Ex Parte DuDownload PDFPatent Trial and Appeal BoardSep 15, 201411176166 (P.T.A.B. Sep. 15, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE _____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD _____________ Ex parte XIAOHUI DU _____________ Appeal 2011-007935 Application 11/176,166 Technology Center 2600 ______________ Before ROBERT E. NAPPI, KEN B. BARRETT, and BETH Z. SHAW, Administrative Patent Judges. NAPPI, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection of claims 1 through 25. Claims 26 and 27 have been indicated as containing allowable subject matter.1 We affirm-in-part. INVENTION The invention is directed to a server and related method for determining usage on a wireless network. See Abstract of Appellant’s 1 See page 49 of the Examiner’s Answer. Appeal 2011-007935 Application 11/176,166 2 Specification. Claims 1 and 21 are illustrative of the invention and reproduced below: 1. A server for determining usage on a wireless network, comprising: a connection detector operative to detect a connection from a mobile station; a classifier operatively connected with the connection detector and operative to determine a type of the detected connection, wherein the type of the detected connection is determined directly from a plurality of types of connections from the mobile station, or wherein the type of the detected connection is determined based on a destination Internet Protocol (IP) address of one or more packets received over the detected connection; and a usage tracker operatively connected with the connection classifier and operative to determine usage for each detected connection based on the connection type, wherein the server corresponds to a Packet Data Serving Node (PDSN). 21. A computer-readable medium storing instructions which, when executed by a processor, cause the processor to determine a connection type responsive to detection of a connection with a mobile station at a Packet Data Serving Node (PDSN), wherein the type of the detected connection is determined directly from a plurality of types of connections from the mobile station, or wherein the type of the detected connection is determined based on a destination Internet Protocol (IP) address of one or more packets received over the detected connection, and capture usage information for each established connection by connection type. Appeal 2011-007935 Application 11/176,166 3 REJECTIONS AT ISSUE The Examiner has rejected claims 1 through 8 and 13 through 25 under 35 U.S.C. § 103(a) as unpatentable over Lee (US 2004/0076143 A1, pub. Apr. 22, 2004) and Sen (US 6,765,909 B1, iss. Jul. 20, 2004). Answer 4–42.2 The Examiner has rejected claims 9 through 12 under 35 U.S.C. § 103(a) as unpatentable over Herrod (US 2003/0065784 A1, pub. Apr. 3, 2003), Lee, and Sen. Answer 42–50. ISSUES Rejection of claims 1 through 8 and 13 through 25 under 35 U.S.C. § 103(a) Appellant argues on pages 9 and 17 of the Appeal Brief that the Examiner’s rejection of claims 1 through 8 and 13 through 25, under 35 U.S.C. § 103(a) is in error. These arguments present us with two issues: a) Did the Examiner err in finding the combination of Lee and Sen teaches a server for determining usage on a wireless network where the server corresponds to a Packet Data Serving node? b) Did the Examiner err in finding the combination of Lee and Sen teaches using a destination IP address in the determination of packet classifications? 2 Throughout this opinion we refer to the Appeal Brief filed July 19, 2010, Reply Brief filed January 26, 2011, and the Examiner’s Answer mailed on November 26, 2010. Appeal 2011-007935 Application 11/176,166 4 Rejection of claims 9 through 12 under 35 U.S.C. § 103(a) Appellant argues on pages 17 through 18 of the Brief that the rejection of claims 9 through 12 is in error. Appellant’s arguments present us with the issue: c) Did the Examiner err in finding the combination of Herrold, Lee, and Sen teaches assigning an application to a particular connection or a destination IP address as recited in independent claim 9? ANALYSIS We have reviewed Appellant’s arguments in the Briefs, the Examiner’s rejection, and the Examiner’s response to the Appellant’s arguments. We agree with Appellant’s conclusion that the Examiner erred in rejecting claims 1 through 12 and 23 through 25 under 35 U.S.C. § 103(a) but disagree with Appellant’s conclusion the Examiner erred in rejecting claims 13 through 22 under 35 U.S.C. § 103(a). First Issue Appellant provides two arguments directed to the first issue. The first argument, on pages 9 through 12 of the Appeal Brief, is directed to the teachings of Lee. Specifically, Appellant argues Lee teaches the packet data analyzing device (IUX) item 330 is a separate device from the PDSN item 310 and as such, the reference does not teach the server