Ex Parte Rogers et al

Board of Patent Appeals and Interferences

May 31, 2007

10035464 (B.P.A.I. May. 31, 2007)

The opinion in support of the decision being entered today was not written
for publication in a law journal and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RON W. ROGERS and STEPHEN J. CHASKO
____________

Appeal 2006-3074
Application 10/035,464
Technology Center 3600
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Decided: May 31, 2007
____________

Before TERRY J. OWENS, ANITA PELLMAN GROSS, and ANTON W.
FETTING, Administrative Patent Judges.

GROSS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Rogers and Chasko (Appellants) appeal under 35 U.S.C. § 134 from
the Examiner’s final rejection of claims 1 through 25, which are all of the
claims pending in this application.
Appellants’ invention relates to a system and method for securing
transactional data transmitted over a wireless network in a store. The
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Application 10/035,464

method includes monitoring the communication activity at a store host and
activating a bogus message generator at a wireless terminal in the store
during periods of low activity received at the store host. Claim 1 is
illustrative of the claimed invention, and it reads as follows:
1. A system for securing transactional data transmitted over a wireless
network in a store comprising:

a bogus message generator coupled to a wireless terminal in a store,
the bogus message generator for generating bogus messages to be
transmitted by the wireless terminal;

a store host computer for receiving transactional and bogus messages
from the wireless terminal; and

a communication parameter regulator for measuring a communication
parameter on the store host computer, the communication parameter
regulator operable to activate the bogus message generator so that the bogus
message generator is activated in accordance with the measured
communication parameter.

The prior art references of record relied upon by the Examiner in
rejecting the appealed claims are:
Cory US 4,262,359 Apr. 14, 1981
Nordenstam WO 00/46959 Aug. 10, 2000
Munger US 6,502,135 B1 Dec. 31, 2002
(filed Feb. 15, 2000)

Claims 1 through 20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Nordenstam in view of Cory and Munger.
We refer to the Examiner’s Answer (mailed April 21, 2006) and to
Appellants’ Brief (filed January 9, 2006) and Reply Brief (filed May 25,
2006) for the respective arguments.

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SUMMARY OF DECISION
As a consequence of our review, we will affirm the obviousness
rejection of claims 1 through 4, 6 through 17, and 20, but reverse the
obviousness rejection of claims 5, 18, and 19.

