Ex Parte Keller et alDownload PDFPatent Trial and Appeal BoardDec 21, 201613382187 (P.T.A.B. Dec. 21, 2016) 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. 4015-7945/P29271-US2 4495 EXAMINER MILLS, DONALD L ART UNIT PAPER NUMBER 2462 MAIL DATE DELIVERY MODE 13/382,187 03/14/2012 24112 7590 12/21/2016 COATS & BENNETT, PLLC 1400 Crescent Green, Suite 300 Cary, NC 27518 Ralf Keller 12/21/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RALF KELLER, MAGNUS HALLENSTAL, FREDRIK LINDHOLM, and MAGNUS OLSSON Appeal 2016-001927 Application 13/382,187 Technology Center 2400 Before JOSEPH L. DIXON, LINZY T. McCARTNEY, and TERRENCE W. McMILLIN, Administrative Patent Judges. McCARTNEY, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 26—28 and 30-48. The Examiner has objected to claim 29. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2016-001927 Application 13/382,187 STATEMENT OF THE CASE The present patent application concerns “methods and devices for improving session continuity for a terminal in a serving communication network distinct from a home communication network of the terminal.” Spec. 1:7—10. Claim 26 illustrates the claimed subject matter: 26. A method for improving session continuity for a terminal in a serving communication network distinct from a home communication network of the terminal, wherein the serving communication network comprises a session transfer node for transferring sessions each comprising signaling data and media data from a first access network of the serving communication network to a second access network of the serving communication network, the method comprising: routing signaling data of a session of the terminal between the first access network and the home communication network via the session transfer node; receiving a session transfer request requesting the transfer of the session from the first access network to the second access network for the terminal; transferring the session from the first access network to the second access network; routing the signaling data of the session of the terminal between the second access network and the home communication network via the session transfer node. REJECTIONS Claims 26—28 and 30-48 stand rejected under 35 U.S.C. § 103(a) as unpatentable over 3rd Generation Partnership Project, Technical Specification Group Services and System Aspects, 3GPP TR 23.826 VI. 1.0 (2009-01), Feasibility Study on Voice Call Continuity Support for Emergency Calls (Release 9) (“Dl”) and 3rd Generation Partnership Project, 2 Appeal 2016-001927 Application 13/382,187 Technical Specification Groups Services and System Aspects, 3GPP TS 23.206 V7.5.0 (2007-12), Voice Call Continuity (VCC) between Circuit Switched (CS) and IP Multimedia Subsystem (IMS) Stage 2 (Release 7) (“D3”).1 ANALYSIS We have reviewed the Examiner’s rejection in light of Appellants’ arguments, and we disagree with Appellants that the Examiner erred. To the extent consistent with the analysis below, we adopt the Examiner’s findings, reasoning, and conclusions set forth in the Final Rejection and Answer. Appellants have waived arguments Appellants failed to timely raise or properly develop. See 37 C.F.R. §§ 41.37(c)(l)(iv), 41.41(b)(2); In re Lovin, 652 F.3d 1349 (Fed. Cir. 2011). Claim 262 Appellants assert it would not have been obvious to combine D1 and D3 because “combining D1 and D3 would result in transferring emergency calls in D1 between a visited CS [Circuit Switched] network and a home IMS [IP Multimedia Subsystem] network in either direction, which is expressly disfavored and not allowed by Dl.” App. Br. 10-11. Therefore, according to Appellants, “an ordinary person in the art would not combine D3 and Dl as suggested by the Examiner to transfer emergency calls in 1 Appellants and the Examiner refer to these references as “Dl” and “D3,” respectively. See, e.g., Final Act. 2; App. Br. 9. To avoid confusion, we also adopt this naming convention. 2 Appellants argue independent claims 26, 32, 34, and 42-48 together. See App. Br. 10-13. As permitted by our rules, we select claim 26 as representative of these claims and decide the appeal as to claims 26, 32, 34, and 42-48 on the basis of claim 26. See 37 C.F.R. § 41.37(c)(l)(iv). 3 Appeal 2016-001927 Application 13/382,187 either direction.” Id. at 11. In light of this, Appellants argue the Examiner’s combination of D1 and D3 cannot teach or suggest the subject matter recited in claim 26 because claim 26 requires that “signaling data of the session is routed between the access network of the serving communication network and the home communication network.” Id. Appellants assert “the reasonable meaning of ‘between’ means the signaling data of the session is routed in either direction between the home network and the serving network.” Id. (citing Spec. Fig. 2b). We find Appellants’ arguments unpersuasive. Although D1 includes statements that indicate CS-to-IMS transfers are generally “disfavored and not allowed” as asserted by Appellants,3 D1 discloses alternatives that explicitly permit the transfer of emergency calls from CS to IMS. For example, sections 6.1.4.5, 6.2.4.5, 6.2.4.6, and 6.3.4.4 of D1 each describe alternative architectures that allow the domain transfer of emergency calls from CS to IMS. See D1 35—37, 51—54, 63—65. See also id. at 9 (“This clause presents an architectural alternative for enablement of Domain Transfers for Emergency calls between CS domain and IMS, which may