Ex Parte Bian et alDownload PDFPatent Trial and Appeal BoardApr 27, 201511456188 (P.T.A.B. Apr. 27, 2015) Copy Citation 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. 11/456,188 07/08/2006 Sean X. Bian LUTZ 2 00491 5157 48116 7590 04/27/2015 FAY SHARPE/LUCENT 1228 Euclid Avenue, 5th Floor The Halle Building Cleveland, OH 44115-1843 EXAMINER GAO, JING ART UNIT PAPER NUMBER 2645 MAIL DATE DELIVERY MODE 04/27/2015 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 SEAN X. BIAN and HUIXIAN SONG ____________________ Appeal 2012-008303 Application 11/456,188 Technology Center 2600 ____________________ Before JEAN R. HOMERE, HUNG H. BUI, and LINZY T. McCARTNEY, Administrative Patent Judges. McCARTNEY, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1–27. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2012-008303 Application 11/456,188 STATEMENT OF THE CASE Appellants’ “invention is related to identifying mobiles suspected of being affected by a virus and for preventing short messages originating from virus-affected mobile stations.”1 Claim 1 illustrates the claimed subject matter: 1. A method for identifying suspected virus affected mobile stations in a wireless network, the method comprising: receiving short message origination requests in a switching element of the network from mobile stations registered with the switching element; determining whether a mobile station is suspected of being affected by a virus based on one or more short message origination requests associated with the mobile station; and selectively notifying the mobile station if a virus is suspected. REJECTIONS Claims 1–4, 6–8, 10, 13–18, 20, 21, 23, 25, and 26 stand rejected under 35 U.S.C. § 103(a) as obvious over Kuchibhotla (US 2004/0162066 A1; Aug. 19, 2004) and Halperin (US 2004/0111632 Al; June 10, 2004). Claims 5 and 24 stand rejected under 35 U.S.C. § 103(a) as obvious over Kuchibhotla, Halperin, and Herajarvi (US 2001/0029174 Al; Oct. 11, 2001). Claims 9 and 19 stand rejected under 35 U.S.C. § 103(a) as obvious over Kuchibhotla, Halperin, and Mulrane (US 2006/0250954 A1; Nov. 9, 2006). 1 (Spec. ¶ 1.) 2 Appeal 2012-008303 Application 11/456,188 Claims 11, 12, and 27 stand rejected under 35 U.S.C. § 103(a) as obvious over Kuchibhotla, Halperin, and Kavanagh (US 2006/0013191 Al; Jan. 19, 2006). Claim 22 stands rejected under 35 U.S.C. § 103(a) as obvious over Kuchibhotla, Halperin, and Benco (US 2005/0186976 Al; Aug. 25, 2005). ISSUES (1) Does the Examiner’s combination of Kuchibhotla and Halperin teach or suggest “determining whether a mobile station is suspected of being affected by a virus based on one or more short message origination requests associated with the mobile station” as recited in claim 1? (2) Does the Examiner’s combination of Kuchibhotla and Halperin teach or suggest “wherein selectively notifying the mobile station if a virus is suspected comprises sending a short message to the mobile station indicating that a virus is suspected” as recited in claim 2? (3) Does the Examiner’s combination of Kuchibhotla and Halperin teach or suggest “notifying the suspected mobile station that short messages have been blocked” as recited in claim 4? (4) Does the Examiner’s combination of Kuchibhotla and Halperin teach or suggest “allowing a user of the mobile station to reactivate mobile originated short messages” as recited in claim 6? (5) Does the Examiner’s combination of Kuchibhotla, Halperin, and Mulrane teach or suggest “wherein the algorithm comprises determining whether the mobile station has repeatedly sent short messages of the same length or the same content to a list of called parties within a given time interval” as recited in claim 9? 3 Appeal 2012-008303 Application 11/456,188 (6) Does the Examiner’s combination of Kuchibhotla and Halperin teach or suggest “further comprising allowing a service provider to modify the algorithm” as recited in claim 10? (7) Does the Examiner’s combination of Kuchibhotla, Halperin, and Kavanagh teach or suggest “allowing a user of the mobile station to modify the algorithm” as recited in claim 11? (8) Does the Examiner’s combination of Kuchibhotla and Halperin teach or suggest “a mobile station registered with the switching element” as recited in claim 21? (9) Does the Examiner’s combination of Kuchibhotla, Halperin, and Benco teach or suggest “wherein the switching element is a mobile switching center” as recited in claim 22? DISCUSSION Claim 1 Appellants argue neither Kuchibhotla nor Halperin discloses “short message origination requests,” much less “determining whether a mobile station is suspected of being affected by a virus based on one or more short message origination requests associated with the mobile station” as recited in claim 1.2 Appellants also contend the Examiner’s combination of Kuchibhotla and Halperin lacks a reasonable expectation of success and renders the cited art unsuitable for its intended purpose.3 We disagree. The Examiner found Kuchibhotla describes using a mobile device call that includes an attachment to determine whether the mobile device is affected by a virus and concluded it would have been have 2 (See, e.g., App. Br. 11–14; Reply Br. 8–10.) 3 (See, e.g., App. Br. 11, 14–15.) 