SUBIL ABRAHAM et al.Download PDFPatent Trials and Appeals BoardFeb 10, 20212019005932 (P.T.A.B. Feb. 10, 2021) 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. 12/893,350 09/29/2010 SUBIL M. ABRAHAM CHA920100027US1_8134-0128 3951 112978 7590 02/10/2021 Cuenot, Forsythe & Kim, LLC 20283 State Road 7, Suite 300 Boca Raton, FL 33498 EXAMINER TSVEY, GENNADIY ART UNIT PAPER NUMBER 2648 NOTIFICATION DATE DELIVERY MODE 02/10/2021 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): ibmptomail@iplawpro.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SUBIL M. ABRAHAM, VINOD A. BIJLANI, and MATHEWS THOMAS ___________ Appeal 2019-005932 Application 12/893,350 Technology Center 2600 ____________ Before CARL W. WHITEHEAD JR., ERIC B. CHEN, and DAVID J. CUTITTA II, Administrative Patent Judges. CHEN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2019-005932 Application 12/893,350 2 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 26, 28–32, 34–38, and 40–43. Claims 1–25, 27, 33, and 39 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The claimed subject matter is directed to identifying network traffic associated with a communication request within a computing device, the computing device having a first and second communication stack. The communication request can be programmatically determined to be conveyed to the first and second network interfaces. (Spec., Abstr.) Claim 26, reproduced below, is illustrative of the claimed subject matter, with disputed limitations in italics: 26. A computer-implemented method within a computer hardware system implementing an application layer and a data link layer, comprising: identifying, using a network fusion layer disposed between the application layer and the data link layer, a first portion of network traffic originating from a first application in the application layer; identifying, using the network fusion layer, a second portion of the network traffic originating from a second application in the application layer; 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 IBM Corporation. (Appeal Br. 1.) Appeal 2019-005932 Application 12/893,350 3 routing, using the network fusion layer, the first portion to a first network interface associated with a computing network; and routing, using the network fusion layer, the second portion to a second network interface associated with a mobile phone network, wherein the identifying and the routing of the first and second portions occur simultaneously, and the routing the first portion includes simultaneous routing portions of the first portion respectively to the first network interface and another network interface different than the first network interface. REFERENCES Name Reference Date Gupta et al. US 2004/0131078 A1 July 8, 2004 Babbar et al. US 2006/0274750 A1 Dec. 7, 2006 van der Linden et al. US 2011/0022812 A1 Jan. 27, 2011 Wietfeldt et al. US 2011/0149764 A1 June 23, 2011 Kruglick US 2011/0154345 A1 June 23, 2011 Eleftheriadis US 2008/0222545 A1 Sept. 15, 2011 REJECTIONS Claims 26, 28, 30, 32, 34, 36, 38, 40, and 42 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Gupta and Wietfeldt. Claims 29, 35, and 41 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Gupta, Wietfeldt, and Babbar. Claims 31, 37, and 43 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Gupta, Wietfeldt, Linden, Eleftheriadis, and Kruglick. The Examiner has withdrawn the rejection of claims 26, 28–32, 34– 38, and 40–43 under 35 U.S.C. § 112, second paragraph. (Ans. 17.) Appeal 2019-005932 Application 12/893,350 4 OPINION § 103 Rejection—Gupta and Wietfeldt Claims 26, 28, 32, 34, 36, 38, 40, and 42 We are unpersuaded by Appellant’s arguments (Appeal Br. 10; see also Reply Br. 3–5) that the combination of Gupta and Wietfeldt would not have rendered obvious independent claim 26, which includes the limitation “the routing the first portion includes simultaneous routing portions of the first portion respectively to the first network interface and another network interface different than the first network interface.” The Examiner found that connection manager 240 and radio selection algorithm 610 of Wietfeldt collectively correspond to the limitation “the routing the first portion includes simultaneous routing portions of the first portion respectively to the first network interface and another network interface different than the first network interface.” (Ans. 21; see also Final Act. 7.) In particular, the Examiner found that multiple radios may be selected for one active application, which would also read on the limitation ‘the routing the first portion includes simultaneous routing portions of the first portion respectively to the first network interface (i.e. to one selected radio) and another network interface different than the first network interface (i.e. another selected radio). (Ans. 21 (emphases omitted).) We agree with the Examiner’s findings. Wietfeldt relates “to communication, and more specifically to techniques for supporting communication by a wireless communication device.” (¶ 3.) Wietfeldt explains that “[w]ireless device 110 may support L applications 224a through 2241, which may provide different communication services such as voice, packet data, video share, video telephony, email, broadcast reception, instant messaging, push-to-talk, etc.” Appeal 2019-005932 Application 12/893,350 5 (¶ 26.) Wietfeldt further explains that “[t]he R radios 290 may be for 3GPP2 cellular networks (e.g., CDMA 1X, EVDO, etc.), 3GPP cellular networks (e.g., GSM, GPRS, EDGE, WCDMA/UMTS, LTE, etc.), WLANs, WiMAX networks, GPS, Bluetooth, broadcast networks, Near Field Communication (NFC), Radio Frequency Identification (RFID), etc.” (¶ 27.) Figure 6A of Wietfeldt illustrates radio selection by connection manager 240, such that “[r]adio selection algorithm 610 may then select one or more best radios for one or more active applications based on the operating rules.” (¶ 69.) Because Wietfeldt explains that radio selection algorithm 610 selects one or more radios for one or more active applications (e.g., two