Ex Parte Vogel

Board of Patent Appeals and Interferences

Feb 27, 2008

09659864 (B.P.A.I. Feb. 27, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte J. LESLIE VOGEL III
____________

Appeal 2007-1121
Application 09/659,864
Technology Center 2100
____________

Decided: February 27, 2008
____________

Before KENNETH W. HAIRSTON, JEAN R. HOMERE, and JOHN A.
JEFFERY, Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
STATEMENT OF THE CASE
In a paper filed December 19, 2007, Appellant requests
reconsideration under 37 C.F.R. § 41.52 from an Opinion of the Board of
Patent Appeals and Interferences dated October 19, 2007 (opinion,
Appeal 2007-1121
Application 09/659,864

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hereinafter.) In the opinion, we affirmed the Examiner’s rejection of claims
1 through 51.
We have carefully reviewed the opinion in light of Appellant’s
request, and we find no error in the analysis or logic set forth therein. We
have given full consideration to Appellant’s remarks.1 We have, however,
found no basis upon which to grant Appellant’s request for rehearing. We,
therefore, decline to make any changes to our prior opinion with respect to
the claims noted above for the reasons that follow.
First, Appellant contends that the Board overlooked or misapprehended
Appellant’s separate arguments seeking reversal of the Examiner’s rejection of claims
1, 16, 21, 26, 31, 36, 42, and 46 as allegedly not complying with the written
description requirement under 35 U.S.C. § 112, first paragraph. (Req. Reh’g 2.)
Further, Appellant contends that the Board overlooked or misapprehended Appellant’s
separate arguments seeking reversal of the Examiner’s rejection of claims 1, 16, 21,
26, 31, 36, 42, and 46 as allegedly being anticipated by Patiyoot et al. (“Technique for
authentication protocols and key distribution on wireless ATM networks,” ACM
SIGOPS Operating System Review, Volume 32, Issue 4, October 1998) under
35 U.S.C. § 102. Id.
We note that the Examiner timely withdrew the two afore-cited
grounds of rejection at page 13 of the Examiner’s Answer, dated November
9, 2006. Therefore, Appellant’s arguments regarding these two grounds of
rejection were moot at the time of the opinion. Consequently, we properly

1 Request for Rehearing at pages 1-4.
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Application 09/659,864

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omitted to address Appellant’s arguments regarding these rejections in the
opinion.
Next, Appellant contends that the Board overlooked or
misapprehended Appellant’s arguments since it found that the Examiner
correctly interpreted Lewis as inherently teaching the claimed characteristics
for sending a security preference from a station to an access point, and vice-
versa. Appellant therefore submits that the Examiner’s interpretation of
Lewis, as adopted by the Board, is contrary to the teaching of the reference.
(Req. Reh’g. 3-4.)
We note that neither Appellant’s Appeal Brief nor the Reply Brief
raised this particular argument. As noted in the opinion, Appellant’s
arguments focused on whether Lewis teaches an access point that supports a
plurality of protocols. (Opinion 4.) Appellant’s arguments also focused on
whether the combination of Lewis and Quick teaches generating
authentication information using a key. Id.
Thus, the argument of whether Lewis teaches (1) a characteristic for
sending a security preference from a station to an access point, and (2)
another characteristic for sending a security preference from the access point
to the station, as presently raised in this request for rehearing, was not
previously submitted in earlier Briefs before we rendered our decision.
Arguments not raised in the Briefs before the Board and evidence not
previously relied upon are not permitted in the request for rehearing. See
37 C.F.R. § 41.52. In consequence, we will not entertain such new
Appeal 2007-1121
Application 09/659,864

4
argument. Therefore, we maintain our position that Appellant has not shown
that the Examiner erred in concluding that claims 1 through 3, 9 through 17,
19 through 22, 24 through 27, 29 through 32, 34 through 38, 40 through 48,
50, and 51 are unpatentable over the combination of Lewis and Quick under
35 U.S.C. § 103. Similarly, we maintain our position that Appellant has not
shown that the Examiner erred in concluding that claims 4 through 8, 18, 23,
28, 33, 39, and 49 are unpatentable over the combination of Lewis, Quick
and Schnieier under 35 U.S.C. § 103.

CONCLUSION
In view of the foregoing discussion, we grant Appellant’s request for
rehearing to the extent of reconsidering our decision. However, we deny
Appellant’s request with respect to making any change thereto.

Appeal 2007-1121
Application 09/659,864

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

REQUEST FOR REHEARING DENIED

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Sheryl Sue Holloway
Blakely Sokoloff Taylor & Zafman LLP
12400 Wilshire Boulevard 7th Floor
Los Angeles CA 90025