TEXAS INSTRUMENTS INCORPORATED

Patent Trials and Appeals Board

Jul 21, 2021

2020000506 (P.T.A.B. Jul. 21, 2021)

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.
14/031,918 09/19/2013 Leonardo Estevez TI-72546 9540
23494 7590 07/21/2021
TEXAS INSTRUMENTS INCORPORATED
P O BOX 655474, MS 3999
DALLAS, TX 75265
EXAMINER
ZHANG, RUIHUA
ART UNIT PAPER NUMBER
2416
NOTIFICATION DATE DELIVERY MODE
07/21/2021 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
uspto@ti.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LEONARDO ESTEVEZ, AVRAHAM BAUM,
and BENZY GABAY

Appeal 2020-000506
Application 14/031,918
Technology Center 2400

Before CARL W. WHITEHEAD JR., DAVID M. KOHUT, and
IRVIN E. BRANCH, Administrative Patent Judges.

BRANCH, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20, 22–25, 27–30, 32–35, and 37–39,
which are all of the pending claims. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm in part.

1 “Appellant” refers to “Applicant,” as defined in 37 C.F.R. § 1.42.
Appellant identifies the real party in interest as “Texas Instruments
Incorporated.” Appeal Br. 1.
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STATEMENT OF THE CASE
Appellant’s Invention
Appellant’s invention “relate[s] to wireless mesh communication
systems . . . compatible with existing [Institute of Electrical and Electronics
Engineers (IEEE)] 802.11 standards.” Spec. ¶ 1; see also Ericsson, Inc.
v. D-Link Sys., Inc., 773 F.3d 1201, 1208 (Fed. Cir. 2014) (providing an
IEEE description of the 802.11 standard). Independent claims 1, 11, and 15
are reproduced below.2
1. A method of operating a mesh network, comprising the
steps of:
receiving a basic service set list by a first wireless node
indicating all wireless nodes in the mesh network;
receiving by the first wireless node a data frame having a
header with a frame control field, a duration/ID field, no more
than four address fields, and a last field (FCS);
determining by the first wireless node if the data frame source
is one of an access point (AP) and a leaf node (LN) of the mesh
network;
in response to determining that the data frame source is one of
an access point (AP) and a leaf node (LN), determining if the
next recipient of the mesh is a final destination;
in response to determining that the next recipient of the mesh is
not a final destination, setting a next address in a fourth of the
no more than four address fields to point to a next recipient; and
transmitting the data frame to the next recipient.

2 All claim quotes of this Decision are taken from the Appeal Brief’s
Claims Appendix.
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11. A method of operating a first wireless transceiver of a
mesh network, comprising the steps of:
a) receiving by the first wireless transceiver a basic service
set (BSS) list of wireless transceivers that are in the mesh
network;
b) determining if an access point (AP) is detected;
c) if an access point (AP) is not detected, selecting by the
first wireless transceiver from the BSS list a second wireless
transceiver having a lowest hop number and a greatest received
signal strength indicator (RSSI);
d) forming a mesh network connection with the second
wireless transceiver; and
e) setting a hop number of the first wireless transceiver to
said lowest hop number plus one, wherein each hop number
indicates a number of hops of a respective node from the AP.