as claimed. Appeal Br. 11. The second argument, on pages 12 through 14 of the Appeal Brief, is directed to the teachings of Sen. This argument asserts the teachings of Sen, which the Examiner relies upon, discuss a data packet classification that is performed at a lower level other than at the PDSN. Appeal Br. 14. Appeal 2011-007935 Application 11/176,166 5 The Examiner, in response to Appellant’s arguments, states the combination of Lee’s PDSN, Mirroring Switch, and IUX acts as a gateway to connect the mobile subscriber to the internet service and thus meets the claimed PDSN. Answer 52–53. We disagree with the Examiner’s finding this meets the limitation argued by Appellant. While the three elements together work in conjunction to facilitate the mobile device communicating with the internet, the Examiner has not presented sufficient evidence to show that the PDSN and the determination of usage are performed on one device, a server. We note, in presenting the arguments directed to the first issue, Appellant has grouped claims 1 through 8 and 13 through 25, and used claim 1 as representative of the group. While independent claim 1 and independent claims 23, 24, and 25 recite limitations directed to a server for determining usage on a wireless network and that the server corresponds to a Packet Data Serving node, independent claims 13, 17, 21 and 22 do not. Thus, we consider the claims in two groups, the first group being of claims 1 through 8 and 12 through 25, which contain limitations similar to those discussed in the first issue, and a second group consisting of claims 13 through 22, which do not recite limitations similar to those discussed in the first issue. We select claim 21as representative of the second group. As each of the claims in the first group, claims 1 through 8, and 23 through 25, are commensurate in scope with the arguments presented in the first issue, we will not sustain the Examiner’s rejection for the reasons discussed in the first issue. However, as the arguments directed to the first issue are not commensurate in scope with the claims in the second group, the first issue is inapplicable to the second group of claims (13 through 22), which are discussed in more detail below. Appeal 2011-007935 Application 11/176,166 6 Second issue Appellant’s arguments directed to the second issue center around Sen teaching classifying packets based upon TCP port numbers and not IP addresses as claimed. Appeal Br. 14–17. We concur with Appellant’s statement on page 16 of the Appeal Brief; Sen teaches classifying connection type based upon the TCP port. However, we consider this to meet the limitation of representative claim 21. Claim 21 recites “the detected connection is determined directly from a plurality of types of connections from the mobile station, or wherein the type of the detected connection is determined based on a destination Internet Protocol (IP) address of one or more packets received over the detected connection.†Thus, the representative claim recites in the alternative two manners of determining the connection: 1) directly from the mobile station (which appears to be met by the classification of TCP port), or 2) based upon the destination IP address. Further, we note, as identified by the Examiner on pages 5 and 54, that Lee teaches determining the usage based on IP address. See Lee, paras. 27–29. Thus, Appellant’s arguments directed to the second issue have not persuaded us of error in representative claim 21. Accordingly, we sustain the Examiner’s rejection of claims 13 through 20 and 22, grouped with claim 21. Third issue Appellant’s arguments directed to the third issue center on Sen not teaching assigning an application to a particular port or a destination IP address and that neither Harrod nor Lee teach the feature either. Appeal Br. 17–18. The Examiner responds on page 55 through 56 of the Answer, Appeal 2011-007935 Application 11/176,166 7 finding that Herrod teaches a system that allows a user to enter data for use in an application and configuring software. Further, the Examiner finds that Lee teaches determining type of packet usage and Sen teaches the claimed steps in detail. Answer 55. We have reviewed the evidence cited by the Examiner and do not find that the cited sections of Herrod teach assigning a connection or IP address to an application. Further, we do not find that Sen or Lee teaches assigning a connection as claimed. Accordingly, we will not sustain the Examiner’s rejection of claims 9 through 12. DECISION We do not sustain the Examiner’s rejection of claims 1 through 12, and 23 through 25. We sustain the Examiner’s rejection of claims 13 through 22. The decision of the Examiner to reject claims 1 through 25 is affirmed-in-part. AFFIRMED-IN-PART mls Copy with citationCopy as parenthetical citation