Ex Parte Berg et al

Patent Trial and Appeal Board

Sep 14, 2016

13297807 (P.T.A.B. Sep. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/297,807 11/16/2011 William F. Berg
46296 7590 09/16/2016
MARTIN & ASSOCIATES, LLC
P.O. BOX548
CARTHAGE, MO 64836-0548
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.
ROC920110188US1 4920
EXAMINER
SEFCHECK, GREGORY B
ART UNIT PAPER NUMBER
2477
NOTIFICATION DATE DELIVERY MODE
09/16/2016 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):
derekm@ideaprotect.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM F. BERG, JEREMIAH D. CARLIN,
MICHAEL T. KALMBACH, and MARK D. SCHROEDER
Appeal2015-002873
Application 13/297 ,807
Technology Center 2400
Before JEAN R. HOMERE, JOHN A. EV ANS, and
DANIEL J. GALLIGAN, Administrative Patent Judges.
Per Curiam.
DECISION ON APPEAL 1
Appellants2 seek our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1-9 and 19. App. Br. 5. We have
jurisdiction under 35 U.S.C. § 6(b). Claims 10-18 have been canceled.
App. Br. 25.
We affirm.
1 Our Decision refers to Appellants' Appeal Brief filed September 30, 2014
("App. Br."); Appellants' Reply Brief filed December 15, 2014 ("Reply
Br."); Examiner's Answer mailed October 16, 2014 ("Ans."); the Final
Office Action mailed May 12, 2014 ("Final Act."); and original
Specification filed November 16, 2011 ("Spec.").
2 Appellants identify International Business Machines Corporation as the
real party in interest. App. Br. 1. This appeal relates to Appeal No. 2015-
003291 (Application Serial No. 13/678,056) being decided herewith.
Appeal2015-002873
Application 13/297,807
STATEMENT OF THE CASE
Claims on Appeal
Claims 1 and 19 are independent claims. Claim 1 is reproduced
below (with timely disputed limitations in italics):
1. An appliance deployed at the edge of a mobile data network
that includes a plurality of basestations, each basestation
communicating with a corresponding antenna that transmits and
receives radio signals to and from user equipment, wherein the
plurality of basestations are part of a radio access network that
communicates with a core network in the mobile data network, the
appliance comprising:
an enclosure;
hardware within the enclosure, the hardware comprising:
first network connections for sending and receiving data
to a downstream computer system that communicates with the
user equipment;
second network connections for sending and receiving
data to and from an upstream computer system in the radio
access network;
software executing on the hardware, the software comprising:
a first service mechanism that defines an existing first
data path in the radio access network for non-broken out data,
defines a second data path for broken out data, receives a
command from a component in the core network that authorizes
breakout, and in response, identifies first data corresponding to
first user equipment received from a corresponding basestation
as data to be broken out, sends the first data on the second data
path, and forwards other data that is not broken out on the first
data path, wherein the first service mechanism provides a first
service with respect to internet protocol (IP) data sent to the
first user equipment in response to an IP data request in the first
data from the first user equipment, the software further
compnsmg;
an appliance mechanism comprising:
an inteiface for equipment external to the appliance to
interact with the appliance, wherein the interface hides details
of the hardware and the software within the appliance;
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Application 13/297,807
a plurality of commands for the interface, wherein the
plurality of commands includes:
configuration management commands for managing
configuration of the appliance; and
breakout management commands for managing the
breakout function of first service mechanism.
The prior art relied upon by the Examiner in rejecting the claims on
appeal:
Liu et al. ("Liu") US 2010/0130170 Al
Poikselka et al. ("Poikselka") US 2010/0211686 Al
Examiner's Rejections
May 27, 2010
Aug. 19, 2010
Claims 1, 2, and 19 stand provisionally rejected on the ground of
nonstatutory double patenting as being unpatentable over claims 1, 2, and 19
of copending Application No. 13/542,694. Final Act. 2--4.
Claims 1-9 and 19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Liu and Poikselka. Final Act. 4--8.
ANALYSIS
Double Patenting Rejection
Because Appellants do not address the merits of the Examiner's
double patenting rejection of claims 1, 2, and 19, we summarily affirm the
rejection.