15. A method of operating a wireless node of a mesh
network, comprising the steps of:
a) receiving a data frame having a header with plural
addresses;
b) determining if the data frame was received from a relay
node of the mesh network;
c) in response to determining that the data frame was
received from a relay node, determining whether the relay node
is upstream or downstream from the wireless node;
d) comparing a hop number of the relay node to a hop
number of the wireless node;
e) if the relay node is downstream from the wireless node
and the hop number of the relay node is less than or equal to the
hop number of the wireless node, incrementing the hop number
of the wireless node; and
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f) if the relay node is upstream from the wireless node and
the hop number of the relay node is greater than or equal to the
hop number of the wireless node, decrementing the hop number
of the relay node, wherein each hop number indicates a number
of hops of a respective node from an access point (AP).
Rejections
Claims 1–5, 7–9, 18–20, 22, 23, 25, 27, and 28 are rejected under 35
U.S.C. § 103 as being unpatentable over Kruys (US 2008/0310342 A1; Dec.
18, 2008) and Prost (US 2012/0100870 A1; Apr. 26, 2012). Final Act. 19–
26.
Claims 24 and 29 are rejected under 35 U.S.C. § 103 as being
unpatentable over Kruys, Prost, and Abraham (US 2014/0071883 A1;
Mar. 13, 2014). Final Act. 26.
Claims 6 and 10 are rejected under 35 U.S.C. § 103 as being
unpatentable over Kruys, Prost, Hughes (US 2013/0163412 A1;
June 27, 2013), and Saleh (US 2003/0031127 A1; Feb. 13, 2003).
Final Act. 26–31.
Claims 15, 35, 37, and 38 are rejected under 35 U.S.C. § 103 as being
unpatentable over Kruys, Hughes, and Saleh. Final Act. 31–34.
Claim 39 is rejected under 35 U.S.C. § 103 as being unpatentable over
Kruys, Hughes, Saleh, and Abraham. Final Act. 34.
Claims 16 and 17 are rejected under 35 U.S.C. § 103 as being
unpatentable over Kruys, Hughes, Saleh, and Rappaport
(US 2011/0255449 A1; Oct. 20, 2011). Final Act. 34–37.
Claims 11–14, 30, 32, and 33 are rejected under 35 U.S.C. § 103 as
being unpatentable over Kruys, Prost, Mighani (US 2008/0192713 A1;
Aug. 14, 2008), Gaylard (US 2013/0250823 A1; Sept. 26, 2013), and
Hughes. Final Act. 37–41.
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Claim 34 is rejected under 35 U.S.C. § 103 as being unpatentable over
Kruys, Prost, Mighani, Gaylard, Hughes, and Abraham. Final Act. 41–42.
OPINION
We review rejections for errors identified by reasoning and/or
evidence presented in an appellant’s briefs. See Ex parte Frye, 94 USPQ2d
1072, 1075–76 (BPAI 2010) (precedential) (explaining an appellant’s
burden of argument), cited, with approval, by In re Jung, 637 F.3d 1356,
1365 (Fed. Cir. 2011); SmithKline Beecham Corp. v. Apotex Corp.,
439 F.3d 1312, 1320 (Fed. Cir. 2006) (“[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are
deemed waived.” (citation omitted)). Thus, to identify an error, an appellant
must show the error. An appellant may identify an error by, for example,
showing a rejection fails to present a prima facie case. See Jung, 637 F.3d
at 1362 (explanation of the notice requirement under 35 U.S.C. § 132). An
appellant may also, for example, show a rejection rests upon an
unreasonable finding of fact. See In re Piasecki, 745 F.2d 1468, 1472 (Fed.
Cir. 1984) (“After a prima facie case . . . has been established, the burden of
. . . [r]ebuttal is . . . ‘a showing of facts supporting the opposite
conclusion.’”); Jung, 637 F.3d at 1365 (to identify a claim feature as
differing from applied prior art, an appellant must “proffer a serious
explanation of this difference”).
Below we address Appellant’s arguments and the Examiner’s findings
as needed to explain why an error is or is not shown. For example, after
explaining that the Examiner’s proposed combination of prior art teachings
for a given rejection (herein “the combination”) applies a
“four-address scheme” described by Kruys (see infra pp. 8–9), we do not
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address arguments directed to a “six-address scheme” described by Kruys
(Appeal Br. 13–14). Nor do we twice-address any argument that Appellant
merely reiterates (i.e., without identifying differences between the respective
claims or rejections that would merit further consideration of the repeated
argument). See In re Baxter Travenol Labs., 952 F.2d 388, 391
(Fed. Cir. 1991) (“It is not the function of this court to examine the claims in
greater detail than argued by an appellant . . . .”).
Claims 1, 2, 7–9, 24, 28, and 29
