11781360 (P.T.A.B. Jun. 24, 2014)

Ex Parte SOWA et al

Patent Trial and Appeal BoardJun 24, 2014

11781360 (P.T.A.B. Jun. 24, 2014)

UNITED STAlES P A lENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 11/781,360 07/2312007 22917 7590 06/26/2014 MOTOROLA SOLUTIONS, INC. IP Law Docketing 1301 EAST ALGONQUIN ROAD IL02 5th Floor - SH5 SCHAUMBURG, IL 60196 FIRST NAMED INVENTOR HANS CHRISTOPHERSOWA 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. CM04816HD04 5753 EXAMINER OKEKE, IZUNNA ART UNIT PAPER NUMBER 2432 NOTIFICATION DATE DELIVERY MODE 06/26/2014 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 addressees): USAdocketing@motorolasolutions.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HANS CHRISTOPHER SOW A, DANIEL J. McDONALD, DAVID J. CHATER-LEA, SCOTT 1. PAPPAS, JASON J. JOHUR, DENNIS NEWKIRK, RANDY KREMSKE, W ALTER F. ANDERSON, and GLENN BRIAN W ALTON Appeal 2012-001488 Application 111781,360 Technology Center 2400 Before BRUCE R.WINSOR, CATHERINE SHIANG, and LINZY T. rvIcCARTI...JEY, Administrative Patent Judges. WINSOR, Administrative Patent Judge. DECISION ON APPEAL Appellants l appeal under 35 U.S.C. Â§ l34(a) from the Final Rejection of claims 1-16, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 The real party in interest identified by Appellants is Motorola Solutions, Inc. (App. Br. 3.) Appeal 2012-001488 Application 111781,360 STATEMENT OF THE CASE Appellants' disclosure "relates to encrypted communications, including ... air interface communication within secure communication systems." (Spec. 1:9-10.) Claim 1, which is illustrative, reads as follows: 1. A method comprising the steps of: dividing a plurality of infrastructure system devices, other than a mobile station, of a same communication system into a plurality of pools, wherein two different types of keys, an intrakey and an interkey, are used to encrypt messages sent between the infrastructure system devices; utilizing the intrakey to encrypt the messages passed between the infrastructure system devices in the same pool; and utilizing the interkey to encrypt the messages passed between the infrastructure system devices of different pools. Claims 1-16 stand rejected under 35 U.S.C. Â§ 102(e) as anticipated by Sanchez Herrero (US 6,889,328 Bl; May 3,2005) (hereinafter "Sanchez,,2). (Ans.4-7.) Rather than repeat the arguments here, we refer to the Briefs ("App. Br." filed Mar. 8,2011; "Reply Br." filed Sept. 26, 2011) and the Answer ("Ans." mailed July 26, 2011) for the respective positions of Appellants and the Examiner. Only those arguments actually made by Appellants have been considered in this decision. Arguments that Appellants did not timely make in the Briefs have not been considered and are deemed to be waived. See 37 C.P.R. Â§ 41.37(c)(1)(vii) (2011). 2 The Sanchez reference is also referred to as "Sanchez Herrero" and "Sanchez-Herrero" in the record. 2 Appeal 2012-001488 Application 111781,360 RELATED APPEALS We note the instant application is a division of Application 091798,849 (filed Feb. 16,2001; now US 7,266,687 B2), as are, inter alia, Applications 111781,340 (filed July 23,2007) and 111781,489 (filed July 23, 2007). Application 111781,340 is the subject of Appeal 20 11-0 11118, decided April 1, 2014. Application 111781,489 is the subject of pending Appeal 2012-007075. ISSUE Based on Appellants' contentions and arguments we discuss the appeal by reference to claim 1. The issue presented by Appellants' contentions and arguments is as follows: Does Sanchez disclose dividing a plurality of infrastructure system devices, other than a mobile station, of a same communication system into a plurality of pools, \vherein t1-VO different types of keys, an intrakey and an interkey, are used to encrypt messages sent between the infrastructure system devices (emphases added), as recited in claim I? ANALYSIS We have reviewed Appellants' arguments and contentions (App. Br. 9-13; Reply Br. 2-3) in light of the Examiner's findings (Ans. 4-5) and explanations (Ans. 8-10) regarding claim 1. We agree with the Examiner's findings and explanations (Ans. 4-5, 8-10) and adopt them as our own. The following discussion, findings, and conclusions are for emphasis. 3 Appeal 2012-001488 Application 111781,360 Appellants contend Sanchez "fails to teach a single system (i. e. a single PLMN) having a plurality of infrastructure system devices that are divided into a plurality of pools, as described in Appellants' independent claim I." (App. Br. 10.) Appellants' contention relies on a claim construction in which the recited term "communication system" is limited to reading on one of Sanchez's PLMNs (Public Land Mobile Networks (Sanchez, col. 1,1. 16)). (See App. Br. 10-11.) Reasoning from this mapping of "communication system," Appellants assert that Sanchez does not disclose the recited "dividing ... a same communication system into a plurality of pools." (Id.) The Examiner, on the other hand, construes "communication system" more broadly to encompass the overall mobile radio communication system illustrated, for example, in Sanchez's Figures 1 and 2. See Ans. 8. The Examiner maps the recited "plurality of pools [of a same communication system]" to Sanchez's various PLMNs. Id. We agree with the Examiner. We find nothing in claim 1 or the Specification precluding "communication system" from reading on Sanchez's overall mobile radio communication system and "plurality of pools [of a same communication system]" from reading on Sanchez's various PLMNs. The Specification equates a "pool" with a "zone." (See, e.g., Spec. 7:22-8:28.) As pointed out by the Examiner, the Specification describes "a 'zone' or 'pool' of a 'communication system' as collection of devices such as base stations, controllers, etc. and a plurality of these 'pools' comprise the 'communication system'" (Ans. 8 (citing Spec. 4:8-28)), which also describes Sanchez's mobile radio communication system comprised ofPLMNs (see Sanchez, col. I,ll. 16-44). 4 Appeal 2012-001488 Application 111781,360 Appellants argue that Sanchez refers to its disclosed PLMNs as "different networks" (App. Br. 10 (citing Sanchez col. 6, 11. 64-65)) and point out that "neither the term 'sub-network' nor the term 'zone' is mentioned once in [Sanchez]" (App. Br. 11). However, identity of phraseology is not the test for whether a claim reads on a reference. See In re Bond, 910 F.2d 831,832 (Fed. Cir. 1990) (Anticipation "is not an 'ipsissimis verbis' test".). Therefore, we are unpersuaded of error. Appellants further contend: [Sanchez] does not teach "two different types of keys, an intrakey and an interkey, are used to encrypt messages sent between the infrastructure system devices; utilizing the intrakey to encrypt the messages passed between the infrastructure system devices in the same pool; and utilizing the interkey to encrypt the messages passed between the infrastructure system devices of different pools" as recited by Appellants' claim 1. (Reply Br. 2.) Appellants assert [Sanchez] only describes one tJ!J;!..Â§. of key used for encrypting messages passed between the infrastructure devices, and that is a session key, described above. The session key is used for securing point-to-point Intra PLMN communications between two network entities in the same PLMN. The same tJ!J;!..Â§. of key, i.e., the session key is also used for securing point-to-point Inter PLMN communications between two network entities in different PLMNs. (App. Br. 11-12.) Claim 1 recites "two different types of keys, an intrakey and an interkey." The Examiner concludes that, as recited in claim 1, the two different types of keys are different because of the recited functional difference, i.e., one is an interkey used for communication between pools and the other is an intrakey used for communication within a pool. (See 5 Appeal 2012-001488 Application 111781,360 Ans. 8-9.) Thus, the only characteristic necessary to make the intrakey and interkey two different types of keys is the functional difference recited in the claim. As pointed out by Appellants, claim 1 does not recite "two different keys." (Reply Br. 2.) Therefore, so long a key is used for communication between pools (Sanchez's PLMNs) of the communication system it is an interkey, i.e. a first type, and so long as it is used for communication within a pool (a PLMN) it is an intrakey, i.e., a second, different type. Sanchez discloses an "Intra PLMN level" that establishes security bindings between entities of the same PLMN (i.e., "pool") (Sanchez col. 6, 11. 46-48) and an "Inter PLMN level" that establishes security bindings between entities of different PLMNs (i.e., pools) (Sanchez col. 6, 11. 20-21). Sanchez further discloses that "the security bindings include information such as a binding identity, which uniquely identifies ... the session key used." (Sanchez col. 5, 11. 12-16.) It is not persuasive that Sanchez describes the keys for both communication within a PLMN and between PLMN s with the term "session key" (see App. Br. 12) or that Sanchez does not use the terms "inter session key" or "intra session key" (id.), as anticipation is not an determined by an ipsissimis verbis analysis, but rather by whether the claim in question reads on the prior art. See Bond, 910 F.2d at 832. Therefore, we are unpersuaded of error. Appellants contend, for the first time in the Reply Brief, "[Sanchez] does not teach 'each different pool utilizes a different intrakey' as recited by Appellants' claim 5 and 'only one infrastructure system device from each pool utilizes the interkey, ' as recited by Appellants' claim 6." (Reply Br. 2.) Such arguments for the separate patentability of claims 5 and 6, presented for the first time in the Reply Brief, are untimely and waived in this appeal 6 Appeal 2012-001488 Application 111781,360 proceeding. See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPA12010) (informative) ("[T]he 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."). For the foregoing reasons, we sustain the rejection of claim 1 and claims 2-16, which were not separately argued with particularity. ORDER The decision of the Examiner to reject claims 1-16 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)(1). See 37 C.F.R. Â§ 1. 136(a)(1 )(iv). AFFIRMED kme 7 UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte HANS CHRISTOPHER SOWA, DANIEL J. McDONALD, DAVID J. CHATER-LEA, SCOTT J. PAPPAS, JASON J. JOHUR, DENNIS NEWKIRK, RANDY KREMSKE, WALTER F. ANDERSON, and GLENN BRIAN WALTON ____________ Appeal 2012-001488 Application 11/781,360 Technology Center 2400 ____________ ERRATUM The Decision on Appeal for the above-identified application mailed on June 26, 2014, contains a typographical error. On page 3, first paragraph, the Decision incorrectly describes the instant application as a division of application 09/798,849. Accordingly, page 3 is changed to identify the correct parent application as 09/785,849. All other portions of the Decision remain unchanged. Any time periods established by the original Decision mailed June 26, 2014, also remain unchanged. If there any questions pertaining to this Erratum, please contact the Patent Trial and Appeal Board at 571-272-9797. SJB/msc