Olivier PaterourDownload PDFPatent Trials and Appeals BoardJul 29, 201914777969 - (D) (P.T.A.B. Jul. 29, 2019) Copy Citation 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. 14/777,969 09/17/2015 Olivier PATEROUR 022044-0443279 1057 909 7590 07/29/2019 Pillsbury Winthrop Shaw Pittman, LLP PO Box 10500 McLean, VA 22102 EXAMINER CUNNINGHAM, KEVIN M ART UNIT PAPER NUMBER 2461 NOTIFICATION DATE DELIVERY MODE 07/29/2019 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): docket_ip@pillsburylaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte OLIVIER PATEROUR ____________ Appeal 2018-008808 Application 14/777,969 Technology Center 2400 Before JOHN A. EVANS, JOHN P. PINKERTON, and MICHAEL M. BARRY, Administrative Patent Judges. EVANS, Administrative Patent Judge. DECISION ON APPEAL Appellant1 seeks our review under 35 U.S.C. § 134(a) of the Examiner’s Final Rejection of claims 1 and 4–16 under 35 U.S.C. § 103 as unpatentable over Das and Alfano. App. Br. 3–4; see also Adv. Act. 1; Ans. 2–8. Claims 2 and 3 have been canceled. Adv. Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.2 1 The Appeal Brief identifies AIRBUS DS SAS as the real party in interest. App. Br. 2. 2 Rather than reiterate each and every argument of Appellant, and finding and conclusion of the Examiner, we refer to the Appeal Brief (filed May 21, 2018, “App. Br.”), the Reply Brief (filed September 12, 2018, “Reply. Br.”), the Examiner’s Answer (mailed July 12, 2018, “Ans.”), the Advisory Action (mailed January 2, 2018; “Adv. Act.”), the Final Office Action (mailed September 18, 2017, “Final Act.”), and the Specification (filed November Appeal 2018-008808 Application 14/777,969 2 STATEMENT OF THE CASE The claims relate to “a system and a method for managing the connectivity of at least one terminal via a mobile server for communicating through at least one telecommunications network.” Spec. 1:10–13. Claim 1 is independent. The claims have not been argued separately with particularity and, therefore, stand or fall together. 37 C.F.R. § 41.37(c)(1)(iv). An understanding of the invention can be derived from a reading of exemplary claim 1, which is reproduced below with some formatting added: 1. A mobile server for managing the connectivity of at least one terminal for communicating through one or a plurality of telecommunications networks, the mobile server comprising: at least one terminal communication module configured to communicate with said terminal; a plurality of network communication modules configured to communicate with a plurality of telecommunications networks; a storage area in which are stored connectivity parameter values of the terminal enabling the terminal to connect to the mobile server, the mobile server being configured to: connect to the plurality of telecommunications networks via the plurality of network communication modules, extract a set of connectivity parameter values of the terminal from the storage area, allow or not allow, on the basis of the extracted set of connectivity parameter values, a connection of the terminal via at least one of the terminal communication modules so that the terminal 12, 2015, “Spec.”) for their respective details. Appeal 2018-008808 Application 14/777,969 3 communicates applicative data through at least one of the telecommunications networks via said at least one of the terminal communication modules and at least one of the network communication modules, wherein the connectivity parameters are organised in the storage area in the form of a tree structure including a plurality of hierarchized objects each grouping together one or a plurality of connectivity parameters, and wherein the tree structure is based on the Open Mobile Alliance (OMA) model and wherein the objects are manipulated using the Open Mobile Alliance Device Management protocol. References and Rejections 1. Claims 1 and 4–16 stand rejected under 35 U.S.C. § 103 as unpatentable over Das et al. (US 2013/0137423 A1; published May 30, 2013) (“Das”) and Alfano et al. (US 2013/0031234 A1; published Jan. 31, 2013) (“Alfano”).3 Ans. 2–8; see also Final Act. 3–9. ANALYSIS We have reviewed the rejection of claims 1 and 4–16 in light of Appellant’s arguments that the Examiner erred. We have considered in this 3 In the Final Office Action, claims 1 and 4–16 were rejected under 35 U.S.C. § 102(a)(2) as anticipated by Das, and claims 2 and 3 were rejected under 35 U.S.C. § 103 as unpatentable over Das and Alfano. Final Act. 3–9. Appellant filed an amendment after the Final Office Action, requesting that the limitations of dependent claims 2 and 3 be amended into independent claim 1 and that claims 2 and 3 be canceled. Amendment After Final Office Action 2–3 (filed December 18, 2017). The Examiner entered these amendments (Adv. Act. 1) and explains that “newly amended claim 1 (which now incorporates the limitations of original claims 2 and 3) would be Appeal 2018-008808 Application 14/777,969 4 decision only those arguments Appellant actually raised in the Briefs. Any other arguments which Appellant could have made, but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). We are not persuaded that Appellant identifies reversible error. Having considered Appellant’s arguments presented in the Appeal Brief and Reply Brief, we agree with the Examiner that all the pending claims are unpatentable over the cited combination of references. We adopt as our own the findings and reasons set forth in the rejection from which this appeal is taken and in the Examiner’s Answer. We provide the following explanation to highlight and address specific arguments and findings primarily for emphasis. CLAIMS 1 AND 4–16: OBVIOUSNESS OVER DAS AND ALFANO. Appellant presents a series of arguments for the § 103 rejection of claim 1. App. Br. 3–20. Appellant does not argue the § 103 rejections of claims 4–16 separately with particularity beyond the arguments advanced for claim 1. App. Br. 20–26. Therefore, we decide the appeal of the § 103 rejection on the basis of claim 1. See 37 C.F.R. § 41.37(c)(1)(iv); In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986). In rejecting claim 1, the Examiner relies on Das for teaching the entirety of the claim, except for the known techniques of organizing data in a tree structure that has hierarchized objects and is based on the OMA (Open Mobile Alliance) model, and manipulating objects using the OMA Device rejected for the same reasons as original claim 3 (which included the limitations of original claims 1 and 2)” (Ans. 2). The Examiner’s Answer restates the grounds of rejection such that claims 1 and 4–16 stand rejected under 35 U.S.C. § 103 as unpatentable over Das and Alfano. Ans. 2. Appeal 2018-008808 Application 14/777,969 5 Management Protocol, for which the Examiner cites Alfano. Ans. 3–4 (citing Das Fig. 1, ¶¶ 5, 9, 38, 40–43, 64–65, 77, 93–94, 98; Alfano ¶ 30); see also id. at 8–15 (additionally citing Das Fig. 5, ¶¶ 35–36, 38, 39, 45, 47, 93, 95; Alfano ¶¶ 13, 30, 40–42); Final Act. 3–4, 8–9. We begin our analysis with a brief review of the Das reference. Das relates to a multi-mode access point that may provide network connectivity access to access terminals. Das ¶ 33, Fig. 1 (items 108, 110, 112). In a disclosed embodiment, an access terminal may connect to an access point. Id. ¶ 33, Fig. 1 (items 102, 104, 106). The access point may communicate over various communication links with one or more network entities, which may comprise a part-circuit switched network, a packet- switched network, or some other suitable wireless communication network. Id. ¶¶ 35–36, Fig. 1 (items 134, 136). Here, the access point may communicate with network entities via multiple radio access technologies (“RATs”), including wireless wide area network (“WWAN”) and wireless local area network (“WLAN”) (e.g., Wi-Fi) technologies. Id. ¶¶ 38–39. Notably, the access point may include an access control component that determines which access terminals can access a given RAT or the type of service that may be provided. Id. ¶ 40. For example, access may be provided only if the access terminal is a member of a group associated with the access point that supports the given RAT. Id. ¶ 41. In addition, the access terminal may maintain an access control list identifying such member groups. Id. ¶ 42. Access also may be restricted based on an access terminal’s Medium Access Control (“MAC”) address. Id. ¶ 65. Once the access point has allowed a connection to be established between the access terminal and a given network entity, data (e.g., voice, data, multimedia Appeal 2018-008808 Application 14/777,969 6 services) may be provided from the given network entity to the access terminal via the access point. Id. ¶¶ 5, 77 (discussing streaming of video data). Appellant contends the Examiner errs because Das’s access point does not teach “a mobile server . . . comprising . . . a plurality of network communication modules configured to communicate with a plurality of telecommunications networks,” as recited in claim 1. App. Br. 3–11; Reply Br. 2–9. In particular, Appellant asserts that each of Das’s access points includes only a single network communication module (i.e., a network interface) configured to communicate with a single telecommunications network, whereas the claim requires a plurality of network communication modules configured to communicate with a plurality of telecommunications networks. App. Br. 