2019005932 (P.T.A.B. May. 26, 2021)

SUBIL ABRAHAM et al.

Patent Trials and Appeals BoardMay 26, 2021

2019005932 (P.T.A.B. May. 26, 2021)

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. 12/893,350 09/29/2010 SUBIL M. ABRAHAM CHA920100027US1_8134-0128 3951 112978 7590 05/26/2021 Cuenot, Forsythe & Kim, LLC 20283 State Road 7, Suite 300 Boca Raton, FL 33498 EXAMINER TSVEY, GENNADIY ART UNIT PAPER NUMBER 2648 NOTIFICATION DATE DELIVERY MODE 05/26/2021 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): ibmptomail@iplawpro.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SUBIL M. ABRAHAM, VINOD A. BIJLANI, and MATHEWS THOMAS ___________ Appeal 2019-005932 Application 12/893,350 Technology Center 2600 ____________ Before CARL W. WHITEHEAD JR., ERIC B. CHEN, and DAVID J. CUTITTA II, Administrative Patent Judges. CHEN, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appeal 2019-005932 Application 12/893,350 2 Appellant requests rehearing under 37 C.F.R. § 41.52 of our Decision on Appeal entered February 10, 2021 (“Decision” or “Dec.”), in which we affirmed the Examiner’s non-final rejection of claims 26, 28–32, 34–38, and 40–43. The Request for Rehearing is denied. OPINION Independent Claim 26 With respect to the limitation “the routing the first portion includes simultaneous routing portions of the first portion respectively to the first network interface and another network interface different than the first network interface,” Appellant argues the following: The Examiner’s analysis regarding mapping/selecting is relevant as Appellants’ main argument, presented both on page 10 of the Appeal Brief and on page 3 of the Reply Brief, is that “[m]apping is not the same as simultaneous routing” (emphasis in original). Nowhere has the Board addressed the argued difference between mapping/selecting (as taught by Wietfeldt) versus routing (as claimed). (Req. Reh’g 2–3 (emphasis omitted).) There has never been a question as to what paragraph [0069] Wietfeldt specifically teaches. Wietfeldt teaches mapping/selecting radios to be used with “one or more active applications.” Appellants have not questioned that particular finding. Rather, the issue at hand is one of claim construction of what is meant by “routing.” As raised multiple times by Appellants during the appeal process, simultaneous mapping is not simultaneous routing, and the Examiner has not presented any argument (i.e., thereby presenting at least a bare minimum prima facie case) explaining why one is identical to the other. (Id. at 4 (footnotes and emphases omitted).) Appeal 2019-005932 Application 12/893,350 3 There is no evidence to support the Examiner’s position that simultaneous mapping/selecting is the same as simultaneous routing while evidence exists in the written record to support Appellants’ previously-argued position that these are not the same. (Id. at 5 (emphasis omitted).) Contrary to Appellant’s arguments, neither the Examiner nor our Decision relies solely on the term “selecting” from Wietfeldt for teaching the limitation “routing.” Pages 4–5 of our Decision states the following: Wietfeldt explains that “[w]ireless device 110 may support L applications 224a through 224l, which may provide different communication services such as voice, packet data, video share, video telephony, email, broadcast reception, instant messaging, push-to-talk, etc.” (¶ 26.) Wietfeldt further explains that “[t]he R radios 290 may be for 3GPP2 cellular networks (e.g., CDMA IX, EVDO, etc.), 3GPP cellular networks (e.g., GSM, GPRS, EDGE, WCDMA/UMTS, LTE, etc.), WLANs, WiMAX networks, GPS, Bluetooth, broadcast networks, Near Field Communication (NFC), Radio Frequency Identification (RFID), etc.” (¶ 27.) Figure 6A of Wietfeldt illustrates radio selection by connection manager 240, such that “[r]adio selection algorithm 610 may then select one or more best radios for one or more active applications based on the operating rules.” (¶ 69.) Because Wietfeldt explains that radio selection algorithm 610 selects one or more radios for one or more active applications (e.g., two radios for one application), Wietfeldt teaches the limitation “the routing the first portion includes simultaneous routing portions of the first portion respectively to the first network interface and another network interface different than the first network interface.” (Dec. 4–5 (emphases added).) As discussed in our Decision, Wietfeldt explains that “one or more radios” (e.g., radios 290) are selected for “one or more active applications” by connection manager 24, such that radios 290 provide communications services (e.g., voice, packet data, video share, Appeal 2019-005932 Application 12/893,350 4 video telephony, email, broadcast reception, or instant messaging) via a network. Thus, Wietfeldt teaches the limitation “the routing the first portion includes simultaneous routing portions of the first portion respectively to the first network interface and another network interface different than the first network interface.” Dependent Claim 30 Appellant argues the following: Appellants respectfully submit that the Board has improperly equated Appellants’ arguments to the fact pattern described within In re Lovin . . . . The Federal Circuit also noted that in the Examiner’s Answer, the Examiner cited “the column and line number where the disputed elements could be found in the prior art” and “Lovin . . . declined to submit a reply to the examiner’s answer.” These facts identified by the Federal Circuit are not comparable to the facts of the present application. (Req. Reh’g 6 (citation omitted).) However, Appellant has mischaracterized our position with respect to In re Lovin as stated in our Decision by omitting the explanatory parenthetical with respect to 37 C.F.R. § 41.37. Instead, page 7 of our Decision states the following: Thus, Appellant merely summarizes Gupta with a conclusory statement that Gupta does not teach the features of dependent claim 30, and accordingly, Appellant has not presented any substantive arguments with respect to this claim. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Appeal 2019-005932 Application 12/893,350 5 (Dec. 7.) Accordingly, any such arguments with respect to dependent claim 30 have been waived. See 37 C.F.R. § 41.37(c)(1)(iv). CONCLUSION The Request for Rehearing has been considered and is denied. Outcome of Decision on Rehearing: Claims 35 U.S.C. § Reference(s)/Basis Denied Granted 26, 28, 30, 32, 34, 36, 38, 40, 42 103(a) Gupta, Wietfeldt 26, 28, 30, 32, 34, 36, 38, 40, 42 29, 35, 41 103(a) Gupta, Wietfeldt, Babbar 29, 35, 41 31, 37, 43 103(a) Gupta, Wietfeldt, Linden, Eleftheriadis, Kruglick 31, 37, 43 Overall Outcome 26, 28–32, 34–38, 40–43 Final Outcome of Appeal after Rehearing: Claims 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 26, 28, 30, 32, 34, 36, 38, 40, 42 103(a) Gupta, Wietfeldt 26, 28, 30, 32, 34, 36, 38, 40, 42 29, 35, 41 103(a) Gupta, Wietfeldt, Babbar 29, 35, 41 31, 37, 43 103(a) Gupta, Wietfeldt, Linden, Eleftheriadis, Kruglick 31, 37, 43 Overall Outcome 26, 28–32, 34–38, 40– 43 Appeal 2019-005932 Application 12/893,350 6 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). DENIED