4 Appeal 2012-008303 Application 11/456,188 obvious one of skill in the art to use an SMS message from a mobile device instead.4 Appellants’ response—that a call is not a “short message origination request”5—does not address the Examiner’s conclusion and is therefore unpersuasive. Appellants also suggest that an SMS message is not a short message origination request,6 but Appellants’ written description explains that a “short message origination request” includes various types of SMS messages. For example, Appellants’ written description states that a “MSC switching element receives short message origination requests (e.g., MAP SMS messages . . . or other mobile originated SMS messages in any suitable protocol).”7 We find Appellants’ reasonable expectation of success and suitability arguments equally unpersuasive. Appellants speculate the Examiner’s combination of Kuchibhotla and Halperin “would appear to” cause or “would potentially involve” several drawbacks,8 but Appellants have not provided persuasive reasoning or evidence to support these assertions. Accordingly, Appellants have not demonstrated the Examiner’s combination lacks a reasonable expectation of success or is otherwise unsuitable. We accordingly sustain the Examiner’s rejection of claim 1.9 4 (See, e.g., Ans. 19.) 5 (Reply Br. 8.) 6 (See App. Br. 13.) 7 (Spec. ¶ 17 (reference numbers and emphasis added).) 8 (See, e.g., App. Br. 15.) 9 Appellants raise versions of these arguments for many of the other pending claims. (See, e.g., App. Br. 15–26.) We find these arguments unpersuasive for the reasons discussed above. 5 Appeal 2012-008303 Application 11/456,188 Claim 2 Appellants contend the Examiner’s combination of Kuchibhotla and Halperin fails to teach or suggest “wherein selectively notifying the mobile station if a virus is suspected comprises sending a short message to the mobile station indicating that a virus is suspected” as recited in claim 210 But as correctly found by the Examiner, Kuchibhotla teaches sending a possibly infected mobile device “a short message such as ‘VIRUS INFECTION SUSPECTED. CALL TERMINATED.”11 We therefore sustain the Examiner’s rejection of claim 2. Claim 4 Appellants contend the Examiner’s combination of Kuchibhotla and Halperin fails to teach or suggest “notifying the suspected mobile station that short messages have been blocked” as recited in claim 4.12 We disagree. The cited portions of Halperin disclose a server that, in response to receiving suspicious message activity from a virus-infected computer, notifies the computer of the suspicious activity.13 Halperin teaches that the server may quarantine the messages and issue a notification that the messages have been quarantined.14 In light of these teachings, we are not persuaded the Examiner’s combination of Kuchibhotla and Halperin fails to teach or suggest the limitation recited in claim 4. We accordingly sustain the rejection of claim 4. 10 (See App. Br. 15–16.) 11 (Kuchibhotla ¶16.) 12 (See, e.g., App. Br. 16−17.) 13 (See, e.g., Ans. 21 (citing Halperin ¶¶ 26, 38−47, 63, and 66).) 14 (See Halperin ¶ 58.) 6 Appeal 2012-008303 Application 11/456,188 Claim 6 Appellants argue the Examiner’s combination of Kuchibhotla and Halperin fails to teach or suggest “allowing a user of the mobile station to reactivate mobile originated short messages” as recited in claim 6.15 In particular, Appellants again assert Kuchibhotla’s call is not a short message origination request and contend “Kuchibhotla does not teach or suggest reactivation of mobile originated short messages as claimed.”16 We disagree. The Examiner found Kuchibhotla discloses allowing a user to reactivate mobile originated calls and concluded it would have been obvious to one of skill in in the art to replace Kuchibhotla’s call with a mobile originated SMS message.17 As explained above, simply asserting Kuchibhotla’s call is not a short message origination request does not address this conclusion. Because Appellants have failed to persuade us the Examiner’s conclusion is erroneous, we sustain the rejection of claim 6. Claim 9 Appellants contend the cited portion of Mulrane fails to teach or suggest “wherein the algorithm comprises determining whether the mobile station has repeatedly sent short messages of the same length or the same content to a list of called parties within a given time interval.”18 We do not find Appellants’ arguments persuasive. The Examiner found a combination Kuchibhotla, Halperin, and Mulrane suggests this limitation,19 and “one cannot show non-obviousness by attacking references individually where, as 15 (App. Br. 17–18.) 16 (Reply Br. 12.) 17 (See Ans. 22.) 18 (App. Br. 22–23.) 19 (See, e.g., Ans. 29–30.) 7 Appeal 2012-008303 Application 11/456,188 here, the rejections are based on combinations of references.”20 And the cited portion of Mulrane discloses that “when a data packet is received in less [than a] threshold time from the previous data packet . . . and this is repeated a predetermined number of times . . . the hosts sending these data packets may be infected.”21 The words “this is repeated a predetermined number of times” indicate that the previously mentioned data packets are repeatedly sent within a given period. We agree with the Examiner that this teaching, in combination with the teachings of Kuchibhotla and Halperin, suggest the limitation recited in claim 9. We therefore sustain the rejection of claim 9. Claim 10 Claim 10 recites “further comprising allowing a service provider to modify the algorithm.” The Examiner found it would have been obvious to one of skill in the art to modify Kuchibhotla to allow a service provider to modify the algorithm.22 Appellants contend the Examiner has failed to provide a reason a skilled artisan would choose to modify Kuchibhotla in the proposed manner with a reasonable expectation of success.23 The cited portions of Kuchibhotla disclose determining whether a communication device has been infected by a virus by examining calls from the communication device for one or more “undesirable characteristics” such as initiating a call every few seconds.24 We understand the Examiner to have concluded it would have been obvious to one of skill in the art to adjust 20 In re Keller, 642 F.2d 413, 426 (CCPA 1981). 