Ex Parte Chantrain et al

Board of Patent Appeals and Interferences

Apr 15, 2010

09891545 (B.P.A.I. Apr. 15, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE

__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte DOMINIQUE CHANTRAIN, STEPHANE FOCANT,
CHRISTIAN HUBLET, CHRISTIAN SIERENS and YVES T’JOENS

Appeal 2009-003814
Application 09/891,545
Technology Center 2400
____________________

Decided: April 16, 2010

Before JEAN R. HOMERE, THU A. DANG, and CAROLYN D.
THOMAS, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
I. STATEMENT OF THE CASE
Appellants have filed a Request for Rehearing under 37 C.F.R.
§ 41.52(a)(1) (hereinafter “Request”) on February 12, 2010, for
reconsideration of our Decision mailed December 9, 2009 (hereinafter
“Decision”).

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The Decision affirmed the Examiner’s rejection of claims 1-13 under
35 U.S.C. § 102(e) as being anticipated by Provino.
We have reconsidered our Decision of December 9, 2009, in light of
Appellants’ comments in the Request for Rehearing, and we find Appellants
have not identified any points misapprehended or overlooked by the Board
in our Decision therein. We decline to change our prior Decision for the
reasons discussed infra.

II. ISSUE
We address the following contentions raised by Appellants’ in the
Request:
Appellants contend that the issue set forth in our Decision of “whether
Provino detects the message sent from the user to the communication device
while the user is connected to the VPN” is framed in a way that “ignores the
related claim requirement that the detected message be directed to a logical
channel between the Network Access Server and the communication device,
with the logical channel having a logical channel identifier identifying the
VPN to which the user is connected” (Request 3). In particular, Appellants
contend that “there is no suggestion at all in Provino that the logical channel
used to send the message to the external device would have a logical channel
identifier identifying the VPN to which the user 12(m) is connected” (id.).
Appellants’ arguments are specifically directed to claims 1-13 that stand
rejected under 35 U.S.C. § 102(e) (Request 1).

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The issue we address on the Request is whether Appellants have
identified any points misapprehended or overlooked by the Board by
addressing the issue of “whether Provino detects the message sent from the
user to the communication device while the user is connected to the VPN” in
our Decision.

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Appellants’ Brief
1. Appellants assert that “in order for there to be anticipation, there must
be a teaching in Provino that such a user is maintaining its connection
to the VPN while at the same time communicating with one of these
other devices” since “[t]here is no such discussion in Provino” (App.
Br. 12).
2. Appellants then merely state that “there is no suggestion that the ISP
11 … will establish a logical channel to such other external device,
and will use a logical channel identifier an identifier of the VPN 15”
(App. Br. 13).
Examiner’s Answer
3. The Examiner finds that “the returned network address to the user
12(m) [of Provino] also corresponds to the human-readable Internet
address for device 13 external to the VPN 15” (Ans. 10).
4. The Examiner further finds that Provino discloses “directing said
message to a logical channel between said Network Access Server and
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said communication device … wherein said logical channel has, as a
logical identifier, an identifier of said host Virtual Private Network to
which said user currently connected (secure channel (40, 42 and 44) is
established between device 12(m) and device within VPN network
15” (Ans. 4-5). In particular, the Examiner finds that “Provino shows
logical channel between device 12(m), ISP 11, Internet 14, arrows 16
‘TO/FROM OTHER ISP’S’ and VPN 15” (Ans. 12).

IV. PRINCIPLES OF LAW
The general allegation of patentability does not specify, as required,
how the underlined language patentably distinguishes the claimed
invention. This form of argument is wholly ineffective in demonstrating
error in the Examiner’s prima facie case to establish the patentability of the
claims on appeal. Ex parte Belinne, Appeal No. 2009-004693, decided Aug.
10, 2009, (BPAI) (informative). Available at:
http://www.uspto.gov/web/offices/dcom/bpai/its/fd09004693.pdf.

