10846713 (P.T.A.B. Jan. 25, 2013)

Ex Parte Wilhite et al

Patent Trial and Appeal BoardJan 25, 2013

10846713 (P.T.A.B. Jan. 25, 2013)

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. 10/846,713 05/14/2004 Elizabeth Wilhite 02-019-1/1038 (IDRF120) 1784 25681 7590 01/25/2013 ORMISTON & MCKINNEY, PLLC P.O. BOX 298 802 W. Bannock, Ste. 402 BOISE, ID 83701 EXAMINER TURCHEN, JAMES R ART UNIT PAPER NUMBER 2439 MAIL DATE DELIVERY MODE 01/25/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ELIZABETH WILHITE, ALBERT HENRY CARLSON, DARIN MITCHELL EVANS, JUSTIN MICHAEL CASSIDY, THOMAS MAIN DUBUISSON, and PHILIP LEE GREGG ____________ Appeal 2010-004166 Application 10/846,713 Technology Center 2400 ____________ Before JOSEPH F. RUGGIERO, DENISE M. POTHIER, and STANLEY M. WEINBERG, Administrative Patent Judges. POTHIER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-100. 1 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Throughout this opinion, we refer to the corrected Appeal Brief (App. Br.) filed September 1, 2009 and the Examiner’s Answer (Ans.) mailed April 24, 2009. Appeal 2010-004166 Application 10/846,713 2 Invention Appellants’ invention relates to a technique for generating a key from selected portions of a network data stream. See Abstract. Claims 1 and 16 are reproduced below with the key disputed limitations emphasized: 1. A method for generating a key, comprising: reading a network data stream; selecting a portion of data from the data stream; and assembling the key from the selected portion. 16. The method of Claim 8, wherein altering comprises isolating a network node from a network path and sending a disruptive signal over the network path. The Rejections The Examiner relies on the following as evidence of unpatentability: Unkenholz US 4,429,180 Jan. 31, 1984 Benayoun US 7,203,834 B1 Apr. 10, 2007 (filed May 17, 2000) Claims 1, 2, 4-15, 23-32, 34-36, 38-49, 57-66, 68-77, 83-91, 93-95, and 98-100 are rejected under 35 U.S.C. § 102(e) as anticipated by Benayoun. Ans. 3-14. Claims 3, 33, 37, 67, 92, 96, and 97 are rejected under 35 U.S.C. 103(a) as unpatentable over Benayoun and Official Notice. Ans. 14-15. Claims 16-22, 50-56, and 78-82 are rejected under 35 U.S.C. § 103(a) as unpatentable over Benayoun and Unkenholz. Ans. 15-17. THE ANTICIPATION REJECTION OVER BENAYOUN Regarding illustrative claim 1, the Examiner finds that Benayoun discloses all the limitations recited in claim 1, including assembling a key Appeal 2010-004166 Application 10/846,713 3 from a selected portion of network data stream. Ans. 3 (citing col. 5, ll. 39-48). Appellants argue that Benayoun does not assemble keys right from a selected portion of a data stream read at each given node. Br. 9. Specifically, Appellants assert Benayoun is not assembling directly from a data stream but rather indirectly from the dictionary. Br. 10. ISSUE Under § 102, has the Examiner erred in rejecting claim 1 by finding that Benayoun discloses assembling a key from the selected portion of a network data stream? ANALYSIS Based on the record before us, we find no error in the Examiner’s rejection of claim 1, which calls for assembling a key from the selected portion of a network data stream. Claim 1 does not recite assembling a key right or directly from selected potions at each node. Moreover, a claim is given its broadest reasonable construction “in light of the specification as it would be interpreted by one of ordinary skill in the art” during examination. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (internal citations and quotations omitted). When looking at the Specification (see generally Spec.), Appellants have not defined “assemble” in the disclosure, such that the meaning of “assembling” in claim 1 requires a direct assembly of the key from the selected portions. Appellants have also failed to demonstrate adequately the word, “assembling,” would have been understood by an ordinary artisan to mean the argued direct assembly. See Br. 10. Presumably to support how the Appeal 2010-004166 Application 10/846,713 4 term, “assembling,” would have been understood by an ordinary artisan Appellants present an analogy between assembling a building from lumber versus seeds and Benayoun’s assembling a key from a dictionary versus the selected portion. Br. 10. Yet, we find such an argument and the analogy unavailing. Appellants have failed to demonstrate that the applicability of the definition of the word, “assemble,” from an ordinary dictionary (i.e., “to fit together the parts of”) to claim 1’s usage, such that an ordinary skilled artisan in the art of generating cryptographic key would have understood the word to have this meaning. Id. Thus, Appellants have not adequately established the applicability of the provided definition and the analogy concerning assembling a building to claim 1 and its recitation of assembling keys. Contrary to Appellants’ contentions, we agree therefore with the Examiner (Ans. 18) that the broadest reasonable construction of the phrase, “assembling the key from the selected portion” in claim 1, includes assembling the key indirectly from the selected portion of the data. See Am. Acad. of Sci. Tech Ctr., 367 F.3d at1364. We next turn to Benayoun. Benayoun discloses receiving decrypted data. Col. 5, ll. 35-39. After decrypting, compressed data is sent to a data compressor/decompressor 44, and dictionary 46 is updated. Col. 5, ll. 39-41; Figs. 2, 4. This allows a new key to be generated from the new contents of the dictionary. Col. 5, ll. 41-42. Benayoun further teaches that the decryption process involves decrypting the data at step 76 and then de-compressing the data at step 78. Col. 6, ll. 40-60; Fig. 4. The decompressing step has the effect of updating the dictionary (col. 6, ll. 53-54), and thus at least a portion of the data stream (col. 5, ll. 20-22, 39-41) is used to update the dictionary. Moreover, because the data portion updates the dictionary’s contents (see col. 5, ll. 20-22, 39- Appeal 2010-004166 Application 10/846,713 5 41, col. 6, ll. 52-55) and the new key is generated from the dictionary’s new contents (col. 6, ll. 53-54), the key is assembled indirectly from the selected portion and maps to claim 1, as broadly as recited. We therefore disagree that Benayoun is so cryptic regarding its dictionary’s contents (Br. 9) that the reference does not disclose the recited assembling step. For the foregoing reasons, Appellants have not persuaded us of error in the rejection of independent claim 1 and claims 2, 4-15, 23-32, 34-36, 38-49, 57-66, 68-77, 83-91, 93-95, and 98-100 not separately argued with particularity (Br. 10-13). THE OBVIOUSNESS REJECTION OVER BENAYOUN Appellants assert that claims 3, 33, 37, 67, 92, 96, and 97 depend from a patentable base claim, and for the reasons set forth concerning why the base claims were patentable, claims 3, 33, 37, 67, 92, 96, and 97 are also patentable. Br. 13-14. We disagree for the reasons set forth above when addressing claim 1 and each base claims. THE OBVIOUSNESS REJECTION OVER BENAYOUN AND UNKENKOLZ Regarding claim 16, the Examiner finds that Unkenholz teaches periodically swapping communications lines, which causes a disruptive signal over a network path. See Ans. 16. The Examiner elaborates that the phrase, “isolating a network node from a network path and sending a disruptive signal over the network path” broadly includes removing or disconnecting a node from the network and sending a disruptive signal over the path at some later point. See Ans. 19. In the Examiner’s view, the Appeal 2010-004166 Application 10/846,713 6 recited sending step does not have to occur concurrently with the recited isolating step. See id. Based on this understanding, Unkenholz teaches sending a disruptive signal over the network path after reconnecting an isolated node. See id. Appellants argue that the Examiner findings of Unkenholz do not relate to the claim limitation of isolating a network node from a network path and sending a disruptive signal over the same network path, since once network path is open and a node is isolated in Unkenholz, no signals can be sent. See Br. 14-15. ISSUE Under § 103, has the Examiner erred in rejecting claim 16 by finding that Benayoun and Unkenholz collectively would have taught or suggested isolating a network node from a network path and sending a disruptive signal over the network path? ANALYSIS Based on the record before us, we find no error in the Examiner’s rejection of claim 16 which calls for isolating a network node from a network path and sending a disruptive signal over the network path. Giving claim 16 its broadest reasonable construction, we agree with the Examiner (see Ans. 19) that the sending step as recited does not have to happen simultaneously with the isolating step. Thus, even if the network path is open at some point to isolate a node, we find unpersuasive Appellants’ argument that no signals (e.g., a disruptive signal) can be sent over the Appeal 2010-004166 Application 10/846,713 7 network path (Br. 14), including at a later time when the communications lines are reconnected. The Examiner finds that Unkenholz teaches isolating the nodes from the network path when the switches are open. See Ans. 16 (citing col. 3, ll. 4-7 that discusses opening the circuit when the signals values on lines 13 and 23 are the same); see also Ans. 19. The Examiner further finds that Unkenholz teaches or suggests, after being in an isolated mode for some time, switching to a reconnected position or switching between lines, which causes a disruptive signal to be sent over the network path. See Ans. 16, 19. Appellants have not disputed these findings (see generally App. Br.14-15) nor filed a Reply Brief contesting these findings. As for illustrative claim 17, Appellants repeat the arguments presented for claim 16. Br. 15. For the foregoing reasons, Appellants have not persuaded us of error in the rejection of independent claim 16 and claims 17-22, 50-56, and 78-82 not separately argued with particularity (Br. 14-15). CONCLUSION The Examiner did not err in rejecting claims 1-100 under §§ 102 or 103. DECISION The Examiner’s decision rejecting claims 1-100 is affirmed. Appeal 2010-004166 Application 10/846,713 8 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 kis