be invoked multiple times in either direction while the user is engaged in an Emergency Calls made by authorized users.” (emphasis added)). Indeed, 3 Not all of the statements cited by Appellants clearly indicate that CS-to- IMS transfers are disallowed or disfavored. For example, Appellants note Dl’s “Evaluation” section assumes “No support of transitioning of emergency calls from CS to IMS.” App. Br. 9 (quoting D1 74) (emphasis omitted). But this section explains that such assumptions are used “to agree on a solution in the Release 9 timeframe,” which suggests that the assumptions merely facilitate decision making in the desired timeframe, not that CS-to-IMS transfers are generally disfavored. Moreover, this section discloses that at least one alternative architecture uses different assessment criteria. See D1 74. 4 Appeal 2016-001927 Application 13/382,187 Appellants acknowledge that D1 discloses such architectures. See App. Br. 10 (“Thus, although D1 discusses some solutions of transitioning of emergency calls from CS to IMS, the feasibility study clearly indicates that transitioning of emergency calls from CS to IMS is disfavored and not allowed.” (italics added)). Moreover, D1 discloses “[i]t is intended to develop capabilities that allow the domain transfer of emergency calls in both the CS to IMS and IMS to CS directions.'’'’ D1. 7 (emphasis added). In light of these disclosures, among others, one of skill in the art would understand that while D1 may discourage CS-to-IMS transfers in certain situations, D1 does not discourage or preclude such transfers in all situations. Moreover, Appellants’ arguments assume that one of ordinary skill in the art would have applied Dl’s and D3 ’s teachings only in the context of emergency calls. Although D1 concerns voice call continuity for emergency calls, see Dll, Appellants have provided no persuasive evidence or reasoning to support the assumption that one of ordinary skill in the art could have applied Dl’s and D3’s teachings only in this context. As found by the Examiner, Dl’s and D3’s teachings relate to both emergency and non emergency calls, and nothing in the claims limits the recited method to emergency calls. See Ans. 16—17. Because “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007), we see no reason that one of ordinary skill in the art would have applied the disclosures of the cited references only to emergency calls. Appellants’ arguments are unpersuasive for an additional reason: The term “between” is not limited to “signaling data of the session is routed in 5 Appeal 2016-001927 Application 13/382,187 either direction between the home network and the serving network” as argued by Appellants. App. Br. 11. Although Appellants contend this is “the reasonable meaning” of the term, id., we must give claim terms their broadest reasonable interpretation in light of the supporting specification, not simply their “reasonable meaning.” See In re Am. Acad, of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (“During examination, ‘claims ... are to be given their broadest reasonable interpretation consistent with the specification’ . . . .” (quoting In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990)). Here, although Appellants point to an example in the specification that indicates signaling data flows in either direction, App. Br. 11 (citing Spec. Fig. 2b), Appellants have not identified anything in the claims or the specification that defines “between” in the manner argued by Appellants. The plain and ordinary meaning of “between” includes “in or through the space that separate (two things),” Elekta Instrument S.A. v. 0. U.R. Sci. Int 7, Inc., 214 F.3d 1302, 1307 (Fed. Cir. 2000) (citing Webster’s New World Dictionary 947 (3d. ed. 1988)), which encompass data traveling in a single direction from one point to another. Appellants next contend “combining D1 and D3 would result in transferring emergency calls in D1 between two different networks . . . which is expressly prohibited by D1.” App. Br. 11. According to Appellants, D1 makes clear that domain transfer must be in the same network because D1 (1) shows the CS and IMS domains in the same “visited network” and (2) discloses transferring calls only when the networks “belong to the same network (operator).” Id. (emphasis omitted). However, Appellants assert that in D3 the CS and IMS networks are in two different networks. Id. at 12. Therefore, in Appellants’ view, D3’s teachings cannot 6 Appeal 2016-001927 Application 13/382,187 be implemented in Dl, and the combination of D1 and D3 would not result in “a serving communication network distinct from a home communication network” as required by claim 26. Id. We find Appellants’ arguments unpersuasive. Claim 26 simply requires that these networks are “distinct.” See, e.g., App. Br. 15 (“a serving communication network distinct from a home communication network”). As illustrated by numerous figures in Dl, the CS and IMS domains are “distinct” in that they are separate from one another. See, e.g., Dl 12 (Figures 6.1.1.3.2-1, 6.1.1.3.2-2). Appellants have not provided any persuasive evidence or reasoning to support the argument that CS and IMS domains are not distinct “networks” within the meaning of the claims. In any event, Appellants’ arguments assume that Dl’s teachings are limited to the emergency call context. As noted above, Appellants have not provided adequate support for this assumption. Appellants’ arguments also assume that because certain figures in Dl show the CS and IMS domains in the same “visited network” that Dl prohibits placing the CS and IMS domains in different networks. But the cited figures do not explicitly preclude such an arrangement, and the other statements cited by Appellants simply indicate that networks must have the same operator to transfer emergency calls. For example, Dl states “[i]t is suggested that VCC [Voice Call Continuity] for emergency calls are attempted only when the UE can identify that the source and target networks belong to the same network (operator).” Dl 9 (emphasis added). Other parts of Dl support this reading. For example, Dl discloses “VCC for emergency shall only be attempted for intra-operator transitions {where IMS and CS core operators are the same). Dl 8 (emphases added); see also id. at 74 (same). Dl also discloses that a 7 Appeal 2016-001927 Application 13/382,187 domain transfer procedure “may have to be restricted to domain transfer between networks belonging to the same operatorId. at 49 (emphasis added); see also id. at 52 (same). As found by the Examiner—and not persuasively challenged by Appellants—a network operator can manage a number of different networks. See Ans. 16; see also Spec. 1 (“A home communication network covers typically a certain region . . . when a terminal moves out of the coverage of the user’s home communication network it has access [to] a serving communication network of the same operator . . . .” (emphasis added)). Appellants have not shown that placing Dl’s CS and IMS domains in different networks and transferring calls between the domains “would have been “uniquely challenging or difficult for one of ordinary skill in the art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). And, as discussed above, Appellants have not directed us to anything in the cited art that precludes such an arrangement or limits the applicability of D1 ’s teachings to emergency calls. Finally, even assuming D1 does preclude inter-network transfers of emergency calls, Appellants simply assert that D3’s teachings cannot be implemented in Dl’s system because D3 includes examples in which the CS and IMS networks are two different networks. See App. Br. 12. Appellants have not provided any persuasive evidence or reasoning to support this assertion. Simply asserting that D3 ’s teachings cannot be implemented in Dl’s system does not make it so. Accordingly, we find this argument unpersuasive. Appellants also argue that D3 ’s domain transfer cannot be used for emergency calls. App. Br. 12. Appellants point out that D1 states that D3 8 Appeal 2016-001927 Application 13/382,187 “specifically excludes the capability of allowing emergency calls to be subject to domain transfer.” Id. (quoting D1 5) (emphasis omitted). We find Appellants’ arguments unpersuasive. D1 states the following regarding D3: “[F]or a variety of reasons, the TS [that is, D3] specifically excludes the capability of allowing emergency calls to be subject to domain transfer. This TR documents alternatives for how to provide such voice call continuity between the CS Domain and IP-CANs for emergency calls.” D1 5. D1 also explains that “[ejxisting solutions developed by the 3GPP [the group that authored both D1 and D3]. . . should be reused as much as possible.” Id. at 6. Thus, contrary to Appellants’ arguments, D1 suggests using elements of D3 to transfer emergency calls. In any event, as noted above, one of ordinary skill in the art would not be confined to using Dl’s and D3 ’s teachings only on emergency calls. Finally, Appellants argue “there is no legally sufficient motivation for one of ordinary skill in the art to combine” the teachings of D1 and D3. App. Br. 13. Appellants assert that “[i]t is well known that an emergency call is a service only performed in a visited (serving) communication network without involvement of the home communication network during session establishment and session transfer.” Id. According to Appellants [i]n practice, one of ordinary skill in the art would never consider modifying the emergency call teachings of D1 to transfer emergency calls from a visited communication network to a different home communication network, particularly because when initiating an emergency call, the user requires assistance from the current visited communication network immediately, for example from a police car or a fire brigade nearby. Id. 9 Appeal 2016-001927 Application 13/382,187 We find Appellants’ arguments unpersuasive. Appellants have not provided any persuasive evidence to support their assertion that certain facts are well known, and attorney argument is not a substitute for evidence, see In re Schulze, 346 F.2d 600, 602 (CCPA 1965); In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Moreover, Appellants’ arguments rest on the assumptions that (1) the relevant networks cannot be in the same visiting network and remain distinct and (2) the combination must be used for emergency calls. For the reasons discussed above, we disagree with both assumptions. For the reasons, we affirm the Examiner’s rejection of claim 26. Because Appellants have not presented separate, persuasive patentability arguments for claims 27, 28, and 30-48, we also sustain the rejections of these claims. DECISION We affirm the rejection of claims 27, 28, and 30-48. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 10 Copy with citationCopy as parenthetical citation