Ex Parte Singh et al

Patent Trial and Appeal Board

Dec 21, 2016

13480988 (P.T.A.B. Dec. 21, 2016)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/480,988 05/25/2012 Sukhjinder SINGH 007412.01633 4295
71867 7590 12/23/2016
BANNER & WITCOFF , LTD
ATTORNEYS FOR CLIENT NUMBER 007412
1100 13th STREET, N.W.
SUITE 1200
WASHINGTON, DC 20005-4051
EXAMINER
SIMITOSKI, MICHAEL J
ART UNIT PAPER NUMBER
2493
NOTIFICATION DATE DELIVERY MODE
12/23/2016 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):
PTO-71867 @bannerwitcoff.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUKHJINDER SINGH and JOHN CARVALHO
Appeal 2016-001924
Application 13/480,988
Technology Center 2400
Before THU A. DANG, LINZY T. McCARTNEY, and
MATTHEW J. McNEILL, Administrative Patent Judges.
McCARTNEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1—5, 7—14, and 16—25. Claims 6 and 15 have been canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2016-001924
Application 13/480,988
STATEMENT OF THE CASE
The present patent application concerns “an interface device that
provides access to two or more wireless networks” and encourages client
devices “to connect to one of the wireless networks . . . based on factors
such as prior connection activity of those client devices.” Spec. 12. Claims
1 and 23 illustrate the claimed subject matter:
1. A method comprising:
providing, at an interface device, access to a first wireless
network and a second wireless network;
receiving, at the interface device from a first user device,
a request to connect to the first wireless network; and
responsive to determining that the first user device has
access to the second wireless network, denying, by the interface
device, the request to connect to the first wireless network.
23. A method comprising:
receiving, at an interface device, a request from a user to
connect to a first wireless network; and
responsive to determining that access to a second wireless
network is available to a user device associated with the user
based on information indicative of devices having access to the
second wireless network, denying, by the interface device, the
request.
REJECTIONS
Claim 23 stands rejected under 35 U.S.C. § 102(a) as anticipated by
De La Forest Divonne & Rebillon WO 2012/052660 A3 (pub. Apr. 26,
2012) as translated by De La Forest Divonne et al. (US 2013/0208693 Al;
Aug. 15, 2013) (“Divonne”).
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Claims 1, 4, 7—10, 13, 16—19, 21 and 22 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Divonne and Savoor et al. (US
2008/0117836 Al; May 22, 2008) (“Savoor”).
Claims 2, 3, 5, 11, 12, 14, and 20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Divonne, Savoor, and Batta (US
2007/0060105 Al; Mar. 15, 2007) (“Batta”).
Claims 24 and 25 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Divonne, and Batta.
Claims 1, 10, 19, and 23 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Krishnaswamy et al. (US 2009/0046644 Al; Feb. 19,
2009) (“Krishnaswamy”) and Li (US 2009/0318160 Al; Dec. 24, 2009)
(“Li”).
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments, and we disagree with Appellants that the Examiner erred. To the
extent consistent with the analysis below, we adopt the Examiner’s findings,
reasoning, and conclusions set forth in the Final Rejection and the Answer.
Appellants have waived arguments Appellants failed to timely raise or
properly develop. See 37 C.F.R. §§ 41.37(c)(l)(iv), 41.41(b)(2).
Claim 23
Claim 23 recites in relevant part “receiving, at the interface device
from a first user device, a request to connect to the first wireless network”
and “responsive to determining that access to a second wireless network is
available to a user device associated with the user based on information
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indicative of devices having access to the wireless network, denying, by the
interface device, the request.” Appellants argue Divonne does not disclose
the latter step because Divonne discloses that “[Regardless of whether or not
access to another network is available, the gateway responds that it is unable
to satisfy the request from the terminal.” App. Br. 13 (emphasis modified).
Moreover, Appellants contend that Divonne teaches “[t]he decision to grant
or deny access to a gateway is made solely based on the number of
connections to the gateway and a determination that the gateway has
exhausted its available bandwidth.” Id. (emphasis modified). According to
Appellants, “[in] Divonne, when a terminal makes a connection request to a
gateway, the gateway first determines that the gateway is not available for a
connection and then determines if a different gateway is available for a
connection from the terminal.” Id. (emphases modified).
The Examiner found the method described in paragraphs 48—51 of
Divonne discloses the disputed limitation. See Ans. 2. In this method, a
client terminal sends a connection request to a gateway (GW1) for a local
area network. See Divonne 148; see also id. 145. If GW1 cannot service
the request, GW1 sends the request to nearby gateways for other networks.
See id. Upon finding a gateway that can handle the request (GW2), GW 1
sends the client terminal a message notifying the terminal that GW2 has the
necessary bandwidth and providing various connection parameters. See id.
See also id. ]ff[ 16—20 (describing a similar method). The Examiner found
this step of sending a notification message after (and because of) GW 1
determining that GW2 can service the client terminal’s request discloses the
disputed “responsive to determining” step. Ans. 2.
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Appellants’ arguments have not persuaded us the Examiner erred.
First, Appellants’ arguments largely focus on paragraphs 44-46 and 52 of
Divonne, which describe particular embodiments of Divonne’s invention.
See id. 12—13 (quoting Divonne 44-46, 52); see also Reply Br. 2
(quoting Divonne 145). Appellants have not persuasively addressed the
Examiner’s findings concerning the method described in paragraphs 48—51
of Divonne.
Second, Appellants’ contentions are incommensurate with the scope
of the claims. Contrary to Appellants’ arguments, claim 23 does not
preclude using other criteria to deny the request, nor does claim 23 require
considering criteria in any particular order. Claim 23 requires denying a
user request to connect to a first wireless network “responsive to
determining that access to a second wireless network is available to a user