OPINION
At pages 5-8 of the Brief, Appellants contend that the restriction
requirement was improper. However, restriction requirements are
petitionable to the Director of the US Patent and Trademark Office, not
appealable to the Board of Patent Appeals and Interferences. See 37 C.F.R.
§ 1.44 and M.P.E.P. §§ 1002.02(c)(2) and 1201. Therefore, this matter is
not before us.
In addition, we note that the Examiner (Answer 5) withdrew the
rejections under 35 U.S.C. §§ 101 and 112, second paragraph. Thus, the
arguments at pages 9-14 of the Brief, directed to those rejections, are
considered moot.
Regarding claims 1 through 3, 6, and 7, Appellants contend (Br. 15-
18) that there is no motivation to combine Nordenstam, Cory, and Munger.
Specifically, Appellants contend (Br. 15-17) that Nordenstam teaches using
Bluetooth, wherein the terminals are slaves to a host, which acts as the
master, and the terminals can only transmit data at the specific times
established by the host, not continuously. Cory, on the other hand,
continuously transmits data. Therefore, according to Appellants (Br. 18), to
incorporate the teachings of Cory, Nordenstam would have to be redesigned
in a manner that would change the principle of operation of Nordenstam’s
system. However, Nordenstam discloses (Nordenstam 13:6-16) that
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Bluetooth is merely an example of a wireless system that can be used, and
that “any wireless LAN that fulfils [certain] . . . requirements may be used
by the invention.” Specifically, the terminals should be able to establish
(with a delay of at most a few seconds) a connection, which may carry
protocols involved in a session.
Appellants further contend (Br. 18-20) that Cory’s continuous
transmission of data differs from the claimed invention of transmitting a
bogus message in response to conditions sensed by a parameter regulator at
the host computer. Also, Appellants contend (Br. 20-22) that although
Munger discloses monitoring communication traffic and adding dummy data
to communications from a terminal based on the detected traffic, the
monitoring occurs at the terminal from which the dummy data is sent, not at
the host computer. Accordingly, Appellants contend (Br. 20) that any
combination of Nordenstam, Cory, and Munger fails to teach or suggest the
claimed parameter regulator at the host computer. Thus, the first issue is
whether monitoring a communication parameter at the store host computer
and sending dummy data from a terminal to the store host computer in
response to the measured parameter is taught or suggested by the
combination of Nordenstam, Cory, and Munger.
There is no dispute that Nordenstam discloses a store host computer, a
wireless network, and wireless terminals in a store in communication with
the store host computer. Further, Appellants have not argued the
obviousness of including traffic monitoring and dummy messages in the
system of Nordenstam to defeat traffic analysis. Munger teaches (Munger,
col. 4, ll. 35-42, and col. 10, ll. 14-21) adding decoy or dummy data to a
communication stream during low traffic periods to prevent traffic analyzers
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from detecting bursts of communication. Thus, it would have been obvious
to monitor communication traffic and send dummy data during low traffic
periods in Nordenstam to defeat traffic analysis.
However, as indicated by Appellants (Br. 20), Munger discloses
(Munger, col. 12, ll. 26-33, and also col. 10, ll. 14-21) that each terminal
sends dummy data when the terminal itself detects low traffic. Thus,
Munger teaches monitoring at each terminal, not at the host computer, and
sending the dummy data from any terminal at which low traffic is detected.
Independent claim 1, in contrast, recites monitoring at the host computer and
sending bogus messages from the terminals to the host computer.
Nonetheless, it would have been obvious to the skilled artisan that
monitoring from each terminal in a store requires each terminal to include
the equipment or software needed for monitoring, whereas monitoring from
the store host computer requires only a single piece of equipment or
software. Further, a single monitoring location (i.e., the store host) would
use fewer resources than monitoring from each terminal throughout the
store. Also, since the communication of interest to a traffic analyzer would
be all communications sent to, and thus received by, the store host, and not
the communication from any particular terminal, the more logical location
for the monitoring would be at the store host computer. In other words,
monitoring from the store host computer would have been a predictable
variation from monitoring from the individual terminals. Accordingly, it
would have been obvious to the skilled artisan to monitor received
communications at the store host computer, and to provide dummy messages
from the terminals to the store host computer during periods of low traffic.
See KSR Int’l v. Teleflex Inc., 127 S. Ct. 1727, 1740-41, 82 USPQ2d 1385,
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1396 (2007). Thus, we will sustain the rejection of claims 1 through 3, 6,
and 7 over Nordenstam in view of Cory and Munger, with the teachings of
Cory being merely cumulative.1
Appellants contend (Br. 23) that the Munger fails to teach terminating
the generation of dummy messages in response to a bona fide transaction
occurring at the wireless terminal, as recited in claim 4. The second issue,
therefore, is whether generating dummy messages in response to a bona fide
transaction occurring at the wireless terminal would have been obvious in
view of Nordenstam, Cory, and Munger. However, since Munger discloses
sending bogus messages only during periods of low traffic from the wireless
terminal, it naturally follows that the transmission of bogus messages should
stop when actual transactions occur at the wireless terminal. Accordingly,
we will sustain the obviousness rejection of claim 4.
Regarding claim 5, Appellants contend (Br. 24-25) that Munger
teaches generating bogus messages based on time or on the number of
messages received rather than on the bandwidth used. Further, Appellants
explain (Br. 25) that although “there may be a relationship between the
number of messages being received and the bandwidth used, the relationship
is not direct inasmuch as the data size of the messages varies. Thus, the
number of messages being received is not the same as the bandwidth being
used to transmit messages.” Claim 5 recites that bogus messages are
generated “in response to the computed dead space [in a communication

