Ex Parte 6925183 et al

Patent Trial and Appeal Board

Feb 12, 2015

95002147 (P.T.A.B. Feb. 12, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
95/002,147 09/07/2012 6925183 1291-214.901 6346
106622 7590 02/12/2015
Blue Capital Law Firm, P.C.
600 Anton Blvd., Suite 1000
Costa Mesa, CA 92626
EXAMINER
CARLSON, JEFFREY D
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
02/12/2015 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

RESEARCH IN MOTION
Third Party Requester

v.

INNOVATIVE SONIC LIMITED
Patent Owner and Appellant
____________

Appeal 2014-005983
Reexamination Control 95/002,147
Patent US 6,925,183 B2
Technology Center 3900
________________

Before BRADLEY W. BAUMEISTER, DAVID M. KOHUT, and
ANDREW J. DILLON, Administrative Patent Judges.

BAUMEISTER, Administrative Patent Judge.

DECISION ON APPEAL

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SUMMARY
The Invention
This proceeding arose from a request by Research in Motion for an
inter partes reexamination of US Patent 6,925,183 B2, entitled
“PREVENTING SHORTENED LIFETIMES OF SECURITY KEYS IN
A WIRELESS COMMUNICATIONS SECURITY SYSTEM” (issued to
Sam Shiaw-Shiang Jiang et al. on Aug. 2, 2005 from Application
09/682,310, filed Aug. 16, 2001) (“the ’183 Patent” or “the ’310
Application”). We have jurisdiction under 35 U.S.C. §§ 134 and 315.
The ’183 Patent describes the invention as follows:
A wireless communications device has a first security
key, a second security key, and established channels. Each
established channel has a corresponding security count value,
and utilizes a security key. At least one of the established
channels utilizes the first security key. The second security key
is assigned to a new channel. A first set is then used to obtain a
first value. The first set has only security count values of all the
established channels that utilize the second key. The first value
is at least as great as the x most significant bits (MSBx) of the
greatest value in the first set. The MSBx of the initial security
count value for the new channel is set equal to the first value. If
the first set is empty, then the initial security count is set to
zero.
Abstract.
The present invention differs from the prior-art protocol for
exchanging security keys in the manner by which the new channel is
assigned an initial security count value. In the prior-art protocol, the newly
chosen security count was not based upon the security counts of the existing
channels using only the second key. App. Br. 9-10; ’183 Patent, col. 1-5.
Rather, the prior-art protocol based the new channel’s security count upon
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the highest security count of all existing channels, regardless of whether the
channel used the first or second security key. Id. The prior-art protocol,
then, caused the security keys to have relatively shorter lifetimes, which
inventors found to be undesirable. ’183 Patent, col. 5, ll. 59-61.
Statement of Rejections
Patent Owner, Innovative Sonic, Limited (“Owner”), appeals under
35 U.S.C. §§ 134(b) and 315(a) from the Examiner’s following rejections of
claims 1-9 over the prior art (App. Br 21):
l. Claims 1-9 stand rejected under 35 U.S.C. § 102(b) as anticipated by
3GPP TS 33.102 V3.5.0 (Universal Mobile Telecommunications System
(UMTS); 3G Security; Security Architecture, July 2000)2 (“the V3.5.0
Technical Specification”);
2. Claims 1-9 stand rejected under 35 U.S.C. § 103(a) as obvious over
the combination of 3GPP TS 25.331 V3.4.0 (3rd Generation Partnership
Project Technical Specification Version 25.331 3.4.0, RRC Protocol
Specification, Sept. 2000) (“the V3.4.0 Technical Specification”) and
Vialen ’630 (US 7,289,630 B2; issued Oct. 30, 2007);

