Ex Parte Titmuss et al

Board of Patent Appeals and Interferences

Dec 16, 2009

09868221 (B.P.A.I. Dec. 16, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RICHARD J TITMUSS, CAROLINE AM LEBRE, and
JAMES L TAYLOR
____________

Appeal 2009-000930
Application 09/868,221
Technology Center 2400
____________

Decided: December 16, 2009
____________

Before LANCE LEONARD BARRY, HOWARD B. BLANKENSHIP, and
JEAN R. HOMERE, Administrative Patent Judges.

BARRY, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-000930
Application 09/868,221

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STATEMENT OF THE CASE
The Patent Examiner rejected claims 1-7, 9, 10, 15, and 17-20. The
Appellants appeal therefrom under 35 U.S.C. § 134(a). We have jurisdiction
under 35 U.S.C. § 6(b).

INVENTION
The invention at issue on appeal routes data to a mobile terminals.
(Spec. 1.) More specifically, the routing is performed by a home agent
rather than a mobile terminal. (Id. at 2.)

ILLUSTRATIVE CLAIM
1. A method of transmitting one or more data streams to
a mobile terminal configured for simultaneous communication
via a plurality of types of wireless networks, the method
comprising:
(i) sending the one or more data streams from a
correspondent host to a home agent located in the home
network of the mobile terminal, the mobile terminal sending a
request for a data stream to be transmitted by the correspondent
host and the mobile terminal communicating with the home
agent to transmit a network location of the mobile terminal to
the home agent; and
(ii) forwarding the one or more data streams to the
mobile terminal,
wherein the mobile terminal sends to the home agent
information about the types of networks to which the mobile
terminal is currently connected, the available bandwidth for
each type of network to which the mobile terminal is currently
connected, and the mobile host's care-of address applicable for
each type of network to which the mobile terminal is currently
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connected, the home agent selecting an appropriate network and
its applicable care-of address based on the available bandwidth
for each type of network to which the mobile terminal is
currently connected.

PRIOR ART
Kikinis US 6,553,410 B2 Apr. 22, 2003

Zhao et al., Flexible Network Support for Mobility, Proc. Fourth
Annual ACM/IEEE Int’l Conference on Mobile Computing and
Networking, 145-56 (1998) (hereinafter "Zhao").

REJECTIONS
Claims 1-5, 9, 10, 15, and 17-20 stand rejected under 35 U.S.C.
§ 102(a) as anticipated by Zhao.

Claims 6 and 7 stand rejected under 35 U.S.C. §103(a) as obvious
over Zhao and Kikinis.

ISSUE
The Examiner finds that "Zhao disclosed selection of a network
among several networks by the home agent (see Fig. 5), the selection made
'by the home agent in determining the most appropriate interfaces through
which to forward packets addressed to a mobile host' (see Section 8)." (Ans.
9.) He further finds that "the ability of the mobility-aware applications (i.e.,
mobile terminals) to specify QoS [i.e., quality of service] requirements
would include a provision to send the home agent information about the
bandwidth of the networks it is connected to since QoS involved bandwidth
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considerations (see section 5.1[.2])." (Id.) The Appellants argue that "the
Examiner[ ] . . . combines two teachings of Zhao which address different
scenarios." (Reply Br. 4) Therefore, the issue before us is whether the
Appellants have shown error in the Examiner's finding that Zhao discloses a
home agent selecting a network based on the available bandwidth for each
type of network to which a mobile terminal is connected.

LAW
"[A]n invention is anticipated if the same device, including all the
claim limitations, is shown in a single prior art reference. Every element of
the claimed invention must be literally present, arranged as in the claim."
Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1236 (Fed.Cir. 1989)
(citing Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 894
(Fed. Cir. 1984); Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 771-72
(Fed. Cir. 1983)). "[A]bsence from the reference of any claimed element
negates anticipation." Kloster Speedsteel AB v. Crucible, Inc., 793 F.2d
1565, 1571 (Fed. Cir. 1986).

FINDINGS OF FACT (FF(S))
1. Section 8.3 of Zhao follows.
IPv6 provides a priority (class) field that is used by routers to
provide different services to different types of packets. This
field can potentially be used in our proposal by the home agent
in determining the most appropriate interfaces through which to
forward packets addressed to a mobile host in the absence of
Flow-to-Interface binding registrations (second emphasis
added).
(p. 154.)
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2. The same reference's "Figure 5 illustrates the routing of datagrams
to and from a mobile host away from home, once the mobile host has
registered some Flow-to-Interface bindings with its home agent (emphasis
added)." (Id. at 151.)

3. Section 5.1.2 of Zhao follows in pertinent part.
Quality of service (QoS): The different networks to which a
user has access may offer different QoS guarantees. For
example, a mobile user may have simultaneous access to a
GSM network [29] that has low bandwidth but relatively low
latency, as well as to a Metricom network [19] that offers
higher bandwidth but has higher and more variable latency.
The mobile host might decide to use the GSM network for its
low-bandwidth interactive flows, such as its voice or telnet
traffic, which require low latency for user satisfaction, but to
use the Metricom network for its bulk data transfer flows, such
as ftp traffic, which require high bandwidth but do not demand
as low a latency (emphasis added).
(Id. at 150.)

ANALYSIS
Although the Examiner rejects claims 1-5, 9, 10, 15, and 17-20 as
anticipated by Zhao, we agree with the Appellants that "the Examiner[ ] . . .
combines two teachings of [the reference] which address different
scenarios." (Reply Br. 4.) Specifically, Section 8.3 of Zhao discloses a
home agent selecting a network in the absence of Flow-to-Interface binding
registrations (FF 1), while the same reference's Figure 5 illustrates the
routing of datagrams in the presence of Flow-to-Interface binding
registrations (FF 2). Because the Examiner proposes to combine teachings
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that address different scenarios, he has not shown that the claimed invention
is found in the same device.

For its part, Section 5.1.2 of Zhao discloses that different networks to
which a user has access may feature different bandwidths and such networks
may be selected based on the need for bandwidth. (FF 3.) We agree with
the Appellants that in this Section, however, "it is the mobile host, not the
home agent, which selects which network to use." (Reply Br. 2.) Therefore,
Section 5.1.2 fails to disclose every element of the claimed invention,
arranged as in the claims.

The absence of a home agent selecting a network based on the
available bandwidth for each type of network to which a mobile terminal is
connected negates anticipation. Furthermore, the Examiner does not allege,
let alone show, that the addition of Kikinis cures the aforementioned
deficiency of Zhao.

CONCLUSION
Based on the aforementioned facts and analysis, we conclude that the
Appellants have shown error in the Examiner's finding that Zhao discloses a
home agent selecting a network based on the available bandwidth for each
type of network to which a mobile terminal is connected.

DECISION
We reverse the rejections of claims 1-7, 9, 10, 15, and 17-20.

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REVERSED

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