Hussain Zaheer. Syed et al.

Patent Trials and Appeals Board

Aug 2, 2019

14337560 - (D) (P.T.A.B. Aug. 2, 2019)

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.
14/337,560 07/22/2014 Hussain Zaheer Syed TWC14-12(14-33) 9498
156874 7590 08/02/2019
Armis Intellectual Property Law, LLC
P.O. Box 1564
Westborough, MA 01581
EXAMINER
LEE, JAE YOUNG
ART UNIT PAPER NUMBER
2466
NOTIFICATION DATE DELIVERY MODE
08/02/2019 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):
chris.lutz@armisiplaw.com
docket@armisiplaw.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte HUSSAIN ZAHEER SYED, PRAVEEN C. SRIVISTAVA,
RAJESH M. GANGADHAR, and SOURABH GUPTA
____________________

Appeal 2018-008936
Application 14/337,5601
Technology Center 2400
____________________

Before ROBERT E. NAPPI, JOHN A. JEFFERY, and
MICHAEL T. CYGAN, Administrative Patent Judges.

CYGAN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1, 3, 5–7, 9–15, 17–18, 20–26, 31–34, 36–42, and
44–50, which constitute all the claims pending in this application.2 We have
jurisdiction under 35 U.S.C. § 6(b).

1 According to Appellants, Time Warner Cable Enterprises LLC is the real
party in interest. App. Br. 2.
2 Claims 2, 4, 8, 16, 19, 27–30, and 35 have been cancelled. App. Br. 62–
73.
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We AFFIRM-IN-PART and enter a NEW GROUND OF
REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b).

Disclosed Invention and Exemplary Claim
The disclosed invention relates to connecting a mobile communication
device to a network access point. Abstract. The disclosed method involves
a network access point capable of supporting communications over multiple
frequency bands, and having a connection manager that may select a carrier
frequency band based upon conditions such as the current load associated
with other mobile communications devices currently communicating with
the access point. Id. The connection manager receives a request from a
mobile device that desires to access the network, and initiates notification to
the mobile communication device to connect to the access point using the
selected carrier frequency band. Id.
Independent claim 1 below is exemplary of the disclosed invention,
and reads as follows:
1. A method comprising:
via computer processor hardware, performing operations
of:
receiving a request from a mobile communication device
to establish a connection with an access point in a network, the
access point supporting wireless communications over multiple
carrier frequency bands, the mobile communication device
generating the request;
analyzing current load conditions associated with other
mobile communication devices communicating with the access
point over the multiple carrier frequency bands;
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selecting a carrier frequency band from the multiple
carrier frequency bands based at least in part on the current load
conditions; and
providing, in a wireless communication to the mobile
communication device, a notification to the mobile
communication device to connect to the access point using the
selected carrier frequency band.
Independent claims 18, 22, and 31 recite limitations commensurate
with the limitations recited in claim 1. Dependent claims 3, 5–7, 9–15, 17,
20–21, 23–26, 32–34, 36–42, and 44–50 each incorporate the limitations of
their respective independent claims.
Examiner’s Rejections
The Examiner rejects claims 1, 3, 5, 9, 22–26, 31, 33, 37, and 44–50
under 35 U.S.C. § 102(a)(2) as being anticipated by Ruan (US 2017/0013560
A1; published Jan. 12, 2017; effectively filed Mar. 26, 2014.
The Examiner rejects claim 6 under 35 U.S.C. § 103 as being obvious
over Ruan in view of Stephenson et al. (US 2010/0118830 A1; published
May 13, 2010) (hereinafter “Stephenson”).
The Examiner rejects claims 7, 10–13, 15, 18, 20, 21, 32, 34, and 36
under 35 U.S.C. § 103 as being obvious over Ruan in view of Emmanuel et
al. (US 2015/0105121 A1; published Apr. 16, 2015) (hereinafter
“Emmanuel”).
The Examiner rejects claim 14 under 35 U.S.C. § 103 as being
obvious over the combination of Ruan, Emmanuel, and Stephenson.
The Examiner rejects claim 17 under 35 U.S.C. § 103 as being
obvious over the combination of Ruan and Emmanuel, and further in view of
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Nagai et al. (US 2014/0378179 A1; published Dec. 25, 2014) (hereinafter
“Nagai”).
The Examiner rejects claims 38–42 under 35 U.S.C. § 103 as being
obvious over the combination of Ruan in view of Matta (US 2012/0034943
A1; published Feb. 9, 2012).

