Ex Parte AKIL et al

Patent Trial and Appeal Board

Dec 19, 2018

13046349 (P.T.A.B. Dec. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/046,349 03/11/2011
27799 7590 12/21/2018
Cozen O'Connor
277 Park A venue, 20th floor
NEW YORK, NY 10172
FIRST NAMED INVENTOR
YahyaAKIL
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.
5029-784-307252 4699
EXAMINER
OH, ANDREW CHUNG SUK
ART UNIT PAPER NUMBER
2466
NOTIFICATION DATE DELIVERY MODE
12/21/2018 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):
patentsecretary@cozen.com
patentdocket@cozen.com
patentsorter@cozen.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte Y AHY A AK.IL, KAI BENJAMINS, STEP AN KELLER,
JORG MULLER, and MANFRED WOLF
Appeal2018-005160
Application 13/046,349
Technology Center 2400
Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and
JOHN P. PINKERTON, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 6-14, 18, and 19. Claims 2-5 and 15-17 were cancelled. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal2018-005160
Application 13/046,349
Exemplary Claim
Exemplary claim 1 under appeal reads as follows ( emphasis added):
1. A radio station system for a wireless local area
network having at least two access network nodes, a first access
network node of the at least two access network nodes in the
wireless local area network being assigned to the radio station
system and the radio station system being connected to the first
access network node over an active radio link for transmitting
user data, the radio station system comprising:
a first radio station connected to the first access network
node through the active radio link for exchanging the user data;
and
a second radio station connected to the first radio station
over a communication interface;
wherein the second radio station is configured to
determine a preferred access network node from the identified
available access network nodes and to set up a standby radio
link with the preferred access network node, the standby radio
link being set up such that at least during the existence of the
active radio link between the first radio station and the first
access network node only radio communication control data
is exchanged over the standby radio link and at least at times
available access networks nodes are identified in the wireless
network for the radio station system;
wherein the second radio station is configured to
compare a quality of the active radio link with a quality of the
standby radio link and configured to select a preferred radio
link from the one of the active radio link and the standby
radio link; and
wherein communication properties of the first radio
station correspond to communication properties of the second
radio station; the first radio station and the second radio station
each having a housing.
App. Br. 10-11 (Claims Appendix).
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Application 13/046,349
Rejections on Appeal
The Examiner rejected claims 1, 6-8, 10-11, 14, and 18-19 under
35 U.S.C. § I03(a) as being unpatentable over Bossler et al.
(US 2010/0008322 Al; published Jan. 14, 2010) ("Bossler"), and de La
Chapelle et al. (US 2006/0229104 Al; published Oct. 12, 2006)
("Chapelle"). 1
The Examiner rejected claims 9 and 13 under 35 U.S.C. § I03(a) as
being unpatentable over Bossler, Chapelle, and Segal et al.
(US 2005/0160169 Al; published July 21, 2005) ("Segal").
The Examiner rejected claim 12 under 35 U.S.C. § I03(a) as being
unpatentable over Bossler, Chapelle, and Mahany (US 2006/0270339 Al;
published Nov. 30, 2006) ("Mahany").
Issue on Appeal
Did the Examiner err in rejecting claim 1 as being obvious?
PRINCIPLES OF LAW
The mere existence of differences between the prior art and the claim
does not establish non-obviousness. See Dann v. Johnston, 425 U.S. 219,
230 (1976). Instead, the relevant question is "whether the difference
between the prior art and the subject matter in question is a [difference]
sufficient to render the claimed subject matter unobvious to one skilled in
the applicable art." Dann, 425 U.S. at 228 (internal quotations and citations
1 The patentability of claims 6-8, 10-11, 14, and 18-19 is not separately
argued. See App. Br. 9. Thus, with respect to this rejection, except for our
ultimate decision, claims 6-8, 10-11, 14, and 18-19 are not discussed
further herein.
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Application 13/046,349
omitted). Indeed, the Supreme Court made clear that when considering
obviousness, "the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Further, one cannot show non-obviousness by attacking references
individually when the rejection is based on a combination of references. See
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re
Keller, 642 F.2d 413,425 (CCPA 1981).
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner has erred. We disagree with Appellants'
contention that the Examiner erred. Instead, we concur with the conclusions
reached by the Examiner. Except as noted below, we adopt as our own the
reasoning set forth by the Examiner in the Final Office Action and
Examiner's Answer.
Appellants contend the combination of cited prior art references does
not teach or suggest
wherein the second radio station is configured to ... set up
a standby radio link with the preferred access network node, the
standby radio link being set up such that at least during the
existence of the active radio link between the first radio station
and the first access network node only radio communication
control data is exchanged over the standby radio link,
as recited in claim 1 because:
[T]he mere fact that it is possible to transmit user data over the
