Ex Parte Bakos et alDownload PDFPatent Trial and Appeal BoardAug 25, 201611529756 (P.T.A.B. Aug. 25, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111529,756 0912712006 11764 7590 Ditthavong & Steiner, P,C, 44 Canal Center Plaza Suite 322 Alexandria, VA 22314 08/29/2016 FIRST NAMED INVENTOR Balazs Bakos 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 ATTORNEY DOCKET NO. CONFIRMATION NO. P3237USOO 7240 EXAMINER MADAMBA, GLENFORD J ART UNIT PAPER NUMBER 2451 NOTIFICATION DATE DELIVERY MODE 08/29/2016 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): docket@dcpatent.com Nokia.IPR@nokia.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BALAZS BAKOS, JUKKA K. NURMINEN, ATTILA KISS, ZOLTAN IV ANFI, GYULA KUN-SZABO, and DOUGLAS DEEDS 1 Appeal2014-005170 Application 11/529,756 Technology Center 2400 Before: CAROLYN D. THOMAS, AMBER L. HAGY, and JOHN R. KENNY, Administrative Patent Judges. KENNY, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants identify Nokia Corporation as the real party in interest. (App. Br. 1.) Appeal2014-005170 Application 11/529,756 STATEMENT OF CASE This is an appeal under 35 U.S.C. § 134 from rejections of claims 1, 2, 4--32, 40-48, 52, 58-62, and 64--73, which constitute all pending claims in the application. (Final Act. 1; App. Br. 20.) We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED INVENTION Appellants describe their claimed invention as relating to messaging between users of a telecommunications system. (Spec. 1.) Claim 1, reproduced below with disputed limitations italicized, is illustrative: 1. An apparatus comprising: at least one processor; and at least one memory including computer program code, the at least one memory and the computer program code configured to, with the at least one processor, cause the apparatus to perform at least the following, receive an object of communication associated with a first application type, convert the received object of communication from the first application type into a second application type, wherein the application types are different, and one of the application types is associated with a messaging application, and initiating a transmission of the converted object to one or more external communication terminal devices, 2 Appeal2014-005170 Application 11/529,756 wherein the apparatus is within a mobile communication terminal device. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Meyer et al. Abdel-Aziz et al. Tervo et al. Gupta Warren et al. Pearson et al. Liccione et al. US 2002/0174195 Al US 2004/0064511 Al US 2004/0207719 Al US 2005/0197101 Al US 2006/0168057 Al US 2006/0179466 Al US 7,426,652 B2 REJECTIONS Nov. 21, 2002 Apr. 1, 2004 Oct. 21, 2004 Sept. 8, 2005 July 27, 2006 Aug. 10, 2006 Sept. 16, 2008 Claims 1, 2, 40, 41, 44--47, 52, 58-62, and 64--73 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Abdel-Aziz, l\1eyer, and Gupta. ( ii .. ns. 3.) Claims 4--10, 13, 14, 16, 17, 19, 21, 42, and 43 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Abdel-Aziz, Meyer, Gupta, and Applicants' Admitted Prior Art ("Admitted Prior Art"). (Ans. 19.) Claims 11, 18, and 48 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Abdel-Aziz, Meyer, Gupta, and Pearson. (Ans. 23-24.) Claims 12, 15, 20, and 22 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Abdel-Aziz, Meyer, Gupta, and Warren. (Ans. 25.) 3 Appeal2014-005170 Application 11/529,756 Claims 23-32 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Abdel-Aziz, Meyer, Gupta, Warren, Tervo, and Liccione. (Ans. 27.) ISSUES 1. Whether the Examiner erred in combining Abdel-Aziz with Meyer. (App. Br. 6-7.) 2. Whether the combination of Abdel-Aziz, Meyer, and Gupta teaches or suggests computer program code configured to cause an apparatus "initiating a transmission of the converted object" "wherein the apparatus is within a mobile communication terminal device," as recited in claim 1. (App. Br. 7-15.) 3. Whether the combination of Abdel-Aziz, Meyer, and Gupta teaches or suggests "wherein the apparatus further comprises an internal simple mail transfer protocol," as recited in claim 2. (App. Br. 14.) 4. Whether the combination of Abdel-Aziz, Meyer, Gupta, and the Admitted Prior Art teaches or suggests "wherein said simple mail transfer protocol server is configured to store messages from the one or more external communication terminal devices to the at least one memory for access by the apparatus and the one or more external communication terminal devices," as recited in claim 4. (App. Br. 15-17.) ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' arguments the Examiner has erred. We disagree with Appellants' conclusions and we adopt as our own: ( 1) the findings and reasons set forth 4 Appeal2014-005170 Application 11/529,756 by the Examiner in the action from which this appeal is taken (Final Act. 2- 36); and (2) the findings and reasons set forth by the Examiner in the Examiner's Answer in response to Appellants' Appeal Brief (Ans. 3--46). We concur with the conclusions reached by the Examiner and highlight the following for emphasis. Claims 1, 40, 44, 52, 58-62, and 64-73 Appellants argue that an ordinarily skilled artisan would not have been motivated to combine Abdel-Aziz with Meyer because Abdel-Aziz's system deploys a peer-to-peer platform that excludes a centralized server, while Myer's private communication portal (PCP) 10 requires centralized servers. (App. Br. 6-7; Reply 4--5.) Appellants argue that because of Meyer's centralized server, the combination of Meyer's PCP with Abdel- Aziz' s system would change the principle of operation of Abdel-Aziz's system. (App. Br. 6-7.) We are not persuaded by these arguments. As the Examiner finds, Abdel-Aziz's peer-to-peer platform does not, as Appellants argue, exclude a centralized server. (Ans. 34.) Abdel-Aziz discloses "[fJrequently ... P2P technologies adopt a network-based computing style that neither excludes nor inherently depends on centralized control points." (Abdel-Aziz i-f 4; Ans. 34.) Abdel-Aziz further discloses "[i]n one embodiment, applications and/or services that support the peer-to- peer protocol may access, control, and/or override the core components, even to the extreme of implementing a centralized, client-server model based on the core components," that "[t]he peer-to-peer platform may not mandate exactly how discovery is done" and that "[ d]iscovery may be completely decentralized, completely centralized, or a hybrid of the two." (Abdel-Aziz i-fi-182, 165; Ans. 34.) Abdel-Aziz also describes "[b]oth centralized and 5 Appeal2014-005170 Application 11/529,756 decentralized services may be developed on top of the peer-to-peer platform." (Abdel-Aziz i-f 97; Ans. 34.) Accordingly, we disagree with Appellants' assertion that Abdel-Aziz excludes the use of a centralized server, upon which Appellants' lack-of-motivation and principle-of- operation arguments rest. In the Reply Brief, Appellants concede that Abdel-Aziz describes the use of a centralized server but argue that Abdel-Aziz's disclosure would nevertheless discourage the use of a centralized server when combined with Meyer. (Reply Br. 4--5.) We are not persuaded by this argument because Appellants present no persuasive evidence or reasoning to support it. (Id.) Appellants argue the Examiner erred in finding Gupta teaches or suggests computer program code configured to cause an apparatus to (i) "convert the received object of communication from the first application type into a second application type, wherein the applications types are different," and (ii) "initiate a transmission of the converted object," "wherein the apparatus is within a mobile communication terminal device," as recited in claim 1. (App. Br. 7-14.) According to Appellants, Gupta at best suggests converting received voice data into voice packet data in a mobile device, but not initiating a transmission of the converted voice packet data. (App. Br. 8, 12.) Appellants further argue that voice data and data packets are from the same application type. (App. Br. 12.) Further, Appellants argue that, although Gupta suggests that converter server 32 sends converted voice data, converter server 32 is not a mobile communications terminal. (App. Br. 11.) In addition, Appellants argue that, although Gupta suggests a device with a communication interface for sending and receiving data and a converter for generating identifiers, Gupta merely teaches sending data, not 6 Appeal2014-005170 Application 11/529,756 sending the communication object of a second communication type. (App Br. 35-36.) We are not persuaded by these arguments. As the Examiner finds, Gupta teaches a mobile communication device. (Ans. 36; Gupta i-f 20.) Gupta further discloses incorporating into that mobile communication device the functionality of converter server 32, which can send and receive both voice data and data packets, convert IP packet data into voice data and vice versa, and then initiate the transmission of the converted data. (Ans. 36-38; Gupta i-fi-19, 20.) As the Examiner finds, and Appellants have presented no evidence