Ex Parte Del Prado Pavon et al

Board of Patent Appeals and Interferences

May 29, 2012

10534418 (B.P.A.I. May. 29, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JAVIER DEL PRADO PAVON and
SAI SHANKAR NANDAGOPALAN
____________________

Appeal 2010-001209
Application 10/534,418
Technology Center 2600
____________________

Before: JOSEPH L. DIXON, THU A. DANG, and JAMES R. HUGHES,
Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-001209
Application 10/534,418
2
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
9, 13-21, 26, and 27. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

The claims are directed to a wireless data communications system.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A Hybrid Controller (HC) for an IEEE 802.11 wireless
data communications system supporting quality of service
(QoS) enhancements, comprising:

a Station Management Entity (SME) within the HC; and

a Media Access Control (MAC) SubLayer
Management Entity (MLME) within the HC and
communicably coupled both to the SME and to MLMEs
for wireless stations (WSTAs) participating in the IEEE
802.11 wireless data communications system,

wherein responsive to a schedule change for one of the
participating WSTAs, the SME within the HC generates a
request primitive for transmission to the MLME within the HC,
and wherein the request primitive includes a Schedule Element.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Ho US 2003/0081547 A1 May 1, 2003
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Application 10/534,418
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Sai Shankar and Sunghyun Choi "QoS Signaling for Parameterized
Traffic in IEEE 802.11e Wireless LANs", W. Chang (Ed.): AISA 2002,
LNCS 2102. pp. 67-83, 2002. (Hereinafter, Sai Shankar).

REJECTIONS
Claims 1-9, 13-21, 26, and 27 stand rejected under 35 U.S.C §103(a)
as being unpatentable over Ho and Sai Shankar.

ANALYSIS
We note that independent claim 1 and independent claim 13 have
been argued by Appellants as a single group. (App. Br. 7). Therefore, we
select independent claim 1 as the representative claim and will address
Appellants' arguments thereto. See 37 C.F.R. § 41.37 (c)(1)(vii) (2008).
Appellants contend that the Ho reference appears to see a need to
schedule transmission times in the first instance and there is no mention of
scheduling change in Ho and there is no request primitive relating to a
schedule change proposed anywhere in the Ho reference. (App. Br. 8).
With respect to this contention, Appellants' argument with respect to the Ho
reference is unpersuasive since the Examiner has identified that Sai Shankar
teaches the request primitive relating to a schedule change. (Ans. 4-5).
Therefore, Appellants' argument does not show error in the Examiner's
showing of obviousness.
Appellants further present arguments with respect to the language of
dependent claim 7 with respect to independent claim 1, but this argument
does not show error in the Examiner's proffered combination of teachings
with respect to the Hybrid Controller recited in independent claim 1.
Furthermore, the Examiner relies upon the teachings of Sai Shankar with
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Application 10/534,418
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respect to the primitives rather than the Ho reference. (Ans. 4-5).
Therefore, Appellants' argument does not show error in the Examiner's
showing of obviousness.
We find that the Examiner has provided further discussion in the
responsive arguments section of the Answer to more fully address
Appellants' arguments regarding the combination and the primitives. (Ans.
7-9). Appellants have not filed a Reply Brief to respond to the Examiner's
further clarifications with respect to the teachings of Sai Shankar concerning
primitives. (Ans. 4). Therefore , Appellants’ arguments with respect to Ho
concerning the primitive are irrelevant. One cannot show nonobviousness
by attacking references individually where the rejections are based on
combinations of references. In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986)(cite omitted). Therefore, we accept the Examiner's further
clarifications.
Additionally, Appellants argue that:
According to Sai, a traffic stream may be added via a set
of MAC service access point primitives. The request primitives
described by Sai are discussed immediately below. The
MLME-ADDTS.request primitive is "sent by SME to MLME to
initiate a stream management frame with specified
parameters...In
the section dealing with Inter-STA signaling, Sai
discusses adding and modifying traffic streams in a manner
similar to that described by Ho. In this regard, Sai appears to be
cumulative to the teachings of Ho.

From a complete review of the Sai reference, it appears
that Sai lacks any description of a primitive or protocol or
process for generating a request primitive including a Schedule
Element in response to a schedule change of a WSTA, as
defined in the independent claims. These claimed limitations
insure that a scheduling change for the WSTA is directly
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controlled from the request primitive by including the schedule
element.
Sai appears to teach adding a traffic stream, requesting a
status of the medium, and determining the bandwidth for a
sidestream. While Sai appears to apply primitives between
SME and MLME to control the addition of streams and the
probing for possible bandwidth, there is no disclosure relating
to schedule changes or even responding to a request for a
scheduling change for the wireless stations (WSTAs) in a
network.

