle.
3. The combination of Briskman and Dulck renders obvious a
system that operates a satellite in an operation arc over a service area having
a predetermined minimum elevation angle.
4. The evidence of record supports the Examiner’s finding that
Briskman discloses skytracks of satellites that are coincident.
5. The Examiner has not properly set forth a prima facie case of
obviousness in rejecting dependent claim 3 which recites first and second
handover points.
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6. The evidence of record supports the Examiner’s finding that
Briskman discloses synchronization of satellites so that they are equally
spaced in time.
7. The Examiner has not properly set forth a prima facie case of
obviousness in rejecting dependent claim 7 which recites a planar antenna.

DECISION
1. The Examiner’s rejection of claims 1-10 under 35 U.S.C.
§ 103(a) as unpatentable over Briskman in view of Roddy is REVERSED.
2. The Examiner’s rejection of claims 1, 2, 4-6 and 8-10 under 35
U.S.C. § 103(a) as unpatentable over Briskman in view of Dulck is
AFFIRMED.
3. The Examiner’s rejection of claims 3 and 7 under 35 U.S.C.
§ 103(a) as unpatentable over Briskman in view of Dulck is REVERSED.

Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED-IN-PART

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ack
cc:

THE DIRECTV GROUP, INC.
PATENT DOCKET ADMINISTRATION
CA / LA1 / A109
2230 E. IMPERIAL HIGHWAY
EL SEGUNDO CA 90245

Third Party Requester:

Patrick F. Bright
WAGNER ANDERSON & BRIGHT LLP
3541 Ocean View Blvd.
Glendale, CA 91208