standby connection 34 of Bossler, whether immediately or at a
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later moment in time, indicates there is no express exclusion of
user data from being transmitted over that connection, which is
indicated by Appellants' use of the word only.
App. Br. 6.
"[A] possibility" fails to positively account for the fact that "only
radio communication control data is [affirmatively] exchanged
over the standby radio link" as expressly required by
independent claims 1 and 14. Moreover, the Examiner's
argument amounts to an assertion that the system of Bossler is
"capable of' performing in the same manner as the claimed
invention. However, this is not the standard for determining
patentability, and Appellants believe the Examiner is misguided
in his application of the cited prior art.
App. Br. 8 (Appellants' emphasis and citations omitted; panel's emphasis
added).
In their Reply Brief, Appellants further argue:
The question to answer is whether Bossler teaches user data is
affirmatively excluded from being transmitted over the standby
radio link during the existence of an active radio link. Appellants
believe the system of Bossler fails to exclude the user data from
the standby radio link in the manner recited in independent claim
1. Again, the mere fact that it is possible to transmit user data
over the standby connection 34 of Bossler, whether immediately
or at a later moment in time, indicates there is no express
exclusion of user data from being transmitted over that
connection, which is indicated by Appellants' use of the word
only.
Reply. Br. 6-7 (Appellants' emphasis and citations omitted; panel's
emphasis added).
We are not persuaded that the Examiner erred. Contrary to
Appellants' argument, and consistent with the Examiner's findings, Bossler
teaches a first data connection 16 that is used for transmission of user data
(i.e., is in active operation) while a second data connection 17 is in standby
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operation. See Final Act. 3 ( citing Bossler ,r 19). Bossler further teaches
subsequently switching between the first data connection 16 and the second
data connection 17, where user data is no longer transmitted through the first
data connection 16 (i.e., the first data connection 16 is not in active
operation), and, instead, is transmitted through the second data connection
17. See Final Act. 3--4 ( citing Bossler ,r,r 19-22). Bossler further explicitly
teaches a switching device configured such that, in any switched state, user
data is transmitted over only one data connection. See, e.g., Bossler ( claim
1 ); see also Bossler ,r 7. Thus, contrary to Appellants' argument, Bossler
does teach affirmatively excluding user data from being transmitted over the
second data connection 17 while the first data connection 16 is in active
operation.
Appellants also contend the combination of cited prior art references
does not teach or suggest "wherein the second radio station is configured to
compare a quality of the active radio link with a quality of the standby radio
link and configured to select a preferred radio link from the one of the active
radio link and the standby radio link," as recited in claim 1 because:
[B]ased on the teachings of Bossler there is no teaching or
suggestion that both radio stations have a way to compare the
quality of an active radio link with the quality of a standby radio
link. Bossler (paragraph [0020]) explains "[t]he switching device
12 can switch between the modules 8 and 9 for example based
on field strength that is generated by antennae 5 and 6 of the
access points 3 and 4 at the mobile data transmission unit 7. For
switching, further or additional conditions, for example, the
WLAN frequency and/ or time factors can be provided. The
switching device 12 checks continuously whether the condition
for switching has been filled". Bossler thus teaches a comparison
is performed by a dedicated switching device that is separated
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from the radio stations and which, therefore, constitutes a single
point of failure.
In accordance with Appellants' claimed invention, in
contrast, the first and the second radio stations autonomously
coordinate among themselves which radio station shall be chosen
for maintaining the active radio link or the standby radio link,
respectively. Consequently, Appellants' claimed invention also
differs from the teachings of Bossler in that both radio stations
have a way to select a preferred radio link from the active radio
link and the standby radio link.
App. Br. 6-7 (Appellants' emphasis and citations omitted; panel's emphasis
added).
This argument is also not persuasive. The Examiner did not solely
rely upon Bossler to teach the aforementioned element of claim 1. Rather,
the Examiner relied upon Chapelle for teaching the aforementioned element.
See Final Act. 4 ( citing Chapelle ,r,r 44, 95). We agree with the Examiner
that Appellants' argument fails to address the Examiner's combination of
references. See Ans. 14.
We have considered Appellants' other arguments, and they are not
persuasive either. Accordingly, Appellants have not shown the Examiner
erred in rejecting claim 1 under 35 U.S.C. § 103(a).
CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 1, 6-14, 18, and
19 as being unpatentable under 35 U.S.C. § 103(a).
(2) Claims 1, 6-14, 18, and 19 are not patentable.
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DECISION
We affirm the Examiner's rejection of claims 1, 6-14, 18, and 19 as
being unpatentable under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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