Ex Parte Gorday et al

Board of Patent Appeals and Interferences

Jan 30, 2009

10334383 (B.P.A.I. Jan. 30, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PAUL E. GORDAY, ROBERT M. GORDAY,
and SALVADOR SIBECAS
____________

Appeal 2009-0070
Application 10/334,383
Technology Center 2600
____________

Decided:1 January 30, 2009
____________

Before JOSEPH F. RUGGIERO, JOHN A. JEFFERY, and MARC S.
HOFF, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 8, 11, 13-17, and 23. Claims 1, 2, 4-7, 9, 10, 12, and 18-

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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22 have been indicated as containing allowable subject matter (App. Br. 5;
Ans. 2, 8). We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.

STATEMENT OF THE CASE
Appellants invented a wireless local area network (WLAN) system
including fixed WLAN base stations, mobile WLAN base stations, and
mobile WLAN devices (e.g., mobile phones). The mobile base stations act
as carriers or repeaters for other mobile devices in the network. The
invention also includes a method for communicating within the WLAN.
This system and method improve coverage area.2 Independent claim 8 is
reproduced below:

8. A mobile wireless device comprising:

a transceiver that transmits and receives messages over a
wireless local area network, the transceiver being operative to
receive a message transmitted by a sending device;

memory operatively coupled to the transceiver, the
memory storing the message to produce a stored message and
storing data representing at least one of: service options and
message delivery characteristics; and

processing circuitry, operatively coupled to the memory
and the transceiver, that detects when the mobile wireless
device is within communication range of at least one of: a target
device that is coupled to the wireless local area network and has
connectivity to a wide area network and a target mobile WLAN
device with store and forward capability, when in range,

2 See generally Spec. ¶¶ 5, 12-20, and 29-33.
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instructs the transceiver to transmit the stored message to the
target device.

The Examiner relies upon the following as evidence in support of the
rejection:
Bednar, Jr. US 4,630,196 Dec. 16, 1986
Diepstraten US 5,991,287 Nov. 23, 1999
Gavrilovich US 6,026,277 Feb. 15, 2000
Beyda US 6,556,666 B1 Apr. 29, 2003
(filed May 5, 1998)

Lim US 6,801,508 B1 Oct. 5, 2004
(filed May 8, 2000)

Kinnunen US 6,813,501 B2 Nov. 2, 2004
(filed Feb. 27, 2001)

1. Claims 8 and 14-173 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Gavrilovich, Diepstraten and Lim (Ans. 3-6).
2. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gavrilovich, Diepstraten, Lim, and Beyda4 (Ans. 5).

3 The Examiner included claims 10 and 13 in this rejection (Ans. 3). Claim
10, however, has been indicated as containing allowable subject matter (Ans.
8). We therefore presume that the Examiner did not intend to reject this
claim and deem this error harmless. Additionally, claim 13 has been
rejected over Gavrilovich, Diepstraten, Lim, Beyda, and Kinnunen and will
be addressed separately (Ans. 6-7). See also n.4, infra, of this opinion.
4 While not under a separate heading, the Examiner nonetheless intends to
reject claim 11 relying on the additional teachings of Beyda (Ans. 3-5). We
therefore treat this rejection separately for clarity.
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3. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gavrilovich, Diepstraten, Lim, Beyda,5 and Kinnunen
(Ans. 6-7).
4. Claim 23 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gavrilovich, Diepstraten, Lim, and Bednar (Ans. 7).
Rather than repeat the arguments of Appellants or the Examiner, we
refer to the Briefs and the Answer6 for their respective details. In this
decision, we have considered only those arguments actually made by
Appellants. Arguments, which Appellants could have made but did not
make in the Briefs, have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(vii).

REJECTION OVER GAVRILOVICH, DIEPSTRATEN, AND LIM
We turn first to the rejection of claims 8 and 14-17 under 35 U.S.C.
§ 103(a) as being unpatentable over Gavrilovich, Diepstraten, and Lim.
Appellants argue the claims as follows: (1) claim 8 and 17; (2) claim 14; and
(3) claims 15 and 16 (App. Br. 15-22). Each group will be separately
addressed.

