13283162 (P.T.A.B. May. 23, 2016)

Ex Parte Sanders et al

Patent Trial and Appeal BoardMay 23, 2016

13283162 (P.T.A.B. May. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/283, 162 10/27/2011 23322 7590 05/25/2016 IPLM GROUP, PA POST OFFICE BOX 18455 MINNEAPOLIS, MN 55418 FIRST NAMED INVENTOR Clint Michael Sanders 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. l 76P003US01 7301 EXAMINER GUIRGUIS, MICHAEL M ART UNIT PAPER NUMBER 2498 NOTIFICATION DATE DELIVERY MODE 05/25/2016 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): docket@iplmgroup.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CLINT MICHAEL SANDERS, DEBORAH KAREN CHARAN, RANGA SRI RAMANUJAN and RYAN CHRISTOPHER MAROTZ Appeal2014-007888 Application 13/283,162 Technology Center 2400 Before JOHN A. EV ANS, MONICA S. ULLAGADDI, and JOYCE CRAIG, Administrative Patent Judges. EV ANS, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 seek our review under 35 U.S.C. Â§ 134(a) of the Examiner's final rejection of Claims 1-8, 10-25, and 27-51.2 App. Br. 1. Claims 9, 26, and 43 are canceled. Final Act 2. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 The Appeal Brief identifies Architecture Technology, Inc., as the real party in interest. App. Br. 3. 2 The Appellants argue, and the Examiner maintains, that Claim 43 was rejected in the Final Action (App. Br. 1; Final Act. 1 ). However, we note that the Amendment filed Sept. 9, 2013 cancelled Claim 43. Claim 43 being properly cancelled, we do not address it herein. Appeal2014-007888 Application 13/283,162 STATEMENT OF THE CASE The claims relate to methods, networks, and nodes for dynamically establishing encrypted communications between first and second nodes, each having an identification and a private key. See Abstract. Claims 1, 18, and 35 are independent. The claims have not been argued separately and therefore stand or fall together. 37 C.F.R. Â§ 41.37(c)(l)(iv). An understanding of the invention can be derived from a reading of exemplary Claim 1, which is reproduced below with some formatting added: 1. A device implemented method for dynamically establishing encrypted communications between a first node having a first identification and a first private key and a second node having a second identification and a second private key, comprising the steps of: transmitting, in a single packet, a first signal comprising information indicative of the first identification of the first node; then transmitting, in a single packet and upon receipt of the first signal by the second node, a second signal comprising information indicative of the second identification of the second node and a first portion of a symmetric key; [and] then transmitting, in a single packet and upon receipt of the second signal by the first node, a third signal comprising a second portion of the symmetric key. 2 Appeal2014-007888 Application 13/283,162 References and Rejections The Examiner relies upon the prior art as follows: Shan us 5,875,329 Feb.23, 1999 Sandhu et al. US 2005/0027989 Al Feb. 3,2005 Bin et al. US 2007/0157309 Al July 5, 2007 Tanizawa et al. US 2008/0028211 Al Jan. 31, 2008 Molina et al. US 2008/0046898 Al Feb.21,2008 Cho et al. US 2009/0240944 Al Sept. 24, 2009 1. Claims 1-3, 5, 12-20, 22, 29-37, 39, and 46-51 stand rejected under 35 U.S.C. Â§ 103(a) as obvious over Cho, Sandhu, and Shan. Final Act. 4--9. 2. Claims 4, 10, 21, 27, 38, and 44 stand rejected under 35 U.S.C. Â§ 103(a) as obvious over Cho, Sandhu, Shan, and Bin. Final Act. 9-10. 3. Claims 6-8, 23-25, and 40-42 stand rejected under 35 U.S.C. Â§ 103(a) as obvious over Cho, Sandhu, Shan and Molina. Final Act. 10-13. 4. Claims 11, 28, and 45 stand rejected under 35 U.S.C. Â§ 103(a) as obvious over Cho, Sandhu, Shan, and Tanizawa. Final Act. 13. ANALYSIS Rather than reiterate the arguments of Appellants and the Examiner, we refer to the Specification (filed Oct. 27, 2011, "Spec."), the Amended Claims (filed Sept. 19, 2013, "Am. Cl."), the Final Action (mailed October 10, 2010, "Final Act."), the Appeal Brief (filed Apr. 10, 2014 "App. Br."), the Examiner's Answer (mailed May 7, 2014, "Ans."), and the Reply Brief (filed July 7, 2014, "Reply 3 Appeal2014-007888 Application 13/283,162 Br.") for their respective details. We have reviewed the rejections of the claims in light of Appellants' arguments that the Examiner erred. We have considered in this decision only those arguments Appellants actually raised in the Briefs. Any other arguments which Appellants could have made but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R. Â§ 41.37(c)(l)(iv). We are not persuaded that Appellants identify reversible error. Upon consideration of the arguments presented in the Appeal and Reply Briefs, we agree with the Examiner that all the pending claims are unpatentable over the cited combination of references. We adopt as our own the findings and reasons set forth in the rejection from which this appeal is taken and in the Examiner's Answer. We provide the following explanation to highlight and address specific arguments and findings primarily for emphasis. We consider Appellants' arguments as presented in the Appeal Brief, pages 7 -11. CLAIMS 1-8, 10-25, 27--42, AND 44--51: OBVIOUSNESS OVER CHO, SANDHU, AND SHAN Appellants argue Claims 1-3, 5, 12-20, 22, 29-37, 39, and 46-51 as a group and specifically argue independent Claims 1, 18, and 35. App. Br. 7-9. We therefore limit our discussion to the common elements of the claims. See 3 7 C.F.R. Â§ 41.37(c) (l)(vii) (2007). The Examiner finds that all the elements of Claims 1, 18, and 3 5 are taught by Cho and Sandhu in combination (Final Act. 4--6), except the combination fails to disclose "sending data in one packet." Final Act. 6. The Examiner finds Shan discloses that limitation. Id. 4 Appeal2014-007888 Application 13/283,162 Appellants contend Shan fails to teach "using a single data packet for establishing encrypted communications," noting Shan's teaching that a "single data packet is for a completely different purpose." App. Br. 8 (emphasis added). The Examiner finds that Claim 1 recites a device, and the establishment of encrypted communications is a non-structural intended use, presented in the preamble, which, thus, is entitled no patentable weight. Ans. 13. Moreover, the Examiner explains Cho is relied upon to teach establishing encrypted communications and notes Appellants' argument attacks the references individually. Id. Appellants reply that there is significant language within the body of the claims that is indicative of "establishing encrypted communication," and, therefore, the recitation is not limited to the preamble. Reply Br. 4. Appellants argue that there is nothing in the combined references that enables one of ordinary skill in the art to combine the steps or elements as claimed to securely establishing encrypted communication. Reply Br. 5. Appellants further argue there is no teaching or suggestion in Cho or Shan to make the combination. Id. Appellants' argument that the references, per se, do not suggest the combination is not persuasive. It is not necessary that a teaching, suggestion or motivation to modify or combine the references be found within the references themselves. See KSR Int'! Co. v. Teleflex Inc., 550 US 398, 421--422 (2007) ("There is flexibility in our obviousness jurisprudence because a motivation may be found implicitly in the prior art. We do not have a rigid test that requires an actual teaching to combine ... "). Appellants do not traverse the Examiner's finding that Cho and Sandhu teach the establishment of encrypted communication using multiple data packets. 5 Appeal2014-007888 Application 13/283,162 The Examiner then finds Shan teaches the limitations missing from the Cho- Sandhu combination, i.e., transmitting data in a single packet. We agree with the Examiner that it would have been obvious to one of ordinary skill in the art to modify the combination of Cho and Sandhu to transmit the data in a single packet as taught by Shan. Appellants' assertion that Shan does not teach "using a single data packet for establishing encrypted communications," constitutes an attack on a single reference because the Examiner relied on Cho for the establishment of an encrypted communication. One cannot show nonobviousness by attacking references individually where the rejections are based on a combination of references. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Moreover where "there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious underÂ§ 103." KSR, at 421. Appellants state, without supportive evidence, that the references do not teach the claimed invention. However, it is well established that argument alone is insufficient to overturn a rejection. In re DeBlauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). In view of the foregoing discussion, we sustain the rejection of Claims 1-3, 5, 12-20, 22, 29-37, 39, and 46-51. Appellants concede the remaining claims stand or fall with Claim 1. App. Br. 7-9. Therefore, we also sustain the rejection of Claims 4, 6-8, 10, 11, 21, 23-25, 27, 28, 38, 40-42, 44, and 45. 6 Appeal2014-007888 Application 13/283,162 DECISION The rejection of Claims 1-8, 10-25, 27--42, and 44--51under35 U.S.C. Â§ 103 is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 7