device associated with the user based on information indicative of devices
having access to the second wireless network.” App. Br. 25. As found by
the Examiner, Divonne discloses denying such a request after and because
of—that is, “responsive to”—making the claimed determination.
Claim 11
Rejection over Divonne and Savoor
Claim 1 recites, among other things, “[a] method, comprising:
providing, at an interface device, access to a first wireless network and a
1 Claims 1, 10, 19, and 23 are independent. For both grounds of rejections
under 35 U.S.C. § 103(a), Appellants argue the applicable independent
claims together. See App. Br. 13—18. As permitted by our rules, we select
claim 1 as representative of these claims and decide the appeal for each
ground of rejection based on claim 1. See 37 C.F.R. § 41.37(c)(iv).
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second wireless network” and “responsive to determining that the first user
device has access to the second wireless network, denying, by the interface
device, the request to connect to the first wireless network.” App. Br. 21.
Appellants contend Divonne fails to teach or suggest the latter limitation for
two reasons. First, Appellants assert “Divonne requires a system with two
gateways, i.e., two separate devices, that are establishing the two [recited]
networks .... However, claim 1 recites that an interface device process
‘access to a first wireless network and a second wireless network.’” Id. at 14
(emphases modified). Appellant argue that “because Divonne does not
consider one interface device that determines that a user device” has access
to the second network and denies the recited request, Divonne does not teach
or suggest the disputed limitation. Id. Second, Appellants argue “the
gateway in Divonne would grant or deny access based solely on the capacity
of the gateway” regardless of accessibility and therefore does not teach or
suggest the “responsive to determining” limitation at issue. Id.
We find Appellants’ arguments unpersuasive. With respect to
Appellants’ first argument, the Examiner found Savoor teaches “an interface
device,” not Divonne. See Final Act. 3. The Examiner found a combination
of Divonne’s and Savoor teachings suggests the claimed subject matter, and
Appellants’ arguments against the references individually have not
persuaded us that the Examiner erred. “[0]ne cannot show non-obviousness
by attacking references individually where, as here, the rejections are based
on combinations of references.” In re Keller, 642 F.2d 413, 426 (CCPA
1981).
Moreover, claim 1 does not recite a single interface device. Claim 1
merely recites in relevant part “[a] method comprising: providing, at an
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interface device.” The Federal Circuit “has repeatedly emphasized that an
indefinite article [such as] ‘a’ or ‘an’ in patent parlance carries the meaning
of ‘one or more’ in open-ended claims containing the transitional phrase
‘comprising,’” unless there is a clear intent to limit “a” or “an” to one.
Baldwin Graphic Systems, Inc. v. Siebert, Inc., 512 F.3d 1338, 1342-43
(Fed. Cir. 2008) (citing KCJCorp. v. Kinetic Concepts, Inc., 223 F.3d 1351,
1356 (Fed. Cir. 2000)). Appellants have not provided any persuasive
argument or reasoning to support the contention that clear intent exists to
limit “an” to one.
As for the Appellants’ second argument, the Examiner found Divonne
teaches or suggests claim 1 ’s “responsive to determining” limitation for the
same reasons the Examiner found Divonne disclose a similar limitation in
claim 23. See Ans. 3. We therefore find this argument unpersuasive for the
reasons set forth above with respect to claim 1.
For the above reasons, we sustain the Examiner’s rejection of claim 1
under 35 U.S.C. § 103(a) over Divonne and Savoor. Because Appellants
have not presented separate, persuasive patentability arguments for claims 4,
7—10, 13, 16—19, 21, and 22 on this ground, we also sustain the Examiner’s
rejection of these claims.
Rejection over Krishnaswamy and Li
Appellants argue the Examiner’s combination of Krishnaswamy and
Li fails to teach or suggest claim 1 ’s “responsive to determining” limitation.
In particular, Appellants assert that in Krishnaswamy “prior to the transfer
event, the client does not have access to the private service” and contend
“[transferring a client from public service to a private service based on an
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authentication” does not teach or suggest the disputed limitation. App. Br.
17 (emphasis modified). Appellants also argue that “[i]n Li, access devices
deny access requests based on whether or not the access device is the least
loaded” and therefore Li does not teach or suggest claim 1 ’s “responsive to
determining” limitation. App. Br. 18.
We find Appellants’ arguments unpersuasive. Appellants argue
against Krishnaswamy’s and Li’s teachings individually, but the Examiner
found a combination of these teachings suggest claim 1 ’s “responsive to
determining” limitation. See Final Act. 6—7. As explained above, “one
cannot show non-obviousness by attacking references individually where, as
here, the rejections are based on combinations of references.” Keller, 642
F.2d at 426.
Appellants also argue for the first time in the Reply Brief that (1) the
Examiner failed to provide sufficient motivation to combine Krishnaswamy
with Fi and (2) the combination of Krishnaswamy and Fi fails to teach or
suggest claim 1 ’s “responsive to determining” limitation because
Krishnaswamy’s client is connected to a public service set before being
transferred. Reply Br. 3^4. We find Appellants have waived these
arguments. “[A] reply brief [is not] an opportunity to make arguments that
could have been made in the principal brief on appeal to rebut the
Examiner’s rejections, but were not.” Ex parte Borden, 93 USPQ2d 1473,
1474 (BPAI 2010) (informative); see also 37 C.F.R. § 41.41(b)(2).
For the above reasons, we sustain the Examiner’s rejection of claim 1
under 35 U.S.C. § 103(a) over Krishnaswamy and Fi. Because Appellants
have not presented separate, persuasive patentability arguments for claims
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10, 19, and 23 on this ground, we also sustain the Examiner’s rejection of
these claims.
DECISION
For the above reasons, we affirm the Examiner’s rejections of claims
1-5, 7-14, and 16-25.
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
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