1 The Board may rely on fewer than all of the references applied by the
Examiner in an obviousness rationale without designating it as a new ground
of rejection. In re Bush, 296 F.2d 491, 496, 131 USPQ 263, 266-67 (CCPA
1961); In re Boyer, 363 F.2d 455, 458 n.2 150 USPQ 441, 444 n.2 (CCPA
1966).
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bandwidth] being greater than a threshold.” The third issue, therefore, is
whether generating dummy messages based on dead space in the
communication bandwidth would have been obvious in view of Nordenstam,
Cory, and Munger. We agree with Appellants that the teachings or
suggestions of Munger are limited to traffic flow and not bandwidth, since
the two do not have a direct relationship such that one would have been
obvious from the other. Therefore, we will reverse the obviousness rejection
of claim 5.
Regarding claims 8 and 14, Appellants contend (Br. 27) that Munger
teaches generating bogus messages based on time or on the number of
messages received rather than on the computational load of the host
computer. The fourth issue, accordingly, is whether it would have been
obvious in view of Nordenstam, Cory, and Munger to generate dummy
messages based on the load of the host computer. However, Appellants
(Specification 9:6-8) state that the load balancer computes an estimated load
on the store host computer from the number of messages received from the
terminals. As discussed supra, in the combination of Nordenstam, Cory, and
Munger, dummy messages are generated based on the number of messages
received by the host computer. Munger further discloses (Munger, col. 12,
ll. 23-25) that dummy data “can also help to level the load on inactive
portions of the Internet to help foil traffic analysis efforts.” Thus, Munger
alludes to generating bogus messages during dead space intervals based on a
determined load. Accordingly, it would have been obvious, in view of the
suggestion of Munger, to calculate the load on the store host from the
number of messages received and to generate bogus messages during dead
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space intervals based upon the calculated load. Therefore, we will sustain
the obviousness rejection of claims 8 and 14.
For claims 9 through 12, Appellants again contend that Munger fails
to disclose using the number of messages received to calculate the load on
the host computer. We have dealt with this issue supra and have determined
that Munger does suggest calculating the load. Accordingly, we will sustain
the obviousness rejection of claims 9 through 12.
Appellants set forth the same contentions for claims 13 and 20 as for
claim 4, discussed supra. For the same reasons we sustained the rejection of
claim 4, we will sustain the rejection of claims 13 and 20.
Regarding claims 15 through 17, Appellants again contend (Br. 31-
32) that there is no motivation to combine Cory and Nordenstam because
Nordenstam discloses using Bluetooth technology, which is allegedly
incompatible with the continuous transmission of Cory. As we determined
supra that Bluetooth is only an example of the wireless networks used by
Nordenstam and that Cory is cumulative to the teachings of Nordenstam and
Munger, we will sustain the rejection of claims 15 through 17.
Appellants contend (Br. 33) that Munger fails to disclose a bogus
message timer as recited in claims 18 and 19. The last issue, therefore, is
whether using a bogus message timer would have been obvious in the
combination of Nordenstam, Cory, and Munger. We found supra that the
combined teachings of the three references suggest sending dummy
messages during periods of low traffic flow and until a bona fide transaction
occurs at wireless terminal. Using a timer to determine when to terminate
the bogus messages would conflict with ending the dummy messages when a
bona fide transaction occurred. Therefore, it would not have been obvious
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in view of Nordenstam, Cory, and Munger to use a bogus message timer.
Accordingly, we cannot sustain the obviousness rejection of claims 18 and
19.

ORDER
The decision of the Examiner rejecting claims 1 through 20 under
35 U.S.C. § 103 is affirmed as to claims 1 through 4, 6 through 17, and 20,
and reversed as to claims 5, 18, and 19.
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-IN-PART

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PAUL W. MARTIN
NCR CORPORATION, LAW DEPT.
1700 S. PATTERSON BLVD.
DAYTON, OH 45479-0001
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