Ex Parte Berg et al

Patent Trial and Appeal Board

Sep 14, 2016

13678056 (P.T.A.B. Sep. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/678,056 11115/2012 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.
ROC920110188US2 8847
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
Appeal2015-003291
Application 13/678,056
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. App. Br. 4. We have jurisdiction
under 35 U.S.C. § 6(b ).
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 13, 2014 ("Final Act."); and original
Specification filed November 15, 2012 ("Spec.").
2 Appellants identify International Business Machines Corporation as the
real party in interest. App. Br. 1. This appeal relates to Appeal No. 2015-
002873 (Application Serial No. 13/297,807) being decided herewith.
Appeal2015-003291
Application 13/678,056
STATEMENT OF THE CASE
Claims on Appeal
Claim 1, which is the sole independent claim, is reproduced below
(with timely disputed limitations in italics):
1. A method for processing data packets in a mobile data network
that includes a radio access network coupled to a core network, the
method comprising the steps of:
(A) a plurality of antennas sending and receiving network
messages between user equipment and a plurality of basestations in
the radio access network, each basestation communicating with a
corresponding one of the plurality of antennas;
(B) providing in one of the plurality of basestations in the
radio access network an 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 comprising;
an appliance mechanism comprising:
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Application 13/678,056
an interface 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;
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;
(C) configuring the appliance by invoking at least one of the
configuration management commands and by invoking at least one of
the breakout management commands.
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 and 2 stand provisionally rejected on the ground of
nonstatutory double patenting as being unpatentable over claim 2 of
copending Application No. 13/542,694. Final Act. 2--4.
Claims 1-9 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 and 2, we summarily affirm the
rejection.
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Application 13/678,056
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
claim 1. App. Br. 4--5; Reply Br. 2-3. In particular, Appellants argue Liu
teaches that the Femtocell Access Point (PAP) communicates directly with
the user equipment. App. Br. 4 (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).
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Application 13/678,056
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. 5. Appellants argue the only interfaces shown in Figure
14 are the receiver and transmitter 1466 that communicate with the antennas
1469. App. Br. 5 (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. 7. Appellants contend Poikselka teaches extending a
class with local breakout policy information. App. Br. 7 (citing Poikselka i-fi-1
82, 83), 9; Reply Br. 5---6 (citing Poikselka i-fi-182, 83). Appellants further
note Poikselka teaches that a breakout decision is made. Reply Br. 5-6
(citing Poikselka Fig. 5, Step 2). However, Appellants dispute Poikselka
teaches that this breakout decision is received as a command authorizing
breakout. App. Br. 11; Reply Br. 7 (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
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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 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. 10. 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. 10 (citing Poikselka i-f 23); see Poikselka i-fi-172-73 ("[I]f the 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. 8-12. Appellants contend
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Application 13/678,056
breakout in Liu is neither equivalent nor analogous to breakout in Poikselka.
App. Br. 8. 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
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. 8.
Appellants further contend breakout in Liu means selecting an optimal route
for network traffic. App. Br. 10. 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. 10; 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
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Application 13/678,056
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
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. 12-
13 (claim 2), App. Br. 13-14 (claim 3), App. Br. 14--15 (claim 4), App. Br.
15 (claim 5), App. Br. 16 (claim 6), App. Br. 16-17 (claim 7), App. Br. 18
(claim 8), App. Br. 18-19 (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.
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§ 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.
DECISION
We affirm the Examiner's rejection of claims 1-9.
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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