Ex Parte Palojarvi et al

Patent Trial and Appeal Board

Feb 11, 2015

10881921 (P.T.A.B. Feb. 11, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JARI PALOJARVI, JUHA P. SAVOLAINEN and
MIKA T. KETTUNEN
____________

Appeal 2012-011148
Application 10/881,921
Technology Center 2400
____________

Before JASON V. MORGAN, MICHAEL J. STRAUSS, and
GARTH D. BAER, Administrative Patent Judges.

BAER, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-011148
Application 10/881,921

2

STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1–27 and 53–55. App. Br. 2. Claims 28–52 have been cancelled.
App. Br. 24. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

BACKGROUND
A. The Claims
The claims are directed to “an improved system, method and
computer program product for accessing at least one Virtual Private
Network (VPN).” Spec. 4. Independent claim 1, reproduced below, is
illustrative:
1. An apparatus comprising:
a processor; and
a memory including computer program code, the
memory and computer program code being configured to, with
the processor, cause the apparatus to at least:
define or receive definition of at least one Virtual Private
Network (VPN) access point, each VPN access point being
associated with a physical access point and VPN policy,
wherein the apparatus being caused to define or receive
definition of each VPN access point includes being caused to
receive a plurality of settings for the VPN access point
including receive an identification of a physical access point
and VPN policy to associate with the VPN access point,
identification of the respective VPN policy being selected from
at least one VPN policy installed on the apparatus, and
wherein each of the at least one VPN is a logical network
located within one or more physical networks, the physical
access point associated with each VPN access point being a
physical access point distinct from the apparatus and configured
Appeal 2012-011148
Application 10/881,921

3
to provide the apparatus with access to the one or more physical
networks within which a respective VPN is located; and
cause at least one VPN to be accessed based upon the at
least one VPN access point to thereby cause at least one data
connection to be established from at least one application across
the at least one VPN, wherein the apparatus being caused to
cause at least one VPN to be accessed includes being caused to
cause a connection to be established with the physical access
point associated with a respective VPN access point to thereby
provide the apparatus with access to the one or more physical
networks within which the respective VPN is located.

B. The Rejections on Appeal
The Examiner rejected claims 1–4, 6–13, 15–22, 24–27, and 53–55
under 35 U.S.C. § 103(a) as unpatentable over Mukherjee (US 2004/
0225895 A1, Nov. 11, 2004) and Whelan (US 7,363,022 B2, Apr. 22, 2008).
App. Br. 6. The Examiner also rejected claims 5, 14, and 23 under 35
U.S.C. § 103(a) as unpatentable over Mukherjee, Whelan, and Applicants’
Admitted Prior Art. Id.

ANALYSIS
A. Claim 1
Appellants assert the Examiner erred in finding the prior art teaches
“an apparatus caused to define or receive definition of a VPN access point
that is associated with a physical access point and VPN policy” as claim 1
recites, challenging specifically the Examiner’s finding that Mukherjee
discloses the claimed VPN access point. App. Br. 8. Appellants first argue
the Specification explicitly defines a VPN access point as “a virtual or
logical access point to a respective VPN.” App. Br. 8 (citing Spec. ¶ 51).
Thus, even though the claim itself does not recite a “virtual or logical” VPN
Appeal 2012-011148
Application 10/881,921

4
access point, Appellants assert the broadest reasonable construction for VPN
access point consistent with the Specification nonetheless requires a “virtual
or logical” VPN access point. App. Br. 8. In light of that definition,
Appellants assert the Examiner erred in rejecting claim 1 because “nowhere
does Mukherjee disclose any virtual or logical access point to a respective
VPN that is defined by a VPN policy and associated physical access point.”
App. Br. 9 (emphasis added).
Even assuming, however, that the Specification defines the claimed
“VPN access point” as a “virtual or logical access point to a respective
VPN” as Appellants suggest, we find no error in the Examiner’s rejection
because we agree with the Examiner that Mukherjee discloses a VPN access
point conforming to Appellants’ proffered definition, i.e., a “virtual or
logical VPN access point.” See Ans. 14. That is, by teaching a VPN access
point associated with a physical access point and VPN policy, Mukherjee
also teaches a virtual or logical VPN access point with the requisite physical
access and policy. See id. Appellants’ own Specification confirms a VPN
access point with an associated access point and policy is a virtual or logical
VPN access point. Immediately after the Specification explains “a VPN
access point can generally be considered a virtual or logical access point to a
respective VPN,” it goes on to state “a VPN access point can be defined by a
VPN policy and an associated IAP [Internet Access Point].” Spec. ¶ 51. We
thus are not persuaded the Examiner erred by finding Mukherjee teaches the
claimed VPN access point.
Appellants also contest the Examiner’s reliance on Whelan, arguing
“nowhere does Whelan disclose that any of its configuration parameters or
capability requirements corresponds to a VPN policy, similar to independent
Appeal 2012-011148
Application 10/881,921

