NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

IN RE ANDERS WALLEN

______________________ 

2013-1622

______________________ 

Appeal from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in Serial No. 

10/991,878.

______________________ 

Decided: April 23, 2014

______________________ 

DANIEL P. HOMILLER, Murphy, Bilak & Homiller, 

PLLC, of Cary, North Carolina, argued for appellant. 

MEREDITH H. SCHOENFELD, Associate Solicitor, United 

States Patent and Trademark Office, of Alexandria, 

Virginia, argued for appellee. With her on the brief were 

NATHAN K. KELLEY, Solicitor, and ROBERT J. MCMANUS, 

Associate Solicitor.

______________________ 

Before WALLACH, SCHALL, and HUGHES, Circuit Judges.

HUGHES, Circuit Judge. 

Anders Wallen appeals the decision of the Patent Trial and Appeal Board affirming the rejection of U.S. Patent 

Application No. 10/991,878 as obvious under 35 U.S.C. 
2 IN RE: WALLEN

§ 103(a). Substantial evidence supports the Board’s 

conclusion that claims 1, 2, 5, 12–14, 25, and 26 would 

have been obvious. But the Board failed to identify substantial evidence to support its findings on claims 6 and 

29. We therefore affirm-in-part, vacate-in-part, and 

remand. 

I.

Mr. Wallen filed the ’878 application, entitled “Method and Apparatus to Compensate for Receiver Frequency 

Error in Noise Estimation Processing,” in November 2004. 

The application relates to estimating the amount of noise 

in signals received from a wireless communication network.

According to the ’878 application, accurate noise correlation or signal quality estimation and reporting by a 

wireless receiver is essential to determining the rate at 

which the network should send data to the receiver. For 

example, if a receiver reports an erroneously high signal 

quality estimate, the network may send data to the receiver at a rate that is too high for reliable reception. 

Conversely, if the receiver reports an erroneously low 

signal quality estimate, the network may send data to the 

receiver at a rate that is lower than actually could be 

supported. 

The ’878 application identifies many causes of inaccurate noise correlation and signal quality estimation. 

Causes may include interference or noise incurred by a 

transmitted signal as it propagates between a network 

transmitter and the receiver, as well as mismatches 

between the receiver’s operating frequency and the 

transmitter’s frequency. To achieve accurate noise correlation and signal quality estimation, the ’878 application

discloses a specific method of obtaining a “noise correlation estimate,” which takes into account, among other 

things, noise and receiver frequency errors. 
IN RE: WALLEN 3

In July 2009, the Examiner rejected all of the pending 

claims of the ’878 application as obvious in view of several 

prior-art references. Mr. Wallen appealed to the Board, 

which affirmed the rejection of all claims. In a request for 

rehearing, Mr. Wallen asserted a lack of record evidence 

supporting the Examiner’s rejection of claims 6 and 29. 

The Board maintained its decision, affirming the Examiner’s rejection and denying Mr. Wallen’s request for rehearing. 

Mr. Wallen appeals. We have jurisdiction under 28 

U.S.C. § 1295(a)(4)(A).

II.

A patent may not issue “if the differences between the 

subject matter sought to be patented and the prior art are 

such that the subject matter as a whole would have been 

obvious at the time the invention was made to a person 

having ordinary skill in the art to which said subject 

matter pertains.” 35 U.S.C. § 103(a) (2012). Whether a 

claimed invention is unpatentable under § 103 is a question of law based on underlying findings of fact. In re 

Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000). We review the Board’s legal conclusions of obviousness de novo 

and its underlying factual determinations for substantial 

evidence. Id. Substantial evidence is “such relevant 

evidence as a reasonable mind would accept as adequate 

to support a conclusion.” Consol. Edison Co. of N.Y. v. 

N.L.R.B., 305 U.S. 197, 229 (1938); In re Giannelli, 739

F.3d 1375, 1378–79 (Fed. Cir. 2014). 

Mr. Wallen’s arguments are limited to the rejection of 

claims 1, 2, 5, 6, 12–14, 25, 26, and 29 of the ’878 application. Accordingly, our decision addresses the rejection of 

these claims. 

During prosecution, the Examiner and the Board cited specific evidence and made factual findings concerning 

the obviousness of claims 1, 2, 5, 12–14, 25, and 26. See, 
4 IN RE: WALLEN

e.g., J.A. 5–8, 11–12, 142–44, 206–07, 219–22. Moreover, 

the Board agreed with the Examiner’s underlying factual 

findings and ultimate conclusion of obviousness on these 

claims. Based upon our review of the record, we agree 

that the findings with respect to claims 1, 2, 5, 12–14, 25, 

and 26 are supported by substantial evidence. The Board 

therefore did not err in adopting the Examiner’s conclusion that these claims would have been obvious. Thus, we 

affirm the Board’s decision on claims 1, 2, 5, 12–14, 25, 

and 26. 

Regarding claims 6 and 29, Mr. Wallen asserts that 

neither the Examiner nor the Board provided any evidence to support the determination that the prior art 

discloses the “propagation channel estimates” limitation.1 

In July 2009, the Examiner rejected claims 6 and 29

as obvious in view of U.S. Patent No. 4,477,912. The 

passage in the ’912 patent cited by the Examiner, however, does not disclose anything relating to the “propagation 

channel estimates” limitation in the ’878 application. See 

’912 patent col. 8 ll. 59–69. The cited passage only explains that the ’912 patent is not limited to the exemplary 

wireless signal processing methods (i.e., “pseudorandom” 

coding or “any type of digital coding”). See id.

Following the Examiner’s July 2009 decision, 

Mr. Wallen appealed to the Board. The Examiner’s

Answer did not identify any evidence supporting the 

conclusion on the “propagation channel estimates” limita1 Propagation channel estimates are estimations 

that account for the interference and noise a transmitted 

signal incurs as it propagates between the network 

transmitter and the receiver (e.g., by reflecting off of 

buildings or passing through different types of media). 

See J.A. 30–32; Appellant’s Br. 38–40 (citing J.A. 301, 

¶ [0028]).

 
IN RE: WALLEN 5

tion. Instead, the Examiner’s arguments regarding 

claims 6 and 29 repeated verbatim the arguments made 

in the July 2009 decision. The Examiner’s Answer did not

address Mr. Wallen’s argument that the ’912 patent does 

not disclose propagation channel estimates. 

In March 2013, the Board affirmed the Examiner’s rejection of claims 1–35. The Board did not address the 

“propagation channel estimates” limitation. On request 

for rehearing, the Board did address the obviousness 

determination on the “propagation channel estimates” 

limitation. But in doing so, the Board stated—without 

citing any record evidence or any of the Examiner’s prior 

findings—that the invention disclosed in the ’912 patent 

“can be equally applied to any transmission or reception 

media.” See J.A. 12.

Our review of the record indicates that the Examiner 

never addressed the “propagation channel estimates” 

limitation in claims 6 and 29. What is more, the Board 

did not address the limitation until rehearing, at which 

point it made only a conclusory statement without citing 

to any record evidence to support the finding. Thus, the 

Board failed to identify substantial evidence to support its

conclusion that claims 6 and 29 would have been obvious. 

See In re Giannelli, 739 F.3d at 1378–79. 

Although it might be true that the “propagation channel estimates” limitation would have been obvious because the prior art can be applied to any transmission or 

reception media, the Board failed to identify any record 

evidence to support such a statement. When the Board 

makes “core factual findings in a determination of patentability,” it “cannot simply reach conclusions based on its 

own understanding or experience—or on its assessment of 

what would be basic knowledge or common sense.” In re 

Zurko, 258 F.3d 1379, 1386 (Fed. Cir. 2001). Instead, “the 

Board must point to some concrete evidence in the record 

in support of these findings.” Id. Here, the Board failed 
6 IN RE: WALLEN

to do so. Accordingly, we vacate the Board’s decision on 

claims 6 and 29.

III.

The rejection of claims 1, 2, 5, 12–14, 25, and 26 under 

35 U.S.C. § 103(a) is supported by substantial evidence 

and is therefore affirmed. But because the Board failed to 

identify substantial evidence to support its findings on the 

“propagation channel estimates” limitation of claims 6 

and 29, the Board’s decision is vacated-in-part and remanded so that it can consider whether the evidence of 

record is sufficient to maintain the Examiner’s rejection of 

claims 6 and 29. 

AFFIRMED-IN-PART, VACATED-IN-PART, AND

REMANDED

No costs.