ANALYSIS
We have reviewed the Examiner’s rejections (Final Act. 2–63) in light
of Appellants’ contentions that the Examiner has erred (App. Br. 13–60).
Further, we have reviewed the Examiner’s response to Appellants’
contentions. Ans. 64–145. We have also reviewed the Appellants’ Reply
Brief.
Anticipation by Ruan
With respect to claim 1, Appellants contend that Ruan does not
disclose “receiving a request from a mobile communication device to
establish a connection with an access point in a network.” App. Br. 18
(emphasis omitted). Appellants argue that Ruan instead teaches receiving
two probe requests from a mobile communication device. Id. Appellants
argue that a probe request is not a request to establish a connection. Id.
Appellants further argue that it is known to one of ordinary skill in the art
that “a probe response is a communication sent from an access point
indicating information or availability about the access point as a response to
receiving the probe request frame,” and accordingly, is not “notifying a
mobile communication device of a carrier frequency band to establish a
connection.” Id. at 19. Appellants further argue that Ruan does not indicate
that the carrier frequency band was “selected.” Appellants additionally
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argue that Ruan does not analyze selecting the carrier frequency band based
on a load condition. Id. at 22.
We find Appellants’ arguments unpersuasive. In responding to the
Examiner’s citations to Ruan, Appellants characterize the pertinent
disclosure of Ruan in the following manner (App. Br. 21):
the mobile communication device (terminal) sends a probe
request over a respective frequency selected by the mobile
communication device. The wireless access point (wireless
network device) responds with a probe response so that the
mobile communication device can establish a link using the
frequency selected by the mobile communication device.
Appellants’ attempt to distinguish Ruan as sending two requests is not
persuasive because Appellants characterize Ruan as sending “a” request, for
the purpose of “establish[ing] a link” with the access point, that is received
by the mobile communication device. App. Br. 21. While Ruan’s request
comprises two request frames, Ruan discloses a single step (step 101) of
receiving both request frames. Ruan Fig. 1. Accordingly, the disclosure of
Ruan meets the claim limitation “receiving a request from a mobile
communication device to establish a connection with an access point.”
Furthermore, the claim does not recite any limitation prohibiting multiple
requests, and the claim’s use of the open-ended transitional language of
“comprising” permits additional acts to be performed. Accordingly, we do
not find Appellants’ argument on this point persuasive.
Appellants’ attempt to distinguish Ruan as sending a probe request
rather than a request to establish a connection is not persuasive, because, as
admitted by Appellants, Ruan clearly shows the access point responding to a
probe request with a response for the purpose of establishing a connection.
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App. Br. 21. Consequently, we are not persuaded of error in the Examiner’s
determination that Ruan discloses this claim limitation.
The above-cited quotation of Appellants further characterizes Ruan as
disclosing an access point providing a response to the mobile device so that
the mobile device can establish a link at the selected frequency. App. Br.
21. This characterization meets the claim limitation “providing, in a
wireless communication to the mobile communication device, a notification
to the mobile communication device to connect to the access point using the
selected carrier frequency band.” Appellants’ attempt to distinguish Ruan as
transmitting availability of a frequency rather than notifying the mobile
device of a selection of a frequency that is available is not persuasive,
because the claim does not, as argued by Appellants, require a notification
that the frequency was selected, or a notification that a frequency is
available. The claim merely requires that the access point notify the mobile