7–9; Reply Br. 5–9. Here, Appellant further asserts that Das’s “network entities represent functionalities of a (single) network, as opposed to a plurality of telecommunications networks.” App. Br. 9 (emphasis omitted). We are not persuaded the Examiner errs. Das discloses that an access point may include at least one—e.g., more than one—communication device (e.g., a plurality of network interfaces), for communicating with network entities. Das ¶¶ 95, 104. Das further discloses that an access point may communicate over various communication links with a plurality of network entities. Id. ¶ 35. Further, Das’s access point is multi-modal. Id. ¶ 38. In other words, it supports multiple RATs covering different types of networks, both cellular and wireless (WWAN (2G/3G/4G), WLAN (Wi-Fi), etc.). Id. ¶ 38. These disclosures show that Das’s access point may include, not just one, but a plurality of network communication modules configured to communicate Appeal 2018-008808 Application 14/777,969 7 with a plurality of network entities. Further, Das’s disclosure of network entities satisfies “a plurality of telecommunications networks.” Although Das discloses embodiments in which each network entity represents a particular functionality of a single network, Das also discloses that a network entity may be the network itself, such as a part-circuit switched network, a packet-switched network, or some other suitable wireless communication network. Das ¶ 36. Importantly, we remind Appellant that “[a]ll the disclosures in a reference must be evaluated, including nonpreferred embodiments.” Application of Mills, 470 F.2d 649, 651 (CCPA 1972); see also In re Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012) (“A reference may be read for all that it teaches, including uses beyond its primary purpose.”). We also disagree with Appellant’s assertion that Das’s access point is not a “mobile server.” App. Br. 8–9; Reply Br. 2–5. To the contrary, the recited “mobile server” broadly but reasonably reads on Das’s access point. Compare Spec. 4:9–5:25, with Das ¶¶ 33, 35–36, 38–42 & Fig. 1. In fact, Appellant’s Specification describes its mobile server as a mobile “access point,” configured to manage locally the connectivity of a plurality of terminals by allowing only those terminals having certain connectivity parameters (e.g., an allowable MAC address) to communicate through a plurality of networks. See, e.g., Spec. 4:9–14, 7:21–27. Das similarly describes a multi-mode access point that can control an access terminal’s access (e.g., by employing restrictions for MAC address filtering) to network service or connectivity across different RATs. Das ¶¶ 33, 36, 38–42, 65. Appellant’s Specification further discloses that a mobile server can be enabled to establish a first communication link with a first Appeal 2018-008808 Application 14/777,969 8 telecommunications network and a second communication link with a second communication network. Spec. 5:21–25. Das similarly describes its access points as communicating over various communication links with a plurality of network entities. Das Fig. 1, ¶ 35. To the extent Appellant is arguing that claim 1 requires a mobile server that is in communication with, or belongs to, a plurality of telecommunications networks at a single moment in time, such an interpretation is unreasonably narrow and is not commensurate with the scope of the claim language. Rather, claim 1 merely requires a mobile server comprising network communication modules configured to, or programmed such they can communicate with, different telecommunications networks. In view of the foregoing, we agree with the Examiner that Das teaches a mobile server comprising a plurality of network communication modules configured to communicate with a plurality of telecommunications networks. Ans. 3 (citing Das ¶¶ 38, 93); see also id. at 8–9 (citing Das ¶¶ 35–36, 95); Final Act. 3. Appellant next argues the Examiner errs in finding that the wireless communication devices of Das (Das Fig. 5, items 504, 506) teach “both the claimed ‘at least one terminal communication module configured to communicate with said terminal’ and the claimed ‘plurality of network communications modules configured to communicate with a plurality of telecommunication networks,’ as recited in claim 1.” App. Br. 12. Appellant explains that, “[c]onsistent with the principle that all limitations in a claim must be considered to be meaningful, it is improper to rely on the same structure in Das as being responsive to two different elements in claim 1.” Id. at 11. Appeal 2018-008808 Application 14/777,969 9 Appellant’s contention is not responsive to the Examiner’s rejection. The Examiner does