Independent Claim 1
Appellants contend the Examiner erred in finding Liu teaches "first
network connections for sending and receiving data to a downstream
computer system that communicates with the user equipment," as recited in
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claim 1. App. Br. 5---6; Reply Br. 2-3. In particular, Appellants argue Liu
teaches that the Femtocell Access Point (PAP) communicates directly with
the user equipment. App. Br. 5 (citing Liu Figs. 12, 13, 14); Reply Br. 4
(citing Liu Fig. 12). Appellants further assert Liu teaches the user
equipment can communicate with the mobile core network through the base
station. Reply Br. 4 (citing Liu Fig. 12). However, Appellants contend Liu
does not teach that the F AP communicates with the user equipment through
the mobile core network. Id.
We are not persuaded of Examiner error. The Examiner finds Liu
teaches the F AP communicating with the user equipment both directly and
through the mobile core network and associated network components.
Ans. 2 (citing Liu i-fi-189-93, Figs. 12-14). Liu discloses:
It is to be noted that as a F AP 1230 generally can rely on a backhaul
network backbone 1240 for routing, signaling and paging, and for
packet communication. Namely, packet flows established for wireless
communication devices (e.g., terminals 1220A and 1220B) served by
F AP 1230, and for devices served through the backhaul network pipe
1240.
Liu i1 89. We agree with the Examiner because Liu explains the F AP may
rely on the backhaul network backbone for communication with wireless
user equipment. See id. The Examiner further finds Liu teaches distributed
computing environments to show the recited downstream computer system.
Ans. 2-3 (citing Liu i-fi-f 102-104, 112-118).
Appellants contend Liu does not teach "an interface for equipment
external to the appliance to interact with the appliance," as recited in
claim 1. App. Br. 6. Appellants argue the only interfaces shown in Figure
14 are the receiver and transmitter 1466 that communicate with the antennas
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1469. App. Br. 6 (citing Liu Fig. 14). Appellants assert these interfaces do
not interact with the PAP. Id. The Examiner finds Liu teaches that the PAP
1410 includes a broadband interface 1435 for instructions for configuration
and breakout policy. Ans. 3 (citing Liu i-fi-f 100-101); see Liu i-f 101
("[P]rocessor 1445 is coupled to the memory 1455 in order to store and
retrieve information necessary to operate and/or confer functionality to
communication platform 1425, broadband network interface 1[ 4]35 . .. that
support [PAP] 1410."). As such, we agree with the Examiner that Liu
teaches the interface as recited in claim 1.
Appellants argue Poikselka does not teach "receiv[ing] a command
from a component in the core network that authorizes breakout," as recited
in claim 1. App. Br. 8. Appellants contend Poikselka teaches extending a
class with local breakout policy information. App. Br. 8 (citing Poikselka i-fi-1
82, 83), 1 O; Reply Br. 5---6 (citing Poikselka i-fi-1 82, 83). Appellants further
note Poikselka teaches that a breakout decision is made. Reply Br. 5 (citing
Poikselka Fig. 5, Step 2). However, Appellants dispute Poikselka teaches
that this breakout decision is received as a command authorizing breakout.
App. Br. 12; Reply Br. 5 (citing Poikselka Fig. 5, Step 3b ). The Examiner
finds Poikselka teaches a core network service authorization of a local
breakout which is a decision communicated to the user equipment. Ans. 5
(citing Poikselka Fig. 5, Steps 2, 3b ). The Examiner further explains that the
breakout decision in Poikselka authorizes user equipment to connect with
either a visiting or a home network. Ans. 5-6. In fact, Appellants state:
Breakout in Poikselka means deciding on whether a user should
connect via a visited/roaming network or via the home network. See
para. 0015 in Poikselka. In Poikselka, if the user connects to one and
the mechanism in Poikselka determines the user should be connected
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to the other, a message is sent to the user equipment. See para. 0023
of Poikselka. The user equipment will then connect to the other
network.
App. Br. 11. Appellants note Poikselka teaches a breakout decision for the
user via a visited/roaming network or via the home network. Id. (citing
Poikselka i-f 15); see Ans. 5. Appellants further note Poikselka teaches
sending a message to the user equipment to connect to another network.
