Level 3 Communications, LLC

Patent Trials and Appeals Board

Aug 28, 2020

2019004111 (P.T.A.B. Aug. 28, 2020)

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.
15/282,702 09/30/2016 Ryan T. Privette 0557-US-U1 7236
83579 7590 08/28/2020
LEVEL 3 COMMUNICATIONS, LLC
Attn: Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
EXAMINER
ASEFA, DEBEBE A
ART UNIT PAPER NUMBER
2476
NOTIFICATION DATE DELIVERY MODE
08/28/2020 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patent.docketing@centurylink.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RYAN T. PRIVETTE
___________

Appeal 2019-004111
Application 15/282,702
Technology Center 2400
____________

Before ROBERT E. NAPPI, JEAN R. HOMERE, and
JAMES B. ARPIN, Administrative Patent Judges.

ARPIN, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–6 and 8–20. Final Act. 1.2 Claim 7 is canceled.
Appeal Br. 22 (Claims App.). Oral arguments were heard on July 30, 2020.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party-in-interest as Level 3
Communications, LLC, a subsidiary of CenturyLink, Inc. Appeal Br. 3.
2 In this Decision, we refer to Appellant’s Appeal Brief (“Appeal Br.,” filed
January 15, 2019) and Reply Brief (“Reply Br.,” filed May 1, 2019); the
Final Office Action (“Final Act.,” mailed August 15, 2018) and the
Examiner’s Answer (“Ans.,” mailed March 1, 2019); and the Specification
(“Spec.,” filed September 30, 2016). Rather than repeat the Examiner’s
findings and determinations and Appellant’s contentions in their entirety, we
refer to these documents.
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A transcript (“Tr.”) of the hearing has been added to the record. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
The recited systems, methods, and instructions stored on computer
readable media “relate[] generally to identifying available wireless services.
The disclosure further relates to using the identified available wireless
services for backup selection in instances where a network outage may occur
or otherwise redundancy may be needed.” Spec. ¶ 2. As noted above,
claims 1–6 and 8–20 are pending. Claims 1, 8, and 15 are independent.
Appeal Br. 21 (claim 1), 22 (claim 8), 23–24 (claim 15) (Claims App.).
Claim 8 recites, “[a] method for backing up a primary network at a physical
location.” Id. at 22. Claim 1 recites, “[a] system for backing up a primary
network at a physical location, the system comprising: a processor; and a
non-transitory computer-readable medium storing instructions that, when
executed by the processor, cause the processor to perform operations”
substantially as recited in claim 8. Id. at 21. Claim 15 recites, “[a] non-
transitory computer-readable medium storing instructions that, when
executed by a processor, cause the processor to perform operations for
backing up a primary network at a physical location” substantially as recited
in claim 8. Id. at 23–24. Claims 2–6 depend directly from claim 1,
claims 9–14 depend directly from claim 8, and claims 16–20 depend directly
from claim 15. Id. at 21–24.
Claim 1, reproduced below with disputed limitations emphasized, is
illustrative.
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1. A system for backing up a primary network at a
physical location, the system comprising:
a processor; and
a non-transitory computer-readable medium storing
instructions that, when executed by the processor, cause the
processor to perform operations comprising:
receiving a representation of the physical location;
transmitting the representation of the physical location to
a server;
receiving from the server, a list of networks that provide
service at the physical location based on the representation of the
physical location;
receiving a selection of a particular network from the list
of networks based on a metric, the particular network different
from the primary network; and
responsive to losing connection to the primary network,
establishing a failover to the particular network at the physical
location, establishing the failover further comprising
determining a network outage and transitioning network traffic
from the primary network with the network outage to the
particular network.
Id. at 21 (emphases added). Claims 8 and 15 include limitations
substantially the same as the disputed limitations of claim 1. Id. at 22, 24.
REFERENCES AND REJECTIONS
The Examiner relies upon the following references:
Name3 Reference Issued/Publ’d Filed
Manroa US 9,241,239 B2 Jan. 19, 2016 May 3, 2012
Scherzer US 2012/0196644 A1 Aug. 2, 2012 Jan. 31, 2012

