Ex Parte Reinold et al

Board of Patent Appeals and Interferences

Mar 30, 2007

09944893 (B.P.A.I. Mar. 30, 2007)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE

__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte JUERGEN REINOLD and DONALD J. REMBOSKI
__________

Appeal 2006-0342
Application 09/944,893
Technology Center 2100
__________

Decided: March 30, 2007
__________

Before HOWARD B. BLANKENSHIP, ALLEN R. MACDONALD, and
ST. JOHN COURTENAY III, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s rejection of claims 1-15.
Appeal 2006-0342
Application 09/944,893

THE INVENTION
The disclosed invention relates generally to the field of
communication systems for vehicles such as automobiles and trucks, and
more particularly, to communicatively coupling devices within the vehicle
(Specification 1).
Representative claim 1 is illustrative:
1. In a vehicle comprising a first device and a second device and an
active network communicatively coupling the first device and the second
device for the communication of data between the first device and the
second device, the active network being operable to encrypt the data.

THE REFERENCES
The Examiner relies upon the following references as evidence of
unpatentability:
Daniels US 5,991,401 Nov. 23, 1999
Pogue US 5,995,512 Nov. 30, 1999
Wright US 6,101,599 Aug. 8, 2000

David L. Tennenhouse, “Towards an Active Network Architecture,” ACM
website (1996) (as cited by the Examiner in the Answer). 1

1 We note the Tennenhouse journal article was published twice (in 1996 and
2002). The 2002 publication appears to be identical to the 1996 publication.
We rely on the prior art 1996 ACM publication cited by the Examiner
(Answer 3).

2002 Version (not prior art):
David L. Tennenhouse & David J. Wetherall, “Towards an Active Network
Architecture”, Telemedia, Networks & Sys. Group, MIT; DARPA Active
Networks Conference and Exposition (DANCE ’02), 2002 Proceedings, San
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THE REJECTIONS
The following rejections are on appeal before us:
1. Claims 1-4, 6, and 8-15 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the teachings of Pogue in view of Daniels.
2. Claims 5 and 7 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the teachings of Pogue in view of Daniels, and
further in view of Wright.
3. Claims 1-7, 9-12, and 15 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the teachings of Pogue in view of
Tennenhouse.
4. Claims 8, 13, and 14 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the teachings of Pogue in view of
Tennenhouse, and further in view of Daniels.
Rather than repeat the arguments of Appellants or the Examiner, we
make reference to the Briefs and the Answer for the respective details
thereof.
OPINION
Only those arguments actually made by Appellants have been
considered in this decision. It is our view, after consideration of the record

Francisco, CA, USA, 05/29/2002 - 05/30/2002, Publication Date: 2002, pp.
2-15 (ISBN: 0-7695-1564-9).

1996 Version (prior art):
David L. Tennenhouse & David J. Wetherall, “Towards an Active Network
Architecture”, ACM SIGCOMM Computer Communication Review, ACM
Press, New York, N.Y., April 1996, Vol. 26, Issue 2, pp. 5-18 (ISSN:0146-
4833).

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Application 09/944,893

before us, that the evidence relied upon supports the Examiner’s rejection of
the claims on appeal. Accordingly, we affirm.

Claims 1-4, 6, and 8-15
We consider first the Examiner’s rejection of claims 1-4, 6, and 8-15
as being unpatentable over Pogue in view of Daniels. Since Appellants’
arguments with respect to this rejection have treated these claims as a single
group which stand or fall together, we will select independent claim 1 as the
representative claim for this rejection because it is the broadest independent
claim. See 37 C.F.R. § 41.37(c)(1)(vii)(2004).
Appellants state they do not provide a special definition of the claim
term “active network.” Instead, Appellants assert the term “active network”
must be given its plain meaning, i.e., it must be read as it would be
interpreted by those of ordinary skill in the art (Br. 7, emphasis added).
Referring to the articles by Tennenhouse et al., 2 Appellants assert that the
interpretation of the term “active network” given by those of ordinary skill
in the art is clear, as follows:
[A]n active network is a network including nodes capable of
performing custom operations on the messages that pass
through the nodes; does not require a central server or
computing resource; are aware of the contents of the messages
transported and can participate in the processing and
modification of the message while they travel through the
network.

