11098515 (P.T.A.B. Mar. 5, 2014)

Ex Parte Famolari

Patent Trial and Appeal BoardMar 5, 2014

11098515 (P.T.A.B. Mar. 5, 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. 11/098,515 04/05/2005 David Famolari 007871.00026 8182 30752 7590 03/06/2014 BANNER & WITCOFF, LTD. ATTORNEYS FOR CLIENT NO. 000449, 001701 1100 13th STREET, N.W. SUITE 1200 WASHINGTON, DC 20005-4051 EXAMINER SHEDRICK, CHARLES TERRELL ART UNIT PAPER NUMBER 2646 MAIL DATE DELIVERY MODE 03/06/2014 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 DAVID FAMOLARI ____________ Appeal 2011-009712 Application 11/098,515 Technology Center 2600 ____________ Before ELENI MANTIS MERCADER, JEFFREY S. SMITH, and BRUCE R. WINSOR, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-009712 Application 11/098,515 2 STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Non- Final Rejection of claims 1, 2, 4-7, and 9-27, which are the only claims pending in the application. Claims 3 and 8 were previously canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Illustrative Claim 1. A method for transmitting information comprising the steps of: determining by a mobile terminal which channel of a plurality of channels is clear; immediately assembling a formatted packet from a packet stored in a transmit queue for transmitting over said clear channel responsive to said determining step; and immediately transmitting said formatted packet over said clear channel. Prior Art Hebeler US 6,304,756 B1 Oct. 16, 2001 Moulsley US 2002/0159431 A1 Oct. 31, 2002 Kowalski US 2004/0264475 A1 Dec. 30, 2004 Altunbasak US 2006/0224763 A1 Oct. 5, 2006 Examiner’s Rejections Claims 1, 2, 4-7, 9-16, 21-24, and 27 stand rejected under 35 U.S.C. §102(e) as being anticipated by Kowalski. Appeal 2011-009712 Application 11/098,515 3 Claims 17-20 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Kowalski and Hebeler. Claim 25 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Kowalski and Altunbasak. Claim 26 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Kowalski and Moulsley. ANALYSIS Section 102 rejection of claims 1, 2, 4-7, 9, 10, 21, 22, and 27 Appellant contends paragraph 44 of Kowalski does not describe “immediately assembling a formatted packet from a packet stored in a transmit queue for transmitting over said clear channel responsive to said determining step” as recited in claim 1. App. Br. 6; Reply Br. 4. However, paragraph 45 of Kowalski discloses a “packet, which is more properly referred to as a MAC service data unit (MSDU) . . . is assembled with a header and a frame check sum.” We agree with the Examiner (Ans. 14) that Kowalski describes immediately assembling a formatted packet within the meaning of claim 1. Appellant contends Kowalski does not describe “immediately transmitting said formatted packet over said clear channel” as recited in claim 1. App. Br. 7; Reply Br. 5. Kowalski describes selecting an optimum transmit queue, selecting an optimum channel, and transmitting the packet over the optimum transmit route. Abstract; Figs. 1 and 3. Appellant’s Specification does not provide a definition of “immediately transmitting said formatted packet over said clear channel” that excludes transmitting the packet over the optimum transmit route as described by Kowalski. Appeal 2011-009712 Application 11/098,515 4 We sustain the rejection of claim 1 under 35 U.S.C. § 102. Appellant does not present arguments for separate patentability of claims 2, 4-7, 9, 10, 21, 22, and 27 which fall with claim 1. Section 102 rejection of claims 11-16, 23, and 24 Appellant contends Kowalski “teaches away” from “determining which channel of said available channels is clear subsequent to assembling said formatted data packet for each of said available channels” as recited in claim 11. App. Br. 8; Reply Br. 6-7. In particular, Appellant contends there would be no reason in Kowalski to assemble a formatted data packet for each of the channels, because the selected transmission queue would simply assemble a packet corresponding to its channel. Reply Br. 6. Appellant’s contention is inconsistent with paragraph 49 of Kowalski, which describes assigning a packet to a plurality of queues. The data packet would then be formatted, or “assembled,” for each of the corresponding channels as discussed in paragraph 45. In this case, “determining which channel of said available channels is clear subsequent to assembling said formatted data packet” occurs when one of the channels transmits the assembled packet. We sustain the rejection of claim 11 under 35 U.S.C. § 102. Appellant does not present arguments for separate patentability of claims 12- 16, 23, and 24 which fall with claim 11. Section 103 rejection of claims 17-20 Appellant does not present arguments for separate patentability of claims 17-20 which fall with claim 1. Appeal 2011-009712 Application 11/098,515 5 Section 103 rejection of claim 25 Appellant contends Altunbasak is not prior art. App. Br. 10. However, the Examiner finds page 7 of the provisional application of Altunbasak provides support for the non-provisional application. Ans. 17. Appellant contends page 7 of the provisional application merely describes that when a packet is not acknowledged in a predetermined amount of time, the packet is re-assigned to the other good link. According to Appellant, the assignment to the other good link is not based on a determination that the other good link is clear. Reply Br. 8. Appellant has not provided a definition of a clear channel that excludes the good link of Altunbasak or the optimum channel of Kowalski. Accordingly, we sustain the rejection of claim 25 under 35 U.S.C. § 103. Section 103 rejection of claim 26 Appellant does not present arguments for separate patentability of claim 26 which falls with claim 1. DECISION The rejection of claims 1, 2, 4-7, 9-16, 21-24, and 27 under 35 U.S.C. §102(e) as being anticipated by Kowalski is affirmed. The rejection of claims 17-20 under 35 U.S.C. §103(a) as being unpatentable over Kowalski and Hebeler is affirmed. The rejection of claim 25 under 35 U.S.C. § 103(a) as being unpatentable over Kowalski and Altunbasak is affirmed. Appeal 2011-009712 Application 11/098,515 6 The rejection of claim 26 under 35 U.S.C. § 103(a) as being unpatentable over Kowalski and Moulsley 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). See 37 C.F.R. § 41.50(f). AFFIRMED ke