1 Throughout this opinion, we refer to (1) the Inter Partes Reexamination
Request for U.S. Patent No. 6,925,183 filed September 7, 2012 (“Request”);
(2) the Right of Appeal Notice mailed September 30, 2013 (“RAN”);
(3) Patent Owners’ Appeal Brief filed December 30, 2013 (“App. Br.”); and
(4) the Examiner’s Answer mailed February 13, 2014 (incorporating the
RAN by reference) (“Ans.”).
2 Patent Owner refers to this reference as 3GPP TS 33.102 V3.5.0 (see, e.g.,
PO App. Br. 4), whereas the Examiner refers to the same reference as
3GTS33.102v3.5.0 (see, e.g., RAN 3).
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3. Claims 1-9 stand rejected under 35 U.S.C. § 103(a) as obvious over
the combination of the V3.5.0 Technical Specification and Vialen ’979
(US 6,535,979 B1; issued Mar. 18, 2003);
4. Claims 1-4 stand rejected under 35 U.S.C. § 102(e) as anticipated by
Vialen ’630; and
5. Claims 1-9 stand rejected under 35 U.S.C. § 103(a) as obvious over
the V3.5.0 Technical Specification in view of the V3.4.0 Technical
Specification.
Third Party Requester, Research In Motion (“Requester”), has filed no
response subsequent to the Action Closing Prosecution. RAN 18.
Related Litigation
According to Owner,
Patentee and the Re-Examination Requestor were
previously involved in a patent litigation matter in the Northern
District of Texas, Dallas Division, Civil Action No. 3:11-CV-
00706-K. The Parties have settled the litigation. The Re-
Examination Requestor has ceased its participation in this
pending Inter Partes Re-Examination since the Parties have
settled the litigation. Furthermore, the Court has entered an
Order of Dismissal to dismiss the litigation.
App. Br. 25-26.
As part of this litigation, a Markman Hearing was held on
June 11, 2012. See Request, Exh. I, “Transcript of Markman Hearing before
the Honorable Ed Kinkeade United States District Judge.” The District
Court subsequently issued a Markman Order. See Reply to Office Action
filed Feb. 6, 2013, Appx. A, “Markman Memorandum Opinion and Order.”
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Standard of Review and Decision
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (citing In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)).
We affirm.

CONTENTIONS AND ANALYSIS
I.
Owner argues that the rejections should not have been adopted in the
reexamination proceeding because the relevant portions of various
references underlying the rejections are cumulative to (i) references that
were previously considered during the original examination of the
’310 Application, (ii) the prior art discussed in the ’183 Patent, or (iii) both.
See, e.g., PO App. Br.10-11, 13-14, 17-18. Owner further contends that
being cumulative, these references do not establish a substantial new
question of patentability, much less satisfy the requisite, more stringent
showing of a reasonable likelihood of unpatentability. Id.
The Board will not address this argument because it is directed to a
petitionable matter—not an appealable one. “A determination by the
Director under [§ 312(a) that the information presented in the request shows
there is a reasonable likelihood that the requester would prevail with respect
to at least 1 of the claims challenged in the request] shall be final and
non-appealable.” 35 U.S.C. § 312(c). We, instead, turn to the arguments
that are directed to the merits of the appealed rejections.
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II.
Two independent claims are on appeal—claims 1 and 5. We first
address selected rejections of claims 1-4 in this section, as well as in
subsequent Section III. We then address selected rejections of claims 5-9 in
Section IV, infra. Independent claim 1 reads as follows:3
1. A method for calculating an initial security count value
for a new channel in a wireless communications device, the
wireless communications device comprising:
a first security key;
a second security key; and
a plurality of established channels, each established
channel having a corresponding security count value and
utilizing a security key, at least one of the established channels
utilizing the first security key; the method comprising:
assigning the second security key to the new channel;
utilizing a first set to obtain a first value, the first set
consisting of corresponding security count values of the
established channels that utilize the second key, the first value
being at least as great as the x most significant bits (MSBx) of a
value in the first set;4 and

