Appeal No. 2003-0469
Application No. 09/317,480
Our reviewing court has said “[A] reference may be said to teach away when a
person of ordinary skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be lead in a direction
divergent from the path that was taken by the applicant. The degree of teaching
away will of course depend upon the particular facts; in general, a reference will
teach away if it suggests that the line of development flowing from the
reference’s disclosure is unlikely to be productive of the result sought by the
applicant.” In re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir.
1994) (citing United States V. Adams, 383 U.S. 39, 52, 148 USPQ 478, 484
(1966)). However, a reference that “teaches away” does not pre se preclude a
prima facie case of obviousness, but rather the “teaching away” of the reference
is a factor to be considered in determining unobviousness. Id 27 F.3d at 552, 31
USPQ 2d at 1132.
Initially, we note that claim 1 does not include a limitation for ”dynamic
allocation of channels among sectors” as appellant’s arguments on page 6 and
the examiner’s response imply. As stated supra, we find that the scope of claim
1 includes a cell that has several sectors, each of which is assigned channels
and when the number of channels being allocated to users in one of the sectors
reaches a threshold an un-used channel from another sector in the same cell is
taken and assigned to the sector that reached the threshold (we refer to this
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