21 (Mulrane ¶ 15.) 22 (Ans. 9–10.) 23 (App. Br. 18.) 24 (See, e.g., Kuchibhotla, Fig. 3; ¶¶ 12, 14, 16.) 8 Appeal 2012-008303 Application 11/456,188 what constitutes “every few seconds” to, among other things, account for differences among viruses.25 This conclusion accords with the Supreme Court’s admonishment in KSR International Co. v. Teleflex Inc. that “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton.” 26 The Examiner simply applied common sense, along with the “inferences and creative steps that a person of ordinary skill in the art would employ”27 in concluding it would have been obvious to modify Kuchibhotla in the claimed manner, and Appellants have not persuaded us this conclusion is erroneous. We therefore sustain the rejection of claim 10. Claim 11 Claim 11 recites “allowing a user of the mobile station to modify the algorithm.” Appellants argue the cited portion of Kavanagh discloses modifying an individual security profile, which does not teach or suggest modifying an algorithm used in evaluating short messages originated by a mobile station.28 Moreover, according to Appellants, the cited portion of Kavanagh “appears” to address blocking incoming short messaging, not blocking short message origination requests.29 We disagree. The Examiner found a combination of Kuchibhotla, Halperin, and Kavanagh teaches the cited limitation,30 and “one cannot show non-obviousness by attacking references individually where, as here, the rejections are based on combinations of references.”31 Moreover 25 (See Ans. 9–10, 22–23.) 26 KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). 27 (Id. at 418.) 28 (App. Br. 25.) 29 (Id.) 30 (Ans. 17, 31–32.) 31 Keller, 642 F.2d at 426. 9 Appeal 2012-008303 Application 11/456,188 Appellants’ unsupported assertion that the cited portion of Kavanagh “appears” to concern blocking incoming short messaging has not persuaded us this is the case. Accordingly, we sustain the rejection of claim 11. Claim 21 Claim 21 recites, among other things, “a mobile station registered with the switching element.” Appellants contend the Examiner’s rejection of claim 21 suffers from the same flaws as the Examiner’s rejection of claim 1.32 Appellants also contend the Examiner has not provided a motivation for modifying Halpern to require that monitored computers register with a server and assert the Examiner’s combination “would appear to render the computer network of Halperin less efficient.”33 We disagree. For the reasons discussed above, we find Appellants’ arguments regarding claim 1 equally unpersuasive in the context of claim 21. As for Appellants’ contention that the Examiner has not provided a motivation for modifying Halperin in the claimed manner, this contention does not address the full obviousness rejection made by the Examiner. The Examiner found it would have been obvious to modify Kuchibhotla’s system, which registers communication devices, to use short message origination requests instead of calls.34 In any event, the Examiner also provided a reason to combine Kuchibhotla’s and Halperin’s teachings: “it applies a known technique to short message application . . . thus providing security to both the mobile station and the network and save[s] network resource[s] by preventing allocating resources to malicious origination.”35 32 (App. Br. 21.) 33 (App. Br. 22.) 34 (See Ans. 12–13, 27–28.) 35 (Id. at 13.) 10 Appeal 2012-008303 Application 11/456,188 Moreover, Appellants’ argument that the proposed combination “would appear to render” Halperin’s computer network less efficient is speculative and lacks persuasive supporting reasoning or evidence. We accordingly sustain the rejection of claim 21. Claim 22 Claim 22 recites “wherein the switching element is a mobile switching center.” Appellants argue the cited portion of Benco “appear[s]” to address incoming short messages, not short message origination requests.36 We disagree. Although the Examiner found a combination of references teaches the limitations recited in claim 22,37 Appellants again argue against the references individually. As explained above, such arguments are unpersuasive.38 Moreover, Appellants’ unsupported assertion that the cited portion of Benco “appear[s]” to concern blocking incoming short messaging has not persuaded us this is the case. We therefore affirm the Examiner’s rejection of claim 22. DECISION Appellants’ arguments for the remaining claims rely on, or are similar to, Appellants’ arguments for claims 1, 2, 4, 6, 9–11, 21, and 22 and are unpersuasive for the reasons discussed above. Accordingly, we affirm the rejection of claims 1–27. 36 (App. Br. 26.) 37 (Ans. 18, 32–33.) 38 See Keller, 642 F.2d at 426. 11 Appeal 2012-008303 Application 11/456,188 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 llw 12 Copy with citationCopy as parenthetical citation