For the reasons explained below, we are unpersuaded of error in the
rejections of claims 1, 2, 7–9, 24, 28, and 29. We therefore sustain the
Examiner’s decision to reject claims 1, 2, 7–9, and 28 over Kruys and Prost;
and claims 24 and 29 over Kruys, Prost, and Abraham.
We address the issues with reference to independent claim 1, which is
representative of independent claim 7 (see 37 C.F.R. § 41.37(c)(1)(iv)).
Claims 2, 8, 9, 24, 28, and 29 are not separately argued (i.e., separate bases
of patentability are not argued) and each depends from claim 1 or claim 7.
We begin with a discussion of the relevant portions of Kruys.
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1. Kruys
The rejection cites Kruys, Figure 3, which is reproduced below (with
our red annotations).
Figure 3 illustrates the node addresses written to a message while en
route between two “stations (STAs) 16 . . . coupled to [a] wireless mesh
network 12” (id. ¶ 13). As shown by the left-side arrows, the message
“hops” along nodes of the mesh network 12. Id. ¶¶ 13–14, 23. The written
addresses STA1, MAP1, MP2, MP3, MAP2, STA2 dictate the message’s
path, are changed each hop by the transmitting node, and are as follows: a
recipient address (“RA”) at ADDRESS 1; a transmitter address (“TA”)
at ADDRESS 2; a destination address (“DA”) at ADDRESS 3; a source
address (“SA”) at ADDRESS 4; a mesh destination address (“MDA”)
at ADDRESS 5; and a mesh source address (“MSA”) at ADDRESS 6.
Kruys’ Figure 3 “illustrates an example frame format for
addressing messages in [Kruys’s] two-tier network.” Kruys ¶ 4.
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Id. ¶¶ 17–18, 21, 23. In the instance of Kruys’s Figure 3, the message is
carried from a station 16a/STA1 to a mesh access point 18a/MAP1, then to a
mesh point 18d/MP2, then to another mesh point 18e/MP3, then to another
mesh access point 18b/MAP2, and then to another station 16b/STA2.
Id. ¶ 23; Fig. 1 (showing the two-tier network of devices (id. ¶ 3)).
The message’s inclusion of the RA, TA, DA, and SA occurs for all
hops, per the IEEE 802.11 standard’s instructions for addressing a message.
Id. ¶ 17. The inclusion of the MDA and MSA occurs for only hops within
the mesh network 12, per Kruys’s invention (i.e., per Kruys’s further
instructions). Id. ¶ 18. Kruys’s addition of the MDA and MSA solves the
following problem:
[In the background art, i]f the wireless mesh network routes a
frame to or from a device that is not part of the wireless mesh
network, the wireless mesh network requires identification of
the transmitter of the frame, the mesh nodes that the frame will
traverse, and the next-hop receiver of the frame. Without such
information, the mesh nodes would likely have to know the
addresses of all devices attached to the wireless mesh network,
which would be impractical in cases involving large enterprise
local area networks (LANs) or the like attached to the wireless
mesh network.
Id. ¶ 2. The addition of the MDA and MSA “define[s] a mesh-specific
header that enables mesh nodes to route traffic to or from devices attached to
the wireless mesh network without knowing anything about the devices.”
Id. ¶ 22. Accordingly, “all mesh nodes in a wireless mesh network need not
be aware of the addresses of devices outside the wireless mesh network.” Id.
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2. Kruys’s applied teachings
The combination incorporates only the 802.11 standard’s
“four-address scheme” (Kruys ¶ 17) described by Kruys—not the
“six-address scheme” (id. ¶ 20) invented by Kruys. Ans. 5–6. Thus, the
combination implements a message: having the RA, TA, DA, and SA; and
not having the MSA and MDA. Id.
3. Appellant’s contentions regarding Kruys
Appellant contends “[Kruys’s] FIG. 3 confirms it is not possible to
send a message from station 16a to station 16c without use of
address[es] 5 [and] 6.” Reply Br. 4.3 We are unpersuaded for each of two
reasons.
First, Appellant merely asserts (i.e., does not provide sufficient
evidence to show) that Kruys’s Figure 3 teaches the MSA and MDA as
essential addresses. Specifically, Appellant merely states that Kruys’s
Figure 3 “confirms it is not possible to send a message” between stations
without using the MDA and MSA of respectively addresses 5 and 6, but
Appellant does not state how Figure 3 confirms it is not possible. Thus,
Appellant does not provide sufficient reasoning that Figure 3 should be
understood as evidencing that MSA and MDA are essential.
Second, even assuming (arguendo) Kruys teaches the MSA and MDA
as essential addresses, Kruys does so only for mesh network environments

