Appeal No. 2003-0469
Application No. 09/317,480
reference “teaches away” is to determine if one “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” In re Gurley , 27 F.3d at
553, 31 USPQ2d at 1131 (Fed. Cir. 1994). As stated, supra, we find that
though Yu does not contemplate a scenario where transferring channels between
sectors of a cell based upon channel use is necessary, Yu does not discourage
this practice and leaves the door open for further adjustment of the frequency
assignment.
On page 9 of the brief, appellant argues “[t]he paths taken by Yu and the
Applicant - carefully crafted fixed channel allocations and dynamic as-needed
channel allocations - could not be more divergent” and Yu when considered as a
whole teaches away from appellant’s invention.
The examiner argues, on page 12 of the answer, that
Benveniste suggests that Yu can be modified for Adaptive channel
assignment. Yu does not teach Adaptive channel assignment, but clearly
teaches of non-regular fixed channel allocation. Benveniste discloses that
non-regular fixed channel allocation, when performed periodically, is
adaptive channel assignment.
A reference that neither teaches a limitation nor warns against using the
limitation does not require a finding that the reference “teaches away” rather the
teaching of the reference must be considered alongside the teachings of the
secondary reference. ParaOrdnance Manufacturing Inc. V. SGS Importers
Int. Inc., 73 F.3d 1085, 1090, 37 USPQ2d 1237, 1241 (Fed. Cir. 1995). As
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