Claims 8 and 17

5 Since claim 13 depends from claim 11, we presume that the Examiner
intended to include Beyda in the statement of this rejection. See n.2, supra,
of this opinion; see also id. at n.3.
6 Throughout this opinion, we refer to (1) the Appeal Brief filed April 16,
2007; (2) the Examiner’s Answer mailed June 13, 2007; and (3) the Reply
Brief filed August 13, 2007.
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Regarding representative independent claim 8,7 the Examiner finds
that the combination of Gavrilovich, Diepstraten, and Lim teaches all the
recited elements (Ans. 4-5). Appellants argue that: (1) the Examiner has not
provided a motivation or reason for combining Gavrilovich with (a)
Diepstraten or (b) Lim, and (2) Gavrilovich does not disclose or teach that
the moving base station has storing and forward message capabilities (App.
Br. 13-19; Reply Br. 2-5).

ISSUE
The following issue has been raised in the present appeal:
Have the Appellants shown that the combination of Gavrilovich,
Diepstraten, and Lim fails to teach a mobile wireless device having
processing circuitry that detects when the mobile wireless device is within
communication range of a target device that is coupled to a WLAN and has
connectivity to a wide area network as recited in claim 8?

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. Gavrilovich discloses a mobile base station 30 having a transceiver
100 that receives data signals originating from a mobile unit within a
cellular telephone system (Gavrilovich, col. 1, ll. 15-19, col. 3, ll. 1-5
and 29-34, col. 4, ll. 44-47, and col. 5, ll. 20-27; Figs. 1 and 4).

7 Appellants argue claims 8 and 17 as a group (App. Br. 13-19, 22).
Accordingly, we select independent claim 8 as representative. 37 C.F.R.
§ 41.37(c)(1)(vii).
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2. Appellants define a “message” to include “any information whether
streaming information, packet information or any other information”
(Spec. ¶ 16).
3. Gavrilovich discloses the microprocessor 130 of the mobile base
station 30 performs well-known call processing functions, including
having circuitry to locate a mobile unit and to perform hand-off and
receiving call functions within a service area (Gavrilovich, col. 1, ll.
35-40, col. 4, l. 65-col. 5, l. 19, col. 6, ll. 28-36, and col. 12, ll. 5-10
and 44-50).
4. When a mobile unit (e.g., 20) first enters a service area, the unit
registers with the cellular system by sending its unique address to the
closest mobile base station 30. Gavrilovich discloses this address is
eventually transmitted to the rest of the telephone network so that
incoming calls are directed properly (Gavrilovich, col. 9, l. 64- col.
10, l. 4)
5. Gavrilovich’s mobile base stations 30 are disposed on the side of the
roadway 10 to service mobile devices 20 within the given base
station’s service area (Gavrilovich, col. 4, ll. 1-12 and 44-47; Fig. 1).
6. The gateway office 60 in Gavrilovich forms an interface between the
mobile telecommunication system (i.e., mobile units 20 and 25,
mobile base stations 30 and 40, fixed radio ports 50, fixed based
stations 70, and optical rings 55 and 75) and the wired telephone
system (Gavrilovich, col. 1, ll. 14-17 and col. 4, ll. 28-32 and 65-67;
Fig. 1).
7. Gavrilovich discloses that mobile base stations 30 and 40 are
connected through gateway 60 and link 61 to the telephone system or
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cellular system (Gavrilovich, col. 1, ll. 21-50 and col. 6, ll. 6-11; Fig.
1).
8. Gavrilovich teaches that processor 64 of the gateway 60 has a
memory and processor 150 of the fixed port 50 has a memory to store
data intended for a mobile unit (Gavrilovich, col. 10, ll. 37-44; Figs. 2
and 5).
9. Gavrilovich discloses that data transmitted from a mobile unit (e.g.,
20 or 25) to a mobile base station (e.g., 30 or 40) include a unique
address for registration with the telephone network and ADPCM
voice encoding for transmission of data (Gavrilovich, col. 7, ll. 11-15
and col. 9, l. 64 - col. 10, l. 4).
10. Gavrilovich discloses a fixed port device 50 that includes a
transceiver 110 or 111 to receive information from mobile base
stations 30 and 40, a memory, and a processor 150 (Gavrilovich, col.
5, ll. 36-39 and col. 10, ll. 37-41; Fig. 2).
11. Gavrilovich discloses that the mobile base stations 30 move with
traffic 12 along rail 35. The base stations 30 move relative to fixed
radio ports 50 and fixed base station 70 to transmit data (Gavrilovich,
col. 4, ll. 1-18 and 41-53; Fig. 1).
12. Gavrilovich discloses that data transmitted between mobile station 30
and fixed radio ports 50, including the mobile station’s identification
code, is timed and synchronized (Gavrilovich, col. 9, ll. 25-29 and col.
10, ll. 37-56).
13. Antennas 100 and 101 of mobile base stations 30 communicate with
antennas 110 and 111 of fixed radio ports 50 to transmit data
(Gavrilovich, col. 5, ll. 39-44).
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PRINCIPLES OF LAW
Discussing the question of obviousness of a patent that claims a
combination of known elements, KSR Int’l v. Teleflex, Inc., 127 S. Ct. 1727
(2007), explains:
When 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. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill. Sakraida [v. AG
Pro, Inc., 425 U.S. 273 (1976)] and Anderson's-Black
Rock[, Inc. v. Pavement Salvage Co., 396 U.S. 57 (1969)] are
illustrative—a court must ask whether the improvement is more
than the predictable use of prior art elements according to their
established functions.
KSR, 127 S. Ct. at 1740.
All claim limitations must be considered when determining
patentability. In re Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983).
However, the Examiner does not need to give patentable weight to
nonfunctional descriptive material absent a new and unobvious functional
relationship between the descriptive material and the substrate.
;
In re Ngai,
367 F.3d 1336, 1338 (Fed. Cir. 2004) Gulack, 703 F.2d at 1385.