5
Claim 1.” App. Br. 10. The Examiner, however, relied on Mukherjee—not
Whelan—to teach an access point that corresponds with a VPN policy. Ans.
6–7, 15. Appellants’ criticism of Whelan for not also teaching those same
features is, therefore, unpersuasive. See In re Keller, 642 F.2d 413, 426
(CCPA 1981) (“[O]ne cannot show non-obviousness by attacking references
individually where, as here, the rejections are based on combinations of
references.”).
Last, Appellants contest the Examiner’s reasoning that one skilled in
the art would have been led to combine Mukherjee’s adaptive VPN system
with Whelan’s separate physical access points ‘“to allow mobile clients to
actually connect to the network in order to establish a VPN.’” App. Br. 11
(quoting Final Act. 5). Appellants reason that because Mukherjee already
discloses mobile clients connecting to a network, “one skilled in the art
would not in fact look past Mukherjee, much less to Whelan, to allow the
feature.” App. Br. 11. Appellants further contend that to the extent
“Mukherjee is non-enabling as to [mobile clients connecting to a network]
. . . Mukherjee may not properly be relied upon to support the rejection
presented.” App. Br. 11 (citing MPEP § 2121).
We are not persuaded the Examiner erred. As the Examiner
explained, although Mukherjee teaches mobile clients with physical access
points for connecting to a VPN, it does not detail the operation of such
physical access points including that “a physical access point must be a
physical access point distinct from the apparatus and configured to provide
the apparatus with access to the one or more physical networks,” as recited
in claim 1. Ans. 15–16. In light Mukherjee’s missing details, we find no
error in the Examiner’s reasoning that it would have been obvious “to have
Appeal 2012-011148
Application 10/881,921

6
modified Mukherjee et al. to use the method of selecting and using distinct
access points as taught by Whelan et. al in order to provide the details as to
how a mobile client may actually connect to the network.” Ans. 16. We
also are not persuaded by Appellants’ argument that Mukherjee is not
enabled and therefore cannot support the rejection. While a reference must
be adequately enabled to anticipate under § 102(b), for obviousness under
§ 103, “a reference need not be enabled; it qualifies as a prior art, regardless,
for whatever is disclosed therein.” Amgen Inc. v. Hoechst Marion Roussel,
Inc., 314 F.3d 1313, 1357 (Fed. Cir. 2003).
For the reasons outlined above, we sustain the Examiner’s rejection of
claim 1 under 35 U.S.C. § 103(a).
B. Independent Claims 10 and 19; Dependent Claims 2–9, 11–18, 20–27
and 53–55
Appellants do not separately argue independent claims 10 and 19.
Instead, Appellants note that “[c]laims 10 and 19 recite subject matter
similar to that of independent Claim 1,” and contest the Examiner’s rejection
based on the same arguments outlined above for claim 1. App Br. 10.
Appellants likewise do not separately argue patentability for dependent
claims 2–9, 11–18, 20–27 and 53–55, leaving those claims to also turn on
the same arguments Appellants raised for claim 1. See App. Br. 11–12.
Having found Appellants’ arguments related to claim 1 unpersuasive, we
also sustain the Examiner’s rejection of claims 2–27 and 53–55.

Appeal 2012-011148
Application 10/881,921

7
DECISION
We affirm the Examiner’s decision to reject claims 1–27 and 53–55.
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) (2011).

AFFIRMED

msc