device “to connect” at the selected frequency, which is clearly disclosed by
Ruan according to Appellants’ characterization. Accordingly, we are not
persuaded of error in the Examiner’s determination that Ruan discloses this
claim limitation.
Nor are we persuaded of error in the Examiner’s determination that
Ruan discloses analyzing load conditions and selecting the carrier frequency
band thereupon. The Examiner points to Ruan’s disclosure of responding to
a second request frame at a second transmit power when the signal
transmission strength of the terminal is less than the present strength and the
load of the wireless network device is less than a second preset threshold.
Ans. 14, quoting Ruan ¶ 91. Appellants concede that the wireless access
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point in Ruan may be aware of load conditions. Reply Br. 4. Accordingly,
we are not persuaded of error in the Examiner’s determination.
For the above-mentioned reasons, we are not persuaded of error in the
Examiner’s rejection of claim 1. Claims 3, 5, and 22 are grouped with claim
1, and not argued separately. App. Br. 12, 24. Therefore we are not
persuaded of error in the Examiner’s rejection of claims 3, 5, and 22.
With respect to claim 9, Appellants contend that Ruan does not
disclose a second region of wireless coverage being substantially smaller
than the first region of wireless coverage. App. Br. 23. The Examiner
points to Ruan’s disclosure of an area in which the wireless network point
transmits at different power levels for different frequency bands, and
consequently finds that the coverage in one band would be smaller than in
the other band. Final Act. 7. Appellants argue that because Ruan’s wireless
point appears to transmit at different power levels in each frequency band,
Ruan does not disclose any particular relationship of the size of the
respective coverage areas. App. Br. 23.
We are not persuaded by Appellants’ argument. We agree with the
Examiner’s reasoning that the differing power levels would result in
different coverage areas. The Examiner’s reasoning is supported further by
Ruan’s additional disclosure that “[b]ecause the second transmit power in
the second frequency band is higher than the first transmit power, coverage
of the wireless network device in the second frequency band is larger.”
Ruan ¶ 102. Accordingly, we are not persuaded of error in the Examiner’s
rejection of claim 9. Appellants’ arguments against the rejections of claims
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33 and 50 are based on the same alleged issue,3 and are not persuasive for
the same reasons as set forth for claim 9. Therefore, we are not persuaded
by Appellants that the Examiner erred in rejecting claims 33 and 50.
With respect to claim 31, Appellants argue that Ruan does not teach
that the access point communicates an identity of the selected frequency
band. App. Br. 25. As discussed, supra, Appellants characterize Ruan as
providing a response such that the mobile communication device can
establish a link using the frequency selected by the mobile communication
device. Id. at 21. We conclude that there is no error in the Examiner’s
finding that Ruan’s abovementioned response indicates the identity of the
frequency selected by the mobile communication device. Similarly, we
conclude that the Examiner did not err in rejecting claim 44, which recites
the access point transmitting a communication “specifying the selected
carrier frequency band,” for which Appellants provide arguments similar to
those presented for the rejection of claim 31. App. Br. 27. Accordingly, we
are not persuaded by Appellants that the Examiner erred in rejecting claims
31 and 44.
With respect to claims 23–26, 37, and 45–49, grouped with claim 1,
Appellants do not separately argue the limitations of these claims.
Accordingly, Appellants have not provided persuasive argument showing
error in the rejections of these claims. 37 C.F.R. § 41.37(c)(1)(iv).
Obviousness over Ruan in view of Stephenson
With respect to claim 6, which depends from claim 1, the Examiner
finds the additional elements of receiving the request at multiple access