ANALYSIS
Claims 8 and 17
We begin our discussion by determining the scope of claim 8. Claim
8 recites “processing circuitry . . . that detects when the mobile wireless
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device is within communication range of at least one of: a target device that
is coupled to the wireless local area network and has connectivity to a wide
area network and a target mobile WLAN device with store and forward
capability, when in range, instructs the transceiver to transmit the stored
message to the target device” (emphasis added). Thus, in order to satisfy
this limitation of claim 8, the prior art need only teach or suggest either the
recited target device or the target mobile WLAN device limitations.
Appellants’ own arguments in the Reply Brief further support this
interpretation. See Reply Br. 2 (noting that claim 8 recites processing
circuitry that detects when the mobile wireless device is within range of at
least one of two different target devices, one of which having store and
forward capability). Based on the scope and breadth of claim 8, the cited
prior art can, therefore, render that claim obvious without disclosing a target
mobile WLAN device with store and forward capability.
Gavrilovich discloses a mobile base station or wireless device 30
having a transceiver 100 operative to receive data signals originating from a
mobile unit (e.g., 20) within a cellular network (FF 1). As Appellants define
“message” as “any information whether streaming information, packet
information or any other information” (FF 2), Gavrilovich also discloses that
the transceiver 100 is operative to receive messages over a telephone system
transmitted by a sending device (e.g., one of mobile units 20). Gavrilovich
also discloses a mobile base station 30 having processor 130 that handles
call processing functions, including locating a mobile unit within a service
area and performing call hand-off and receiving functions for mobile units
within the service area (FF 3). The mobile base station 30 initially performs
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the locating function by registering the mobile unit (e.g., 20) with the
network so that incoming calls are directed properly (FF 4).
To illustrate, when an existing call for a target mobile device 20 enters
a service area of mobile base station 30 (FF 4), the wireless mobile device
30 registers the target device in order to be able to perform the function of
locating a given target device 20 (FF 3-5) within a service area or detecting
when the target device 20 has comes within the station’s communication
service area or range. Additionally, the processor’s 130 ability to receive
calls for a mobile unit within its service area and hand off existing calls of a
mobile unit 20 to another service area demonstrates that the processor has
the ability to detect when a target device 20 is or is not within its
communication range. Because processor 130 has these capabilities, we find
that Gavrilovich discloses a processing circuitry that detects when a wireless
mobile device 30 is within communication range of a target device 20.
Alternatively, if not explicitly disclosed in Gavrilovich, an ordinarily
skilled artisan would have recognized the need for the processing circuitry
130 of mobile wireless device 30 to have the ability to detect when the
mobile wireless device is within communication range of given mobile unit
20. Including such a locating feature in the processing circuitry 130 would
have assisted in performing its function of locating when a particular device
within a cell (FF 3) and behave in a similar and predictable manner of
detecting when the wireless mobile device 30 comes within communication
range of a target device 20 so that any incoming calls can be properly
directed (FF 4). See KSR, 127 S. Ct. at 1740. Gavrilovich also teaches that
each mobile wireless device 30 performs the function of receiving calls from
the mobile units within its service area and handing off calls directed to
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another service area (FF 3). Having the ability to receive and hand off calls
from a mobile unit properly within a service area would predictably result
from a mobile wireless device that detects when a target device or an
intended receiver is or is not within its communication range. See KSR, 127
S. Ct. at 1740.
Furthermore, Gavrilovich discloses the target or mobile device 20 is
coupled to a wireless network consisting of other mobile units 20, mobile
base stations 30, fixed radio ports 50, fixed base stations 70, optical rings 55
and 75, and gateway 60 (FF 6). We find that the disclosed network (id.) is a
WLAN and the target device is coupled to the WLAN as recited in claim 8.
Also, the broad limitation of “target device . . . has connectivity to a wide
area network” in claim 8 does not require direct connectivity to a wide area
network. As such, Gavrilovich also discloses the target device 20 has
connectivity to a wide area network through link 61 to another telephone
system (FF 7). Thus, Gavrilovich discloses the target device 20 has
connectivity to a wide area network as recited in claim 8.
While Gavrilovich is silent regarding whether processor 130 has
memory, processor 130 must have at least temporary memory in order to
process the messages from mobile unit 20 to another desired mobile unit (FF
1). Gavrilovich further teaches that processor 64 of the gateway 60 has a
memory and processor 150 of the fixed port 50 has a memory (FF 8).
Gavrilovich teaches the processors' memory of a cellular system devices
within a network are used to store data which will be sent to a mobile unit or
target device. (Id.) Gavrilovich, thus, would have suggested to an ordinarily
skilled artisan that including memory into processor 130 would improve the
processor by allowing for temporary storage of data until the mobile wireless
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device 30 comes within communication range of a designated mobile unit or
target device 20 for which the stored data is intended. See KSR, 127 S. Ct. at
1740.
Lastly, the limitation of “storing data representing at least one of:
service options and message delivery characteristics” in claim 8 comprises
nonfunctional descriptive material. The recited memory in claim 8 stores
data representing one of two types of information: service options and
message delivery characteristics. As a general proposition, merely reciting
what data represents constitutes non-functional descriptive material as it
does not further limit the claimed invention either functionally or
structurally. In short, no functional relationship exists between the memory
and the information such that the claimed memory has been given a property
it would not have had if either the memory or information changed. Such
non-functional descriptive material does not patentably distinguish over
prior art that otherwise renders the claims unpatentable. See Ngai, 367 F.3d
at 1338; Gulack, 703 F.2d at 1385.8 Nonetheless, Gavrilovich discloses
messages from a mobile unit 20 to the mobile base station 30 include
“message delivery characteristics,” including (1) a unique address when
registering, and (2) ADPCM voice encoding information when transmitting
(FF 9).
Because Gavrilovich teaches all the limitations of claim 8, we find
Diepstraten and Lim cumulative and therefore need not address Appellants’
arguments concerning these references (App. Br. 13-19; Reply Br. 3-5).