3 We recognize the Examiner has newly determined, in the Answer,
that the combination’s message does not include the MSA and MDA.
Accordingly, we find good cause for Appellant first raising this contention
in the Reply Brief. See Ex parte Borden, 93 USPQ2d 1473, 1474
(BPAI 2010) (informative) (“The [R]eply [B]rief is not an opportunity to
make arguments . . . that could have been made in the [Appeal Brief.]”).
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wherein it is impractical for all nodes of the network to obtain the addresses
of all stations connected to the network. See Kruys ¶¶ 2, 22; see also
supra p. 8 (describing this problem of Kruys’s background art). No such
environment is required by claim 1 or by the Examiner’s proposed
combination of prior art teachings. As no such environment is required
(e.g., bodily incorporated from Kruys into the combination), a teaching of
the MSA and MDA as essential addresses for such an environment would
not discourage an artisan from making the claimed invention or proposed
combination (which lack such an environment). See In re Gurley,
27 F.3d 551, 553 (Fed. Cir. 1994) (A reference “teaches away” if a person of
ordinary skill in the art, upon reading the reference, would be discouraged
from pursuing the claimed invention or the proposed combination of prior
art teachings.); see also In re Hiniker Co., 150 F.3d 1362, 1369
(Fed. Cir. 1998) (“[The] proffered facts . . . are not commensurate with the
claim scope and are therefore unpersuasive.”).
Appellant also contends the Examiner “is ‘picking [and] choosing’
from [Kruys’s] FIG. 3 the limitations he wants to support.” Reply Br. 4.
We are unpersuaded because the Examiner need not show that Kruys teaches
or suggests all claim limitations. See In re Keller, 642 F.2d 413, 425
(CCPA 1981) (citations omitted) (“The test for obviousness . . . is what the
combined teachings of . . . references would have suggested . . . .”). Further,
to the extent Appellant might be contending that the combination omits
Kruys’s invention (by omitting the MSA and MDA), we are unpersuaded
because the Examiner may (and does) rely on Kruys only for its teachings of
the background art. See EWP Corp. v. Reliance Universal Inc., 755 F.2d
898, 907 (Fed. Cir. 1985) (“A reference must be considered for everything it
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teaches by way of technology and is not limited to the particular invention it
is describing and attempting to protect.”).
Appellant also contends:
[The] Examiner does not explain how it would be possible[,]
using [the combination’s] four address fields[,] to [perform the
claimed] “determining that the next recipient of the mesh is not
a final destination[ and consequent] setting [of] a next
address in a fourth of the no more than four address field to
point to a next recipient.”
Reply Br. 6 (emphases omitted).4
We are unpersuaded because Appellant does not sufficiently
address the Examiner’s finding that: the DA of Kruys’s message (as
incorporated by the combination) apprises a receiving node of the message’s
final destination address (i.e., STA2); and, if the node sets the RA of the
message to another address (i.e., other than STA2), then the node has
determined the next recipient is not the final destination’s address and has
consequently set one of the four addresses as that next recipient’s
address (e.g., MP2, MP3, or MAP2). Final Act. 20; Ans. 5. For example,
the briefs fail to provide sufficient argument or evidence that the claim’s
above determining distinguishes over the combination’s inclusion of a node
that, as stated above, receives a message and then hops (relays) the message