V. ANALYSIS
Though Appellants assert that our Decision “ignores the related
claim requirement that the detected message be directed to a logical
channel between the Network Access Server and the communication
device, with the logical channel having a logical channel identifier
identifying the VPN to which the user is connected” (Request 3),
since “[b]oth the examiner and the Board gloss over this important
requirement of the claim” (id.), this argument was not raised in the
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Appeal Brief. Arguments not raised in the Briefs before the Board
and evidence not previously relied upon in the Brief and any Reply
Brief(s) are not permitted in the Request for Rehearing except as
permitted by paragraphs (a)(2) and (a)(3) of this section. 37 C.F.R. ¶
41.52(a)(1).
In the Appeal Brief, Appellants merely argue that “in order for there
to be anticipation, there must be a teaching in Provino that such a user is
maintaining its connection to the VPN while at the same time
communicating with one of these other devices” (FF 1). Accordingly, as set
forth in our Decision, “the issue that we address on appeal is whether
Provino discloses ‘detecting a message being sent from said user to said
communication device while said user is currently connected to said host
Virtual Private Network,’” as raised by Appellants in the Appeal Brief
(Decision 6).
Though Appellants make a general statement in the Appeal Brief that
“there is no suggestion that the ISP 11… will establish a logical channel to
such other external device, and will use a logical channel identifier an
identifier of the VPN 15” (FF 2), this general allegation of patentability does
not specify, as required, how this repeated language of claim 1 distinguishes
the claimed invention over Provino. That is, this form of argument is wholly
ineffective in demonstrating error by the Examiner. See Ex parte Belinne,
Appeal No. 2009-004693.
Contrary to Appellants’ assertion that “[b]oth the examiner and the
Board gloss over this important requirement of the claim” (Request 3), in the
Examiner’s Answer, the Examiner finds that Provino discloses the claim
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requirement that the detected message be directed to a logical channel
between the Network Access Server and the communication device, with the
logical channel having a logical channel identifier identifying the VPN to
which the user is connected (FF 3-4). In particular, the Examiner finds that
Provino discloses “said logical channel has, as a logical identifier, an
identifier of said host Virtual Private Network to which said user currently
connected (secure channel (40, 42 and 44) is established between device
12(m) and device within VPN network 15” (FF 4). Further, as set forth in
our Decision, “[t]hough Appellants also contend that Provino also does not
teach that the ISP 11 ‘will establish a logical channel to such other external
device, and will use a logical channel identifier [as] an identifier of the
VPN…, the Examiner finds that ‘the returned network address to the user
12(m) also corresponds to the human-readable Internet address for device 13
external to the VPN 15’” (Decision 7-8). By merely repeating the claim
language, Appellants provide no convincing argument to dispute that the
Examiner has correctly shown where the claimed elements appear in
Provino.
Thus, we do not agree that, by addressing the issue of “whether
Provino detects the message sent from the user to the communication device
while the user is connected to the VPN” in our Decision, we
misapprehended or overlooked any substantive argument that was raised by
Appellants in the Appeal Brief. Accordingly, Appellants’ Request does not
persuade us to modify our Decision. Therefore, we find Appellants’
arguments unavailing.

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VI. CONCLUSION
We have carefully considered the points and arguments raised by
Appellants in the Request for Rehearing, but find no points misapprehended
or overlooked by the Board in our Decision and none of these arguments are
persuasive that our original Decision was in error. We are still of the view,
that the invention set forth in claims 1-13 is unpatentable over the applied
prior art based on the record before us in the original appeal. This Decision
on Appellants’ Request for Rehearing is deemed to incorporate our earlier
Decision (mailed December 9, 2009) by reference. See 37 C.F.R. §
41.52(a)(1).

VII. DECISION
We have granted Appellants’ request to the extent that we have
reconsidered our Decision of December 9, 2009, but we deny the request
with respect to making any changes therein.

REHEARING DENIED

peb

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