3 Owner proposes amending the appealed claims in order to “render the
issues currently under appeal moot.” App. Br. 26-27. The Examiner has not
entered these proposed claims, though (see Ans. 1), and Owner does not
suggest what authority the Board would have to consider such untimely
submitted and un-entered claim amendments (see App. Br. 26-27).
Accordingly, we decline to consider Owner’s proposed claim amendments.
4 While having no bearing on the Board’s ultimate Decision, Appellant’s
Specification makes reasonably clear that the bit length of the first value—
not the first value itself—is set to be at least as great as the x most
significant bits. As explained in the Background Section:
Initially, . . . [t]he first station 10 thus establishes a
channel 12 with the second station 20. To do this, the first
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setting the MSBx of the initial security count value for
the new channel equal to the first value;
wherein if the first set is empty, then the first value is set
to a first predetermined value.

station 10 must determine an initial value for the [transmitter
and receiver hyper-frame numbers,] HFNT 13t and HFNR 13r.
The first station 10 references a non-volatile memory 16 . . . for
a start value 16s, and uses the start value 16s to generate the
initial value for the HFNT 13t and the HFNR 13r. The start
value 16s holds the x most significant bits (MSBx) of a hyper-
frame number from a previous session along a channel 12.
Ideally, x should be at least as large as the bit size of the
smallest-sized hyper-frame number (i.e., for the above example,
x should be at least 20 bits in size). The MSBx of the HFNT 13t
and the HFNR 13r are set to the start value 16s, and the
remaining low order bits are set to zero.
’183 Patent, col. 3, l. 53—col. 4, l. 1 (emphasis added). The Detailed
Description section sets forth a similar description:
Ideally, the bit size of the start value 46s should be equal to the
bit size of the hyper-frame numbers 43t and 43r. In this case,
the HFNT 43t and the HFNR 43r are simply set equal to the start
value 46s. If, however, the start value 46s is x bits in size for
m-bit hyper-frame number 43t, 43r, and x is less than m, then
the start value 46s is used as the x most significant bits (MSBx)
of the hyper-frame numbers 43t, 43r, and the remaining low-
order bits of HFNT 43t and the HFNR 43r are simply set to
zero. . . . As the start value 46s is an x-bit sized number, and the
HFNT 43t is used as the most significant bits of the security
count 44c for transmitted [protocol data units] PDUs 41t, the
start value 46s effectively holds the MSBx of the n-bit security
count 44c, where n is equal to the sum of the bit size of the
HFNT 43t and the bit size of the sequence number 35t.
Id., col. 8, ll. 13-36. Accordingly, we provisionally interpret this limitation
as intending to recite “the [bit length of the] first value being at least as great
as the x most significant bits (MSBx) of a value in the first set.”
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Owner argues that the rejections based upon V3.4.0 and V3.5.0
Technical Specifications are improper because both of these technical
specifications use the prior-art protocol “in which the ‘first set’ consists of
security count values for all established channels, rather than for just the
established channels that ‘utilize the second key.’” App. Br. 19. Owner
further asserts that “as disclosed in 3GPP TS 33.102 V3.5.0, CKCS
encompasses all ciphering security keys associated with the circuit-switch
[CS] domain, and CKPS encompasses all ciphering security keys associated
with the packet-switch [PS] domain. There is no basis for interpreting CKCS
and CKPS as identifying an individual ciphering security key.” Id. (internal
citations to the discussion of the V3.5.0 Technical Specification omitted).
The Examiner does not dispute Owner’s contention that the V3.4.0
Technical Specification uses the prior-art protocol. See, e.g., RAN 12. But
the Examiner further finds that in the V3.5.0 Technical Specification,