3 While claim 50 depends from claim 49, Appellant does not separately
argue any of the limitations of claim 49.
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points and selecting an access point therefrom to be taught or suggested by
Stephenson. Final Act. 21. The Examiner determines that Stephenson
teaches multiple access points that receive probe request frames from a
mobile communication device, which are used to select an access point
during a handover operation. Id. at 21–23.
Appellants have not presented a separate argument against the
rejection of claim 6 over Ruan in view of Stephenson. See App. Br. 12
(providing groups of claims to be argued together, in which claim 6 does not
appear in any group). Appellants make only a general allegation of
unpatentability of claim 6. App. Br. 13. We, therefore, adopt the
Examiner’s findings as fact. In re Kunzmann, 326 F.2d 424, 425 n.3 (CCPA
1964) (a finding not shown by the Appellants to be erroneous may be
accepted as fact).

Obviousness over Ruan in view of Emmanuel
Appellants contend that the Examiner erred in rejecting claim 7 as
obvious over the combination of Ruan and Emmanuel. The Examiner
determined that the additional limitations of claim 7 were not taught by
Ruan, but were taught or suggested by Emmanuel. Final Act. 23. The
additional limitations of claim 7 are “utilizing a round-trip time of
communications between the access point and the mobile communication
device to estimate a distance of the mobile communication device with
respect to the access point; and selecting the carrier frequency band based at
least in part on the estimated distance.”
The Examiner finds Emmanuel to teach selecting carrier frequency
based on such parameters as delay and distance of the mobile
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communication device from the access point. Ans. 81. The Examiner
further finds Emmanuel to teach that the distance of the mobile
communication device is proportionally related to the round trip time of
communications between device and access point. Id. The Examiner
concludes that it would have been obvious to estimate distance based on the
round trip time of communications. Id.
Appellants argue, and we agree, that Emmanuel fails to teach or
suggest using the round trip time of communications to estimate the distance
of the mobile device from the access point. Emmanuel’s suggestion that
those parameters are related does not teach or suggest using one parameter
to estimate the other. Accordingly, we agree with Appellants that the
Examiner erred in rejecting claim 7 on the rationale set forth in the rejection.
However, Ruan provides a clear disclosure of using the round trip
time of communications to estimate the distance of the mobile device from
the access point, and selecting the carrier frequency in part based upon the
estimated distance. Ruan discloses that “a distance between the terminal and
the wireless network device may be determined according to a time delay of
a signal of the terminal.” Ruan ¶ 72. Ruan further discloses that the
distance is compared to a preset value, and a first frequency band is selected
if the distance is lower than the value, else a second frequency band is
selected in the distance is higher than the value. Id. Since all of the
limitations of claim 7 are disclosed by Ruan, we enter a new ground of
rejection for claim 7, as being anticipated under 35 U.S.C. § 102 by Ruan.
The anticipation rejection is a new ground of rejection because it
changes the thrust of the rejection presented by the Examiner, consistent
with our reviewing court’s decisions in In re Kronig, 539 F.2d 1300, 1303
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(CCPA 1976) and In re Stepan Co., 660 F.3d 1341, 1344 (Fed. Cir. 2011).
Here, the Examiner explicitly stated that Ruan did not disclose the additional
limitations of claim 7. The Examiner did not, in discussing claim 1 or other
independent or dependent claims, otherwise indicate that Ruan disclosed
features relating to measuring the round trip time, or delay in return of the
mobile device’s signal. In this manner, the anticipation rejection changes
the thrust of the rejection from teachings of Emmanuel to an un-discussed
portion of Ruan, for which the Appellants have not been provided a fair
opportunity to respond. Accordingly, we designate this rejection a new
ground of rejection.
With respect to the rejection of claims 10 and 13, Appellants contend
that the rejection is in error because the combination of Ruan and Emmanuel
fails to teach the added limitations. The added limitations of claim 10 read
as follows:
subsequent to communicating between the access point and the
mobile communication device over the second carrier
frequency band, detecting movement of the mobile
communication device outside the second region of wireless
coverage into the first region of wireless coverage; and
responsive to detecting the movement, notifying the mobile
communication device to terminate communications with the
access point using the second carrier frequency band and
continue communications with the access point over the first
carrier frequency band.
Claim 13 is nearly identical to claim 10, except that the first and
second carrier bands are switched; i.e., the communications are terminated
with the second access point and continued with the first access point.
The Examiner found that these limitations were taught or suggested
by Emmanuel, which states “[i]f the recipient moves farther away, one
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solution is to move to the 2.4 GHz band because it has a larger range.” Final
Act. 26, quoting Emmanuel ¶ 97. Emmanuel contrasts such movement to a
different band with another option of connecting over two bands, with
transmission being allocated between the two bands in an optimal manner.
Id. We agree with the Examiner’s finding that this teaching or suggestion of
Emmanuel, combined with the teachings and suggestions of Ruan, makes
obvious the invention of claims 10 and 13. Accordingly, we are not
persuaded of error in the Examiner’s rejection of claims 10 and 13.
With respect to claim 11, which depends from claim 10, Appellants
contend that the rejection is in error because Emmanuel does not suggest
(for claim 11) detecting a signal strength received by the mobile device,
comparing the signal strength to a threshold value, and detecting that the
