Ex Parte Walls et alDownload PDFPatent Trial and Appeal BoardFeb 24, 201512606940 (P.T.A.B. Feb. 24, 2015) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JEFFREY J. WALLS, KAREN E. THAYER, and BYRON A. ALCORN ____________________ Appeal 2012-009795 Application 12/606,940 Technology Center 2400 ____________________ Before JEAN R. HOMERE, CARLA M. KRIVAK, and JEFFREY A. STEPHENS, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part and enter a new ground of rejection. Claimed Subject Matter The invention generally relates to a “communication application with steady-state conferencing.” (Title.) For example, a user interface for a Appeal 2012-009795 Application 12/606,940 2 conference client can be “maintained with no subsequent login process (or other conference client actions) required to restart or continue media exchanges for a remote conferencing session that has been interrupted by network changes.” (Spec. ¶ 10.) Claims 1 and 8, reproduced below with disputed limitations emphasized, are illustrative: 1. A computer system, comprising: a processor; a network interface coupled to the processor; and a system memory coupled to the processor, the system memory storing a communication application having a steady- state conferencing module and a network manager module, wherein the network manager module, when executed, monitors network changes, wherein the steady-state conferencing module, when executed, maintains a steady-state conferencing user interface while network changes detected by the network manager module are handled; and wherein, in response to a detected network change, the network manager module determines whether the detected network change warrants a change in operation of the communication application, and if a change in operation is warranted, the network manager causes at least one sub-module of the communication application to enter a wait state and the network manager resolves the network change after which the network manager releases the at least one sub- module from the wait state, and if the detected network change does not warrant a change in the operation of the communication application, the network manager does not change the operation of the communication application. Appeal 2012-009795 Application 12/606,940 3 8. The computer system of claim 1 wherein, in response to a network change notification from the network manager module, a sub-module of the communication application consults a list of available Internet Protocol (IP) addresses and, based on there being an active IP address in said list, the sub-module shuts down all active network connections, re-establishes new network connections using said active IP address, and upon reestablishing new network connections, communicates the new network connections to remote clients associated with the communication application. Rejections Claims 1, 8, 9, and 16 stand rejected under 35 U.S.C. § 102(b) as anticipated by Senga (US 2006/0253888 A1, published Nov. 9, 2006). (Ans. 4–11.) Claims 2, 3, 5–7, 10, 11, 14, 15, 17, and 20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Senga and Harple (US 6,195,091 B1, issued Feb. 27, 2001). (Ans. 11–23.) Claims 4, 12, and 18 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Senga, Hagen (US 2005/0007965 A1, published Jan. 13, 2005), and Spring (US 2005/0114784 A1, published May 26, 2005). (Ans. 23–27.) Claims 13 and 19 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Senga, Harple, and Hoecker (US 2008/0025278 A1, published Jan. 31, 2008). (Ans. 27–30.) The Examiner withdraws the rejection of claims 16, 17, 19, and 20 under 35 U.S.C. § 101. (Ans. 31–32.) Appeal 2012-009795 Application 12/606,940 4 ISSUES The issues raised by Appellants’ contentions are as follows: 1. Does Senga disclose “wherein, in response to a detected network change, the network manager module determines whether the detected network change warrants a change in operation of the communication application,” as recited in claim 1? 2. Does Senga disclose that a sub-module “re-establishes new network connections” and “communicates the new network connections to remote clients,” as recited in claim 8? ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s arguments the Examiner erred (Appeal Br. 13–15; Reply Br. 1–3). We are unpersuaded by Appellant’s contentions, except as to claim 8. We concur with Appellants’ contention (Appeal Br. 14) that the Examiner has not made sufficient findings that the cited portions of Senga disclose “communicates the new network connections to remote clients,” as recited in claim 8. For claims 1–7 and 9–20, we adopt as our own the findings and reasons set forth by the Examiner in the action from which this appeal is taken and as set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief (see Ans. 4–30, 32–34). We highlight and address specific arguments and findings for emphasis as follows. Claims 1–7 and 9–20 We agree with the Examiner (Ans. 6, 32) that paragraph 74 of Senga discloses “wherein, in response to a detected network change, the network Appeal 2012-009795 Application 12/606,940 5 manager module determines whether the detected network change warrants a change in operation of the communication application,” as recited in claim 1. Senga teaches controlling device communication “in a way that feels seamless to the user even when communication conditions change in a mobile environment.” (Senga Abstract.) Senga accomplishes this in part through lower layer management section 22 of a terminal device, which monitors network changes and communicates them to control and determination sections of an application. (See Ans. 5–6; Senga Abstract, ¶¶ 11, 74.) Paragraph 74 of Senga explains that “when, for example, control section 12 is informed from lower layer management section 22 that the radio link state has changed from UP to DOWN, . . . it is determined by control operation decision section 125 whether or not a change from current data communication is