[t]he cipher keys CKCS and CKPS of 3GTS33.1 02v3.5.0 meet
the claim language of first and second keys: while channels
exist in the CS domain (using CKCS representing at least a
“first” key), adding a new channel in the PS domain is
accomplished by using a set of security count values of the
established (PS) channels that use CKPS (representing a second
key). When adding this PS-domain’s channel, 3GTS33.1
02v3.5.0 does NOT consider any CKCS keys and (where the
existing PS-channels only use 1 key) the set under
consideration consists only of the individual CKPS key (the
“second” key).
RAN 11.
We understand the Examiner’s position to be, then, that the
V3.5.0 Technical Specification discloses that all of the channels in the
circuit-switch (CS) domain can use a single first key, CKCS, and that
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all of the channels in the packet-switch (PS) domain can use a single
second key, CKPS. Under this scenario, when a channel is added to
the packet-switch domain, the “first set” will consist of security count
values for just the established channels that use the second key, as
required by claim 1. See RAN 11-12, 16-18.
The Examiner, therefore, concludes that the V3.5.0 Technical
Specification either alone anticipates claims 1-4 (e.g., RAN 11-12) or,
alternatively, at least renders those claims obvious when the V3.5.0
Technical Specification’s teachings are combined with those of the V3.4.0
Technical Specification (e.g. RAN 16-18).
As noted above, Owner argues that in the V3.5.0 Technical
Specification, “CKPS encompasses all ciphering security keys associated
with the packet-switch domain.” App. Br. 19. But Owner does not provide
sufficient reasonable evidence to demonstrate the Examiner erred in finding
that, in at least some circumstances, only one ciphering security key could
be associated with all of the channels of the packet-switch domain. As such,
Owner has failed to rebut the Examiner’s finding that the V3.5.0 Technical
Specification teaches the “first set” will, in at least some circumstances,
consist of security count values for just the established channels that use the
second key, as set forth by claims 1-4.
III.
The Examiner interprets the term “second security key” “to be a key
that is new or different from the ‘first security key.’” Ans. 7. Owner argues
that the plain meaning of the term “second security key” is more narrow—
that the term must be interpreted as a security key that is not only different
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from the first key, but that also replaces the first security key. App. Br. 6-8.
Owner urges that the District Court’s adoption of this narrower construction
demonstrates the propriety of this interpretation. Id. (citing the Markman
Order 13-16).
While the Board has fully considered the District Court’s claim
constructions, precedent makes clear that the USPTO is not bound in
reexamination proceedings by claim constructions produced by a court.
In re Trans Texas Holdings Corp., 498 F.3d 1290, 1301 (2007). In
reexamination proceedings, the Board is to give claims their broadest
reasonable interpretation, consistent with the specification. In re Yamamoto,
740 F.2d 1569, 1571 (Fed Cir. 1984). This standard differs from the
standard followed by a district court: “In a district court context, [the
Federal Circuit has] said that claims should be construed, if possible, to
sustain their validity.” Id. fn* (internal citations omitted).
In the present case, we disagree with the District Court’s construction
of the claim term “second security key.” We, instead, agree with the
Examiner’s broader construction. A “second security key” must merely be a
security key that is different from the first security key.5
In reaching this conclusion, we look at some of the same factors
considered by the District Court. First, the District Court found that
the essence of the invention of the ’183 patent encompasses the
concept of changing from one security key to another security
key. . . . Therefore, it appears that it is a necessary concept of