3 All reference citations are to the first named inventor only.
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Claims 1, 2, 4–6, 8, 9, 11–16, and 18–20 stand rejected under 35
U.S.C. § 102(a)(1) as anticipated by Manroa.4 Final Act. 11–25. Further,
claims 3, 10, and 17 stand rejected under 35 U.S.C. § 103 as obvious over
the combined teachings of Manroa and Scherzer. Id. at 25–29.
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the contentions and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential). The Examiner and Appellant focus their findings and
contentions on claim 1; so do we. See, e.g., Appeal Br. 14–18; Reply Br. 2–
4. Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv).
Unless otherwise indicated, we adopt the Examiner’s findings in the Final
Office Action and the Answer as our own and add any additional findings of
fact for emphasis. We address these rejections below.
ANALYSIS
Claim Interpretation
With respect to claim 1, Appellant contends that Manroa does not
disclose:
responsive to losing connection to the primary network,
establishing a failover to the particular network at the physical
location, establishing the failover further comprising
determining a network outage and transitioning network traffic

4 Although the Examiner includes a rejection of claim 7 (Final Act. 15–16),
as noted above, claim 7 is canceled (Appeal Br. 22, (Claims App.)). We do
not address the rejection of claim 7 in the decision. In addition, the
Examiner rejected claims 1–6 and 8–20 as directed to a judicial exception to
patent eligibility without significantly more. Final Act. 5–11. The
Examiner has withdrawn this patent eligibility rejection. Ans. 3.
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from the primary network with the network outage to the
particular network.
Appeal Br. 21 (Claims App.) (underlining added). Appellant added the
underlined text by an amendment dated June 22, 2018 (the “2018 Amdt.”).
Because the appeal turns on whether Manroa discloses this limitation, we
begin our analysis by considering the interpretation of this limitation.
[The Office] applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary usage
as they would be understood by one of ordinary skill in the art,
taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant’s specification.
In re Morris, 127 F.3d 1048, 1053 (Fed. Cir. 1997). Consequently, we start
our analysis with the amended text of this limitation of claim 1.
The limitation begins with the phrase “responsive to losing connection
to the primary network.” Appeal Br. 21 (Claims App.) (emphasis added).
As an initial issue, it is not clear whether this phrase states a condition
precedent necessary for the occurrence of the remaining elements of this
limitation. If so, the limitation may not occur at all, and it is not necessary
for Manroa to disclose this limitation in order for Manroa to anticipate
claim 1. See In re Schulhauser, Appeal No. 2013-007847, 6–7 (Apr. 28,
2016) (precedential) (“If the electrocardiac signal data is not within the
threshold electrocardiac criteria, then an alarm is triggered and the
remaining method steps need not be performed.”). Alternatively, if this
limitation indicates when the remaining elements of the limitation occur, the
claim 1 may be a hybrid claim and indefinite. The Federal Circuit has held a
claim is a hybrid claim and indefinite, when it was unclear whether
infringement occurs when a machine is made or when it is used. IPXL
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Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377, 1384 (Fed. Cir. 2005);
see In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1318
(Fed. Cir. 2011); but see UltimatePointer, L.L.C. v. Nintendo Co., 816 F.3d
816, 827 (Fed. Cir. 2016) (“Unlike IPXL and similar cases, the claims at
issue here make clear that the ‘generating data’ limitation reflects the
capability of that structure rather than the activities of the user.”).
During oral argument, Appellant described this phrase both as a
condition governing the operation of the system and a capability of the
system. Tr. 14:10–14, 14:20–15:5; see id. at 15:17–16:11. Further,
Appellant declined to opine on when claim 1 would be infringed. Id. at
14:20–15:16. If the phrase is conditional, that would impact the
interpretation of each of the pending claims; if, however, the limitation states
when the limitation would occur, rather than a capability of the system of
claim 1, that would render only claim 1 and the claims dependent therefrom
hybrid claims. Because, for the reasons given below, we are persuaded that
Manroa discloses this limitation; on this record, we decline to find the
limitation is a condition and need not be performed or to enter a new ground
of rejection for indefiniteness. Instead, we leave for further prosecution to
