Ex Parte Barber et al

Board of Patent Appeals and Interferences

Oct 26, 2010

10430699 (B.P.A.I. Oct. 26, 2010)

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.

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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
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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.
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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
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[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,”

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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).
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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).

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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).
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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).

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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

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