signal strength is less than the threshold value. App. Br. 32–33.
The Examiner rejected claim 11 based on a determination that Ruan
teaches or suggests each of these additional limitations, including that the
signal transmission strength is to be compared to a “preset strength,” citing
Ruan paragraph 91, except for a “nexus” between movement and signal
strength such that it would have been obvious to perform the additional
limitations as part of the movement detection step, which the Examiner
found to be taught or suggested by Emmanuel. Ans. 86–90. The Examiner
also cites Emmanuel for determining whether to move traffic to a different
band based upon the RSSI (received signal strength indicator) of the current
channel, and that at some distance the wireless signal may disconnect. Final
Act. 27–28, citing Emmanuel ¶ 108.
Appellants argue that Emmanuel “only indicates to select a channel
based on signal strength,” and does not mention movement or detecting
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movement to select a new carrier frequency band, or mention a signal
strength threshold value. App. Br. 33. However, as discussed for the
rejection of claim 10, supra, we agree with the Examiner’s determination
that Ruan in view of Emmanuel teaches determining that a communication
device is moving out of range of one band, and detecting such movement to
select a new frequency band. Final Act. 26. We also agree with the
Examiner’s determination that the combination of Ruan and Emmanuel
teaches the comparison of a signal strength to a threshold to select a new
frequency band for a communication device. Ans. 86–90. Accordingly, we
do not find Appellants’ arguments persuasive as to error in the rejection of
claim 11.
Appellants contend error in the rejections of claims 12, 15, 21, and 36,
arguing that the combination of references fails to teach (for claim 12)
detecting that the distance from the access point to the mobile
communication device is greater than a distance threshold value, and (for
claim 15) detecting that the distance from the access point to the mobile
communication device falls below a distance threshold value, and (for claim
21) where the threshold value corresponds to an edge of the second region of
wireless coverage, and (for claim 36) connecting to a second carrier
frequency band in response to detecting that the estimated distance is less
than the distance threshold value. App. Br. 34–35, 37–39, 42–44, 46–47.
The Examiner rejected claims 12, 15, 21, and 36 based on a
determination that Emmanuel teaches determining whether to move traffic to
a different band based upon the distance of the recipient from the client.
Final Act. 28–30, 32–34, 44–46; Ans. 91–93, 98–101, 109–113, 116–119.
The Examiner further determines that a mobile device user is disadvantaged
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when distance from the access point reaches a point where it causes
disconnection; i.e., the edge of the coverage of a particular frequency band.
Final Act. 37–38, citing Emmanuel ¶ 46. The Examiner further relies upon
Ruan’s teaching of comparing variables to thresholds. Ans. 90–91. We
agree with the Examiner’s characterization of the teachings of the
references.
Appellants argue that Emmanuel lacks mention of a distance threshold
value or a handoff due to movement in Emmanuel. App. Br. 35, 37–39, 42–
44, 46–47. Although Appellants argue that there is not a mention of a
distance threshold in Emmanuel, the Examiner relies in part upon Ruan’s
teaching of comparing variables to thresholds, one cannot show
nonobviousness by attacking references individually where the rejection is
based on combinations of references. In re Keller, 642 F.2d 413 (CCPA
1981); In re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986). Further, we are
not persuaded by Appellants’ argument that Emmanuel does not teach
handoff due to movement, as discussed supra at 11–12 of this decision.
Accordingly, we do not find Appellants’ abovementioned arguments
persuasive as to error in the rejection of claims 12, 15, 21, and 36.
With respect to claim 18, and by extension, claims 20, 21, and 36
depending therefrom, Appellants argue that the combination of Ruan and
Emmanuel fails to teach or suggest the use of a request from a mobile
communication device to establish a connection, an estimated distance of the
mobile communication device from the access point, and communicating an
identity of the selected carrier frequency band. App. Br. 39–41. We have
addressed these arguments for the teachings or suggestions of those elements
in addressing the rejections of claims 1, 12, and 31, respectively, and find
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Appellants’ arguments unpersuasive for the reasons expressed supra.
Accordingly, we do not find error in the Examiner’s rejection of claim 18.
With respect to claim 32, Appellants contend that the combination of
Ruan and Emmanuel fails to teach assigning priority information to each of
the frequency bands, wherein the selected frequency band is a band assigned
highest priority as indicated by the assigned priority information. App. Br.
44–45.
The Examiner relies upon the teaching or suggestion of Emmanuel
that the load balancing module can select the best band at the time for
transmitting the traffic, considering distribution criteria including the
qualities of each of multiple bands (e.g., interference on a band) and WLAN
priority assignments. Final Act. 40–41, citing Emmanuel ¶¶ 94, 108. The
Examiner determines that it would have been obvious to modify the
teachings of Ruan by assigning priority information to the best band per
Emmanuel. Final Act. 41. Appellants argue that Emmanuel does not assign
priority to any band. App. Br. 44–45. We are unpersuaded by this
argument, since Emmanuel considers the qualities of each of the bands, and
selects the best band based upon such consideration. We are not persuaded
that Emmanuel fails to teach or suggest assigning a priority to frequency
bands and selecting the band having the highest priority. Accordingly, we
do not find error in the Examiner’s rejection of claim 32.
With respect to claims 20 and 34, Appellants do not separately argue
the limitations of these claims. Accordingly, Appellants have not provided
persuasive argument showing error in the rejections of these claims. 37
C.F.R. § 41.37(c)(1)(iv).

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Obviousness over Ruan in view of Emmanuel and Stephenson
With respect to claim 14, Appellants assert error in the rejection of the
claim, which reads as follows:
The method as in claim 13, wherein detecting the movement
further comprises:
communicating a beacon signal over the second carrier
frequency band to the mobile communication device, the
mobile communication device measuring a strength of
receiving the beacon signal;
receiving a communication from the mobile communication
device indicating a signal strength of the mobile
communication device receiving the beacon signal;
comparing the signal strength to a signal strength threshold
value; and
detecting that the signal strength is less than the signal strength
threshold value.
The Examiner determines that the additional limitations of claim 14
are taught by the combination of Ruan, Emmanuel, and Stephenson. The
Examiner relies upon Ruan for the teaching or suggestion of communicating
over the second carrier frequency band to the mobile device. Ans. 120–121.
The Examiner relies upon Emmanuel for the access point periodically
communicating a beacon signal. Id. at 121. As discussed concerning the
rejection of claim 36, supra, the Examiner relies upon the combination of
Ruan and Emmanuel for comparing a signal strength of the mobile
communication device receiving a signal to a threshold. Id. at 120–123.
The Examiner further relies upon Stephenson for teaching or suggesting that
the mobile communication device measures strength of receiving a beacon
signal. Id. at 124; Final Act. 49–50.
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In their Appeal Brief, Appellants argue that the cited paragraphs of
Ruan do not disclose the additional limitations of claim 14. App. Br. 48–50.
In their Reply Brief, Appellants additionally argue that neither Emmanuel
nor Stephenson discloses those additional limitations. Reply Br. 22–23.
Appellants dismiss the Stephenson reference because “Stephenson only
indicates that it is possible to measure the signal strength of a beacon
signal.” Id. at 23. Even considering the new arguments made for the first
time in the Reply Brief, Appellants do not address the combination of the
teachings and suggestions of Ruan, Emmanuel, and Stephenson, as set forth
in the rejection. Since one cannot show nonobviousness by attacking
references individually where the rejection is based on combinations of
references, we do not find Appellants’ arguments persuasive as to error in
the rejection of claim 14.
Obviousness over Ruan in view of Emmanuel and Nagai
With respect to claim 17, Appellants assert error in the rejection of the
claim, which reads as follows (with disputed portions emphasized):
The method as in claim 9, wherein the selected carrier
frequency band is the second carrier frequency band, the
method further comprising:
subsequent to communicating between the access point
and the mobile communication device over the second carrier
frequency band, detecting that a rate of movement of the mobile
communication device is above a rate threshold value; and
responsive to detecting that the rate of the movement is
above the rate threshold value, notifying the mobile
communication device to terminate communications with the
access point using the second carrier frequency band and
continue communications with the access point over the first
carrier frequency band.
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With respect to the disputed limitations, the Examiner relies upon the
teachings or suggestions of Nagai. Final Act. 52–54. The Examiner
determines that Nagai teaches or suggests monitoring of the moving speed of
an in-vehicle communication device, in which the frequency of monitoring
“can be changed as appropriate according to the moving speed.” Id. at 53.
Appellants argue that this not teach or suggest detecting the rate of the
movement as being above a rate threshold value, and subsequently
terminating communications with the access point at the second frequency
and continuing communications over the first frequency. App. Br. 53. We
are persuaded by Appellants that the relied-upon teaching of changing the
frequency of monitoring is not the same as detecting the rate of movement of
the mobile communication device. Accordingly, we find error in the
Examiner’s rejection of claim 17.
Obviousness over Ruan in view of Emmanuel and Matta
With respect to claim 38–42, Appellants assert error in the rejection of
the claim, arguing that there is no indication of any device disassociating
