Telefonaktiebolaget LM Ericsson (publ)

Patent Trials and Appeals Board

Oct 8, 2021

2020004321 (P.T.A.B. Oct. 8, 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.
15/052,514 02/24/2016 Stefan Wager 1009-1724 / P39880 US3 6641
102721 7590 10/08/2021
Murphy, Bilak & Homiller/Ericsson
PO BOX 1959
Cary, NC 27572-1959
EXAMINER
PERUNGAVOOR, VENKATANARAY
ART UNIT PAPER NUMBER
2492
NOTIFICATION DATE DELIVERY MODE
10/08/2021 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):
official@mbhiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEFAN WAGER, NIKLAS JOHANSSON,
KARL NORRMAN, OUMER TEYEB, and
VESA VIRKKI

Appeal 2020-004321
Application 15/052,514
Technology Center 2400

Before MAHSHID D. SAADAT, ERIC S. FRAHM, and JOYCE CRAIG,
Administrative Patent Judges.

CRAIG, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1–10, which are all of the claims
pending in the application. See Final Act. 1. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42 (2019). Appellant identifies Telefonaktiebolaget LM Ericsson (publ)
as the real party in interest. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims are directed to techniques for handling security keys in
scenarios in which a mobile terminal is connected to multiple base stations
simultaneously. Spec. ¶ 2. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A method, in an anchor base station, for security key
generation for secured communications between a wireless
terminal and the anchor base station and between the wireless
terminal and an assisting base station, wherein the wireless
terminal is or is about to be dually connected to the anchor base
station and the assisting base station, and wherein an anchor
security key is known to the anchor base station and the wireless
terminal, the method comprising:
generating an assisting security key for the assisting base
station, based on the anchor base station key and a freshness
parameter;
sending, to the assisting base station, the generated
assisting security key, for use by the assisting base station in
encrypting data traffic sent to the wireless terminal, or in
generating one or more additional assisting security keys for
encrypting data traffic sent to the wireless terminal by the
assisting base station, while the wireless terminal is dually
connected to the anchor base station and the assisting base
station; and
using the anchor base station key, or a key derived from
the anchor base station key, for encrypting data sent to the
wireless terminal by the anchor base station while the wireless
terminal is dually connected to the anchor base station and the
assisting base station.

Appeal Br. 20 (Claims App.).
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Lee et al. (“Lee”)2 US 9,913,136 B2 Mar. 6, 2018
Zhang3 CN 103188663A July 3, 2013
REJECTION
Claims 1–10 stand rejected under 35 U.S.C. § 103 as unpatentable
over Lee and Zhang. Final Act. 2–5.
ANALYSIS
Translation of Foreign Reference
Appellant contends that the Examiner erred in rejecting claims 1–10
based on an inadequate machine translation of Zhang and illegible
handwritten notes thereon. See Appeal Br. 12–14; Reply Br. 2–6.
The Zhang reference was not published in English. Examiners may
rely on a machine translation of a foreign language document unless the
machine translation is not of sufficient quality to be adequate evidence of the
contents of the document. In the Final Office Action dated April 22, 2019,
the Examiner relied on a machine translation of Zhang. Final Act. 5. More
specifically, the Examiner relied on three handwritten notes made in the
right margin of the machine translation. See id.
On June 24, 2019, Appellant notified the Examiner that the quality of
the machine translation is poor and that two of the three margin annotations

