Ex Parte Roy et al

Patent Trial and Appeal Board

Oct 22, 2018

14226530 (P.T.A.B. Oct. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/226,530 03/26/2014
106874 7590 10/22/2018
Haynes and Boone, LLP (47856)
2323 Victory A venue, Suite 700
Dallas, TX 75219
FIRST NAMED INVENTOR
Paul Roy
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.
2013.25 I 47856.109 8170
EXAMINER
BELETE, BERHANU D
ART UNIT PAPER NUMBER
2468
MAIL DATE DELIVERY MODE
10/22/2018 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 PAUL ROY, EARL BARTON MANCHESTER,
MICHAEL KISSELBURGH, JULIAN FRANCISPILLAI,
and DANNY PEELER
Appeal2018-004079
Application 14/226,530
Technology Center 2400
Before CARLA M. KRIVAK, JEREMY J. CURCURI, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
CURCURI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1--4, 8, 11, 13-17, 19, and 20. Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b ).
Claims 1--4, 8, 11, 13-17, 19, and 20 are rejected under 35 U.S.C.
§ 103 as obvious over Skubisz (US 8,059,798 Bl; Nov. 15, 2011) and
Aravamudhan (US 6,563,919 Bl; May 13, 2003). Final Act. 5-17.
We reverse.
Appeal2018-004079
Application 14/226,530
STATEMENT OF THE CASE
Appellants' invention relates to "clustering of nodes to provide calling
services to endpoints after a primary services platform becomes
unavailable." Spec. ,r 1. Claim 1 is illustrative and reproduced below:
1. A method of providing survivable communications in a
communications network, the method comprising:
determining a loss of communications between a first access node and
a communications server, wherein the communications server provides call
connectivity to a first endpoint coupled to the first access node using a first
network access technology, the first access node configured to be directly
connected to endpoints; and
in response to determining the loss of communications with the
communications server, establishing a connection between the first access
node and a second access node that provides communication services to a
second endpoint, the second access node configured to be directly connected
to endpoints, wherein the second access node is coupled to the second
endpoint using a second network access technology different from the first
network access technology, and
wherein communication service is provided between the first endpoint
and the second endpoint via the first access node using the first network
access technology and via the second access node using the second network
access technology, wherein the first access node and the second access node
are configured to convert call data and control information into a protocol
that is common to both the first and second access nodes and communicate
with each other using the protocol.
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Appeal2018-004079
Application 14/226,530
PRINCIPLES OF LAW
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential).
ANALYSIS
Contentions
The Examiner finds Skubisz teaches all limitations of claim 1 except
for "wherein the first access node and the second access node are configured
to convert call data and control information into a protocol that is common
to both the first and second access nodes and communicate with each other
using the protocol," as recited in claim 1. Final Act. 6.
The Examiner finds Aravamudhan teaches "wherein the first access
node and the second access node are configured to convert call data and
control information into a protocol that is common to both the first and
second access nodes and communicate with each other using the protocol,"
as recited in claim 1. Final Act. 6-7.
The Examiner reasons
it would have been obvious to a person of ordinary skill in the art
at the time of the effective filing date to modify the system of
Skubisz to use normalized protocol and the gateway conversion
the normalized response as taught by Aravamudhan. The
motivation for doing so would have been to provide enhanced
maintenance and management that the mobile communications
advantageous and desirable to unify maintenance and
management of the mobile communications that are of various
mobile communication protocol types.
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Appeal2018-004079
Application 14/226,530
Final Act. 7 (citing Aravamudhan col. 3, 11. 60-67); see also Ans. 16 ("The
motivation for doing so would have been to unify mobility that provides
unifying the mobile communications by various mobile devices regardless of
access technology that operate on various mobile communication protocols
under a single umbrella protocol.") and 17-18.
In the Appeal Brief, Appellants present the following principal
argument:
"The rejection fails to explain any reason why a rational person would
make the combination. Specifically, Skubisz's access devices operate in
