Appeal No. 2006-2195 Page 8
Application No. 09/773,255
After carefully reviewing the multiple sections of the Dent reference
relied upon by the examiner, we find that the examiner, as finder of fact,
has not fully developed the record so as to clearly show exactly where the
disputed limitations are taught within the reference. In particular, we find
no specific disclosure within the Dent patent that fairly teaches the step of
“receiving, by the operating base station, a report of an expected time of low
interference communications from an adjacent base station,” as claimed
[claim 3, emphasis added].
Therefore, we agree with appellants that the examiner has failed to
meet his/her burden of establishing a prima facie case of anticipation with
respect to representative claim 3 and also with respect to independent
claims 8 and 13 that recite essentially equivalent limitations. Accordingly,
we will reverse the examiner’s rejection of representative claim 3. Because
claims 4 and 8-17 stand or fall together with representative claim 3, we will
also reverse the examiner’s rejection of these claims.
In summary, we will not sustain the examiner’s rejection of any claims
under appeal. Therefore, the decision of the examiner rejecting claims 3, 4
and 8-17 is reversed.
Whether it would have been obvious to one of ordinary skill in the art
at the time of the invention to combine a secondary reference showing
communications between adjacent base stations with Dent’s use of a central
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