determine whether the limitation is conditional or whether it renders
claims 1–6 hybrid and indefinite, or neither.
We turn now to the interpretation of the term “outage” in this
limitation. Claim 1 recites “responsive to losing connection to the primary
network, . . . establishing the failover further comprising determining a
network outage and transitioning network traffic from the primary network
with the network outage to the particular network.” Appeal Br. 21 (Claims
App.) (emphases added). We begin our interpretation of “outage” with the
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plain meaning of the term in the context of claim 1. Initially, we note that
“an outage” may understood to be a failure, interruption, or an unacceptable
change in use or functioning. Spec. ¶¶ 3, 14–16, 23–25, 46, 60; see Manroa,
5:12–16, 5:66–6:3, 9:38–50; Scherzer ¶¶ 58, 64. Claim 1 recites that the
determination of an “outage” is responsive to “losing connection,” rather
than only to having lost connection. Appeal Br. 21 (Claims App.) (emphasis
added). Further, claim 1 recites “transitioning network traffic from the
primary network with the network outage to the particular network.” Id.
(emphasis added). Similarly, “transitioning” may be understood as a
passage from one place, source, or condition to another. Spec. ¶¶ 4, 14, 25,
45, 46, 60; see Manroa, 9:38–50. Reading “outage” in context and as
understood by a person of ordinary skill in the relevant art, the term
encompasses an unacceptable change (e.g., a loss of signal strength), as well
as a failure or interruption of a connection. E.g., Spec. ¶ 24 (“For example,
it is possible that [that] a service level agreement (SLA) may be in place that
specifies a minimum signal strength for a backup connection. It is also
possible that a price point or wireless provider may be required or preferred.
It is also possible that a service type (e.g., 3G versus 4G) may be preferred.
Thus, the service information and parametric data may be analyzed by a set
of rules to determine a suitable backup network for a given location.”); see
Tr. 11:6–12:16.
This interpretation is consistent with the Specification and the
prosecution history relevant to this amended claim language. The
Specification discloses:
The primary network may suffer an outage or network integrity
may be jeopardized by a variety of factors. The system 100 can
be used to identify and obtain a suitable backup connection
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before the network outage occurs (e.g., a cellular network such
as a 3G network and/or a 4G network). For example, if the
primary network connection becomes unavailable at the grocery
store, transactions may still be processed using the backup
connection.
Spec. ¶ 23 (emphasis added); see Appeal Br. 16. Similar, the Specification
explains that
a computing device separate from the client computing device
102 may execute a subset of the wireless network application 206
that includes the outage detection module 214. The computing
device separate from the client computing device 102 may detect
whether the primary network is unavailable for the client
computing device 102 and may transition or reroute network
traffic from the primary network with the network outage to the
particular network.
Id. ¶ 46 (emphasis added); see also id. ¶ 49 (“However, to determine what
network to use as a backup, it is important to understand not only the
networks available, but their performance and associated costs as well.”).
The Examiner finds that “outage” means “the first link is down or
out of service or the signal strength becomes weak as the [user equipment
(UE)] moves from location to location.” Ans. 6 (emphases added).
Appellant disagrees and would interpret “outage” as limited to describing
when “a first link (e.g., primary network) is down or out of service.” Reply
Br. 2; see Tr. 4:16–5:8 (discussing Spec. ¶ 25). Paragraph 25 of the
Specification describes, “an outage detection module associated with the
client computing device 102 can be used to detect a failure on the primary
network.” Spec. ¶ 25 (emphasis added). However, the Specification does
not expressly define a network “failure,” but explains, “[w]hen a failure
occurs, the client computing device 102 can transition to backup wireless
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services available at the current location.” Id. (emphasis added). Thus, the
Examiner’s broader interpretation appears correct.
The Examiner’s broader interpretation also is consistent with the
prosecution history. With regard to its amendment of claim 1, Appellant
asserted:
As described in the specification of the present application, there
is a technical problem in networking domain: “[t]he need for a
backup network may be prompted by a detected outage or may
be preemptive in order to prevent or provide network
connectivity during a future outage.” [0050] (emphasis added).
The backup network systems and methods described in the
present application address this technical problem with a
technical solution rooted in computer technology.
2018 Amdt., 8 (underlining in original, emphasis added). Thus, the
prosecution history makes clear that the use of backup systems provides
network connectivity during, as opposed to after, an outage. Therefore, we
understand the claims to encompass actions taken during the loss or while
losing connectivity, as well as actions taken after such a loss of connectivity.
Consequently, we are persuaded that the Examiner’s interpretation of
the term “outage” as encompassing “the first link is down or out of service
or the signal strength becomes weak as the UE moves from location to
location” is correct. Ans. 6 (emphases added). Moreover, neither the
Specification’s disclosure nor the prosecution history is inconsistent with the
Examiner’s interpretation.
Anticipation by Manroa
As noted above, claims 1, 2, 4–6, 8, 9, 11–16, and 18–20 stand
rejected under 35 U.S.C. § 102(a)(1) as anticipated by Manroa. Final Act.
11–25. “A claim is anticipated only if each and every element as set forth in
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the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631
(Fed. Cir. 1987). The elements must be arranged as required by the claim,
but this is not an ipsissimis verbis test. See In re Bond, 910 F.2d 831, 832
(Fed. Cir. 1990). Moreover, “it is proper to take into account not only
specific teachings of the reference but also the inferences which one skilled
in the art would reasonably be expected to draw therefrom.” In re Preda,
401 F.2d 825, 826 (CCPA 1968).
In particular, the Examiner finds that Manroa discloses the disputed
limitation of claim 1, as well as those of claims 8 and 15. Id. at 13–14, 17–
18, 22–23.
Manroa discloses:
In accordance with another conventional application, the
computer can be configured to monitor a region and
automatically connect to a particular WiFi network depending on
detected wireless signal strength. For example, a computer may
be configured to automatically connect to one of multiple WiFi
networks in a region depending on detected wireless signal
strengths.
As a more specific example, to determine which of the
multiple WiFi networks to connect, the computer device
monitors a wireless signal strength of each of the WiFi networks.
Based on signal strength information, the computer device
connects to the WiFi network from which the strongest signal is
received. Presumably, the WiFi network providing the greatest
signal strength will provide the best conveyance of data to and
from the computer device over the wireless network.
Manroa, 1:21–36 (emphases added); see, e.g., Final Act. 13–14; Ans. 5.
Further, Manroa discloses:
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In step 1060, the communication manager 140 establishes
a wireless connection between the computer device and the
particular WiFi network resource selected from the list 110.
In sub-step 1070 associated with step 1060, the
communication manager 140 attempts connectivity with one or
more of the multiple WiFi networks and/or resources in the list
110 based on a predetermined order of priority if an initiate
attempt to connect fails.
Manroa, 14:14–21 (emphasis added); see id. at 9:38–46 (discussing
“transitioning from one network to another in response to roaming”). Thus,
the Examiner finds Manroa teaches in response to losing connection, e.g.,
losing desired signal strength, with a primary network, the system may
establish a failover to other networks in the region; determine a network
outage, e.g., a loss of signal strength to an unacceptable level; and transition
to a new network, e.g., switch to a backup network. See Final Act. 13–14;
Ans. 5; see also Appeal Br. 21 (Claims App.) (claim 3 reciting selecting
networks based on signal strength). Moreover, this transition may involve
attempts to initiate connections according to a predetermined priority.
Manroa, 14:14–21; see Appeal Br. 22 (Claims App.) (claim 6 reciting
“ordering the list of networks in a particular order based on the metric”).
Therefore, the Examiner finds Manroa discloses the disputed limitation.
Appellant contends the Examiner errs for two reasons. For the
reasons given below, we are not persuaded by Appellant’s contentions.
First, Appellant contends, “none of the cited lines of Manroa disclose
that a first link (e.g., primary network) is down or out of service.” Reply
Br. 2; see id. at 3–4. However, the Examiner finds Manroa discloses,
the metric is a signal strength, and to determine which of the
multiple Wi-Fi networks to connect, the UE monitors a wireless
signal strength of each of the Wi-Fi networks; based on signal
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strength information, the UE connects to the Wi-Fi network from
which the strongest signal is received, and the Wi-Fi network
providing the greatest signal strength will provide the best
conveyance of data to and from the UE over the wireless network
and the list contains different networks to connect to and during
failure a communication manager establishes a wireless
connection to a particular network resource selected from the list
that placed in the order of signal strength and when the first fails,
the UE selects the second from the ordered list, and the
communication manager attempts connectivity with one or more
of the multiple networks and/or resources in the list based on a
predetermined order of priority and the order of priority is based
on the signal strength, and if the first attempt to connect fails, the
device selects a network with good signal strength to connect to.
Ans. 5 (citing Manroa, 1:28–36, 14:14–21). In particular, the Examiner
finds, “[t]he first link in the list is to the primary network and second to
backup link to different network, if the first link is down or out of service or
the signal strength becomes weak as the UE moves from location to location,
the second link in the list will take over the function of the first list and so
on.” Ans. 6 (citing Manroa, 2:5–21, 5:12–30, 5:66–67). Given our
interpretation above of the term “outage,” we are persuaded that Manroa
discloses “establishing a failover” to available networks in the region,
“determining a network outage” consisting of a sufficient loss of signal
strength, and “transitioning network traffic from the primary network with
the network outage to the particular network.” See, e.g., Final Act. 13–14.
Second, Appellant contends that Manroa’s disclosure of “attempt[ing]
connectivity with one or more of the multiple WiFi networks and/or
resources in the list 110 based on a predetermined order of priority if an
initiate attempt to connect fails” suggests that the primary network never
became unavailable, but, instead, was never connected in the first place.
Appeal Br. 15–16; Reply Br. 2–3. Nevertheless, Appellant misunderstands
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Manroa’s disclosure. The cited portion of Manroa discloses that a priority
list of networks may be used and may identify backups. Ans. 5–6; see
Manroa, 1:21–27, 9:38–46. “If” a particular initiation of an attempt to
connect fails for any reason, the system may proceed to the next network on
the list. See Manroa, 8:8–21. Thus, the initiation of an attempt to connect
may be part of the roaming operation involving the transition from a weaker
signal strength network to a stronger signal strength network in response to
“losing connection” to the weakening, primary network.
We are not persuaded the Examiner errs in determining that the
systems, methods, and computer readable media, recited in claims 1, 8, and
15, respectively, are anticipated by Manroa. Further, Appellant does not
argue dependent claims 2, 4–6, 9, 11–14, 16, and 18–20 separately, and, on
this record, we determine that the Examiner has shown that claims 2, 4–6, 9,
11–14, 16, and 18–20 are anticipated by Manroa. See Final Act. 14–15, 18–
20, 23–25; Appeal Br. 18. Consequently, we are not persuaded that the
Examiner errs in rejecting claims 1, 2, 4–6, 8, 9, 11–16, and 18–20, and we
sustain the rejection thereof under 35 U.S.C. § 102(a)(1).
Obviousness Over Manroa and Scherzer
Claims 3, 10, and 17 stand rejected under 35 U.S.C. § 103 as rendered
obvious over the combined teachings of Manroa and Scherzer. Final
Act. 25–29. Appellant does not challenge the Examiner obviousness
rejection of dependent claims 3, 10, and 17 separately from its challenge to
the anticipation rejection of their base claims. Appeal Br. 18–19. Given our
affirmance of the rejection to the base claims, we are not persuaded that the
Examiner errs in rejecting claims 3, 10, and 17, and we sustain the rejection
thereof under 35 U.S.C. § 103.
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DECISION
1. The Examiner does not err in rejecting:
a. claims 1, 2, 4–6, 8, 9, 11–16, and 18–20 as unpatentable under 35
U.S.C. § 102(a)(1) as anticipated by Manroa; and
b. claims 3, 10, and 17 as unpatentable under 35 U.S.C. § 103 over
the combined teachings of Manroa and Scherzer.
2. Thus, on this record, claims 1–6 and 8–20 are not patentable.
CONCLUSION
We affirm the Examiner’s rejections of claims 1–6 and 8–20.
In summary:
Claims
Rejected
35 U.S.C.
§
Basis/Reference(s) Affirmed Reversed
1, 2, 4–6,
8, 9, 11–
16, 18–20
102(a)(1) Manroa 1, 2, 4–6,
8, 9, 11–
16, 18–20

3, 10, 17 103 Manroa, Scherzer 3, 10, 17
Overall
Outcome
1–6, 8–20
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED