Ex Parte Aiken et al

Patent Trial and Appeal BoardSep 26, 2012

10448481 (P.T.A.B. Sep. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RICHARD T. AIKEN and ROGER D. BENNING ____________ Appeal 2010-005007 Application 10/448,481 Technology Center 2600 ____________ Before JOHN A. JEFFERY, BRUCE R. WINSOR, and BARBARA A. BENOIT, Administrative Patent Judges. BENOIT, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005007 Application 10/448,481 2 Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-9.1 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellants’ invention relates to techniques for routing antenna beams to another sector to increase capacity in a wireless communication system having non-uniform mobile user density. See generally Abstract; Spec. 5:4- 25. Claims 1 and 4 are illustrative: 1. An antenna system for a wireless communication system, the antenna system comprising: at least one antenna array; a switch coupled to the at least one antenna array for routing signals applied to the switch which signals are routed to any input of the at least one array to generate signal beams of alternating polarizations. 4. The antenna system of claim 1 where a control signal generated by the communication system causes the switch to re-route a signal such that at least one of a plurality of beams generated by the signal and where the at least one of a plurality of beams formerly radiated through a radio serving one sector is now radiated through a radio of another sector. THE REJECTIONS 1. The Examiner rejected claims 1 and 3 under 35 U.S.C. § 102(e) as anticipated by Reudink (US 6,512,480 B1; issued Jan. 28, 2003). Ans. 3-4.2 1 Although Appellants indicate that only claims 4, 5, 7, and 9 are appealed (App. Br. 1; Reply Br. 3), we nonetheless treat all rejected claims (claims 1- 9) as noted on pages 4 and 5 of this opinion. 2 Throughout this opinion, we refer to 1) the Appeal Brief filed September Appeal 2010-005007 Application 10/448,481 3 2. The Examiner rejected claim 2 under 35 U.S.C. § 103(a) as unpatentable over Reudink and Smith (US 5,940,044; issued Aug. 17, 1999). Ans. 4-5. 3. The Examiner rejected claims 4, 5, and 7-9 under 35 U.S.C. § 103(a) as unpatentable over Reudink and Lim (US 2004/0023657 A1; published Feb. 5, 2004; filed Nov. 25, 2002). Ans. 5-8. 4. The Examiner rejected claim 6 under 35 U.S.C. § 103(a) as unpatentable over Reudink, Lim, and Smith. Ans. 8-9. CONTENTIONS The Examiner finds that Reudink discloses every recited feature of independent claim 1. Ans. 3 (citing Reudink, col. 4, ll. 24-64; Fig. 1). For the additional limitation recited by dependent claim 4, the Examiner cites Lim’s mobile communication system using adaptive sectorization that switches beams from a sector having a high user distribution to a sector having a low user distribution. Ans. 5 (citing Lim, ¶¶ 0011-13). The Examiner concludes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify Reudink with Lim to include Lim’s adaptive sectorization “to improve an imbalance resulting from a user distribution in a cell so as to increase the cell capacity as suggested by Lim.” Ans. 6 (citing Lim, ¶ 0011). Appellants do not contest the Examiner’s findings regarding the claimed features that are said to be taught by the references. App. Br. 4-8. 10, 2007; 2) the Examiner’s Answer mailed December 20, 2007; and 3) the Reply Brief filed on February 20, 2008. Appeal 2010-005007 Application 10/448,481 4 Appellants only challenge the Examiner’s combination of Reudink and Lim as improper. Id.; Reply Br. 1-2. ISSUE Under § 103, is the Examiner's reason to combine the teachings of Reudink and Lim supported by articulated reasoning with some rational underpinning to justify the Examiner's obviousness conclusion? This issue turns on whether Lim teaches away from the combination. ANALYSIS ANTICIPATION REJECTION OF CLAIMS 1 AND 3; OBVIOUSNESS REJECTION OF CLAIM 2; AND OBVIOUSNESS REJECTION OF CLAIM 6 Appellants present no arguments pertaining to (1) the Examiner’s anticipation rejection of claims 1 and 3; (2) the Examiner’s obviousness rejection of claim 2; or (3) the Examiner’s obviousness rejection of claim 6. See generally App. Br. 4-8; Reply Br. 1-3. The Notice of Appeal filed April 17, 2006 states that the Final Rejection of November 17, 2005 is being appealed. The Final Rejection rejected claims 1-9. In the Appeal Brief, however, Appellants specifically indicate that only claims 4, 5, 7, and 9 are on appeal. App. Br. 1. Despite Appellants’ indication, the Grounds of Rejection section in the Examiner’s Answer addresses all pending claims 1- 9. Ans. 3-9. Therefore, we summarily sustain the anticipation rejection of claims 1 and 3, the obviousness rejection of claim 2, and the obviousness rejection of claim 6. See Manual of Patent Examining Procedure (MPEP) § 1205.02, 8th ed., Rev. 8, July 2010 (“If a ground of rejection