Appeal No. 2000-1556
Application No. 08/771,426
overlapping property of the cells (answer, page 7) and
specifically points out that:
[T]he admitted prior art does disclose or suggest on page 5
line 13 to page 6 line 1 of the present specification that
overlapping or adjacent cells operate in different
hyperbands. Since the microcells and macrocells in Leung
are also overlapping cells (see column 8 lines 31-42), it is
clear that the above teaching of the admitted prior art
should be used in Leung as suggested by the admitted prior
art.
The Examiner also argues that the microcell-macrocell selection
criteria in Leung’s mobile station reads on the claimed mobile
station “programmed with hyperband selection criteria” because
the mobile station must be programmed to generate the statistics
information (Id.).
In rejecting claims under 35 U.S.C. § 103, the Examiner
bears the initial burden of presenting a prima facie case of
obviousness. See In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d
1955, 1956 (Fed. Cir. 1993). The conclusion that the claimed
subject matter is obvious must be supported by evidence, as shown
by some objective teaching in the prior art or by knowledge
generally available to one of ordinary skill in the art that
would have led that individual to combine the relevant teachings
of the references to arrive at the claimed invention. See In re
Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).
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