(Br. 7).

2 The Tennenhouse articles were attached as Appendices to the Brief.
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Appellants argue Pogue does not teach such an “active network.”
Appellants assert the Examiner’s interpretation of the term “active network”
does not conform to what one of ordinary skill in the art would understand
an active network to be and is inconsistent with the teachings of the
Specification (Br. 8). Appellants argue the networks taught by Pogue and
Daniels are not “active networks,” as that term is used in the claims (Br. 9).
Nevertheless, Appellants specifically admit:
Notwithstanding that the references fail to teach an active
network, the applicants admit that the term active network
describes a known network type. See Appendices B, C and D.

(Br. 9, last paragraph).

Appellants further argue the prior art of record fails to establish a
suggestion or motivation to use an active network in a vehicle. Appellants
conclude the Examiner has impermissibly used hindsight in formulating the
rejection (Br. 10).
The Examiner disagrees. The Examiner points to page 8 of the
Specification and finds an active network may broadly include a plurality of
active elements enabling communication paths. The Examiner concludes
the term “active network” is not defined in the Specification with reasonable
clarity, deliberateness, and precision. The Examiner broadly construes the
term “active network” to mean active network elements used in connection
with the [network] fabric to include any number of intelligent structures for
communicating data packets (Specification 9: 16-21, emphasis added). The
Examiner finds Pogue teaches at least one embodiment where intelligent
devices perform network-related functions (Pogue, Abstract). The Examiner
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concludes that Pogue’s intelligent devices meet the definition of an active
network as defined in the Specification (9: 16-21) (Answer 7-8).
In the Reply Brief, Appellants point out the Examiner states that
Pogue does not disclose encrypting data or an active network (i.e., with
respect to new grounds of rejection, Pogue in view of Tennenhouse,
discussed infra) (see Answer 6, ¶ 2, first line, emphasis added). Appellants
restate their argument that the Examiner has impermissibly relied upon
hindsight in formulating the rejection (Reply Br. 2-4).
At the outset, we do not agree with the Examiner’s statement (made in
applying the new grounds of rejection) that Pogue does not disclose an
active network (see Answer 6, ¶ 2). We note the Examiner’s statement
directly contravenes the earlier position the Examiner took in rejecting
representative claim 1 as being unpatentable over Pogue in view of Daniels
(see Answer 3). We find the Examiner was correct in the first instance. In
particular, we agree with the Examiner’s first position that Pogue’s
disclosure of “intelligent nodes” meets the language of the claim that recites
an “active network” (claim 1). We note Pogue discloses the capabilities of
“intelligent nodes” as follows:
Intelligent nodes generally have some level of microprocessing
power that can be made available for controlling some aspect of
the node's interaction with the network data bus, while a dumb
node would generally have either no processing power or no
available processing power. Preferably, the interface circuit can
be configured to recognize whether its associated node is
intelligent or dumb, transfer some portion of the data bus
control functions to the node if the node is intelligent, and
maintain substantially all of the data bus controls within the
interface unit (or some other portion of the network data bus) if
the node is determined to be dumb.
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(Pogue, col. 2, ll. 10-21).
In particular, we note Pogue discloses at least one embodiment where
“intelligent nodes” are implemented with a microprocessor (see e.g., col. 11,
ll. 43-44, “the controller 74 is typically the node microprocessor that
controls the node,” see also col. 27, ll. 55-57). Pogue further discloses the
processing of message data at the node:

A controller 74 on the node device is connected to the IC 64
through an IIC compatible (but preferably faster) connection.
All configuration, status, and message data is available to the
external device through this port.

(col. 12, ll. 55-58, emphasis added).