necessary.” This disclosure is sufficient to support the Examiner’s finding that Senga teaches “determin[ing] whether the detected network change warrants a change in operation of the communication application,” as recited in claim 1. Accordingly, we agree with the Examiner (Ans. 6) that paragraph 74 of Senga discloses the disputed limitation. The Examiner further finds (Ans. 6) that paragraph 74 of Senga provides a specific example of determining whether or not a change in operation of the communication is warranted. Appellants’ arguments (Appeal Br. 13–14; Reply Br. 1–3) focus on the Examiner’s findings with respect to the specific example. As discussed above, we agree with the Examiner that Senga’s broader disclosure in paragraph 74 meets the limitation. Appellants’ arguments do not meaningfully address this aspect of the Examiner’s rejection or the disclosure in Senga. Appeal 2012-009795 Application 12/606,940 6 In addition, we are not persuaded that the Examiner’s additional findings with respect to Senga are in error. The Examiner finds that paragraph 74 of Senga describes a determination whether “to continue to maintain a connection for a predetermined time, in case the network quickly recovers.” (Ans. 6) Appellants contend that “determining whether to continue to maintain a connection as disclosed by Senga fails to teach or suggest determining whether a change in the operation of a communication application is warranted.” (Appeal Br. 14.) Appellants assert that determining not to make a change based on the presence of a new wireless network or determining to make a change because the IP address of the currently used network has changed would fall within the scope of the claim, and argue the cited portions of Senga do not teach or suggest determining whether a similar change in operation of a communication application is warranted. (Id. at 13–14.) As Appellants admit, however, claim 1 is not limited to the examples provided at pages 13 to 14 of the Appeal Brief. (Id. at 13 (“By way of example and without limiting the scope of the claims . . . .”).) Appellants’ Specification also describes “dropouts” as an example of a network change that may cause a temporary interruption. (Spec. ¶¶ 10–11.) The Specification suggests that dropouts are also handled by maintaining the user interface “with no subsequent login process (or other conference client actions) required to restart or continue media exchanges.” (See id.) The network module “determines whether the detected network change warrants a change in operation of the communication application,” as recited in claim 1, when it is determined whether to maintain the conference in the communication application or end it. Senga similarly discloses that because Appeal 2012-009795 Application 12/606,940 7 “it is inconvenient to set up a call again each time the radio link is connected, control is changed so that the session layer call is maintained for a predetermined time after the radio link changes from UP to DOWN.” (Senga ¶ 74.) We agree with the Examiner (Ans. 6) that determining to maintain a session layer call for a predetermined time after a radio link is lost is an example of “determin[ing] whether the detected network change warrants a change in operation of the communication application,” as claimed. We are also not persuaded by Appellants’ arguments (see Reply Br. 1–3) that it is critical to determine whether maintaining the session layer call described in Senga is “a change in operation of the communication application,” as recited in claim 1, or whether dropping the call is a change in operation. As an initial matter, this argument is directed to limitations not argued in Appellants’ opening brief, and is, therefore, waived. See Ex parte Borden, 93 USPQ2d 1473, 1473 (BPAI 2010) (informative) (concluding that, absent a showing of good cause, the Board is not required to consider “arguments that could have been presented in the Principal Brief on Appeal, but were not”). 1 It is not necessary to determine which of two actions constitutes “a change in operation” to find, as discussed above, that Senga discloses the disputed limitation, i.e., “determin[ing] whether the detected network change warrants a change in operation of the communication application,” as recited in claim 1. Moreover, even considering these arguments, we are not persuaded. According to Appellants (Reply Br. 1–2), the Examiner’s explanation that 1 Also available at http://www.uspto.gov/ip/boards/bpai/decisions/inform/fd08004312.pdf. Appeal 2012-009795 Application 12/606,940 8 the “normal response” to a lost radio link is to “drop the connection” (Ans. 32), is inconsistent with the Examiner’s finding that maintaining the connection occurs when a change is not warranted (see Ans. 7). Appellants further argue (Reply Br. 2–3) because Senga discloses that “control is changed” when the session layer call is maintained for a predetermined time (Senga ¶ 74), Senga teaches against not making a change when a change is not warranted. We agree with the Examiner’s finding (Ans. 32), however, that Senga teaches when a wireless network is interrupted it is determined whether “to drop the connection, which is a normal response, or to temporarily maintain the connection, in case the network is restored after some delay.” Under the broadest reasonable interpretation of “a change in operation of the communication application,” consistent with the Specification, either action could be a change in operation. The “normal response,” as characterized by the Examiner, can be a change in operation because the call is dropped, but can also be considered not to be a change in operation because the call would typically be dropped in such a situation. Neither the claim nor the Specification limits “a change in operation” to one of these interpretations. Accordingly, we sustain the Examiner’s rejection of claim 1 under 35 U.S.C. § 102(b) as anticipated by Senga. Because Appellants rely on the