8 See also Ex parte Nehls, No. 2007-1823, slip op. at 11-17 (BPAI Jan. 28,
2008) (precedential), available at
http://www.uspto.gov/web/offices/dcom/bpai/prec/fd071823.pdf (discussing
cases pertaining to non-functional descriptive material).
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For the above reasons, Appellants have not shown the Examiner erred
in rejecting claims 8 under 35 U.S.C. § 103(a) as being unpatentable over
Gavrilovich, Diepstraten, and Lim. Accordingly, we sustain the Examiner’s
rejection of claim 8 and claim 17 which falls with claim 8.

Claim 14
Claim 14 varies in scope from claim 8 and recites a fixed WLAN
device comprising a wireless transceiver, a memory, and a processing
circuitry operatively coupled to the memory and operative to forward recited
messages received from a plurality of WLAN devices to a mobile WLAN
base station in response to the mobile WLAN base station coming within
range of the fixed WLAN device. The Examiner finds that the combination
of Gavrilovich, Diepstraten, and Lim teaches all the limitations found in
claim 14 (Ans. 4-5). Appellants argue that the Examiner fails to provide a
motivation to arrive at the claimed subject matter and reasserts the previous
arguments with respect to claim 8 (App. Br. 20-21). The issue before us,
therefore, is whether the Appellants have shown the Examiner erred in
finding the combination of Gavrilovich, Diepstraten, and Lim teaches a
fixed WLAN device having processing circuitry to store and forward
messages from a plurality of mobile WLAN devices to a mobile WLAN
base station in response to the mobile WLAN base station coming within
communication range of the fixed WLAN device as required by claim 14.
Gavrilovich discloses a fixed radio port or WLAN device 50 having
wireless transceivers 110 and 111, a memory, and a processor 150 (FF 10).
As wireless antennas 110 and 111 receive data representing voice signals
and call related information from mobile base stations 30, these wireless
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transceivers are operatively coupled to receive messages transmitted from a
number of mobile WLAN devices (FF 13) and to store the data in memory
(FF 8), as recited in claim 14. In addition, while Gavrilovich does not
explicitly state when the data is transmitted to the mobile stations 30 or 40
from the fixed radio port 50, Gavrilovich discloses that the mobile WLAN
base stations 30 and 40 move relative to a given fixed WLAN device 50 (FF
13) and, thus, teaches that mobile WLAN base stations 30 and 40 are not
always within communication range of a given fixed WLAN device 50.
Based on this teaching, one skilled in the art would have recognized
synchronizing (FF 12) or forwarding data from a fixed WLAN device 50 to
a mobile WLAN base station 30 or 40 when the two are within
communication range so that an intended call will be directed to the proper
mobile unit 20 within a mobile WLAN base stations 30 or 40 service area
(FF 12). Thus, Gavrilovich provides ample reason to have a fixed WLAN
device with processing circuitry 150 that forwards messages in response to a
mobile WLAN base station coming within communication range of the fixed
WLAN device as recited in claim 14.
Appellants characterize the fixed radio ports 50 as always being
within range of the mobile base stations 30 and 40 and, thus, never