radios for one application), Wietfeldt teaches the limitation “the routing the first portion includes simultaneous routing portions of the first portion respectively to the first network interface and another network interface different than the first network interface.” Appellant presents the following arguments: (i) “[w]hile Wietfeldt teaches that a single application (i.e., the second active application) can be mapped to a second selected radio and a third selected radio (allegedly correspond to two different network interfaces), Wietfeldt is silent as to the claimed simultaneous routing” (Appeal Br. 10 (emphases omitted); see also Reply Br. 5); (ii) “[t]he Examiner’s assertion that ‘the second cited portion of the claim does not have to be treated on the merit as contradicting the explicit statement in the first cited portion of the claim’ has no legal basis (Reply Br. 3–4); and (iii) “[paragraph 59 of Wietfeldt] implies that the information is not routed to both radios at the same time,” however, “information is routed to a first radio and then handed off to a second radio (as directed by the coexistence manager 260)” (id. at 4). However, even if Appeal 2019-005932 Application 12/893,350 6 Appellant’s arguments are persuasive, some of the Examiner’s findings were presented in the alternative, and Appellant has not presented any arguments or evidence as to why the Examiner’s findings with respect to paragraph 69 of Wietfeldt are erroneous. Thus, we agree with the Examiner that the combination of Gupta and Wietfeldt would have rendered obvious independent claim 26, which includes the limitation “the routing the first portion includes simultaneous routing portions of the first portion respectively to the first network interface and another network interface different than the first network interface.” Accordingly, we sustain the rejection of independent claim 26 under 35 U.S.C. § 103(a). Claim 28 depends from claim 26, and Appellant has not presented any additional substantive arguments with respect to this claim. Therefore, we sustain the rejection of claim 28 under 35 U.S.C. § 103(a), for the same reasons discussed with respect to independent claim 26. Independent claims 32 and 38 recite limitations similar to those discussed with respect to independent claim 26, and Appellant has not presented any additional substantive arguments with respect to these claims. We sustain the rejection of claims 32 and 38, as well as dependent claims 34, 36, 40, and 42, for the same reasons discussed with respect to claim 26. Claim 30 Although Appellant nominally argues the rejection of dependent claim 30 separately (Appeal Br. 11), the arguments presented do not point out with particularity or explain why the limitations of this dependent claim are separately patentable. Instead, Appellant argues that following: Appeal 2019-005932 Application 12/893,350 7 These teachings [of Gupta], however, do not refer to “a communication request with a network access protocol destined to an interface having a different network access protocol,” as claimed. What is being translated is operating system specific definitions to common interfaces. This is not a translation of one network access protocol to another (different) network access protocol. Thus, Gupta fails to teach the limitations for which Gupta alone is being relied upon to teach. (Id.) Thus, Appellant merely summarizes Gupta with a conclusory statement that Gupta does not teach the features of dependent claim 30, and accordingly, Appellant has not presented any substantive arguments with respect to this claim. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). We are not persuaded by these arguments for the reasons discussed with respect to claim 26, from which claim 30 depends. Accordingly, we sustain this rejection. § 103 Rejection—Gupta, Wietfeldt, and Babbar Although Appellant nominally argues the rejection of dependent claims 29, 35, and 41 separately (Appeal Br. 12), the arguments presented do not explain why the limitations of these dependent claims are separately patentable. Instead, Appellant argues that “[t]he additional reference to Babbar does not cure the argued deficiencies of Gupta and Wietfeldt” and “even if one having ordinary skill in the art did modify Gupta in view of Wietfeldt and Babbar, the proposed combination of references would not yield the claimed invention.” (Id.) We are not persuaded by these arguments for the reasons discussed with respect to claims 26, 32, and 38, Appeal 2019-005932 Application 12/893,350 8 from which claims 29, 35, and 41 depend. Accordingly, we sustain this rejection. § 103 Rejection—Gupta, Wietfeldt, Linden, Eleftheriadis, and Kruglick Although Appellant nominally argues the rejection of dependent claims 31, 37, and 43 separately (Appeal Br. 12–13), the arguments presented do not explain why the limitations of these dependent claims are separately patentable. Instead, Appellant argues that “[t]he additional references to Linden, Eleftheriadis, and Kruglick do not cure the argued deficiencies of Gupta and Wietfeldt” and “even if one having ordinary skill in the art did modify Gupta in view of Wietfeldt, Linden, Eleftheriadis, and Kruglick, the proposed combination of references would not yield the claimed invention.” (Id.) We are not persuaded by these arguments for the reasons discussed with respect to claims 26, 32, and 38, from which claims 31, 37, and 43 depend. Accordingly, we sustain this rejection. CONCLUSION The Examiner’s decision rejecting claims 26, 28–32, 34–38, and 40– 43 under 35 U.S.C. § 103(a) is affirmed. DECISION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 26, 28, 30, 32, 34, 36, 38, 40, 42 103(a) Gupta, Wietfeldt 26, 28, 30, 32, 34, 36, 38, 40, 42 Appeal 2019-005932 Application 12/893,350 9 29, 35, 41 103(a) Gupta, Wietfeldt, Babbar 29, 35, 41 31, 37, 43 103(a) Gupta, Wietfeldt, Linden, Eleftheriadis, Kruglick 31, 37, 43 Overall Outcome 26, 28–32, 34–38, 40– 43 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)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation