Ex Parte Winget et al

Patent Trial and Appeal Board

Feb 21, 2013

10724995 (P.T.A.B. Feb. 21, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte NANCY CAM WINGET, HAO ZHOU,
MARK KRISCHER, JOSEPH A. SALOWEY,
JEREMY STIEGLITZ, SAAR GILLAI, and
PADMANABHA CHELUVARAJU JAKKAHALLI
____________________

Appeal 2010-006968
Application 10/724,995
Technology Center 2400
____________________

Before DAVID M. KOHUT, BRYAN F. MOORE, and
MICHAEL J. STRAUSS, Administrative Patent Judges.

STRAUSS, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1, 2, 5-10, 15-21, 24, 26, and 27. Claims 3-4, 11-14, 22-23, and 25 have
been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

The claims are directed to a system and method for provisioning and
authenticating via a network. Claim 1, reproduced below, is illustrative of
the claimed subject matter:
1. A method of authenticating communication between a first
and a second party, the method comprising:
determining whether a shared secret exists between a
peer and a server; establishing a first secure tunnel between the
peer and the server using asymmetric encryption responsive to
determining the shared secret does not exist between the peer
and the server;
receiving the shared secret via the first secure tunnel
between the peer and the server responsive to the determining
that the shared secret does not exist between the peer and the
server and to the establishing the first secure tunnel;
tearing down the first secure tunnel;
establishing a subsequent new secure tunnel between the
peer and the server using symmetric encryption and the shared
secret after the tearing down the first secure tunnel and after the
peer has received the shared secret;
mutually deriving a tunnel key for the subsequent new
secure tunnel using symmetric cryptography based on the
shared secret responsive to establishing the subsequent new
secure tunnel;
authenticating a relationship between the peer and the
server within the subsequent new secure tunnel upon mutually
deriving the tunnel key for the subsequent new secure tunnel;
and
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cryptographically binding the subsequent new secure
tunnel with conversations inside the subsequent new secure
tunnel.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Dogan US 2004/0268126 A1 Dec. 30, 2004
Kuehr-McLaren US 6,978,298 B1 Dec. 20, 2005

Paul Funk & Simon Blake-Wilson, draft-ietf-eap-ttls-02.txt, EAP Tunneled
TLS Authentication Protocol (EAP-TTLS), Internet-Draft PPPEXT Working
Group; 30 Nov. 2002, pp. 1-40 (“Funk”)

Ian Downnard, Public-key cryptography extensions into Kerberos, IEEE
December 2002/January 2003, pp. 30-34 (“Downnard”)

REJECTIONS
1

The Examiner made the following rejections:
Claims 1, 2, 5, 6, 9, 10, 15-21, 24, 26, and 27 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Dogan, Kuehr-McLaren, and
Funk. Ans. 3-4.
Claims 5-10 and 20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dogan, Kuehr-McLaren, Funk, and Downnard. Ans. 11-
12.

1
Although claims 1, 17 and 24 contain separate headings in Appellants’
Brief, the allegations of error in connection with claims 17 and 24 are the
same as Appellants’ arguments with respect to claim 1. Therefore, our
analysis with respect to claim 1 also applies with respect to claims 17 and
24.
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APPELLANTS’ CONTENTIONS
1. “Dogan does not teach or suggest cryptographically binding a
subsequent secure tunnel with conversations inside the subsequent secure
tunnel as recited in claim 1.” App. Br. 11.
2. Dogan’s disclosure of communicating inside a new secure tunnel
using the connection secret is different from the claimed conversation that is
bound to the tunnel because, unlike the claimed cryptographic binding,
Dogan’s system does not detect or prevent man-in-the-middle attacks. Id.

ISSUE ON APPEAL
Based on Appellants’ arguments in the Appeal Brief (App. Br. 10-16)
and Reply Brief (Reply Br. 4-12), the issue presented on appeal is whether
the combination of Dogan, Kuehr-McLaren, and Funk teaches or suggests
the disputed claim limitation rendering the claims obvious under 35 U.S.C.
103(a).
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred.
We disagree with Appellants’ conclusions as to all rejections. We
adopt as our own (1) the findings and reasons set forth by the Examiner in
the action from which this appeal is taken and (2) the reasons set forth by the
Examiner in the Examiner’s Answer in response to Appellants’ Appeal
Brief. We concur with the conclusions reached by the Examiner. We
highlight the following arguments for emphasis.
In connection with contention 1, Appellants argue that “Dogan does
not teach or suggest cryptographically binding a subsequent secure tunnel
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with conversations inside the subsequent secure tunnel as recited in claim
1.” App. Br. 11. The Examiner responds:
[i]n defining what this cryptographic binding means, Appellant
states that “This means that the conversation is associated with,
or tied to, the tunnel.” This being the case, one of ordinary skill
in the art would understand that data being encrypted and sent
in this tunnel corresponds to cryptographically binding a tunnel
with conversations inside the tunnel.
Ans. 14 referencing Appellants’ statements appearing at App. Br. 11. We
agree with the Examiner’s analysis.
When construing claim terminology during prosecution before the
Office, claims are to be given their broadest reasonable interpretation
consistent with the specification, reading claim language in light of the
specification as it would be interpreted by one of ordinary skill in the art. In
re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
In this case, Appellants’ Specification does not expressly define
“cryptographic binding” or otherwise indicate that this term is used in a
manner other than its ordinary and customary meaning. Therefore we find
that the Examiner reasonably adopted Appellants’ definition of
cryptographic binding as argued in their Appeal Brief to mean associated
with, or tied to, the tunnel. Furthermore, based on this definition, we agree
with the Examiner that Dogan’s disclosure of encrypting and decrypting data
“with a cipher initialized with the connection secret generated by the secret
generation module 308” teaches or suggests the disputed feature of
“cryptographically binding the subsequent new secure tunnel with
conversations inside the subsequent new secure tunnel.” See Ans. 15 citing
Dogan para. [0035]. Since Appellants have not provided sufficient evidence
or argument to persuade us that Dogan’s disclosure of data being encrypted
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and sent in a tunnel fails to meet the requirement of cryptographically
binding a tunnel with conversations inside the tunnel, we find contention 1
unpersuasive of Examiner error.
In connection with contention 2 Appellants argue that Dogan’s
disclosure of communicating inside a new secure tunnel using the
connection secret is different from the claimed conversation that is bound to
the tunnel because, unlike the claimed cryptographic binding, Dogan’s
system does not detect or prevent man-in-the-middle attacks. App. Br. 11.
The Examiner responds that the claims do not refer to detecting or
preventing man-in-the-middle attacks and “no part of the application is
directed to detecting man-in-the-middle attacks.” Ans. 16. Furthermore the
Examiner explains why the system of Dogan would prevent such attacks
from occurring, noting that Appellants have not provided any argument to
the contrary. Ans. 17. In the absence of sufficient evidence or argument
that the claims require detection or prevention of man-in-the-middle attacks
and that the teachings of Dogan would not provide such detection or
prevention, we agree with the Examiner’s analysis and find contention 2 to
be unpersuasive of Examiner error.
Finally, for the first time in the Reply Brief Appellants present
additional arguments that Dogan, McLaren, and Funk do not disclose other
limitations of claim 1. (See, e.g., Reply Br. 4-5 (asserting that the applied
prior art is “silent on a decoupling feature in a method of authenticating
communication between first and second parties wherein actions within the
first tunnel are decoupled from the actions in the subsequent new tunnel”)
and Reply Br. 7 (asserting that “Dogan does not teach or suggest the
decoupling feature of the claims wherein an authentication is performed in a
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subsequent new tunnel established after an initial tunnel is torn down.”))
Appellants' arguments on these points, however, are untimely and waived.
See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (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 reasons discussed supra, we find that Appellants have failed to
provide sufficient evidence or argument to persuade us that that the
combination of Dogan, Kuehr-McLaren, and Funk fails to teach or suggest
the disputed claim limitations. Therefore we sustain the rejection of claim 1
and for the same reason claims 17 and 24 under 35 U.S.C. § 103(a) as being
unpatentable over Dogan, Kuehr-McLaren, and Funk together with the
rejections of claims 5-10, 15, 16, 18-21, 26, and 27 not separately argued.

CONCLUSIONS
On the record before us, we conclude that the Examiner did not err in
rejecting claims 1, 2, 5, 6, 9, 10, 15-21, 24, 26, and 27 under 35 U.S.C.
§ 103(a) as being unpatentable over Dogan, Kuehr-McLaren, and Funk or in
rejecting claims 5-10 and 20 under 35 U.S.C. § 103(a) as being unpatentable
over Dogan, Kuehr-McLaren, Funk, and Downnard.

DECISION
The decision of the Examiner to reject claims 1, 2, 5-10, 15-21, 24,
26, and 27 is affirmed.
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).
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AFFIRMED

ELD