2 Referred to as “LG Electronics” in the Final Office Action. See Final
Act. 3.
3 The Examiner referred to a machine translation of Zhang as “Huawei” in
the Final Office Action. See Final Act. 3. Here, we refer to the human
translation that the Examiner provided on September 16, 2019, as “Zhang.”
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made and relied on by the Examiner are illegible. Resp. to Final Act. 7–8.
Appellant provided a Google translation of the Zhang reference, as well as a
copy of counterpart application EP 3319352 A1, as evidence that the
machine translation does not accurately represent the contents of the foreign
reference. See id. Appellant requested that the Examiner provide a human
translation of Zhang and legible margin annotations. Id.
A request by an applicant for an examiner to obtain a human language
translation should be granted if the applicant provides evidence (e.g., a
translation inconsistent with the machine translation) showing the machine
translation does not accurately represent the document’s contents. See
Manual of Patent Examining Procedure (“MPEP”) § 2120 (II) (2019). On
September 16, 2019, the Examiner issued a Miscellaneous Action that was
accompanied by a human translation of Zhang. See Reply Br. 3.
We agree with Appellant that the human translation ordered by the
Examiner provides a clearer picture of how Zheng’s mobile communication
system operates than the machine translation does. Moreover, the
Examiner’s reliance on illegible handwritten margin notes in lieu of the
machine translation itself also potentially involved issues of hearsay, not
raised here.
We do not agree with Appellant, however, that the Examiner’s
reliance in the Final Action on the machine translation and margin notes
constitutes reversible error. During appeal, Appellant had the opportunity to
challenge the Examiner’s reliance on the human translation in the Answer as
a new ground of rejection through a petition to the Director under 37 C.F.R.
§ 1.181. MPEP § 1207.03(b) (9th ed. Rev. 07.2015 Nov. 2015). Having
reviewed the record, we do not find that Appellant has submitted a petition
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to the Director. The “[f]ailure of [an] appellant to timely file such a petition
will constitute a waiver of any arguments that a rejection must be designated
as a new ground of rejection.” 37 C.F.R. § 41.40(a). The Board lacks
authority to review a petitionable matter.
Appellant also had the opportunity to challenge the accuracy of the
human translation on appeal to the Board, but did not do so. Therefore,
Appellant does not dispute or challenge the Examiner’s characterization of
the Zhang reference, or the Board’s reliance upon the Examiner’s
characterization of the reference in the written opinion on appeal.
For these reasons, we review and consider as evidence the Examiner’s
findings in the Answer based on the human translation of Zhang, which was
requested by and provided to Appellant.
Obviousness Rejection of Claims 1–10
Based on Appellant’s arguments, we select claim 1 as representative
of claims 1, 3, 6, and 8. See 37 C.F.R. § 41.37(c)(1)(iv).
Appellant contends that Zhang fails to teach or suggest
an anchor node that generates an assisting security key to be used
by an assisting base station for encrypting traffic to a wireless
terminal while the wireless terminal is dually connected to the
anchor base station and the assisting base station, where that key
generation is based on a freshness parameter and the anchor base
station security key,
as claim 1 requires. Appeal Br. 15.
In the Answer, the Examiner found that Zhang teaches user equipment
connected to a primary base station, and receiving a message for adding a
secondary base station as a serving cell. Ans. 10 (citing Zhang ¶ 41). The
Examiner also found that Zhang teaches that key derivation is always carried
out according to the security context of the primary base station for use by
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added secondary base stations. Id. (citing Zhang ¶ 42). The Examiner found
that Zhang teaches user equipment connected to one or more cells serviced
by the secondary base station, as well as to the primary base station. Id. The
Examiner further found that the keys are used to ensure an encrypted
channel between the respective counterparts. Id. (citing Zhange ¶ 48). The
Examiner found that Lee also teaches a dual connection of user equipment
with a master eNB and a secondary eNB. Id. (citing Lee Fig. 8).
With regard to the assisting key being generated based on the anchor
base station key and a freshness parameter, the Examiner found that Zhang
teaches that the second base station key is derived from KeNB1, which is the
primary base station key in Zhang. Ans. 10 (citing Zhang ¶ 45). The
Examiner also found that Zhang teaches that the key has a freshness
parameter because each key derivation process includes PCI and EARFCN-
DL data that is unique to each base station. Id. at 10–11 (citing Zhang ¶¶ 43,
45).
In the Reply Brief, Appellant acknowledges that paragraph 41 of
Zhang describes a connectivity scenario involving a wireless device (a
“UE”) and primary and secondary base stations, but argues that paragraph
41 does not describe the primary base station as generating the key to be
used for the secondary base station. Reply Br. 7. Appellant also contends
that Zhang teaches a wireless device carrying out horizontal key derivation