stated by the Appeal 2010-005007 Application 10/448,481 5 examiner is not addressed in the appellant's brief, that ground of rejection will be summarily sustained by the Board.”). OBVIOUSNESS REJECTION OF CLAIMS 4, 5, AND 7-9 Claims 4, 5, 7, and 9 We are not persuaded of error in the Examiner’s combination of Reudink and Lim. Appellants contend that Lim’s technique for re-routing beams between different sectors does not provide any benefit to Reudink’s diversity techniques. App. Br. 6-7; Reply Br. 1-2. This argument is unavailing because the Examiner explains the benefit and motivation of modifying Reudink’s system based on Lim’s adaptive sectorization teaching for changing sectors – namely, “to improve an imbalance resulting from a user distribution in a cell so as to increase the cell capacity as suggested by Lim.” Ans. 6 (citing Lim, ¶ 0011). This benefit is similar to some benefits of Reudink’s diversity techniques, which allow for higher levels of throughput and switching between hubs if a hub is experiencing particularly heavy traffic (Reudink, col. 4, l. 58 – col. 5, l. 14). Further, the Examiner’s proposed combination of Reudink and Lim predictably uses prior art elements according to their established functions—an obvious improvement. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007). We now turn to whether Lim teaches away from combining the known elements in Lim and Reudink. “[W]hen the prior art teaches away from combining certain known elements, discovery of a successful means of combining them is more likely to be nonobvious.” Id. at 416. Appellants contend that Lim teaches away from using adaptive sectorization with Reudink’s diversity technique. App. Br. 6-7; Reply Br. 1- Appeal 2010-005007 Application 10/448,481 6 2. The question before us then is whether a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant. See In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006). Appellants rely on Lim’s discussion of difficulties in constructing and operating base stations that use “smart antenna” techniques that use, among other functions, diversity functions. App. Br. 5-6 (citing Lim, ¶ 0005); Reply Br. 1-2. Lim’s paragraph 0005 is not unequivocal (App. Br. 5-6) because, although Lim indicates the difficulty of constructing and operating smart antennas, Lim does not go so far as to indicate impossibility. Further, in paragraph 0005 Lim explains that smart antennas are difficult because a variety of additional functions are required, and a diversity function is merely one of several enumerated functions. Also, Lim indicates, in the paragraphs that surround paragraph 0005, that smart antennas are “superior in performance to the adaptive sectorization.” Lim, ¶¶ 0004, 06. This juxtaposed praise further undercuts Appellants’ argument that, because Lim discloses the difficulties of constructing and using smart antennas in paragraph 0005, Lim teaches away from using adaptive sectorization with Reudink’s diversity techniques. Moreover, the Examiner merely cites Lim for the limited purpose of teaching changing sectors, whereas the Examiner relies on Reudink for teaching all of the claim limitations found in independent claim 1, from which claim 4 depends. In view of the scope and context of Lim’s paragraph 0005 and the Examiner’s usage of Lim for a limited purpose, we see no reason why skilled artisans would be discouraged, or would be led in Appeal 2010-005007 Application 10/448,481 7 a direction divergent, from combining Lim’s adaptive sectorization with Reudink’s diversity technology merely because of the difficulties in constructing and operating a smart antenna which requires a variety of functions in addition to a diversity function. Accordingly, we are not persuaded, even in light of Lim’s disclosure of the difficulties of constructing and operating a smart antenna, that Lim teaches away from combining Lim’s adaptive sectorization with Reudink’s diversity technology. Therefore, we find the Examiner’s reason to combine the teachings of the cited references supported by articulated reasoning with some rational underpinning to justify the Examiner’s obviousness conclusion. We are not persuaded of Examiner error, and, accordingly, we sustain the Examiner’s rejection of claim 4 and claims 5, 7, and 9, which were not argued separately. App. Br. 5-7; Reply Br. 1-3. Claim 8 Appellants present no argument pertaining to the Examiner’s rejection of claim 8. See generally App. Br. 4-8; Reply Br. 1-3. Therefore, we summarily sustain the obviousness rejection of claim 8. See MPEP § 1205.02. CONCLUSION Under § 102, the Examiner did not err in rejecting claims 1 and 3. Under § 103, the Examiner did not err in rejecting claims 2 and 4-9. ORDER The Examiner’s decision rejecting claims 1-9 is affirmed. Appeal 2010-005007 Application 10/448,481 8 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 rwk