12579312 (P.T.A.B. Mar. 31, 2015)

Ex Parte BARR

Patent Trial and Appeal BoardMar 31, 2015

12579312 (P.T.A.B. Mar. 31, 2015)

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. 12/579,312 10/14/2009 David BARR E080048USU4 8025 77561 7590 03/31/2015 Duane Morris LLP (Entropic) IP Department 30 South 17th Street Philadelphia, PA 19103-4196 EXAMINER PAPPAS, PETER ART UNIT PAPER NUMBER 2444 MAIL DATE DELIVERY MODE 03/31/2015 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 DAVID BARR ____________________ Appeal 2013-001304 Application 12/579,312 Technology Center 2400 ____________________ Before CARL W. WHITEHEAD JR., DANIEL N. FISHMAN, and JEFFREY A. STEPHENS, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Claimed Subject Matter The invention generally relates to silent probes in a communication network — a time during which network nodes remain silent. (Abstract.) Claim 1, reproduced below, is illustrative: Appeal 2013-001304 Application 12/579,312 2 1. A method, comprising: scheduling a silent probe as a time and duration in which all network nodes may not transmit; and communicating the silent probe schedule to all nodes on the network. Rejections Claims 1, 3–5, 8, 11–12, 15, and 18–19 stand rejected under 35 U.S.C. § 102(e) as anticipated by Chu (US 2009/0225742 A1, published Sept. 10, 2009). (Ans. 4–6.) Claims 2, 6–7, 9–10, 13–14, 16–17, and 20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Chu and Wichelman (US 6,785,540 B1, issued Aug. 31, 2004). (Ans. 7–8.) The Examiner withdrew the rejection of claim 1 under 35 U.S.C. § 112, second paragraph. (Ans. 3.) ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s arguments the Examiner erred (App. Br. 4–7). We are unpersuaded by Appellant’s contentions. We adopt as our own the findings and reasons set forth by the Examiner in the action from which this appeal is taken and as set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief (see Ans. 8–9). We highlight and address specific arguments and findings for emphasis as follows. Appellant argues Chu does not disclose that “all network nodes may not transmit” during the scheduled silent probe, as recited in claim 1. (App. Br. 5–6.) According to Appellant, Chu teaches the network nodes stop Appeal 2013-001304 Application 12/579,312 3 transmissions with the node performing the scan, “but may continue transmitting with other nodes.” (Id. at 5.) We are not persuaded of reversible error. The Examiner finds “the network of all associated stations (i.e. stations 115-g through 115i) ‘stop communication during the designated period’ for which a scan (probe) is executed.” (Ans. 8, citing Chu ¶ 33, Fig. 4.) We agree that Chu’s access point and all associated subscriber stations, for example Access Point 110-A and stations 115-g through 115-i, which are described as nodes (see Chu ¶¶ 24, 33–34), define a network. Appellant does not dispute that communication on this network ceases during a probe, but emphasizes Chu’s teachings that Access Point 110-A also forms a part of a larger wireless mesh network with additional access points that “can communicate with each other.” (App. Br. 5–6 (quoting Chu ¶ 34).) We agree with the Examiner (Ans. 8–9) that these additional teachings do not negate the disclosure of a smaller network in which communication ceases. Appellant does not respond to this explanation in a reply brief. The Examiner’s findings are consistent with a broad but reasonable interpretation of “all network nodes may not transmit,” as recited in claim 1. Further supporting the Examiner’s position, we note “network” may be defined as: A group of computers and associated devices that are connected by communication facilities. A network can involve permanent connections, such as cables, or temporary connections made through telephone or other communication links. A network can be as small as a LAN (local area network) consisting of a few computers, printers, and other devices, or it can consist of many small and large computers distributed over a vast geographic area (WAN, or wide area network). . . . Appeal 2013-001304 Application 12/579,312 4 Microsoft Computer Dictionary 362 (5th ed., 2002). Thus, the term “network” alone does not limit the claims to any particular network. In addition, a device may form a part of more than one network, e.g., it may be part of a home network LAN and may also be connected to the global internet. Appellant has not shown that “network” is defined in the Specification in a way that is inconsistent with this interpretation of the term, which is implicit in the Examiner’s rejection. Under this interpretation, we agree with the Examiner (see Ans. 4, 8–9) that Chu discloses “all network nodes may not transmit” during the silent probe by disclosing that an access point and all its associated subscriber stations do not communicate during a scan.1 Based on the premise that Chu does not teach scheduling a silent probe “in which all network nodes may not transmit,” Appellant argues that Chu “teaches away” from the invention in claim 1. (App. Br. 5.) Claim 1 was rejected as anticipated, and teaching away is irrelevant to an anticipation analysis. Celeritas Techs., Ltd. v. Rockwell Int’l Corp., 150 F.3d 1354, 1361 (Fed. Cir. 1998); Seachange Int’l, Inc. v. C-COR Inc., 413 F.3d 1361, 1380 (Fed. Cir. 2005). Moreover, we disagree with the premise of Appellant’s argument because, as discussed above, Chu teaches the “all network nodes” limitation. In light of the foregoing, we sustain the rejection of independent claim 1 under 35 U.S.C. § 102(e) as anticipated by Chu. Appellant argues the Examiner erred in rejecting independent claims 8 and 15 for the same reasons as claim 1 (App. Br. 5–6) and do not separately argue, with 1 Because we agree with these findings, we need not consider whether use of the word “may” in claim 1 allows for the possibility that some nodes may communicate with each other during a silent probe. Appeal 2013-001304 Application 12/579,312 5 particularity, dependent claims 3–5, 11–12, and 18–19. Thus, for the same reasons as claim 1, we sustain the rejections of claims 3–5, 8, 11–12, 15, and 18–19 under 35 U.S.C. § 102(e) as anticipated by Chu. Appellant argues claims 2, 6–7, 9–10, 13–14, 16–17, and 20 are patentable for the same reasons as claim 1, i.e., “the cited prior art fails to disclose scheduling a period in which all of the network nodes are silenced.” (App. Br. 7.)2 As discussed above, we agree with the Examiner that Chu teaches this limitation, and for that reason also disagree with Appellant’s argument that Chu teaches away from the invention. Thus, for the same reasons as claim 1, we sustain the rejections of claims 2, 6–7, 9–10, 13–14, 16–17, and 20 under 35 U.S.C. § 103(a) as unpatentable over Chu and Wichelman. DECISION The Examiner’s decision to reject claims 1–20 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Dm 2 Appellant does not reference claim 2 in the argument section of the Appeal Brief, but includes it as a ground of rejection to be reviewed on appeal. (Compare App. Br. 6–7 with App. Br. 4.)