(App. Br. 9-10). Appellants' arguments apparently attempt to distinguish the
claimed invention based upon "schedule changes" and "responding to a
request for a scheduling change" and "a Schedule Element." (App. Br. 10).
We find Appellants' argument is not commensurate in scope with the
express language of independent claim 1 which is directed to a Hybrid
Controller. At best, we find the "wherein…" clause to set forth a statement
of intended use for the Hybrid Controller (which comprises a Station
Management Entity (SME) and a Media Access Control (MAC) Sublayer
Management Entity (MLME)). We further note that Appellants have not
identified any express definition for the "request primitive" or the "schedule
element" which would structurally change the hybrid controller to
differentiate representative claim 1 over the proffered combination of Ho
and Sai Shankar. We further find that the "wherein…" clause is directed to
non-functional descriptive material which does not further limit the Hybrid
Controller to differentiate representative claim 1 over the proffered
combination of Ho and Sai Shankar and is not entitled to weight in the
patentability analysis. See Ex parte Nehls, 88 USPQ2d 1883, 1887-90
(BPAI 2008) (precedential) (discussing non-functional descriptive
material).
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Even if we, arguendo, ascribe some weight to the previously
discussed wherein clause, we find that Sai Shankar teaches or at least would
have fairly suggested the well-known use of primitives in a QoS based
system "to provide some level of predictability and control beyond the
current IP 'best efforts' service" (Ans. 8) as suggested by the Examiner. We
further agree with the Examiner that Sai Shankar teaches a scheduling entity
(SE). (Ans. 8; Sai Shankar at 76).
Appellants further contend that the RSVP Daemon is not the same as
the claimed "wherein…" clause. (App. Br. 10). First, the Examiner has
deleted the reliance upon this portion of the reference in the Answer.
Second, we find Appellants' argument is not commensurate in scope with the
language of representative claim 1. TThe proffered comparison is merely
attorney argument which does not show error in the Examiner's showing of
obviousness. While the broader RSVP protocol may have differences from
the disclosed invention, it is the language of representative claim 1 that the
Examiner has rejected based upon the combination of Ho and Sai Shankar.
Appellants also contend that there is no teaching, showing, or
suggestion in Sai Shankar or Ho to enable a person of ordinary skill in the
art to develop a scheduling change process for WSTA by using a set of
primitives. (App. Br. 10). We find Appellants' argument is not
commensurate in scope with the language of representative claim 1 since the
claim does not set forth a set of primitives and only recites "a request
primitive". Therefore, Appellants' argument does not show error in the
Examiner's showing of obviousness.
Appellants acknowledge that Sai Shankar mentioned a scheduling
entity, but contend that Sai Shankar is silent as to the provisioning and
operation of that scheduling entity. (App. Br. 11). While we agree with
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Appellants that Sai Shankar does not greatly detail the "provisioning and
operation" of the scheduling entity, we find no specific detail regarding the
"provisioning an operation" of the scheduling entity in the language of
representative claim 1. Furthermore, Appellants have not identified any
express definition in the specification to limit the Examiner's broad yet
reasonable interpretation of the scheduling element. Therefore, Appellants
argument does not show error in the Examiner's showing of obviousness of
representative claim 1.
Appellants further contend that the co-author of Sai Shankar is a co-
inventor of the present invention and that it can be attested to by the
inventor's that they have been involved in developing efficient protocols for
the IEEE 802.11 and that the Sai Shankar reference reflects their work as of
mid-2002 and that the progress made in the second half of 2002 resulted in
the development of the present invention. (App. Br. 11). While Appellants
proffer that the inventors can attest to various facts, Appellants have not
provided any evidence in the record to support such a contention. Therefore,
Appellants' argument does not show error in the Examiner's showing of
obviousness of representative claim 1, and we will sustain the rejection of
representative claim 1 and independent claim 13 grouped therewith.

With respect to claims 2-9, 14-21, 26, and 27, Appellants rely upon
the arguments advanced with respect to independent claim 1. Since we
found no error in the Examiner's conclusion of obviousness with respect to
representative claim 1, we find Appellants' argument to be unpersuasive of
error with respect to the noted dependent claims. Therefore, we will group
these claims as falling with representative claim 1.
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CONCLUSIONS OF LAW
Appellants have not shown that the Examiner erred in rejecting
independent claim 1 over obviousness.

DECISION
For the above reasons, the Examiner’s rejection of claims 1-9, 13-21,
26, and 27 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) (2009). See
37 C.F.R. § 41.50(f).

AFFIRMED

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