App. Br. 11 (citing Poikselka i-f 23); see Poikselka i-fi-172-73 ("[I]fthe S-
CSCF 40 decides that the session request cannot proceed with the home P-
CSCF 30, it sends a SIP error response to use different breakout to the UE
10 via the home P-CSCF 30 in communication 3b in FIG. 5 .... In block 4b
in FIG. S, the UE 10 performs actions to use a different route."). We agree
with the Examiner that the Serving Call Session Control Function (S-CSCF)
passing the Session Initiation Protocol (SIP) error response to the user
equipment (UE) to use the visited network as the breakout route in Poikselka
teaches the user equipment receiving a command from a component in the
core network authorizing breakout. Ans. 5-6; see Poikselka i-fi-1 72-73,
Fig. 5.
Appellants argue that, in view of the alleged differences in breakout
taught in Liu and Poikselka, it would not have been obvious to one of
ordinary skill in the art to apply the principles of one of the references to the
teachings of the other reference. App. Br. 9-13. Appellants contend
breakout in Liu is neither equivalent nor analogous to breakout in Poikselka.
App. Br. 9. Appellants assert breakout in Liu is performed in the radio
access network whereas breakout in Poikselka is performed in a part of the
network like Appellants' core network. Id. (citing Spec. Fig. 2). Appellants
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argue one of ordinary skill in the art would not be motivated to apply the
teachings of Poikselka applicable to breakout in the core network to the
system of Liu regarding breakout in the radio access network. App. Br. 9.
Appellants further contend breakout in Liu means selecting an optimal route
for network traffic. App. Br. 11. As discussed above, Appellants assert
breakout in Poikselka means deciding whether the user equipment should
connect via a visited/roaming network or via the home network. Id. (citing
Poikselka ,-r 15).
We are not persuaded of Examiner error. Appellants do not
persuasively rebut the Examiner's rationale to combine Liu with Poikselka.
App. Br. 11; Final Act. 6. The Examiner explains Appellants' interpretation
of Liu of "selecting an optimal route for network traffic" is equivalent to
"deciding whether a user should connect via a visited/roaming network or
via the home network," in Poikselka. Ans. 5 (citing App. Br. 11). We agree
with the Examiner that the selected network in Poikselka is equivalent to the
"optimal route for network traffic," in Liu. Ans. 5. The Examiner further
finds that the radio access network taught in Liu is inherently required in
Poikselka to connect the user equipment to the visiting or home network
components. Ans. 5--6. We agree with the Examiner that breakout in
Poikselka involves both the radio access network and the core network. Id.
In Reply, Appellants argue for the first time that Liu does not teach
second network connections for sending and receiving data to and from an
upstream computer system in the radio access network, as recited in claim 1.
Reply Br. 5. This argument was raised for the first time in the Reply Brief
and is deemed waived. See 37 C.F.R. § 41.41(b)(2) ("Any argument raised
in the reply brief which was not raised in the appeal brief, or is not
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Application 13/297,807
responsive to an argument raised in the examiner's answer, including any
designated new ground of rejection, will not be considered by the Board for
purposes of the present appeal, unless good cause is shown.").
Based on the foregoing, we are not persuaded of error in the
Examiner's rejection of claim 1, and we therefore sustain the rejection of
claim 1.
Claims 2-9
Appellants' arguments with respect to dependent claims 2-9 do little
more than quote the limitations of the claims and generally allege that a
claim limitation is not taught in the reference relied upon. See App. Br. 13-
14 (claim 2), App. Br. 14 (claim 3), App. Br. 15 (claim 4), App. Br. 16
(claim 5), App. Br. 16-17 (claim 6), App. Br. 17-18 (claim 7), App. Br. 18-
19 (claim 8), App. Br. 19-20 (claim 9); Reply Br. 9 (claim 2), Reply Br. 9-
10 (claim 3), Reply Br. 10 (claim 4), Reply Br. 10-11 (claim 5), Reply Br.
11 (claim 6), Reply Br. 11-12 (claim 7), Reply Br. 12 (claim 8), App. Br.
12-13 (claim 9). To show error in the Examiner's position, Appellants must
explain why the relied-upon disclosure does not teach or suggest the claimed
feature under its broadest reasonable interpretation in light of the
specification, rather than merely alleging that the feature is not shown or is
different because it is described in different terms. See 37 C.F.R.
§ 41.37(c)(l)(iv); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). As
such, we sustain the rejections of dependent claims 2-9.
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Claim 19
Appellants do not present additional persuasive arguments regarding
independent claim 19 (App. Br. 20-22, Reply Br. 13), and, therefore, we
sustain the rejection of claim 19.
DECISION
We affirm the Examiner's rejection of claims 1-9 and 19.
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
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