5 Because the Examiner and Owner agree that the second security key must
be different from the first security key, we do not consider whether the
claims read on a situation where the first and second security keys are
identical.
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the invention that the first key be replaced by the second key.
Failure to replace the first security key with the second security
key would defeat the purpose of changing the security key
altogether.
Markman Order 15.
We agree with the District Court that the ’183 Patent encompasses the
concept of changing from one security key to another. See, e.g., ’183 Patent,
col. 5, ll. 7-8, 27-28 (discussing the second security key replacing the first
security key during a reconfiguration operation). However, the teachings of
the ’183 Patent are not limited to replacing security keys. See, e.g., id.,
col. 8, ll. 45-53:
When establishing a new channel 42 when other channels 42
are already established, the first station 40 first assigns a
security key to the new channel 42. The security key will
typically be the security key that is already in use by all other
established channels 42, such as the first security key 44k.
However, due to a security mode command, the new channel 42
may be assigned a second security key, such as the new security
key 44n, that is different from that of other established channels
42.
The ’183 Patent’s disclosure that a second security key can be assigned to a
newly established channel is compelling evidence that “a second security
key” should not be interpreted as being limited to key-replacement
protocols.
The District Court also based its narrow interpretation of the claim
term “second security key” on the fact that independent claim 5 expressly
sets forth “performing a security mode reconfiguration to change utilization
of each first channel from the first security key to a second security key.”
Markman Order 13 (citing claim 5) (emphasis added by the Order). The
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District Court reasoned that “inclusion of the phrase ‘changed’ in Claim 5
supports the construction that the second security key ‘replaces’ the first
security key.” Markman Order 13.
We disagree that the inclusion of the word “changed” in claim 5
supports this construction. In contrast to claim 5, claim 1 does not recite
replacing or changing the first security key. In our view, this omission of
such a requirement from claim 1 provides persuasive evidence that the term
“a second security key” is not intended necessarily to be a replacement key.
Furthermore, adopting the narrow construction urged by Owner would
require interpreting claim 5 as containing an undue redundancy. “A claim
construction that gives meaning to all the terms of the claim is preferred over
one that does not do so.” Merck & Co. v. Teva Pharms. USA, Inc., 395 F.3d
1364, 1372 (Fed. Circ. 2005). For these reasons, then, we find the term
“second security key” only means a key that is different from a first security
key. The second key need not be a replacement of the first key.
Furthermore, no other language of independent claim 1 sets forth any
requirement that the second security key replace the first security key. As
such, claim 1 reads on a scenario where a second security key is assigned to
a newly created channel. Accordingly, Owner’s arguments regarding the
failure of either the V3.4.0 or V3.5.0 Technical Specification to disclose the
second security key replacing the first security key are not reasonably
germane to the Examiner’s rejections of claims 1-4.
We, therefore, sustain the Examiner’s anticipation rejection of
independent claim 1 over the V3.5.0 Technical Specification, as well as the
obviousness rejection of claim 1 over the V3.5.0 Technical Specification in
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view of the V3.4.0 Technical Specification. We likewise sustain these
rejections as applied to dependent claims 2-4, which are not argued
separately from independent claim 1. See App. Br. 4-24.
IV.
We now turn to claims 5-9. More specifically, we further address the
anticipation rejection over the V3.5.0 Technical Specification and also the
obviousness rejection over the combination of the V3.5.0 and V3.4.0
Technical Specifications, discussed above, as they relate to independent
claim 5 and its dependent claims.
Claim 5 reads as follows (with emphasis added):
5. A method for providing an initial security count value to
a new channel in a wireless communications device, the method
comprising:
establishing at least a first channel, each first channel
utilizing a first security key and having a corresponding
security count value;
performing a security mode reconfiguration to change
utilization of each first channel from the first security key to a
second security key according to an activation time for each
first channel; wherein upon utilization of the second security
key, the corresponding security count value for the first channel
is changed;
initiating establishment of a second channel that utilizes
the second security key;
utilizing a first set to obtain a first value, the first set
consisting of corresponding security count values of the
established channels that utilize the second key, the first value
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being at least as great as the x most significant bits (MSBx) of a
value in the first set; 6 and
setting the MSBx of the initial security count value for
the second channel equal to the first value;
wherein if the first set is empty, then the first value is set
to a first predetermined value.

