Appeal No. 2004-1613
Application No. 09/686,024
OPINION
Appellants argue that Müller merely discloses a system in
which the base station instructs the mobile stations when or
under what conditions they may transmit (brief, page 8).
Additionally, Appellants assert that what the Examiner
characterizes as the step of “identifying” in Criss is, in fact,
a determining process that the mobile station is using old
software and then, sends a newer version to the mobile station
(brief, pages 8 & 9). Additionally, Appellants point out that
the claims actually require that the base station, instead of
knowing the software status of the mobile station, transmit a
message that identifies the mobile stations that should use the
constrained protocol (brief, page 9).
In response, the Examiner asserts that the timing
restriction disclosed by Müller (col. 4, lines 11-19) is actually
the same as the claimed constrained protocol imposed on the
mobile station (answer, page 6). The Examiner further equates
the software upgrades of Criss to the claimed requirement of
identifying mobile stations restricted to using a constrained
protocol (answer, page 7).
In rejecting claims under 35 U.S.C. § 103, the Examiner
bears the initial burden of presenting a prima facie case of
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