Because Pogue’s “intelligent nodes” include a microprocessor that
processes message data, we find Pogue’s “intelligent nodes” are: (1) capable
of performing custom operations on messages that pass through the nodes,
(2) do not require a central server or computing resource, (3) are aware of
the contents of transported messages, and (4) can participate (i.e., are
capable of participating) in the processing and modification of messages
traveling through the network (See Appellants’ proffered plain meaning of
the claim term “active network,” supra, see also Br. 7).
We emphasize that Appellants have specifically used the language
“capable of” and “can participate” in construing the plain meaning of an
“active network” (see Br. 7). Thus, we find Pogue’s teaching of “intelligent
nodes” in a vehicle network clearly meets Appellants’ proffered plain
meaning of the claim term “active network” (see Br. 7).
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Furthermore, we do not agree with Appellants’ assertion that the
Examiner has impermissibly used hindsight in formulating the rejection. We
note Pogue specifically discloses a high-speed network where “[t]he
preferred operating environment is a transportation vehicle such as a car,
van, truck, bus, train or airplane” (col. 7, ll. 1-3). Pogue discloses the
advantages of such a vehicle network as follows:
For high-speed communications between many locations or
nodes in a vehicle, an optical fiber transmission medium
arranged in a star topology is less expensive and less
complicated than dedicated point-to-point connections or a
hard-wired electrical network.

(col. 7, ll. 36-41, emphasis added).

We note our reviewing court has recently reaffirmed that:

an implicit motivation to combine exists not only when a suggestion
may be gleaned from the prior art as a whole, but when the
‘improvement’ is technology-independent and the combination of
references results in a product or process that is more desirable, for
example because it is stronger, cheaper, cleaner, faster, lighter,
smaller, more durable, or more efficient … In such situations, the
proper question is whether the ordinary artisan possesses knowledge
and skills rendering him capable of combining the prior art
references.

DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464
F.3d 1356, 1368, 80 USPQ2d 1641, 1651 (Fed. Cir. 2006) (emphasis in
original).
In the instant case, we find the ordinary artisan who possessed
knowledge and skills relating to vehicle computer systems would have been
capable of combining Pogue’s vehicle network system and Daniels’ data
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encryption in the manner suggested by the Examiner for the purpose of
realizing a more secure vehicle system. As an example, we find a more
secure vehicle network would have been suggested by the need to have a
secure means of locking and unlocking electronic vehicle door and trunk
latches. We further find Pogue’s use of “symbol encoder 126” (Fig. 12, col.
22, l. 35) and “symbol decoder 120” (Fig. 11, col. 18, l. 65, col. 24, ll. 1-2)
broadly suggests the use of some form of data encryption. Therefore, for at
least the aforementioned reasons, we conclude the Examiner has met the
burden of establishing a prima facie case of obviousness. Accordingly, we
will sustain the Examiner’s rejection of representative claim 1 as being
unpatentable over Pogue in view of Daniels. Pursuant to 37 C.F.R.
§ 41.37(c)(1)(vii), we have decided the appeal with respect to claims 2-4, 6,
and 8-15 on the basis of the selected claim alone. Therefore, we will sustain
the Examiner’s rejection of these claims as being unpatentable over Pogue in
view of Daniels for the same reasons discussed supra with respect to
representative claim 1.

Dependent claims 5 and 7
We consider next the Examiner’s rejection of dependent claims 5 and
7 as being unpatentable over the teachings of Pogue in view of Daniels, and
further in view of Wright.
We see no deficiencies with respect to Pogue as modified by Daniels,
as discussed supra. We note that Appellants have not presented any
substantive arguments directed separately to the patentability of claims 5
and 7. In the absence of a separate argument with respect to the dependent
claims, those claims stand or fall with the representative independent claim.
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See In re Young, 927 F.2d 588, 590, 18 USPQ2d 1089, 1091 (Fed. Cir.
1991). Therefore, we will sustain the Examiner’s rejection of these claims
as being unpatentable over Pogue in view of Daniels, and further in view of
Wright for the same reasons discussed supra with respect to independent
claim 1.
Claims 1-7, 9-12, and 15
We consider next the Examiner’s rejection of claims 1-7, 9-12, and 15
as being unpatentable over Pogue in view of Tennenhouse. Since
Appellants’ arguments with respect to this rejection have treated these
claims as a single group which stand or fall together, we will select
independent claim 1 as the representative claim for this rejection because it
is the broadest independent claim. See 37 C.F.R. § 41.37(c)(1)(vii)(2004).
In response to the new grounds of rejection, Appellants argue the
Examiner has failed to establish a teaching, suggestion, or motivation that
would lead an artisan to use an active network in a vehicle and, further, to
encrypt data in a vehicle. Appellants restate their argument that the
Examiner has impermissibly relied upon hindsight in formulating the
rejection (Reply Br. 3-4).
With respect to this rejection, we find the cited Tennenhouse
reference (included as an Appendix to the Brief) explicitly teaches an active
network (See ¶3, “Active Networks”). We also find Appellants have
specifically admitted in the Brief that such active networks are known in the
art:

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Notwithstanding that the references fail to teach an active
network, the applicants admit that the term active network
describes a known network type. See Appendices B, C and D.

(Br. 9, last paragraph).

In addition, we find Tennenhouse specifically discloses the use of data
encryption at page 3, left column, line 1. We note we have found supra that
a more secure vehicle network would have been suggested to an artisan in
accordance with the need to have a secure means of locking and unlocking
electronic vehicle door and trunk latches. We have also found supra that
Pogue’s use of a symbol encoder and decoder at least suggests some form of
data encryption. We note the Examiner has taken the motivation to modify
Pogue directly from the Tennenhouse reference at page 1, left column,
Introduction, second paragraph (see Answer 6).
We again note that under DyStar, the test is whether the ordinary
artisan possesses knowledge and skills rendering him capable of combining
the prior art references to realize a combination that is “stronger, cheaper,
cleaner, faster, lighter, smaller, more durable, or more efficient.” See 464
F.3d at 1368, 80 USPQ2d at 1651. In the instant case, we find the ordinary
artisan who possessed knowledge and skills relating to vehicle computer
systems would have been capable of combining Pogue’s vehicle network
system with Tennenhouse’s active network (and data encryption) in the
manner suggested by the Examiner for the purpose of realizing a more
secure and reliable vehicle network system.
Therefore, we conclude the Examiner has met the burden of
establishing a prima facie case of obviousness. Accordingly, we will sustain
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the Examiner’s rejection of representative claim 1 as being unpatentable
over Pogue in view of Tennenhouse. Pursuant to 37 C.F.R.
§ 41.37(c)(1)(vii), we have decided the appeal with respect to claims 2-7,
9-12, and 15 on the basis of the selected claim alone. Therefore, we will
sustain the Examiner’s rejection of these claims as being unpatentable over
Pogue in view of Tennenhouse for the same reasons discussed supra with
respect to representative claim 1 (i.e., where claim 1 was found unpatentable
over Pogue in view of Tennenhouse).

Dependent claims 8, 13, and 14
We consider next the Examiner’s rejection of dependent claims 8, 13,
and 14 as being unpatentable over the teachings of Pogue in view of
Tennenhouse, and further in view of Daniels.
We see no deficiencies with respect to Pogue as modified by
Tennenhouse, as discussed supra. We have also fully addressed Daniels
supra. We note that Appellants have not presented any substantive
arguments directed separately to the patentability of claims 8, 13, and 14. In
the absence of a separate argument with respect to the dependent claims,
those claims stand or fall with the representative independent claim. See In
re Young, 927 F.2d at 590, 18 USPQ2d at 1091. Therefore, we will sustain
the Examiner’s rejection of these claims as being unpatentable over Pogue
in view of Tennenhouse, and further in view of Daniels for the same reasons
discussed supra with respect to the rejection of independent claims 1 and 11
as being unpatentable over Pogue in view of Tennenhouse.

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DECISION
In summary, we have sustained the Examiner’s rejection of all claims
on appeal. Therefore, the decision of the Examiner rejecting claims 1-15 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.

tdl/ce

MOTOROLA, INC.
1303 EAST ALGONQUIN ROAD
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