Ex Parte Backes

Patent Trial and Appeal Board

Nov 5, 2012

10780838 (P.T.A.B. Nov. 5, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/780,838 02/18/2004 Floyd Backes 27592-01403-US7 3757
30678 7590 11/06/2012
CONNOLLY BOVE LODGE & HUTZ LLP
1875 EYE STREET, N.W.
SUITE 1100
WASHINGTON, DC 20006
EXAMINER
NGO, NGUYEN HOANG
ART UNIT PAPER NUMBER
2473
MAIL DATE DELIVERY MODE
11/06/2012 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 FLOYD BACKES
____________

Appeal 2009-014168
Application 10/780,838
Technology Center 2400
____________

Before CARL W. WHITEHEAD, JR., ERIC S. FRAHM, and
ANDREW J. DILLON, Administrative Patent Judges.

WHITEHEAD, JR., Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-014168
Application 10/780,838

2
STATEMENT OF THE CASE
Appellant is appealing claims 1-3. Appeal Brief 2, 5. We have
jurisdiction under 35 U.S.C. § 6(b) (2002).
We affirm.

Introduction
The invention is directed to a method and system for anticipating
transmitting power requirements in wireless mobile units communicating
with a base station. Appeal Brief 3-5.

Illustrative Claim
1. A program product for use by an access point in a
wireless communications environment wherein multiple
channels are available for communication, the program product
comprising a computer readable medium having embodied
therein a computer program for storing data, the computer
program comprising:

logic that selects a channel on which to provide service to
at least one wireless device including:

logic for sending at least one message indicative of a
claim to the selected channel;

logic for, if no message indicative of a claim to the
selected channel is received from another device, commencing
operation on the selected channel, and if a message indicative
of a claim to the selected channel is received from another
device, thereby indicating conflict, resolving the conflict by at
least one of:

selecting a different channel on which to provide service,
and reducing transmission power; and logic that determines
Appeal 2009-014168
Application 10/780,838

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which wireless devices become associated with the access point
including:

logic for periodically sending a message to wireless
devices to indicate presence and protocol capability of the
access point;

logic for receiving, from wireless devices, messages
indicative of requests to become associated with the access
point;

logic for selecting a subset of the wireless devices from
which a message was received indicative of a request to become
associated with the access point, thereby rejecting some of the
requests to become associated; and

logic for sending a message to each selected wireless
device to indicate that the access point will allow the selected
device to communicate in the wireless communications
environment via the access point.

Rejections on Appeal
Claims 1 and 2 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Shiohara (U.S. Patent Application Publication Number
2003/0236064 A1; published December 25, 2003) and Liang (U.S. Patent
Application Publication Number 2003/0083095 A1; published May 1,
2003). Answer 3-6.

Claim 3 stands rejected under 35 U.S.C. §103(a) as being
unpatentable over Shiohara, Liang and Feder (U.S. Patent Number
6,522,881 B1; issued February 18, 2003). Answer 6-7.

Appeal 2009-014168
Application 10/780,838

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Issue on Appeal
Do Shiohara and Liang, alone or in combination, disclose initial
channel selection by Access Points (APs) or messages indicative of an intent
to utilize a channel?

ANALYSIS
Appellant contends that Shiohara and Liang “fail to describe either the
initial channel selection by APs or messages indicative of an intent to utilize
a channel.” Appeal Brief 6. Appellant argues:
[B]oth references describe techniques for responding to
conflict that is already occurring once devices are actually
using a channel for active communications, i.e., providing
service. Liang, for example, describes a reservation
technique for sharing a channel on a time division basis.
Shiohara describes a technique by which one of the
interfering devices changes to a different operating
channel. As described at [0013], a radio signal transmitted
in the course of “ordinary communication,” such as a
beacon, is used to detect conflict between devices that are
using the channel for active communications. It is well
known in the art that an access point periodically
broadcasts beacons, each having a traffic map indicating
availability of buffered packets. The purpose of the
beacon is to awaken nodes that are in sleep mode to
resynchronize them so that those nodes can receive the
buffered data. Consequently, a beacon is indicative of
actual use of the channel rather than an indication of mere
intent to use the channel in the future.
Appeal Brief 6-7 (footnotes omitted).
Appellant concludes that the “cited references describe conflict
counter measures, whereas the claimed invention describes conflict
avoidance.” Id. at 7.
Appeal 2009-014168
Application 10/780,838

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However, the Examiner finds:
Shiohara however [sic] discloses of a first wireless
communication device (access point) that detects a future
or potential trouble in communications (page 1 [0012])
through the use beacon signals (page 1 [0013]). Examiner
thus correlates the beacon signals disclosed by Shiohara to
the message indicative of a claim to a selected channel (as
seen in claim 1). Shiohara further discloses that an access
point 10 (figure 2) first determines whether or not the
wireless communication module receives a beacon signal
transmitted from another device (step sl00 of figure 3 and
(page 6 [0100]) and further discloses that if there is no
reception of a beacon signal, the access point 10
determines that there is no conflict of the channel (page 6
[0100]), and thus uses that channel. In the case of a
reception of a beacon signal, the access point determines
that there is a conflict of the channel and resolves the
conflict as seen from page 6 [0100] - [0102] and figure 3.
Examiner thus correlates this to messages (beacon signals)
indicative to an intent (first determines if there is a conflict
before utilization of the channel) to utilize a channel. It
should further be noted that it is well known in the art that
as access points enters a network, the access point
determines any channel conflict (through beacon signals)
before actual use of a specific channel.
Answer 8.
We do not find Appellant’s arguments to be persuasive in light of the
Examiner’s findings. Appellant’s arguments do not address the specific
findings of the Examiner in relation to the rejection of claim 1. Once the
Examiner has satisfied the burden of presenting a prima facie case of
obviousness, the burden then shifts to Appellant to present evidence and/or
arguments that persuasively rebut the Examiner’s prima facie case. See In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Since Appellant did not
particularly point out errors in the Examiner’s reasoning to persuasively
Appeal 2009-014168
Application 10/780,838

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rebut the Examiner’s prima facie case of obviousness, the rejection of claim
1 is sustained.
For the above reasons, we are also affirming the rejections of
dependent claims 2 and 3, whose merits are not separately argued. In re
Nielson, 816 F.2d 1567, 1572 (Fed. Cir. 1987).

DECISION
The rejections of claims 1-3 are 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). See 37
C.F.R. § 41.50(f).

AFFIRMED

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