Microsoft Technology Licensing, LLC

Patent Trials and Appeals Board

Apr 17, 2020

15589994 - (D) (P.T.A.B. Apr. 17, 2020)

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.
15/589,994 05/08/2017 Gil ZALMANOVITCH 335295-US-CNT3 8464
39254 7590 04/17/2020
Barta, Jones & Foley, P.C.
(Patent Group - Microsoft Corporation)
3308 Preston Road
#350-161
Plano, TX 75093
EXAMINER
NGUYEN, DAVID Q
ART UNIT PAPER NUMBER
2643
NOTIFICATION DATE DELIVERY MODE
04/17/2020 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):
docket@bjfip.com
usdocket@microsoft.com
uspto@dockettrak.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GIL ZALMANOVITCH, GREGORY JAMES SCOTT, SHAI
GUDAY, ALEC GARVIN KWOK, YUE JIANG, and KENNETH
VINCENT MA
Appeal 2019-002012
Application 15/589,994
Technology Center 2600
BEFORE CAROLYN D. THOMAS, CARL W. WHITEHEAD JR., and
GREGG I. ANDERSON, Administrative Patent Judges.
ANDERSON, 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 to reject claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Microsoft
Technology Licensing, LLC. Appeal Br. 1.
Appeal 2019-002012
Application 15/589,994

2
CLAIMED SUBJECT MATTER
The claims are directed to data usage statistics with a schema. Spec.
¶ 5. The schema has threshold values for a computing device of at least one
user connected to a network. Id. The schema is updated with data usage
statistics and distributed to all of the computing devices connected to the
network. Id. Claim 1, reproduced below, is a system claim illustrative of the
claimed subject matter:
1. A system comprising:
a memory area associated with a mobile computing device; and

a processor programmed to:
monitor active network interfaces to maintain data usage for each
network interface per an application;
dynamically generate data usage statistics representing network
data consumed under a user data usage plan, at least part of the
data usage statistics being dynamically generated, at the mobile
computing device, based on network data consumed by the
mobile computing device, the dynamically generated data usage
statistics indicating a per application breakout of the network
data consumed over a subset of the network interfaces, the user
data usage plan describing threshold values associated with one
or more network connections of the mobile computing device;
and

send, via a web service, at least a portion of the dynamically
generated data usage statistics to a second computing device.
REFERENCES
The prior art relied upon by the Examiner is:
Appeal 2019-002012
Application 15/589,994

3
Name2 Reference Date
Rubin US 2012/0108200 A1 May 3, 2012
Bedingfield U.S. 8,374,576 B2 Feb. 12, 2013
Zalmanovitch U.S. 8,977,231 B2 Mar. 10, 2015
Momtahan US 2011/0275344 A1 Nov. 10, 2011

REJECTIONS
1. Claims 1–20 are rejected on the ground of nonstatutory double
patenting over claims 1–20 of Zalmanovitch. Final Act. 3–4.
2. Claims 1–20 are rejected under 35 U.S.C. § 103(a)3 as being
unpatentable over Momtahan, Rubin, and Bedingfield. Id. at 5–12.
OPINION
Double Patenting
In response to a double patenting rejection in the Office Action mailed
October 24, 2017 (“Off. Act.”), Appellant filed an Amendment on February
26, 2018 (“Amendment”). In the Amendment, Appellant stated:
Applicant respectfully requests that this rejection be held in
abeyance until an indication of allowed subject matter is received
in the instant application. Upon receipt by Applicant of the
indication of allowed subject matter, Applicant will address the
appropriateness of the rejection or file a terminal disclaimer.

Amendment, 7.
The Examiner maintained the double patenting rejection in the Final
Office Action. Final Act. 3–4. The rejections in the October 24, 2017, Office

2 All reference citations are to the first named inventor only.
3 The application was filed before the effective date of the America Invents
Act (“AIA”) and the rejection is based on pre-AIA section 103. Final Act. 5.
Appeal 2019-002012
Application 15/589,994

4
Action and the Final Action are identical. Compare Off. Act., 2–3 with Final
Act. 3–4. Appellant did not appeal the double patenting rejection. See App.
Br. 8–13 (grounds of rejection appealed only listing and arguing obviousness
rejection).
Although Appellant request that the nonstatutory double patenting
rejections of claims 1–20 as set forth above be held in abeyance, we note that
Appellant may not reserve arguments for some later time. Arguments not
made are considered waived. See 37 C.F.R. § 41.37(c)(1)(iv).
As a result, we summarily affirm the Examiner’s nonstatutory double
patenting rejection of claims 1–20. See Amendment, 7; see also Ex parte
Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an appellant
fails to present arguments on a particular issue — or, more broadly, on a
particular rejection — the Board will not, as a general matter, unilaterally
review those uncontested aspects of the rejection. See, e.g., Hyatt v. Dudas,
551 F.3d 1307, 1313–14 (Fed. Cir. 2008) (the Board may treat arguments
appellant failed to make for a given ground of rejection as waived)”).
Obviousness
The issue on appeal is whether or not the references cited, specifically
Rubin, teach the following limitation of claim 1:
dynamically generate data usage statistics representing network
data consumed under a user data usage plan, at least part of the
data usage statistics being dynamically generated, at the mobile
computing device, based on network data consumed by the
mobile computing device, the dynamically generated data usage
statistics indicating a per application breakout of the network
data consumed over a subset of the network interfaces, the user
data usage plan describing threshold values associated with one
or more network connections of the mobile computing device;
Appeal 2019-002012
Application 15/589,994

5
and send, via a web service, at least a portion of the dynamically
generated data usage statistics to a second computing device.