same arguments in support of independent claims 9 and 16, and dependent claims 2–7, 10–15, and 17–20, we sustain the rejections of these claims for the same reasons. Appeal 2012-009795 Application 12/606,940 9 Claim 8 Appellants argue dependent claim 8 is allowable for additional reasons. In particular, Appellants argue “Senga does not disclose the reestablishment of a new network connection, much less communication of such a new network connection to remote clients associated with the communication application.” (Appeal Br. 14.) Appellants argue that paragraphs 111–117 of Senga disclose “reporting a change in network IP address to a lower layer management section and connection control section,” and that “merely reporting a change of IP address to a lower layer management section or connection control section fails to teach or suggest” the disputed limitations of claim 8. (Appeal Br. 14) We agree with the Examiner (Ans. 7–8, 33) that the cited portions of Senga disclose re-establishing new network connections, as recited in claim 8. Paragraph 60 of Senga, relied on by the Examiner (Ans. 7), discloses: If, for instance, network distribution control section 20 detects a change in the network prefix (comprising predetermined high- order bits of the IP address, for example, and serving as a network identifier (ID)), network distribution control section 20 reports the prefix value (network ID) after the change to lower layer management section 22 (ST1200). Senga thus contemplates that the connection is reestablished to the new IP address. Paragraphs 111–117 of Senga, on which the Examiner also relies (see Ans. 7–8, 33), similarly refer to an actual change in the network, which discloses that a new network connection is reestablished. (See, e.g., Senga ¶ 111 (referring to “a change in the network prefix”); id. (“[C]ommunication terminal apparatus 10 moves from a network whose IP address is represented as aaa.bbb.xx.xx to a network whose IP address is represented as aaa.ccc.xx.xx.”); id. ¶ 113 (referring to detecting “the fact that the network Appeal 2012-009795 Application 12/606,940 10 has changed”).) Appellants’ arguments, focusing only on the reporting disclosed in paragraphs 111–117 (see Appeal Br. 14), are thus unpersuasive as to reestablishing new network connections. We are unable to identify, however, in the Examiner’s findings, that the cited portions of Senga disclose “communicat[ing] the new network connections to remote clients,” as recited in claim 8. The Examiner appears to consider this limitation met by Senga’s disclosure of reporting the change in IP address to lower layer management section 22 and connection control section 12. (See Ans. 8.) Lower layer management section 22 and connection control section 12, however, are both a part of communication terminal apparatus 10, which is the device that moves from one network to another. (See Senga Fig. 2, ¶ 111.) These management and control sections are not described in the cited portions as belonging to a client that is remote with respect to communication terminal apparatus 10. For this reason, we are constrained not to sustain the rejection of claim 8 under 35 U.S.C. § 102(b) as anticipated by Senga. NEW GROUND OF REJECTION UNDER 37 C.F.R. § 41.50(b) Pursuant to our authority under 37 C.F.R. § 41.50(b), we enter a new ground of rejection and separately reject claim 8 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Senga for the reasons that follow. First, we incorporate the Examiner’s findings with respect to the rejection of claims 1 (Ans. 4–7) and 8 (Ans. 7–8) as anticipated by Senga. As discussed above, the cited portions of Senga do not explicitly disclose that the sub-module of the communication application “communicates the Appeal 2012-009795 Application 12/606,940 11 new network connections to remote clients associated with the communication application,” as recited in claim 8. Next, we find that Senga teaches “it is also possible for the video stream layers coded and transmitted by the transmitting-side communication terminal apparatus to be changed when a prefix change (receiving-side domain change) is detected by that terminal.” (Senga ¶ 116.) Senga also teaches that connection control section 12, through control operation decision section 125, “performs message exchange with the communicating party via signaling section 17” when “it is necessary to exchange information that decides the type of video/voice or utilization parameters with the communicating party.” (Id. ¶ 76.) In view of these teachings, it would have been obvious to modify Senga to have the new network connections (e.g., the prefix change) communicated to remote clients (e.g., communicating party, transmitting-side communication terminal apparatus) through the application’s connection control section 12 or related sub- modules. One of ordinary skill in the art would recognize that including the originating IP address in messages exchanged with the communicating party (see Senga ¶ 76) would be a common and convenient way to facilitate receipt of a response message from the communicating party, and would also facilitate detection of the network changes by a transmitting terminal apparatus (see Senga ¶ 116). DECISION The Examiner’s decision to reject claims 1–7 and 9–20 is affirmed. The Examiner’s decision to reject claim 8 is reversed. Appeal 2012-009795 Application 12/606,940 12 We also enter a new ground of rejection of claim 8 under 35 U.S.C. § 103(a) pursuant to our authority under 37 C.F.R. § 41.50(b). “A new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b). Section 41.50(b) provides that the Appellants, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the proceeding will be remanded to the examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same record. . . . 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). AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b) JRG Copy with citationCopy as parenthetical citation