Ex Parte Barber et alDownload PDFBoard of Patent Appeals and InterferencesOct 26, 201010430699 (B.P.A.I. Oct. 26, 2010) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte SIMON BARBER, ROY PETRUSCHKA, and EDWARD RODRIGUEZ DeCASTRO Appeal 2009-007198 Application 10/430,699 Technology Center 2400 ____________ Before JAMES D. THOMAS, ST. JOHN COURTENAY III, and JAMES R. HUGHES, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-007198 Application 10/430,699 2 STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s final decision rejecting claims 2, 3, 5-8, 11, and 12. Claims 1, 4, 9, and 10 have been cancelled. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We Affirm. INVENTION Appellants’ invention relates generally to wireless networks. More particularly, the invention on appeal is directed to systems and methods for providing greater control over wireless networks than previously available. (Spec. 1). Claim 11 is illustrative: 11. A system for generating multiple independent networks using an access point of a wireless network, the system comprising: an access point associated with the wireless network, the access point being partitioned into a plurality of interfaces respectively connected to a plurality of telecommunications networks, and wherein the access point is adapted to transmit encrypted broadcast frames; and a plurality of clients associated with the wireless network, wherein the plurality of clients is separated into at least a first client group and a second client group, wherein clients of the first client group are associated with a first shared broadcast encryption key adapted to decode encrypted broadcast frames received from the access point that are encrypted for access by clients of the first client group, so Appeal 2009-007198 Application 10/430,699 3 that clients of the first client group are provided with access to at least one of the predetermined telecommunications networks through at least one of the interfaces, wherein clients of the second client group are associated with a second shared broadcast encryption key adapted to decode encrypted broadcast frames received from the access point that are encrypted for access by clients of the second client group, so that clients of the second client group are provided with access to at least one of the predetermined telecommunications networks through at least one of the interfaces. PRIOR ART Kitchin U.S. 7,130,904 B2 Oct. 31, 2006 Sherman U.S. 7,046,690 B2 May 16, 2006 Chikazawa U.S. 7,058,390 B2 Jun. 6, 2006 Yamaguchi U.S. 2002/0178365 A1 Nov. 28, 2002 REJECTIONS Appellants appeal the following rejections: 1. The Examiner rejected claims 2, 6, 8, 11, and 12 under 35 U.S.C. § 103(a) as unpatentable over the combination of Kitchin, Sherman, and Chikazawa.2 2. The Examiner rejected claims 3, 5, and 7 under 35 U.S.C. § 103(a) as unpatentable over the combination of Kitchin, Sherman, Chikazawa, and Yamaguchi. 2 As noted by Appellants (Reply Br. 1), the Examiner rejects claim 9 in the Answer, even though claim 9 has been cancelled. (Ans. 9). Since claim 9 was cancelled by the amendment filed on March 21, 2008, it is not before us on appeal. Appeal 2009-007198 Application 10/430,699 4 ISSUE Based upon our review of the administrative record, we have determined that the following issue is dispositive in this appeal: Did the Examiner err in finding under § 103 that the combination of Kitchin, Sherman, and Chikazawa would have taught or suggested: “wherein clients of the first client group are associated with a first shared broadcast encryption key adapted to decode encrypted broadcast frames received from the access point that are encrypted for access by clients of the first client group,” and “wherein clients of the second client group are associated with a second shared broadcast encryption key adapted to decode encrypted broadcast frames received from the access point that are encrypted for access by clients of the second client group,” within the meaning of representative claim 11? FACTUAL FINDINGS (FF) 1. Kitchin teaches a “wireless communication access point 12 is coupled to communicate with devices on a first wired communication network 14 and devices on a second wire communication network 16.” (Col. 3, ll. 54-57; Fig. 1). 2. Kitchin teaches in the context of Figure 1 that “access to each wired communication network may be restricted to a single class of subscribers.” (Col. 4, ll. 46-47). 3. Kitchin teaches that “each subscriber or client process associated with a secure BSS [Basic Service Set] or ESS Appeal 2009-007198 Application 10/430,699 5 [Extended Service Set] may have an encryption key which enables access to the associated secure wired communication network.” (col. 6, ll. 36-39). 4. Chikazawa teaches the use of a plurality of common keys. (Col. 4, ll. 15, 25, 29; Fig. 2). GROUPING OF CLAIMS Appellants argue claims 2, 6, 8, 11, and 12 as a group (App. Br. 9 et seq.). We select representative claim 11 to decide the appeal for this group. See 37 C.F.R. § 41.37(c)(1)(vii). ANALYSIS We decide the question of whether the Examiner erred by finding under § 103 that the combination of Kitchin, Sherman, and Chikazawa would have taught or suggested the two “wherein” clauses recited in representative claim 11: “wherein clients of the first client group are associated with a first shared broadcast encryption key adapted to decode encrypted broadcast frames received from the access point that are encrypted for access by clients of the first client group,” “wherein clients of the second client group are associated with a second shared broadcast encryption key adapted to decode encrypted broadcast frames received from the access point that are encrypted for access by clients of the second client group,” Appeal 2009-007198 Application 10/430,699 6 The Examiner finds that the primary Kitchin reference discloses an access point (Fig. 2, col. 3:51-57) partitioned into a plurality of interfaces respectfully connected to a plurality of telecommunications networks. (Ans. 4). Appellants aver that the Examiner concedes that Kitchin does not disclose the two disputed “wherein” clause limitations of claim 11. (App. Br. 11; Reply Br. 4-5; see also Ans. 5). However, we note that the Examiner looks to Kitchin’s teaching (col. 6:16-20) of a single access point