See App. Br. 10–13; Reply 2–4 (hereafter “per application limitation”)
(emphasis added).
Part of the “per application limitation” of claim 1 recites that “data
usage statistics” are “dynamically generated” for “the user data usage plan
describing threshold values.” Appellant’s Figures 5A, 5B, and 5C “indicate
that the data usage statistics 120 shown are per application, the user
interfaces 502, 504, 506 may alternatively or in addition display an overview
of aggregated data usage across the applications 114 on the mobile
computing device 102.” Spec. ¶ 55 (emphasis added). The Specification
describes how the data usage could be kept for each family member of a
family or shared data plan. See id. Based on the claim language and
Specification, the broadest reasonable interpretation of the per application
limitation is generating data usage statistics and comparing the statistics
generated to threshold values for a particular data usage plan.
Appellant argues the combination relied on to reject claim 1 is based
on improper hindsight and the combination of Momtahan, Rubin, and
Bedingfield “would not produce the claimed invention.” App. Br. 10–11.
Appellant supports the argument by contending Rubin “monitors the total
amount of data usage of the mobile device 102.” Id. at 11 (citing Rubin ¶ 22
(“total amount of data communicated” by “data uploaded” or “data down
loaded”). Thus, Appellant argues Rubin teaches a “total amount” of usage
and not the “per application” data usage claimed. Id. at 11–12.
For the per application limitation, the Examiner finds Rubin
“inform[s] user by displaying a data usage threshold has been or will be
Appeal 2019-002012
Application 15/589,994

6
exceed[ed].” Ans. 5 (citing Rubin ¶ 23) (emphasis added). The Examiner
also points to Rubin’s teaching that “the dynamically generated data usage
statistics indicating a per application breakout of the network data consumed
over a subset of the network interfaces.” Id. (citing Rubin ¶ 22–23).
Rubin teaches that “data usage thresholds” are allotted by the wireless
carrier’s policy under a particular data plan for “a predetermined period of
time (e.g., a week, a day, or a billing period).” Rubin ¶ 16, see also id.
¶ 19 (the wireless carrier provides the user a “data plan” for the user’s
needs). “The mobile device 102 includes a throttling application 110 that
determines if the mobile device 102 has exceeded one or more data usage
thresholds that have been allotted or specified by the wireless carrier 104 for
the predetermined period of time.” Id. ¶ 22 (emphasis added). If the data
usage threshold is exceeded, Rubin teaches that either proactive or
informational action may be taken, including upgrading the data plan. Id.
¶¶ 23, 25.
We are not persuaded by Appellant’s argument that paragraphs 22 and
23 of Rubin are limited to “the total amount of data usage of the mobile
device.” See Reply 3. For example, as detailed in Rubin, data usage
thresholds are set for predetermined periods of time, as “allotted by the
wireless carrier, and are not limited to the “total amount of data usage.” See
Rubin ¶¶ 16, 22.
The Examiner relies on the preceding teachings of Rubin, as well as
other parts of Rubin, to teach the per application limitation. See Final Act.
6–7 (citing Rubin ¶¶ 16–25, 28–33, 49, 17, 18). For the above reasons, we
agree with the Examiner that the “data usage threshold” taught by Rubin
meets the “per application limitation.”
Appeal 2019-002012
Application 15/589,994

7
To the extent Appellant argues the combination lacks rational
underpinnings, we are not persuaded by Appellant’s legal conclusions. See
App. Br. 9–10; see also In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997)
(attorney argument is not the kind of factual evidence required to rebut a
prima facie case of obviousness); In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974) (“Attorney’s argument in a brief cannot take the place of
evidence”). For example, Appellant does not explain why one or more of
the references “teaches away from the claimed invention.” See id. at 10.
We agree with the Examiner that all three of the references teach some
aspect of tracking “data usage.” Final Act. 5–7 (citing Momtahan
¶¶ 72–73 (“Application controller 310 also stores the data usage on a per-
application basis in local store 308”) Fig. 3; Rubin ¶¶ 16–25, 28–33, 49, 17,
18; Bedingfield, 10:14–11:6 (“report individual and shared utilization of
system resources”), Fig. 8. The Examiner has shown a sufficient reasons for
combining the three references.
The Examiner has made a prima facie case of obviousness as to
independent claim 1. Independent claims 9 and 15, not argued separately,
are commensurate in scope with claim 1 and also include the per application
limitation. App. Br. 13. The remaining claims 2–8, 10–14, and 16–20 all
depend directly or indirectly from the independent claims and are not
separately argued. Id. Accordingly, we affirm the obviousness rejections as
to all pending claims.
CONCLUSION
The Examiner’s double patenting rejection of claims 1–20 is affirmed.
The Examiner’s obviousness rejection of claims 1–20 is affirmed.

Appeal 2019-002012
Application 15/589,994

8
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 Nonstatutory
Double Patenting
1–20
1–20 103 Momtahan, Rubin,
Bedingfield
1–20
Overall
Outcome
1–20

TIME PERIOD FOR 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