SUBIL ABRAHAM et al.

Patent Trials and Appeals Board

Feb 10, 2021

2019005932 (P.T.A.B. Feb. 10, 2021)

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