Ex Parte Gabara

Patent Trial and Appeal Board

Sep 27, 2016

13365339 (P.T.A.B. Sep. 27, 2016)

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.
13/365,339 02/03/2012 Thaddeus John Gabara ViewingPages01 1031
84070 7590 09/28/2016
Thaddeus Gabara
62 Burlington Rd
Murray Hill, NJ 07974
EXAMINER
SHIN, KYUNG H
ART UNIT PAPER NUMBER
2443
MAIL DATE DELIVERY MODE
09/28/2016 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 THADDEUS JOHN GABARA
____________________

Appeal 2015-005140
Application 13/365,3391
Technology Center 2400
____________________

Before JOHNNY A. KUMAR, JUSTIN BUSCH, and MELISSA A.
HAAPALA, Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 21–40 under 35 U.S.C. § 103(a) as obvious in view of
Bryar (U.S. Pat. No. 8,225,195 B1) and Williamson et al. (U.S. Pat. Pub.
No. 2012/0102065 A1) or in view of Bryar, Williamson, and Lee et al. (U.S.
Pat. Pub. No. 2008/0320124 A1). Final Act. 2, 6.
We have reviewed Appellant’s arguments in the Briefs, the
Examiner’s rejection, and the Examiner’s response to the Appellant’s

1 According to Appellant, the real party in interest is TRACKTHINGS
LLC. App. Br. 1.
Appeal 2015-005140
Application 13/365,339

2
arguments. Independent claim 21 recites, in part, “if the activity of the user
is inactive upstream, the processor is configured to couple the memory to the
server to refresh any stored links in the memory.” Claims 28 and 34 recite
similar limitations. Appellant argues independent claims 21, 28, and 34 are
patentable because “Williamson does not teach or suggest the updating of
memory when only one of the two directions are inactive.” App. Br. 5
(emphasis omitted). As explained by the Examiner, “[t]he claim
limitation(s) indicate no network traffic in the upstream direction but do not
address the status of network traffic in the downstream direction.” Ans. 10.
Appellant’s argument is not commensurate with the scope of the claims and,
therefore, not persuasive of error. Appellant argues that dependent claims
22–27, 29–33, and 35–40 stand or fall with independent claims 21, 28, and
34. App. Br. 7–8. Arguments not made are considered waived. See 37
C.F.R. § 41.37(c)(1)(iv).
Appellant advances a new argument on reply, asserting that
Williamson’s disclosed “no network traffic” and “idle time” contemplate a
threshold amount of traffic greater than zero. Appellant then points to a
dictionary definition of inactive as “not currently being used,” and asserts
that the recited limitations “activity of the user is inactive upstream,” “user
activity upstream is absent,” and “user activity is inactive upstream” are not
taught by Williamson, because Williamson allows for some traffic.
Arguments raised for the first time in the Reply Brief that are not responsive
to the Examiner’s Answer are not considered. 37 C.F.R. § 41.41(b)(2).
Even if we were to consider Appellant’s newly-raised argument and accept
Appellant’s assertions, Appellant has not persuasively demonstrated why the
combined teachings of Bryar and Williamson do not render obvious the
Appeal 2015-005140
Application 13/365,339

3
broadest reasonable interpretation of claims 21, 28, and 34. Specifically,
Appellant has not persuasively shown why the recited “activity of the user is
inactive upstream,” recited in claim 1 (or the similar limitation recited in
claim 28 or 34), does not encompass Williamson’s disclosed “idle time” or
“no network traffic.” Finally, Appellant does not provide persuasive support
for its assertion that Williamson’s measured traffic “by definition must be
greater than 0 (zero) bytes per second.” See Reply Br. 2.
Accordingly, we concur with the Examiner’s findings and conclusions
that claims 21–40 would have been obvious in view of the combined
teachings of Bryar and Williamson or Bryar, Williamson, and Lee.
DECISION
For the above reasons, the Examiner’s decision to reject claims 21–40
under 35 U.S.C. § 103(a) is affirmed.
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