not rely on the same element of Das for teaching each of the disputed limitations. See Ans. 3 (citing Das ¶¶ 38, 93–94); Final Act. 3. Rather, as the Examiner explains, Das’s wireless communication devices (Das Fig. 5, items 504, 506) have been cited as teaching the claimed “terminal communication modules,” whereas Das’s communication devices (Das Fig. 5, item 516) have been cited as teaching the claimed “network communication modules.” Ans. 11. Appellant does not persuasively rebut these findings in their Briefs. Moreover, the cited disclosures of Das teach or at least suggest the disputed claim limitations. In particular, Das’s wireless communication devices 504 are terminal communication modules because they are “transceivers[] for communicating with . . . access terminals[] via different radio access technologies.” Das ¶ 94. Das’s communication devices 516 are network communication modules because they are “network interface[s] for communicating with . . . one or more network entities.” Id. ¶ 95. Appellant further contends the Examiner has not made a prima facie case of obviousness because the proposed rationale to combine Das with Alfano—“in order to improve management of clients by implementing open mobile alliance group guidelines and standards”—is unsupported and, thus, inadequate. App. Br. 15–17; see Ans. 4. Appellant submits that “[t]he Office has not explained how the implementation of the storing scheme of Alfano at the access point of Das would ‘improve management of clients’ and what ‘connectivity parameters’ of Das would be subject to such organizing and why the resulting organizing would indeed ‘improve management of clients.’” App. Br. 17. Appeal 2018-008808 Application 14/777,969 10 We are not persuaded the Examiner errs. Although Appellant is correct that “[t]here must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness,” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), “[a] brief explanation may do all that is needed if, for example, the technology is simple and familiar and the prior art is clear in its language and easily understood.” Paice LLC v. Ford Motor Co., 881 F.3d 894, 905 (Fed. Cir. 2018) (internal quotations and citation omitted). Here, the Examiner’s proposed rationale to combine the teachings of Das and Alfano—“in order to improve management of clients by implementing open mobile alliance group guidelines and standards”—albeit brief, is adequate. In the Answer, the Examiner explains that [i]t is well known in the art that Open Mobile Alliance is an open standard for the mobile phone industry since 2002 that facilitates mobile service interoperability worldwide, where open standard means it is publically available (Wikipedia entry or see Para [0019] US 2004/0133632, which mentions an OMA standard from 2002). OMA is used to provide industry wide interoperability standards, so there is clearly motivation to combine Das and Alfano and motivation to use OMA specifications and standards. Ans. 12. We agree. An ordinarily skilled artisan would have known that modifying Das to implement OMA guidelines and standards, as taught by Alfano, would improve the management of clients, for example, by facilitating mobile service interoperability and reducing implementation efforts (e.g., time to market). Moreover, the Examiner’s Answer provides additional reasoning why a ordinarily skilled artisan would have been led to combine the teachings of Das with those of Alfano: Appeal 2018-008808 Application 14/777,969 11 Further Alfano discloses organizing information in a hierarchical tree structure, Para [0030]. Another motivation to combine is that using a hierarchical tree structure is an efficient organization method that allow faster lookup of information. The applicant also argued the examiner did not say what connectivity parameters would be subject to the tree organization. In response, the access list and/or membership of terminals in a closed subscriber group are the connectivity parameters used to determine what RATs the access terminal can access, Para [0040-42], that can be organized using the tree structure. Id. at 12–13. Appellant does not persuasively rebut the Examiner’s explanation or additional reasoning in the Reply Brief. Further, Appellant does not point to any evidence of record that the combinations would be “uniquely challenging or difficult for one of ordinary skill in the art” or “represented an unobvious step over the prior art.” Leapfrog Enters. Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418–19 (2007)). Nor does Appellant provide objective evidence of secondary considerations, which our reviewing court guides “operates as a beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese and Powder Sys., 725 F.3d 1341, 1352 (Fed. Cir. 2013). We find the above reasons more than adequate to support the Examiner’s proposed combination. Therefore, we are not persuaded the Examiner errs. Appellant also contends that Alfano is non-analogous art because “the disclosure of Alfano has nothing to do with that of Das.” App. Br. 17–18. We disagree. Appeal 2018-008808 Application 14/777,969 12 Two separate tests define the scope of analogous prior art: (1) whether the art is from the same field of endeavor, regardless of the problem addressed and, (2) if the reference is not within the field of the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved. In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011). As the Examiner explains, Alfano and Das are analogous art at least because they are in the same field of endeavor as Appellant’s invention—i.e., electronic communication techniques—and they all disclose related technologies—i.e., the transmission of digital information (Alfano) and wireless communication networks (Das and Appellant’s invention). Ans. 13. Appellant next contends the Examiner errs because Alfano “is wholly silent as to the aspects of organizing ‘the connectivity parameters [. . .] in the storage area [of the mobile server].” App. Br. 18 (emphasis omitted). We are not persuaded by Appellant’s contention. Each reference cited by the Examiner must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller, 642 F.2d 413, 425 (CCPA 1981) (explaining that when the rejection is based on a combination of references, one cannot show nonobviousness by attacking references individually). Here, the Examiner finds, and we agree, that the combination of Das and Alfano (i.e., not Alfano alone) renders the disputed limitation obvious. See Ans. 3–4 (citing Das ¶¶ 42–43, 98; Alfano ¶ 30); see also id. at 13; Final Act. 8–9. In particular, Das teaches or suggests “a storage area in which are stored connectivity parameter values of the terminal enabling the terminal to connect to the Appeal 2018-008808 Application 14/777,969 13 mobile server” with its disclosures of a data memory for storing information and access control list that identifies member access terminals. Das ¶¶ 42– 43, 98. Alfano discloses implementing a device management (DM) tree object that supports OMA DM protocol, wherein the management objects are organized as nodes and can be manipulated by a DM server using OMA DM protocol. Alfano ¶ 30. Thus, Alfano evidences that the recited techniques of organizing data in a tree structure that has hierarchized objects and is based on the OMA model, and manipulating objects using the OMA Device Management Protocol, were known in the art. Appellant cites no evidence to suggest that applying Alfano’s known technique to Das’s access point—to produce an access point configured to extract connectivity parameters organized in the storage area in a tree structure based on the OMA model—would have been uniquely challenging or anything more than a routine exercise of applying known techniques to achieve predictable results. See KSR, 550 U.S. at 416–17 (explaining as examples of combinations likely to be obvious “[t]he combination of familiar elements according to known methods . . . when it does no more than yield predictable results” and “the mere application of a known technique to a piece of prior art ready for the improvement”); Leapfrog Enters., 485 F.3d at 1162 (citing KSR, 550 U.S. at 418). And as discussed above, the Examiner’s proposed rationale to combine these teachings of Das and Alfano is adequate. Regarding Appellant’s assertion that the Examiner’s proposed combination of Das and Alfano “is born from the use of impermissible hindsight” (App. Br. 19) and “would require a complete redesign of Das’s system” (Id.), Appellant does not provide any persuasive evidence or reasoning to support this assertion. It is well settled that mere attorney Appeal 2018-008808 Application 14/777,969 14 arguments and conclusory statements, which are unsupported by factual evidence, are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (attorney argument is not evidence). And as discussed above, Appellant has not presented sufficient evidence that the proposed combination would have been “uniquely challenging or difficult for one of ordinary skill in the art.” Leapfrog Enters., 485 F.3d at 1162 (citing KSR, 550 U.S. at 420). Accordingly, this assertion is entitled to little probative weight. For the foregoing reasons, we are not persuaded the Examiner errs. DECISION We affirm the Examiner’s rejection of claims 1 and 4–16 under 35 U.S.C. § 103. 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 Copy with citationCopy as parenthetical citation