4 The at-issue language of claim 1 recites “in response to determining that
the next recipient of the mesh is not a final destination” (emphasis added),
whereas claim 4 depends from claim 1 and recites “in response to
determining that the next recipient of the mesh is a final destination”
(emphasis added). If these limitations are not condition precedents, then
claim 4 requires that the same next recipient is (claim 4) and is not
(base claim 1) a final destination. See Ex parte Schulhauser,
Appeal 2013-007847, 2016 WL 6277792, at *5 (PTAB Apr. 28, 2016)
(precedential) (explaining condition precedents).
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by setting the RA of the hopped message to an address other than the DA of
the received message.
4. Appellant’s contentions regarding Prost
Appellant contends the Examiner, in the Answer, “newly determines
‘Kruys as modified by Prost discloses receiving a basic service list by a first
wireless node indicating all wireless nodes in the mesh network.”
Reply Br. 2 (emphases omitted). In purported “[r]eply to Examiner’s new
argument” (id. at 1), Appellant then provides several further contentions
(id. at 2–3).
We are unpersuaded of error—and, moreover, do not consider the
contentions on the merits—because we disagree that the Examiner “newly”
presents the above determination in the Answer. In the Final Action, the
Examiner finds that Prost’s terminal scans for access points, thereby obtains
a list of BSSIDs and signal strengths for available access points, and thereby
identifies and connects to an access point of greatest signal strength.
Final Act. 20–21. Also in the Final Action, and in view of the above
findings, the Examiner concludes that it would have been obvious
(i.e., proposes) for Kruys’s source station STA1 to likewise scan for
available mesh access points, thereby obtain a list of their BSSIDs and signal
strengths, and thereby identify and connect to a mesh access point of greatest
signal strength. Id. at 21. Thus, we conclude Appellant lacks good cause for
first raising the above contentions in the Reply Brief. See Borden, 93
USPQ2d at 1474 (described at supra n.3).
Appellant also contends that “obtaining a basic service set list in Prost
is not definitive” (Reply Br. 7) nor inherent (id. at 7–8). We are
unpersuaded because the Examiner does not cite Prost as teaching that the
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combination’s stations (i.e., of the 802.11-standard) would always obtain a
list of BSSIDs and signal strengths for available access points.
Final Act. 20–21. As explained above, the Examiner cites Prost as teaching
an advantage of doing so—to identify and connect to an access point of
greatest signal strength. Id.
Claims 3–5
We are unpersuaded of error in the rejections of claims 3–5. We
therefore sustain the Examiner’s decision to reject claims 3–5 over Kruys
and Prost.
Claim 3 depends from claim 1 and recites in disputed part:
“in response to determining that the data frame source is not one of an
access point (AP) and a leaf node (LN) of the mesh network.”5
Claims 4 and 5 depend from claim 3 and are not separately argued.
The Examiner reads the above limitation on Kruys’s hopping of the
message from MP3 to MAP2 (as incorporated by the combination).
Final Act. 21; Ans. 9 (citing Kruys ¶¶ 12–16). In doing so, the Examiner
finds: “MP2 [and] MP3 are not one of an access point (AP) and a leaf node
(LN) of the mesh network” and “updating the [TA] field from MP2 to MP3
is considered a determination of the data frame source.” Id.

5 The at-issue language of claim 3 recites “in response to determining that
the data frame source is not one of an access point (AP) and a leaf node
(LN) of the mesh network” (emphasis added), whereas claim 1 recites “in
response to determining that the data frame source is one of an access point
(AP) and a leaf node (LN)” (emphasis added). If these limitations are not
condition precedents, then claim 3 requires that the same data frame source
both is and is not an access point or leaf node in claims 1 and 3 respectively.
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Appellant contends the Examiner “has failed to identify how the
reference teaches [the claimed] ‘data frame source is not one of an access
point (AP) and a leaf node (LN).’” Appeal Br. 20.
We are unpersuaded because Appellant does not sufficiently
address the Examiner’s finding that: the TA of Kruys’s message (as
incorporated by the combination) apprises a receiving node of the message’s
source; and, if the TA represents a “mesh point (MP)” such as nodes 18c,
18d, 18e, and 18f (Kruys ¶ 14)—as opposed to a “mesh access point
(MAP)” such as nodes 18a and 18b (id.) or a “mesh point portal (MPP)”
such as node 18g (id.)—then the receiving node has determined the source is
not an access point or leaf node. Final Act. 21; Ans. 9. For example, the
briefs fail to provide sufficient argument or evidence that the claimed
determining of a “frame source” distinguishes over the combination
apprising a receiving node of the message’s TA. The briefs also lack a
developed argument that the claimed “not one of an access point and a leaf
node” distinguishes over the combination’s mesh points of MP2 and MP3.
Claims 18 and 19
We are unpersuaded of error in the rejections of claims 18 and 19.
We therefore sustain the Examiner’s decision to reject claims 18 and 19 over
Kruys and Prost.
Claims 18 and 19 respectively depend from claims 1 and 7.
Each recites that “the fourth address is Address 4.”
The Examiner determines that claims 18 and 19 do not carry
patentable weight, but rather merely label the claimed fourth address as
“Address 4.” Final Act. 25; Ans. 12–13.
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Appellant contends that the “Examiner points to no teaching in Kruys
that will support his determination.” Appeal Br. 22–23.
We are unpersuaded because Appellant fails to sufficiently
address the Examiner’s reasoning, which does not concern Kruys. Rather,
the Examiner determines that the claim limitation only restricts
informational content and thus carries no patentable weight. See, e.g.,
Praxair Distribution, Inc. v. Mallinckrodt Hosp. Prod. IP Ltd., 890
F.3d 1024, 1033 (Fed. Cir. 2018) (“Because claim limitations directed to
mental steps may attempt to capture informational content, they may be
considered printed matter lacking patentable weight . . . .”); In re Distefano,
808 F.3d 845, 850–51 (Fed. Cir. 2015) (describing printed matter, in the
context of data, as information “claimed for what it communicates” and
lacking patentable weight unless functionally or structurally related to the
claimed invention).
Claims 20, 25, and 30
We are unpersuaded of error in the rejections of claims 20, 25, and 30.
We therefore sustain the Examiner’s decision to reject: claims 20 and 25
over Kruys and Prost; and claim 30 over Kruys, Prost, Mighani, Gaylard,
and Hughes.
Claims 20, 25, and 30 respectively depend from claims 1, 7, and 11.
Each recites that “the mesh network is a simple mesh network.”
The Examiner determines that “the claim does not impose a limitation
or boundary of a simple mesh network.” Ans. 13–14.
Appellant contends that “Kruys . . . does not teach or suggest use of
wireless mesh network 12 outside of being coupled to external network 14[,]
which forms two-tier network system 10.” Appeal Br. 23–24, 40–41.
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We are unpersuaded because Appellant fails to sufficiently
address the Examiner’s reasoning, which does not concern Kruys. Rather,
the Examiner determines that the claim limitation—namely the addition of
“simple” within “simple mesh network”—adds an unbound term of degree.
Ans. 13–14.6
Claims 22, 27, and 32
We are unpersuaded of error in the rejections of claims 22, 27, and 32.
We therefore sustain the Examiner’s decision to reject: claims 22 and 27
over Kruys and Prost; and claim 32 over Kruys, Prost, Mighani, Gaylard,
and Hughes.
Claims 22, 27, and 32 respectively depend from claims 1, 7, and 11.
Each recites that “the mesh network is a single tier mesh network.”
The Examiner finds Kruys’s mesh network 12 (as incorporated by the
combination) is a “single tier mesh network.” Final Act. 25–26; Ans. 13–14.
Appellant contends that “Kruys . . . does not teach or suggest use of
[Kruys’s] wireless mesh network 12 outside of being [part of the] two-tier
network system 10.” Appeal Br. 23–25; see also Reply Br. 15–16.
We are unpersuaded because Appellant fails to sufficiently
address the Examiner’s reasoning, which does not read the claimed mesh
network on Kruys’s two-tier network 10. Rather, the Examiner reads the

6 Because we review rejections for errors identified in the briefs (see
supra p. 5), we will not address whether claims 20, 25, and 30 are indefinite
and therefore cannot be rejected for obviousness. See Seattle Box Co. v.
Industrial Crating & Packing, Inc., 731 F.2d 818, 826 (Fed. Cir. 1984)
(“Definiteness problems often arise when words of degree are used in a
claim.”); In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970) (“If no reasonably
definite meaning can be ascribed to certain terms in the claim, the subject
matter does not become obvious[;] the claim becomes indefinite.”).
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claimed mesh network on only the included mesh network 12.
Final Act. 25–26; Ans. 13–14. The briefs fail to provide sufficient evidence
or argument that Kruys’s mesh network 12 is not one tier of the two-tier
network 10.
Claims 6, 10, 15–17, 35, and 37–39
We are persuaded of error in the rejections of claims 6, 10, 15–17, 35,
and 37–39. We therefore do not sustain the Examiner’s decision to reject:
claims 6 and 10 over Kruys, Prost, Hughes, and Saleh; claims 15, 35, 37,
and 38 over Kruys, Hughes, and Saleh; claims 16 and 17 over Kruys,
Hughes, Saleh, and Rappaport; and claim 39 over Kruys, Hughes, Saleh, and
Abraham.
Claims 6 and 10 respectively depend from claims 1 and 7.
Each recites in disputed part:
wherein each hop number indicates a number of hops of a
respective node from the AP;
if the source node is downstream from the receiving node and the
hop number of the source node is less than or equal to the hop
number of the receiving node, incrementing the hop number of
the receiving node; and
if the source node is upstream from the receiving node and the
hop number of the source node is greater than or equal to the
hop number of the receiving node, decrementing the hop
number of the receiving node.
Independent claim 15 similarly recites in disputed part:
e) if the relay node is downstream from the wireless node
and the hop number of the relay node is less than or equal to the
hop number of the wireless node, incrementing the hop number
of the wireless node; and
f) if the relay node is upstream from the wireless node and
the hop number of the relay node is greater than or equal to the
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hop number of the wireless node, decrementing the hop number
of the relay node, wherein each hop number indicates a number
of hops of a respective node from an access point (AP).
Each of claims 16, 17, 35, and 37–39 depends from claim 15.
The Examiner reads the above limitations on Saleh’s calculation of a
hop number (as incorporated by the combination) by: incrementing the
number when the respective message is from an upstream node; and
decrementing the number when the respective message is from a
downstream node. Final Act. 28–29 (citing Saleh ¶¶ 66, 87); Ans. 18 (also
citing Saleh ¶ 85).
Appellant contends: “[N]one of [Saleh’s] nodes . . . are identified by
[the cited] hop number. The hop number . . . only indicates a number of
hops along an APR [(Add Path Request)] path without regard to [a receiving
node’s] position with respect to the [access point].” Appeal Br. 29–30;
id. at 32; see also Saleh ¶ 63 (“Add Path Request (APR)”).
We are persuaded because the Examiner fails to explain why the
incrementing and decrementing of Saleh’s hop number (described below) is
regarded as teaching or suggesting the claimed incrementing and
decrementing of “the hop number of the receiving node” that “indicates a
number of hops of [the] node from the AP.” See Final Act. 28–29; Ans. 18.
For example, the Examiner does not articulate a nexus between Saleh’s hop
number and a node’s hop number, much less a nexus that would support
finding Saleh’s hop number teaches or suggests the claimed incrementing
and decrementing of a node’s hop number that indicates the node’s number
of hops from an access point. Id.
Furthermore, and as Appellant argues, Saleh’s cited disclosure
describes the hop number as indicating the number of hops traveled by an
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APR message to a receiving node—not as indicating a hop-number distance
from an access node to the receiving node. Appeal Br. 29–31; see also
Saleh ¶¶ 66, 85–87. Specifically, as part of restoring a failed data path, a
source node creates an APR message (packet), writes a path length (e.g.,
three) to the message, and then sends the message to the destination node.
Saleh ¶¶ 66, 85–87. The target node returns the message to the source node.
Id. While the message is en route, its hop number is: decremented by 1 for
each hop performed en route from the source node to the target node; and
incremented by 1 for each hop performed en route from the target node to
the source node. Id. There is no indication, in these disclosures or the
rejection, that Saleh’s above incrementing and decrementing teaches or
suggests a change to a node’s hop number indicating the node’s hop-number
distance from an access node.
Claims 11, 12, 14, 30, 33, and 34
We are unpersuaded of error in the rejections of claims 11, 12, 14, 30,
33, and 34. We therefore sustain the Examiner’s decision to reject
claims 11, 12, 14, 30, and 33 over Kruys, Prost, Mighani, Gaylard, and
Hughes; and claim 34 over Kruys, Prost, Mighani, Gaylard, Hughes, and
Abraham.
Independent claim 11 recites in disputed part:
c) if an access point (AP) is not detected, selecting by the
first wireless transceiver from the BSS list a second wireless
transceiver having a lowest hop number and a greatest received
signal strength indicator (RSSI);
d) forming a mesh network connection with the second
wireless transceiver; and
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e) setting a hop number of the first wireless transceiver to
said lowest hop number plus one, wherein each hop number
indicates a number of hops of a respective node from the AP.
Claims 12, 14, 30, 33, and 34 depend from claim 11.
We need not (and do not) consider Appellant’s contentions on the
merits. We are unpersuaded because Appellant’s claim limitations convey a
condition precedent (“if an access point (AP) is not detected”) and
contingent steps (selecting, forming, and setting) and, therefore, provides
arguments that are not commensurate with the claim interpretation. See
Schulhauser, Appeal 2013-007847, 2016 WL 6277792, at *5 (explaining
condition precedents). Specifically, Appellant contends the combination
does not perform the contingent steps, but also implicitly contends the
combination need not do so by additionally contending the combination does
not perform the condition. Appeal Br. 38–39.
Claim 13
We are unpersuaded of error in the rejection of claim 13.
We therefore sustain the Examiner’s decision to reject claim 13 over Kruys,
Prost, Mighani, Gaylard, and Hughes.
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Claim 13 depends from claim 11 and recites: “connecting to the AP in
response to step (b) if an AP is detected.” Claim 11 recites step (b) as
follows: “determining if an access point (AP) is detected.”
Appellant contends:
Conspicuous by its absence is any teaching or suggestion
that node 18a determines if the device, of which it is
communicating, is an access point. Because, a device is
communicating with a wireless node does not guarantee that the
device is aware of that wireless node’s capabilities or
configuration, i.e., whether the wireless node is an access point
. . . . Therefore, Kruys fails to teach or suggest “determining if
an access point is detected[,]” as required by claim 13.
Appeal Br. 40.
The Examiner responds: “Appellant’s argument on . . . ‘determining
if an access point is detected’ [is] addressed in response to Appellant’s
argument[s for c]laim 11.” Ans. 30. And, with regard to claim 11, the
Examiner responds:
[I]f a device is communicating with a wireless node, it would
mean the node is is aware of that wireless node’s capabilities or
configuration[. F]or example, [if] a STA communicate[s] with
a AP, the STA would know the AP, its frequency band,
communication mode or other configuration information[—
]such as via a broadcast beacon[.]
Id. at 27–28.
Appellant does not sufficiently address the Examiner’s above
findings. See, e.g., Reply Br. 27–29.
We are unpersuaded because Appellant does not contest the
Examiner’s official notice that a detected “access point” would be identified
as such, e.g., via the access point’s broadcast beacon. Appellant therefore
does not present a factual basis for us to determine the Official Notice is
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improper. See In re Boon, 439 F.2d 724, 728 (CCPA 1971) (An adequate
challenge to official notice “creates a reasonable doubt regarding the
circumstances justifying the . . . notice.”); see also MPEP § 2144.03.C
(“To adequately traverse [official notice], an applicant must . . . stat[e] why
the noticed fact is not . . . well-known.”).
CONCLUSION
For the foregoing reasons, we affirm the Examiner’s decision to reject
claims 1–5, 7–9, 11–14, 18–20, 22–25, 27–30, and 32–34. We reverse the
Examiner’s decision to reject claims 6, 10, 15–17, 35, and 37–39.
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DECISION SUMMARY
In summary:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–5, 7–9,
18–20, 22,
23, 25, 27,
28
103 Kruys, Prost
1–5, 7–9,
18–20, 22,
23, 25, 27,
28

24, 29 103 Kruys, Prost, Abraham 24, 29
6, 10 103 Kruys, Prost, Hughes, Saleh 6, 10
15, 35, 37,
38 103
Kruys, Hughes,
Saleh
15, 35, 37,
38
39 103 Kruys, Hughes, Saleh, Abraham 39
16, 17 103 Kruys, Hughes, Saleh, Rappaport 16, 17
11–14, 30,
32, 33 103
Kruys, Prost,
Mighani, Gaylard,
Hughes
11–14, 30,
32, 33
34 103
Kruys, Prost,
Mighani, Gaylard,
Hughes, Abraham
34
Overall
Outcome
1–5, 7–9,
11–14, 18–
20, 22–25,
27–30, 32–
34
6, 10, 15–
17, 35,
37–39

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). See 37 C.F.R.
§ 1.136(a)(1)(v).
AFFIRMED IN PART