such a way that the proposed modification would provide no benefit." App.
Br. 11.
[T]here is no need for Skubisz's access devices 210, 220 to
include the functionality of Aravamudhan' s UMM 30 because
Skubisz's access devices 210, 220 use the same IP
communication technology to connect to their respective
endpoints. Thus, a person of ordinary skill in the art would have
seen no need to convert call data to a different protocol that is
common to both access devices because the access devices
already use a common protocol to connect to their respective
endpoints. The Action seems to suggest adding a feature to
Skubisz for the sake of adding the feature, purely for hindsight
and without technical advantage.
App. Br. 12.
In the Reply Brief, Appellants additionally argue the following:
"[S]imply being in the same field of communication does not show
why one of ordinary skill in the art would modify access devices to have a
capability that they don't need." Reply Br. 3. The Examiner "does not
explain why one of ordinary skill in the art would need something with such
advantages on a system to be applied to access devices instead of a
centralized server, let alone access devices that use the same communication
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Appeal2018-004079
Application 14/226,530
technology." Reply Br. 3. A "desire to unify mobile communications
regardless of access technology still does not explain why one of ordinary
skill in the art would modify Skubisz's access devices to include features of
Aravamudhan's centralized server, particularly where those access devices
use the same communication technology and have no need to convert call
data and control information into a normalized protocol." Reply Br. 3.
Our Review
In reaching our decision, we emphasize that we review the record
before us. On this record, we find the Examiner's conclusion of obviousness
lacks a rational underpinning.
The Examiner maps Skubisz's device 205 coupled to access device A
210 (Skubisz Fig. 2) to the recited "first endpoint coupled to the first access
node using a first network access technology." See Final Act. 5. The
Examiner maps Skubisz's device 215 coupled to access device B 220
(Skubisz Fig. 2) to the recited "the second access node is coupled to the
second endpoint using a second network access technology." See Final Act.
6.
Contrary to the Examiner, we find Skubisz's devices 205 and 215 are
connected to their respective access devices 210 and 220 using the same
network access technology. See Skubisz Fig. 2 ( depicting devices 205 and
215 as traditional POTS devices); see also Skubisz col. 6, 11. 14--26 ("Upon
dialing the destination caller telephone number on the originating POTS
handset 205, the access device 210 converts the POTS communications to
VoIP protocol and sends the VoIP protocol setup request across the network
to the switch 250).").
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Application 14/226,530
Accordingly, we do not readily see any reason why Skubisz would
have been modified in light of Aravamudhan as proposed by the Examiner
because, as far as we can determine, Skubisz's POTS device 205 and access
device 210 appear to be identical to Skubisz's POTS device 215 and access
device 220. Thus, we do not readily see any problem that needs solving in
Skubisz's Fig. 2, and agree that on the record before us there is no reason to
modify Skubisz as proposed for the reasons explained by Appellants, other
than improper hindsight reconstruction based on Appellants' claims. See
App. Br. 11, 12; Reply Br. 3. 1
We, therefore, do not sustain the Examiner's rejection of claim 1. We
also do not sustain the Examiner's rejection of claims 2--4, which depend
from claim 1.
We also do not sustain the Examiner's rejection of independent claim
8, for which the Examiner provides the same reasoning to support the
conclusion of obviousness. See Final Act. 11-12. We also do not sustain the
Examiner's rejection of claims 11 and 13, which depend from claim 8.
We also do not sustain the Examiner's rejection of independent claim
14, for which the Examiner provides the same reasoning to support the
conclusion of obviousness. See Final Act. 14--15. We also do not sustain the
Examiner's rejection of claims 15-17, 19, and 20, which depend from claim
14.
1 We review the record before us which includes an obviousness rejection
based on Skubisz and Aravamudhan. Here, we decide the Examiner's
conclusion of obviousness lacks a rational underpinning. We do not decide
whether additional disclosures in Skubisz, alone, are sufficient to support a
rejection based on anticipation or obviousness.
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Application 14/226,530
ORDER
The Examiner's decision rejecting claims 1--4, 8, 11, 13-17, 19, and
20 is reversed.
REVERSED
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