with the mobile communication device as claimed, and for claims 39 and 41,
arguing that there is no teaching that such dissociating would occur only at a
MAC [Media Access Control] layer as claimed.
Claim 38 reads as follows:
The method as in claim 1, wherein the selected carrier
frequency band is a first carrier frequency band of the multiple
carrier frequency bands, the method further comprising:
disassociating with the mobile communication device,
the disassociating including termination of using a second
carrier frequency band to communicate between the access
point and the mobile communication device; and
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at the access point, re-establishing communications with
the mobile communication device over the first carrier
frequency band of the multiple carrier frequency bands.
With respect to claim 38, the Examiner determines that Matta teaches
or suggests selecting a new frequency band and establishing a connection on
the new band, and that the prior connection is implicitly terminated. Final
Act. 55, citing Matta Fig. 5. Appellants characterize Matta as “indicat[ing]
to select a of [sic] the current demand drops below acceptable signal strength
threshold value.” App. Br. 55.
We do not find Appellants’ argument persuasive. In Matta’s
discussion of Figure 5, Matta characterizes the target band as being selected
as an alternative to the first band. See Matta ¶¶ 52–53 (“the access point
refuses to respond to the first probe request on the first band, and responds to
the second probe request on the second band”; “the target band may be
either the first band or the second band”). From the context of Matta’s
description of Figure 5, upon which the Examiner’s rejection is based, we do
not find persuasive Appellants’ argument. Furthermore, both Ruan and
Emmanuel teach disassociating from one channel when switching to a
second channel. See Ruan ¶¶ 94–95 (putting a mobile device offline in the
non-selected frequency band) and Emmanuel ¶ 97 (determining whether to
move traffic to a different band or to instead allocate throughput across two
simultaneous bands). Accordingly, we are not persuaded by Appellants’
abovementioned arguments against the rejection of claims 38, 40, and 41
over the combination of Ruan, Emmanuel, and Matta.
Claims 39 and 42, and through dependency, claim 40, recite the
further limitation of the mobile communication device disassociates with the
access point at a MAC layer. The Examiner relies upon Matta to teach this
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limitation, determining that Matta’s teaching that “[t]he MAC sublayer
controls how a computer on the network gains access to the data and
permission to transmit it” teaches that connections are made and terminated
at the MAC layer only. Final Act. 56–58, quoting Matta ¶ 18.
Appellants argue that Matta does not provide any details indicating
how a transition to a new carrier frequency would occur. App. Br. 57. We
are not persuaded by Appellants’ argument. The Examiner has explained
that Matta teaches that connections to data are mediated by the MAC layer,
which would provide a teaching or suggestion of dissociating with a data
source at only the MAC layer. The Appellants have not persuasively
explained how Matta’s teaching would permit transitions to a new data
source to be handled by other than the MAC layer. Accordingly, we are not
persuaded by Appellants’ arguments against the rejection of claims 39, 40,
and 42.
DECISION
We affirm the Examiner’s rejections under 35 U.S.C. § 102(a)(2) of
claims 1, 3, 5, 9, 22–26, 31, 33, 37, and 44–50. We affirm the Examiner’s
rejections under 35 U.S.C. § 103 of claims 6, 10–15, 18, 20, 21, 32, 34, 36,
and 38–42.
We reverse the Examiner’s rejections of claims 7 and 17 under
35 U.S.C. § 103. We enter a new ground of rejection for claim 7, as being
anticipated under 35 U.S.C. § 102(a)(2) by Ruan.
This Decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). This section provides that “[a] new ground of rejection . . . shall
not be considered final for judicial review.”
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37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise
one of the following two options with respect to the new grounds of
rejection to avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. . . .

(2) Request rehearing. Request that the proceeding be
reheard under §41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). 37 C.F.R.
§ 41.50(f).

AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)