responding to the mobile base station coming within a communication range
as recited (App. Br. 17; Reply Br. 4-5). While it is accurate that a mobile
base station is always in range of a fixed base station, this does not
demonstrate that a given fixed port device 50 is always connected to the
same base station 30 or 40. Gavrilovich demonstrates such is not the case,
as the mobile base stations 30 and 40 move along rails 35 or 45 relative to
fixed port device 50 (FF 11 and 13). Moreover, Gavrilovich discloses that
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mobile base stations 30 and 40 and the fixed radio ports 50 are synchronized
to deliver the data at the appropriate time (FF 12). If this was not the case,
the fixed port device 50 would be sending the data to the wrong mobile base
stations and the messages would not be forwarded.
We are also not persuaded by Appellants’ arguments for the reasons
discussed in connection with claim 8. Additionally, we find Diepstraten and
Lim cumulative because Gavrilovich discloses or teaches all the limitations
in claim 14; we therefore need not address Appellants’ arguments (App. Br.
20 and 21; Reply Br. 3-5) concerning these references.
For the above reasons, Appellants have not shown that the Examiner
erred in rejecting claim 14 under 35 U.S.C. § 103(a) as being unpatentable
over Gavrilovich, Diepstraten, and Lim.

Claims 15 and 16
Representative independent claim 159 recites a plurality of mobile
WLAN devices, at least one fixed WLAN collector base station, and at least
one mobile WLAN base station. The Examiner finds that the combination
of Gavrilovich, Diepstraten, and Lim teaches all the limitations of claim 15
(Ans. 4-6). Appellants admit that claim 15 has been included in the heading
of the rejection (App. Br. 21), but that the limitations of the claim have not
been addressed and are not found in the cited prior art. (Id.) In Appellants’
view, the Examiner has provided insufficient notice of the rejection of claim

9 Claims 15 and 16 have not been separately argued (Br. 13-22).
Accordingly, Appellants argue claims 15 and 16 as a group, and we select
independent claim 15 as representative. 37 C.F.R. § 41.37(c)(1)(vii).
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15 (App. Br. 21-22). Appellants also reassert the previous arguments made
with regards to Gavrilovich, Diepstraten, Lim, and claim 8 (App. Br. 22).
We are not persuaded. First, claim 15 is similar in scope to claim 14,
including a fixed WLAN device or WLAN collector base station and
forwarding or uploading data from a fixed WLAN device or collector base
station to a mobile WLAN base station in response to the mobile base station
coming within range of the fixed WLAN device. Second, the Examiner’s
rejection of the combination of Gavrilovich, Diepstraten, and Lim provides a
prima facie case of obviousness for claim 15 for the same reasons discussed
above in connection with claim 14. We, thus, refer to the above discussion
of claim 14 and how the prior art teaches these limitations. Finally,
Gavrilovich discloses a plurality of mobile WLAN devices of mobile units
20 (FF 6).
For the above reasons, Appellants have not shown the Examiner erred
in rejecting claim 15 under 35 U.S.C. § 103(a) as being unpatentable over
Gavrilovich, Diepstraten, and Lim. Accordingly, we sustain the Examiner’s
rejection of claim 15 and claim 16 which falls with claim 15.

