11561491 (P.T.A.B. Feb. 11, 2014)

Ex Parte Lee et al

Patent Trial and Appeal BoardFeb 11, 2014

11561491 (P.T.A.B. Feb. 11, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte WHAY CHIOU LEE, CHARBEL KHAWAND, KEVIN L. KLOKER, and STEPHEN N. LEVINE ____________ Appeal 2011-006000 Application 11/561,491 Technology Center 2400 ____________ Before JOHN A. JEFFERY, DENISE M. POTHIER, and DAVID M. KOHUT, Administrative Patent Judges. POTHIER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-3, 5-10, 12-17, 19, and 20. Claims 4, 11, and 18 have been canceled. Br. 16, 17, and 19. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2011-006000 Application 11/561,491 2 Invention Appellants’ invention relates to a technique for allocating a communications network spectrum. See generally Spec. ¶ 1. Illustrative claim 1 is reproduced below with emphasis: 1. A method for efficient management of hierarchically administered spectrum resources in a communications network, comprising: receiving a request for a policy decision from a policy enforcement point at a current policy decision point level in a hierarchy of policy decision points, wherein the hierarchy of policy decision points corresponds to a hierarchy of communications spectrum blocks; determining whether the request can be satisfied at the current policy decision point level, wherein if the request cannot be satisfied at the current policy decision point level, forwarding the request to a policy decision point at a policy decision point level that is higher in the hierarchy, otherwise retrieving policy information from a policy database; determining a policy decision, wherein if the request was received from the policy enforcement point at the current policy decision point hierarchy level, sending the policy decision to the policy enforcement point at the current policy decision point level in the hierarchy, otherwise, sending the policy decision to a policy enforcement point at a policy decision point level lower in the hierarchy. The Examiner relies on the following as evidence of unpatentability: Airy US 6,400,699 B1 June 4, 2002 Metke US 2006/0236377 A1 Oct. 19, 2006 The Rejection Claims 1-3, 5-10,1 12-17, 19, and 20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Metke and Airy. Ans. 4-7. 1 The heading of the rejection listed only claims 8-10 (Ans. 4), yet the rejection discusses claims 5-7 (Ans. 6-7). As such, this error is harmless. Appeal 2011-006000 Application 11/561,491 3 THE OBVIOUSNESS REJECTION Regarding representative independent claim 1, the Examiner finds that Metke teaches all its limitations, other than the communications spectrum hierarchy as claimed upon which Airy is relied. Ans. 4-6. Appellants argue that Airy teaches scheduling frequency blocks and time slots to each subscriber for receiving data blocks, but does not mention a hierarchy of subscriber units or a hierarchy of frequency blocks. Appellants thus contend Airy does not teach the recited, “hierarchy of policy decision points corresponds to a hierarchy of communications spectrum blocks . . . .” Br. 11-12. Appellants also assert that one skilled in the art would not have been motivated to combine Metke with Airy. Br. 13. ISSUE Under § 103, has the Examiner erred in rejecting claim 1 by finding that Metke and Airy collectively would have taught or suggested the hierarchy of policy decision points corresponds to a hierarchy of communications spectrum blocks? ANALYSIS Based on the record before us, we find no error in the Examiner’s rejection of independent claim 1. Identity of terminology between Metke or Airy and the claimed limitation is not required to teach “the hierarchy of policy decision points corresponds to a hierarchy of communications spectrum blocks . . . .” See In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990). Thus, to the extent that Appellants assert that Airy fails to teach the claimed “hierarchy” limitations simply because the reference fails to mention a Appeal 2011-006000 Application 11/561,491 4 hierarchy of frequency blocks or subscriber units,2 we are not persuaded. See Br. 11-12. Additionally, the rejection presented by the Examiner is based on the combination of Metke and Airy. See Ans. 5-6, 8-10. As such, attacking Airy individually (Br. 11-12) does not show nonobviousness where rejections are based on combinations of references. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The Examiner finds that Metke’s authenticators or nodes arranged in a network are policy decision points at policy decision point levels, thus teaching a hierarchy of policy decision points (e.g., authenticator 110 or 410 being a policy decision point and authenticator 130 and 420 being another policy decision point in the Figures 1and 4 respectively). See Ans. 5, 7-9 (citing Metke ¶ 28). Appellants do not contest that Metke teaches a hierarchy of policy decision points. Br. 11-13. Next, Airy is cited to teach a known technique for assigning frequency blocks and time slots (e.g., communications spectrum blocks) to network users or nodes. Ans. 5, 9 (citing Airy, col. 2, ll. 57-67). When combining Airy’s teaching with Metke, the resulting system yields no more than each policy decision point in Metke (e.g., authenticators 110 and 130 in Figure 1) being assigned a spectrum block (e.g., frequency block C and A respectively as shown in the annotated Figure 1). See Ans. 9. Moreover, given that the policy decision points form an undisputed hierarchy and are each assigned a communications spectrum (e.g., a frequency block) in the Examiner’s proposed combination, the resulting system predictably yields the recited 2 Note, claim 1 actually recites “a hierarchy of policy decision points” and “a hierarchy of communications spectrum blocks.” Appeal 2011-006000 Application 11/561,491 5 hierarchy of policy decision points that corresponds to a hierarchy of communications spectrum blocks. See Ans. 9-10; see also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Appellants further argue that there is no motivation to combine Airy’s teachings with Metke. Br. 13. We disagree. The Examiner has articulated a reason with some rational underpinning to combine the references to justify the Examiner’s obviousness conclusion. See KSR, 550 U.S. at 418. Specifically, the Examiner states the combination would allow for spatial multiplexing and communication diversity. Ans. 6, 10 (citing Airy, col. 2, ll. 47-56). For the foregoing reasons, Appellants have not persuaded us of error in the rejection of independent claim 1 and claims 2, 3, 5-10, 12-17, 19, and 20 not separately argued with particularity. CONCLUSION The Examiner did not err in rejecting claims 1-3, 5-10, 12-17, 19, and 20 under § 103. DECISION The Examiner’s decision rejecting claims 1-3, 5-10, 12-17, 19, and 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 tj