Ex Parte GurevichDownload PDFPatent Trial and Appeal BoardMay 16, 201814290813 (P.T.A.B. May. 16, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/290,813 05/29/2014 88792 7590 05/18/2018 Marger, Johnson -SRI International 888 SW 5th A venue, Suite 1050 Portland, OR 97204 FIRST NAMED INVENTOR David Gurevich 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. US-5784-3-7049-0104 7769 EXAMINER DUONG, CHRISTINE T ART UNIT PAPER NUMBER 2462 NOTIFICATION DATE DELIVERY MODE 05/18/2018 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): docketing@techlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID GUREVICH 1 Appeal2017-010769 Application 14/290,813 Technology Center 2400 Before ROBERT E. NAPPI, JOYCE CRAIG, and JASON M. REPKO Administrative Patent Judges. NAPPI, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1 through 10. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM-IN-PART. 1 According to Appellant, the real party in interest is SRI International. Appeal Brief 3. Appeal2017-010769 Application 14/290,813 INVENTION Appellant's disclosed invention is directed to a wireless communication device that can operate multiple virtual network interfaces that communicate simultaneously over a common wireless physical interface with different wireless networks. See Abstract. Claim 1 is representative of the invention and reproduced below. 1. A wireless communication device, comprising: a processor configured to operate multiple virtual network interfaces that are configured to communicate simultaneously over a common wireless physical interface with different wireless networks, wherein a first one of the multiple virtual network interfaces is an infrastructure virtual interface that is configured to communicate over a first infrastructure network and a second one of the multiple virtual network interfaces is an ad-hoc interface that is configured to communicate over a second ad-hoc network, wherein one of the multiple virtual network interfaces is a Station (STA) infrastructure interface that is configured to communicate with an Access Point (AP) over a first infrastructure wireless network and another one of the multiple virtual network interfaces is a AP infrastructure interface that is configured to communicate with a ST A over a second infrastructure wireless network, and wherein one of the multiple virtual network interfaces is a Wireless Distribution System (WDS) interface that is configured to allow the AP infrastructure interface to communicate with another Access Point. 2 Appeal2017-010769 Application 14/290,813 REJECTIONS AT ISSUE2 The Examiner rejected claim 1 based upon non-statutory obviousness- type double patenting over claims 1, 2, and 11 of U.S. Patent No. 8,744,516. Answer 2. The Examiner rejected claims 1 through 10 under 35 U.S.C. § 103(a) for being unpatentable over Das (US 2005/0100029 Al; published May 12, 2005) and Ji et al. (US 2004/0103275 Al; published May 27, 2004). Answer 3-12. ISSUES AND ANALYSIS We have reviewed Appellant's arguments in the Brief, the Examiner's rejections, and the Examiner's response to Appellant's arguments. Appellant's arguments have not persuaded us of error in the Examiner's non-statutory obviousness-type double patenting rejection of claim 1; however, Appellant's arguments have persuaded us of error in the Examiner's obviousness rejection. Initially, we note Appellant has not addressed the Examiner's non- statutory obviousness-type double patenting rejection. Thus, Appellant has not identified an error in this rejection, and we sustain it proforma. With respect to the obviousness rejection, Appellant argues that the Examiner's rejection is in error as the Das published application cannot be relied upon as prior art. Appeal Brief 7. Specifically, Appellant argues: [T]he Das provisional does not disclose or teach the use of multiple virtual network interfaces as expressly recited in claim 2 Throughout this Decision we refer to the Appeal Brief filed April 6, 2017, Final Office Action mailed August 12, 2016, and the Examiner's Answer mailed June 16, 2017. 3 Appeal2017-010769 Application 14/290,813 1. As such, the effective date accorded to the subject matter of Das relied upon for the rejections must be the filing date of the Das non-provisional (i.e., November 12, 2004), which date does not antedate the February 5, 2004 priority date of the instant application. Appeal Brief 7. Further, Appellant argues that the Das published application should not be afforded the benefit of the filing data of the provisional application as the provisional application does not provide 35 U.S.C. § 112 support for the claims of the published Das application. Appeal Brief 8 (citing Dynamic Drinkware, LLC v. National Graphics Inc., 800 F.3d 1375, 1381 (Fed. Cir. 2015)). Appellant provides an analysis demonstrating features of the claims in Das published Application are not supported by Das provisional application. Appeal Brief 8. In response to Appellant's arguments the Examiner states: The claimed limitations of claims 1, 2, 3, 5, 7 of Das non- provisional were never relied upon in the final rejection. The paragraphs of Das non-provisional that were relied upon in the final rejection are supported in pages 1 and 2 of Das provisional. Therefore, the rejection is maintained and the priority date of Das provisional antedates the priority date of the instant application. Answer 14. Appellant's arguments have persuaded us of error. The Das published application does not antedate the Appellant's application without relying upon the filing data of the Das provisional application. Our reviewing court has said: In Dynamic Drinkware, we clearly explained that for a non- provisional application to claim priority to a provisional application for prior art purposes, "the specification of the provisional [application] must contain a written description of 4 Appeal2017-010769 Application 14/290,813 the invention ... in such full, clear, concise, and exact terms, to enable an ordinarily skilled artisan to practice the invention claimed in the non-provisional application." Amgen Inc. v. Sanofi, 872 F.3d 1367, 1380 (Fed. Cir. 2017) (alteration in original) (quoting Dynamic Drinkware, 800 F.3d at 1378). Thus, regardless of whether the Examiner's rejection relies upon the limitations of the claims in the Das published application, for the Examiner to rely upon the filing date of the Das provisional application, the claims of the published application (a non-provisional application) must be supported by the provisional application. Here, we agree with Appellant that the Das provisional does not provide support for the claimed feature of determining whether the performance is undesirable. Br. 9. Furthermore, the Examiner has not made any findings in this regard. See Ans. 12-16. Accordingly, we do not support the Examiner's obviousness rejection of claims 1 through 10. DECISION We affirm the Examiner's rejection of claim 1 based non-statutory obviousness-type double patenting. We reverse the Examiner's rejection of claims 1 through 10 under 35 U.S.C. § 103(a). 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-IN-PART 5 Copy with citationCopy as parenthetical citation