REJECTION OVER GAVRILOVICH, DIEPSTRATEN, LIM, AND BEYDA
We next address the rejection of claim 11 under 35 U.S.C. § 103(a) as
being unpatentable over Gavrilovich, Diepstraten, Lim, and Beyda. The
Examiner finds the combination teaches all the limitations of claim 11 (Ans.
3-5). Appellants argue that: (1) the cited prior art, including Diepstraten,
does not teach a processing circuit that interrogates a mobile WLAN device
to determine if the device has a message collection memory and a capacity
of the memory as recited and (2) the rejection does not explain how the
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references are combined (App. Br. 19-20). Appellants also repeat the
comments made with regard to Diepstraten (App. Br. 20).
Gavrilovich discloses or teaches a fixed WLAN device 50 or 70
communicating with mobile base stations 30 and 40 to pass along data (FF
1, 4, 12, and 13). Gavrilovich discloses that the microprocessor 130 of
mobile base stations also interacts with mobile units 20 and 25 in order to
locate a mobile unit within a processing area and to perform hand-off and
call receiving functions (FF 3). Gavrilovich further discloses that the mobile
units 20 or 25 register with the mobile base station 30 and 40 and fixed port
50 so as to direct incoming calls from the gateway 60 (FF 4). However,
none of these functions disclose WLAN devices 20, 25, 30, 40, 50, and 70
interrogating or actively questioning a mobile WLAN device, such as 20,
25, 30 or 40, to determine if the device is a mobile base station that includes
a multi-wireless device message collection memory that stores collected
message as recited in claim 11.
For the above reasons, Appellants have shown the Examiner erred in
rejecting claim 11 under 35 U.S.C. § 103(a) as being unpatentable over
Gavrilovich, Diepstraten, Lim, and Beyda. Accordingly, we do not sustain
the Examiner’s rejection of claim 11.

REJECTION OVER GAVRILOVICH, DIEPSTRATEN, LIM, BEYDA, AND KINNUNEN
As claim 13 depends from claim 11, we are find the Appellants have
shown the Examiner erred in rejecting claim 13 for the same reasons
discussed above in connection with claim 11. Appellants have, therefore,
shown the Examiner erred in rejecting claim 13 under 35 U.S.C. § 103(a) as
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being unpatentable. Accordingly, we do not sustain the Examiner’s
rejection of claim 13.

REJECTION OVER GAVRILOVICH, DIEPSTRATEN, LIM, AND BEDNAR
With regard to claim 23, Appellants reasserts the arguments relating
to Gavrilovich, Diepstraten, Lim, and claim 8 (Br. 22). We are not
persuaded of Examiner error, for the same reasons discussed above in
connection with claim 8. As Appellants have not shown the Examiner erred
in rejecting claim 23 under 35 U.S.C. § 103(a) as being unpatentable over
Gavrilovich, Diepstraten, Lim, and Bednar, we will sustain the Examiner’s
rejection of claim 23.

CONCLUSION
(1) Appellants have not shown that the combination of Gavrilovich,
Diepstraten, and Lim fails to teach a mobile wireless device having
processing circuitry that detects when the mobile wireless device is within
range of a target device that is coupled to a WLAN and has connectivity to a
wide area network, as recited in claim 8.
(2) Appellants have not shown the Examiner erred in finding the
combination of Gavrilovich, Diepstraten, and Lim teaches a WLAN device
that stores and forwards messages from a plurality of mobile LAN devices to
a mobile LAN base station in response to the mobile LAN base station
coming within communication range of the fixed WLAN device, as required
by claim 14 or similar limitations found in claim 15.
(3) Appellants have shown that the Examiner erred in finding that
the prior art teaches the limitation of “processing circuitry operative to
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interrogate a mobile WLAN device to determine if the mobile WLAN is a
mobile WLAN base station that includes multi-wireless device message
collection memory that stores collected message [sic] received from a
plurality of WLAN devices” in rejecting claim 11 based on Gavrilovich,
Diepstraten, Lim, and Beyda under § 103.

DECISION
The decision of the Examiner to reject claims 8, 14-17, and 23 is
affirmed. The decision of the Examiner to reject claims 11 and 13 is
reversed.
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Application 10/334,383

No 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-IN-PART

ELD

VEDDER PRICE P.C.
222 N. LASALLE STREET
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