Ex Parte Belanger et al

Patent Trial and Appeal Board

Oct 12, 2012

11789584 (P.T.A.B. Oct. 12, 2012)

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.
11/789,584 04/25/2007 David Gerald Belanger 113617CON1 9443
38516 7590 10/12/2012
AT&T Legal Department - SZ
Attn: Patent Docketing
Room 2A-207
One AT&T Way
Bedminster, NJ 07921
EXAMINER
ABELSON, RONALD B
ART UNIT PAPER NUMBER
2476
MAIL DATE DELIVERY MODE
10/12/2012 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
____________________

Ex parte DAVID GERALD BELANGER,
STEVEN MICHAEL BELLOVIN, RAMON CACERES,
and DAVID C. NAGEL
____________________

Appeal 2010-005547
Application 11/789,584
Technology Center 2400
____________________

Before ALLEN R. MacDONALD, JUSTIN BUSCH and
RAMA G. ELLURU, Administrative Patent Judges.

MacDONALD, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-005547
Application 11/789,584

2
STATEMENT OF CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-7. We have jurisdiction under 35 U.S.C. § 6(b).

Exemplary Claim
Exemplary claim 1 reads as follows:
1. A method of detecting and alleviating congestion in a
packet-switched communication network, the method comprising the
steps of:
recognizing the occurrence of congestion at a network endpoint
through dropped packets;
offering, to customers already engaged in transmission on the
congested packet-switched communication network, a financial
incentive to utilize the packet-switched network at a later time to
alleviate the congestion.

Rejection
1

The Examiner rejected claims 1-4, 6, and 7 under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Vedel (US 5,974,308), Kohler
(US 4,486,626), and Chiu (US 6,505,253 B1).

The Examiner rejected claim 5 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Vedel, Kohler, Chiu, and Vange (US
6,990,513 B2).

1
Separate patentability is not argued for claims 2-7. Except for our ultimate
decision, these claims are not discussed further herein.
Appeal 2010-005547
Application 11/789,584

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Appellants’ Contentions
1. Appellants contend that the Examiner erred in rejecting claim 1
because “appellants assert that the Examiner is bringing together disparate
types of teachings and applying hindsight to combine them in a manner
which reads on the subject matter of independent claim 1.” (App. Br. 4).
2. Appellants contend that the Examiner erred in rejecting claim 1
because “there is no discussion or suggestion in Vedel of using a rate change
to address the problem of congestion.” (App. Br. 5).

Issue on Appeal
Did the Examiner err in rejecting claim 1 as being obvious because
the Examiner used improper hindsight?
Did the Examiner err in rejecting claim 1 as being obvious because
Vedel fails to teach or suggest using a rate change to address the problem of
congestion?

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We disagree with Appellants’
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken and (2) the
reasons set forth by the Examiner in the Examiner’s Answer in response to
Appellants’ Appeal Brief. We concur with the conclusions reached by the
Examiner.
As to Appellants’ above contention 1, we do not agree that the
Examiner’s rejection is an improper hindsight reconstruction as it does not
Appeal 2010-005547
Application 11/789,584

4
include knowledge gleaned only from the Appellant's disclosure, but rather
takes into account the teachings of Vedel, Kohler, and Chiu; i.e., knowledge
which was within the level of ordinary skill at the time the claimed invention
was made.
Any judgment on obviousness is in a sense necessarily a
reconstruction based on hindsight reasoning, but so long as it
takes into account only knowledge which was within the level
of ordinary skill in the art at the time the claimed invention was
made and does not include knowledge gleaned only from
applicant's disclosure, such a reconstruction is proper.
In re McLaughlin 443 F.2d 1392, 1395 (CCPA 1971).
As to Appellants’ above contention 2, we disagree because as the
Examiner points out, Vedel (col. 9, ll. 6-7) teaches “[i]n the case of
congestion the lowest charge rate would normally be increased.” (Ans. 5).
Moreover, as also pointed out by the Examiner, Vedel (col. 10, ll. 24-32)
indicates that a change in the charge rate can be due to “the load situation,”
and that “the mobile station could also alert the subscriber if the [charge
rate] changes during a conversation allowing the subscriber to determine if
they wish to continue the call at the new rate. The mobile station could
provide the alert either visually or audibly.” (Ans. 5).

CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 1-7 as being
unpatentable under 35 U.S.C. § 103(a).
(2) Claims 1-7 are not patentable.

DECISION
The Examiner’s rejections of claims 1-7 are affirmed.
Appeal 2010-005547
Application 11/789,584

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

ELD