Appeal No. 2003-0469
Application No. 09/317,480
by using cellular and frequency reuse concepts, Yu inherently is
concerned with co-channel (channel to channel) interference. Further,
even if Yu does not express concern for co-channel interference, for the
relative loading among sectors, or for spectral efficiency, the appellant
does not indicate why such lack of express concern would render Yu as
teaching away from adaptive allocation of channels or the applicant’s
invention.
It is unclear from the record if the examiner has or has not considered the
teaching of Yu as a whole. The statements by the examiner in the final office
action and the advisory action referred to by the appellant do not prove that the
examiner did not consider Yu as a whole. However, even if the examiner did not
consider Yu as a whole, we consider it to be harmless error in this instance. We
have considered the reference as a whole and as stated supra, we do not find
that Yu teaches away from transferring channels between sectors of a cell based
upon channel use.
We find the appellant’s arguments concerning the co-channel interference
un-convincing for the reasons stated by the examiner on page 10 of the answer
(and reproduced above).
Appellant’s argument, on page 8 of the brief, that ‘[t]he complexity and
computational intensity of Yu’s sector channel allocation algorithm dispel any
notation that Yu envisioned contemplated or could possibly implement the
dynamic allocation of channels among sectors on an as-needed basis. In short,
Yu teaches away from Applicant’s invention”, is not convincing, as this is not the
test to establish that a reference “teaches away”. The test to determine if a
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