to the contrary, IP packet data and analog voice data are from different application types. (Ans. 36.) Accordingly, in combination, these disclosures teach or suggest the disputed limitations in claim 1. (Ans. 35--42.) Accordingly, we sustain the rejection of claim 1 and of claims 40, 44, 52, 59---62, 64, and 66-73, not separately argued. (App. Br. 6-15.) Appellants, for the first time in their Reply Brief, separately argue claims 58 and 65. (Reply Br. 3.) We find nothing in the Examiner's Answer that would have prompted waiting until the Reply to raise these arguments. Rather, the findings and reasoning regarding claims 58 and 65 that Appellants challenge in the Reply Brief are substantively the same as the findings and reasoning stated in the Final Action. (Final Act. 19.) Accordingly, we will not consider Appellants' arguments regarding the separate patentability of claims 58 and 65. 37 C.F.R. § 41.41(b)(2); see also Optivus Technology, Inc. v. Ion Beam Applications S.A., 469 F .3d 978, 989 (Fed. Cir. 2006) (argument raised for the first time in the reply brief that could have been raised in the opening brief is waived); accord Ex parte Borden, 93 USPQ2d 1473, 1473-74 (BPAI 2010) (informative opinion) 7 Appeal2014-005170 Application 11/529,756 (absent a showing of good cause, the Board is not required to address an argument newly presented in the reply brief that could have been presented in the principal brief on appeal). We sustain the rejection of claims 58 and 65. Claims 2, 41, and 45--47 Appellants argue the combination of Abdel-Aziz, Meyer, and Gupta fails to teach or suggest the limitation of "wherein the apparatus further comprises an internal simple mail transfer protocol," as recited in claim 2, because message transfer agent 100 in Abdel-Aziz is not within mobile client device 30. (App. Br. 14.) We are not persuaded by this argument. As the Examiner sets forth, Abdel-Aziz discloses nodes embodied by peer devices, such as a wireless/cellular telephone, and discloses that the nodes and peer devices comprise message transfer agents. (Ans. 42--43; Abdel- Aziz i-fi-135-36, Fig. 2.) Meyer discloses that a message transfer agent may comprise a known SMTP server. (Ans. 43; Meyer i149.) Combined, these disclosures teach or suggest the disputed limitation in claim 2. (Ans. 42- 43.) Claims 4--10, 13, 14, 16, 17, 19, 21, 42, and 43 Appellants argue the combination of Abdel-Aziz, Meyer, Gupta, and the Admitted Prior Art fails to teach or suggest "wherein said simple mail transfer protocol server is configured to store messages from the one or more external communication terminal devices to the at least one memory for access by the apparatus and the one or more external communication terminal devices," as recited in claim 4, because the Admitted Prior Art fails to teach or suggest its disclosed SMTP device is within a mobile communications terminal device. (App. Br. 16-17.) We are not persuaded 8 Appeal2014-005170 Application 11/529,756 by this argument because it individually attacks the Admitted Prior Art when the rejection is based on a combination of references. The Admitted Prior Art discloses an SMTP server coupled with memory (a Mail Drop). (Ans. 19-20; Spec. Fig. 1.) As the Examiner sets forth, the combination of Abdel-Aziz, Meyer, and Gupta teaches or suggests a mobile communication device with an SMTP server and memory and, therefore, the combination of Abdel-Aziz, Meyer, Gupta, and the Admitted Prior Art teaches or suggests the disputed limitation. (Ans. 19-20.) Accordingly, we sustain the rejection of claim 4 and of claims 5-10, 13, 14, 16, 17, 19, 21, 42, and 43, not separately argued. (App. Br. 15-17.) Claims 11, 18, and 48 Appellants present the same arguments for claims 11, 18, and 48 as for claims 1, 40, 44, and 52. (App. Br. 18.) Accordingly, we sustain the rejection of claims 11, 18, and 48. Claims 12, 15, 20, and 22 Appellants present the same arguments for claims 12, 15, 20, and 22 as for claims 1, 40, 44, and 52. (App. Br. 18.) Accordingly, we sustain the rejection of claims 12, 15, 20, and 22. Claims 23-32 Appellants argue that claims 23-32 are patentable for the same reasons as the independent claim from which they depend (claim 1 ). (App. Br. 19 .) Accordingly, we sustain the rejection of claims 23-32. DECISION We affirm the Examiner's rejections of claims 1, 2, 4--32, 40-48, 52, 58---62, and 64--73. 9 Appeal2014-005170 Application 11/529,756 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 10 Copy with citationCopy as parenthetical citation