across a succession of base stations, rather than describing “key generation
by an anchor base station for an assisting base station.” Reply Br. 7–8.
Regarding the Examiner’s finding that Zhang teaches a “freshness
parameter,” Appellant argues that paragraph 43 of Zheng “seems to describe
a secondary base station carrying out (security) key derivation, rather than
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describing key generation by an anchor base station for an assisting base
station.” Reply Br. 7. Appellant further argues that paragraph 45 of Zhang
“seems to describe a UE (wireless device) carrying out horizontal key
derivation across a succession of base stations, rather than describing key
generation by an anchor base station for an assisting base station.” Id. at 7–8.
We are not persuaded that the Examiner erred. Appellant has not
persuasively rebutted the Examiner’s findings because Appellant’s
arguments are largely conclusory. For example, Appellant argues that
“paragraph 43 of Zheng seems to describe a secondary base station carrying
out (security) key derivation, rather than describing key generation by an
anchor base station for an assisting base station.” Reply Br. 7. The Examiner
does not contend, nor is the Examiner required to demonstrate, that the
identical text of rejected claim 1 appears in the cited references. In re Bond,
910 F.2d 831, 832 (Fed. Cir. 1990). Furthermore, the Examiner relied on
paragraph 43 of Zhang as teaching that the key includes a freshness
parameter, as claim 1 requires. See Ans. 10–11.
The Examiner relied on paragraph 42 of Zhang as teaching that key
derivation is always carried out according to the security context of the
primary base station for use by added secondary base stations. See Ans. 10
(citing Zhang ¶ 42). We observe that paragraph 42 of Zhang describes that
“the key is at the base station level,” and “when the cell added for the UE
and controlled by the secondary base station (including one or more
secondary base stations) is a serving cell, key derivation is always carried
out according to the security context of the primary base station of the UE.”
Zhang ¶ 42. The Examiner’s findings are bolstered by Zhang’s teaching that
“[t]he primary base station generates at least one key corresponding to the
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serving cell according to a security context of the primary base station and
the identifying information of the serving cell.” Zhang ¶ 10. Appellant did
not present arguments directed to, and therefore has not persuasively
rebutted, the Examiner’s findings based on paragraph 42 of Zhang.
In another example, Appellant argues that “paragraph 45 seems to
describe a UE (wireless device) carrying out horizontal key derivation across
a succession of base stations, rather than describing key generation by an
anchor base station for an assisting base station.” Reply Br. 7–8. The
Examiner relied on Zhang’s paragraph 45 as teaching that the second base
station key is derived from KeNB1, which is the primary base station key in
Zhang. Ans. 7. We again note that the Examiner relied on paragraph 42 of
Zhang for the teaching disputed by Appellant. In other words, Appellant
does not persuasively attack the substance of the Examiner’s findings and
explanations, but rather merely recites the claim elements and makes
conclusory assertions that the claim elements are not found in the prior art.
See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011).
For these reasons, we are not persuaded that the Examiner erred in
finding that the combination of Zhang and Lee teaches or suggests the
limitation “generating an assisting security key for the assisting base station,
based on the anchor base station key and a freshness parameter,” as recited
in claim 1.
Accordingly, we sustain the Examiner’s obviousness rejection of
independent claim 1, as well as claims 3, 6, and 8 grouped therewith.
With regard to independent claims 4 and 9, Appellant argues that the
Examiner relied on Lee as teaching all limitations in the claims. Appeal Br.
16–17. The Examiner explained in the Answer that “the rejection basis of
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claim 1 applies to claim 4 and claim 9 also,” particularly Zhang’s teachings
as set forth in the rejection of claim 1. Ans. 12. We are not persuaded that
the Examiner erred in rejecting claims 4 and 9, especially in light of the
Examiner’s clarification in the Answer.
Appellant further argues that claims 2, 5, 7, and 10 are allowable
because the Examiner erred in finding that paragraphs 41, 44, and 45 of
Zhang teach or suggest the freshness-based key generation underlying the
key-related limitations in claims 2 and 7 for the same reasons discussed
above for claims 1 and 6. Appeal Br. 19.
For the reasons discussed above in the context of claim 1, we are not
persuaded that the Examiner erred in rejecting claims 2, 5, 7, and 10.
Accordingly, we sustain the Examiner’s obviousness rejection of claims 2, 5,
7, and 10.
In summary, as addressed above, we are not persuaded that the
Examiner erred in rejecting independent claims 1, 4, 6, and 9, or dependent
claims 2, 3, 5, 7, 8, and 10. Accordingly, we sustain the Examiner’s § 103
rejection of claims 1–10.
CONCLUSION
We affirm the Examiner’s decision rejecting claims 1–10.
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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–10 103(a) Lee, Zhang 1–10
RESPONSE
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