As explained in the preceding section, independent claim 5 does
require that the second security key replace the first security key. For this
reason, the Examiner acknowledges that claim 5 does not read on the
protocol relied upon in the rejection of claims 1-4—the protocol wherein a
second security key is used when initially establishing a new channel in a
particular domain.
A subsequently-created second channel that uses “the second
security key” as claimed in claim 5 would be part of the same
domain where that same second key was previously used.
Therefore a rejection cannot exploit the multiple domain
features of the applied art in addressing the “set” consisting . . .
of “corresponding security count values of the established
channels that utilize the second key”.
RAN 6.
The Examiner instead relies upon different teachings of the V3.5.0
Technical Specification for rejecting claim 5-9. More particularly, the
Examiner explains the anticipation and obviousness rejections’ rationale as
follows:

6 For the reasons set forth in relation to claim 1 (see fn. 4), we likewise
provisionally understand this limitation to possess a clerical error, intending
to recite “the [bit length of the] first value being at least as great as the x
most significant bits (MSBx) of a value in the first set.”
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[C]laim 5 covers the scenario where all first-key secured
channels have been changed over to second-key secured
channels and there are no first-key secured channels left.
Therefore when a new channel is initiated using the second key,
the security count value to consider would be limited to only
the set of channels that use the second key. That is to say, there
would be no channels left using the first key—and the problem
of relying on first key channels with security count values near
their expiration would not pose a problem.
RAN 6.
Restated, the Examiner finds the V3.5.0 Technical Specification
discloses a scenario in which all first keys are replaced by second keys
before establishing a new channel using the second security key. According
to the Examiner, when such a new channel is established in this scenario all
security counts will be based only upon the set of channels that use the
second security key, as required by claim 5.
The Examiner is correct that such a scenario would satisfy the
language of claim 5—language which differs from that of claim 1. The
method of claim 1 expressly requires “at least one of the established
channels utilizing the first security key.” In contrast, claim 5 expressly
recites a step of changing the keys so that no first security key is any longer
used: “performing a security mode reconfiguration to change utilization of
each first channel from the first security key to a second security key
according to an activation time for each first channel.”
Owner neither disputes that the V3.5.0 Technical Specification
discloses the scenario outlined by the Examiner nor argues why such a
scenario would fail to anticipate claim 5. See App. Br. 13-15. Accordingly,
Owner has failed to sufficiently rebut the Examiner’s findings that the
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V3.5.0 Technical Specification either anticipates independent claim 5 or at
least renders claim 5obvious when the teachings of the V3.5.0 and V3.4.0
Technical Specifications are combined.
We, therefore, sustain the Examiner’s anticipation rejection of
independent claim 5 over the V3.5.0 Technical Specification, as well as the
obviousness rejection of claim 5 over the V3.5.0 Technical Specification in
view of the V3.4.0 Technical Specification. We likewise sustain these
rejections as applied to dependent claims 6-9, which are not argued
separately from independent claim 1. See App. Br. 4-24.

CONCLUSIONS
Owner has not provided sufficient persuasive evidence that the
Examiner erred in concluding claims 1-9 are either anticipated by the V3.5.0
Technical Specification, alone, or at least rendered obvious by the
combination of the V3.5.0 and V3.4.0 Technical Specifications.
Accordingly, we sustain these two of the Examiner’s rejections.
In view of our sustaining the anticipation and obviousness rejections
of claims 1-9 over the V3.5.0 Technical Specification, alone, or in
combination with the V3.4.0 Technical Specification, we do not reach the
remaining three rejections:
(1) the obviousness rejection of claims 1-9 over the combination of the
V3.4.0 Technical Specification and Vialen ’630;
(2) the obviousness rejection of claims 1-9 over the combination of the
V3.5.0 Technical Specification in view of Vialen ’979; and
(3) the anticipation rejection of claims 1-4 over Vialen ’630.
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See In re Gleave, 560 F.3d 1331, 1338 (Fed. Cir. 2009) (not reaching other
rejections after upholding an anticipation rejection); see also Beloit Corp. v.
Valmet Oy, 742 F.2d 1421 (Fed. Cir. 1984) (ITC can decide a single
dispositive issue of numerous resolved by the presiding officer; there is no
need for the Commission to decide all issues decided by the presiding
officer).
In the event neither party files a request for rehearing within the time
provided in 37 C.F.R. § 41.79, and this decision becomes final and
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must
timely serve notice on the Director of the United States Patent and
Trademark Office. See 37 C.F.R. §§ 90.1 and 1.983.

DECISION
The Examiner’s decision rejecting claims 1-9 is affirmed.

AFFIRMED

peb

PATENT OWNER:

BLUE CAPITAL LAW FIRM, P.C.
600 Anton Blvd., Suite 1000
Costa Mesa, CA 92626

THIRD PARTY REQUESTER:

OBLON, SPIVAK, MCCLELLAND, MAIER & NEUSTADT, LLP
1940 Duke Street
Alexandria, VA 22314