that appears to clients as multiple access points (Ans. 6), in combination with Chikazawa’s teaching of using two different access points utilizing two different keys (key A and key B – col. 4, ll. 15, 25, 29) to provide clients access to a particular network depending on which key a client possesses. (See Ans. 6). Based on this evidence, the Examiner concludes, it would have been obvious to (i.e. as per Kitchin's teachings) utilize a single access point to control access to two different networks for two different client groups and (i.e. as per Chikazawa's teachings), control access to each of the two networks via use of two different shared encryption keys, wherein a first shared broadcast encryption key is used to decode encrypted broadcast frames received from the access point for access by clients of a first client group and a second shared broadcast encryption key is used by clients of a second client group to decode encrypted broadcast frames from the same access point. (Ans. 14-15). Appeal 2009-007198 Application 10/430,699 7 The Examiner further contends that Appellants’ arguments merely attack the Chikazawa reference in isolation: Appellant's argument focusing only on the fact that Chikazawa alone does not teach these limitations clearly fails to comply with 37 CFR 1.111 (b) since it does not address the actual rejection made. Further, the examiner respectfully submits that appellant [is] arguing that Chikazawa does not teach the limitations under contention while the Office relied on the teachings of Kitchin, Sherman, and Chikazawa to show that the limitations were obvious clearly shows that appellant performed a piecemeal analysis of the references. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. (Ans. 15). In the Reply Brief, Appellants further address the Chikazawa reference: Chikazawa mentions a third embodiment that combines the first embodiment and the second embodiment. See Chikazawa, col. 4:52-56. Since the first embodiment does not disclose or suggest that either of the base stations communicates using more than one encryption key for transmitting broadcast frames and the second embodiment does not disclose or suggest that either of the base stations communicates using more than one encryption key for transmitting broadcast frames, it necessarily follows that the combination of the first embodiment and the second embodiment still does not disclose that either of the base stations communicates using more than one encryption key for transmitting broadcast frames. (Reply Br. 5). Appeal 2009-007198 Application 10/430,699 8 We begin our analysis by noting that the test for obviousness is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Kahn, 441 F.3d 977, 987-88; In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991); In re Keller, 642 F.2d 413, 425 (CCPA 1981) (emphasis added). Obviousness is determined on the basis of the evidence as a whole and the relative persuasiveness of the arguments. See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Based upon our review of the record, we find the weight of the evidence supports the Examiner’s position. As pointed out by the Examiner (Ans. 4), the primary Kitchin reference teaches a wireless access point coupled to communicate with devices on two wired communication networks. (FF 1). Turning to the tertiary Chikazawa reference, we are in agreement with Appellants that the combination of Chikazawa’s first embodiment and the second embodiment (cols. 3-4) does not disclose that either of the base stations communicates using more than one encryption key for transmitting broadcast frames. (Reply Br. 5). However, we find a clear suggestion of Appellants’ claimed first and second encryption keys in Kitchin’s teaching (in the context of Figure 1) that “access to each wired communication network may be restricted to a single class of subscribers.” (FF 2). Given this teaching, it is our view that an artisan possessing creativity and common sense would have recognized that such restricted access could have been implemented by applying Kitchin’s teaching that each subscriber or client process may have an encryption key which enables access to the associated secure wired communication network. (FF 3). Appeal 2009-007198 Application 10/430,699 9 While we agree with Appellants that neither of Kitchin’s base stations (Fig. 2, elements 4 and 5) communicates using more than one encryption key, we nevertheless find that Chikazawa evidences the general use of a plurality of encryption keys. (Col. 4, ll. 15, 25, 29; Fig. 2). For these reasons, we are in accord with the Examiner’s factual findings and ultimate legal conclusion of obviousness. We additionally note that “the [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Moreover, the Supreme Court has guided that, Invention or discovery is the requirement which constitutes the foundation of the right to obtain a patent . . . unless more ingenuity and skill were required in making or applying the said improvement than are possessed by an ordinary mechanic acquainted with the business, there is an absence of that degree of skill and ingenuity which constitute the essential elements of every invention. Dunbar v. Myers, 94 U.S. 187, 197 (1876) (citing Hotchkiss v. Greenwood, 52 U.S. 248, 267 (1850)) (Hotchkiss v. Greenwood was cited with approval by the Supreme Court in KSR, 550 U.S. at 406, 415, 427). This reasoning is applicable here. Accordingly, we sustain the Examiner’s obviousness rejection of independent claim 11, and claims 2, 6, 8, and 12 (not argued separately) that fall therewith. See 37 C.F.R. § 41.37(c)(1)(vii). Appeal 2009-007198 Application 10/430,699 10 Regarding dependent claims 3, 5, and 7, Appellants ground their argument for patentability on the purported shortcomings of Kitchin, Sherman, Chikazawa that we did not find persuasive regarding claim 11. (App. Br. 13). Therefore, we also sustain the Examiner’s obviousness rejection for claims 3, 5, and 7 for the same reasons discussed supra regarding independent claim 11. DECISION We affirm the Examiner’s § 103 rejections of claims 2, 3, 5-8, 11, and 12. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). ORDER AFFIRMED pgc BRAKE HUGHES BELLERMANN LLP c/o CPA Global P.O. Box 52050 Minneapolis, MN 55402 Copy with citationCopy as parenthetical citation