Ex Parte 6044062 et al

Board of Patent Appeals and Interferences

Nov 9, 2010

90008011 (B.P.A.I. Nov. 9, 2010)

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.
90/008,011 07/24/2006 6044062 R1261186 3037
40401 7590 11/10/2010
Hershkovitz & Associates, LLC
2845 Duke Street
Alexandria, VA 22314
EXAMINER
WEAVER, SCOTT LOUIS
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
11/10/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte IPCO, LLC1
Appellant and Patent Owner
____________

Appeal 2010-010799
Reexamination Control 90/008,011
Patent 6,044,062
Technology Center 3900
____________

Before JAMESON LEE, KEVIN F. TURNER, and STEPHEN C. SIU,
Administrative Patent Judges.

SIU, Administrative Patent Judge

DECISION ON APPEAL2

1 IPCO, LLC is the current patent Assignee and the Real Party In Interest.
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
shown on the PTOL-90A cover letter attached to this decision.

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United States Patent 6,044,062

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Appellant appeals under 35 U.S.C. §§ 134(b) and 306 from a final
rejection of claims 1-16. We have jurisdiction under 35 U.S.C. §§ 134(b)
and 306.
STATEMENT OF THE CASE
This proceeding arose from a request for ex parte reexamination filed
by DLA Piper Rudnick Gray Cary US LLP on July 24, 2006, of United
States Patent 6,044,062 (the ‘062 Patent) issued to Edwin B. Brownrigg and
Thomas W. Wilson on March 28, 2000, based on United States Application
08/760,895 filed December 6, 1996. Reexamination of claims 1-16 was
requested. Claims 1-16 presently stand rejected.
Patentee’s invention relates to cellular telecommunication systems
(Spec. Col. 1, l. 15).
Claim 1, which we deem to be representative, reads as follows:
1. A wireless network system comprising:
a server including a server controller and a server
radio modem, said server controller implementing a
server process that includes the control of said server
radio modem, said server process including the receipt
and transmission of data packets via said server radio
modem;
a plurality of clients each including a client
controller and a client radio modem, said client
controller implementing a client process that includes the
control of said client radio modem, said client process
including the receipt and transmission of data packets
via said client radio modem,
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wherein said client process of each of said clients
initiates and selects a radio transmission path to said
server that is one of a direct link to said server and an
indirect link to said server through at least one the
remainder of said plurality of clients; and
wherein said selected link to said server is a link
utilizing the least number of other clients,
whereby said transmission path from said client to
said server is optimized.

The prior art references relied upon by the Examiner in rejecting the
claims are:
Flanders 5,239,294 Aug. 24, 1993

John Jubin and Janet D. Tornow, “The DARPA Packet Radio Network
Protocols,” Proceedings of the IEEE, Vol. 75, No. 1, January 1987, pp. 21-
32 (hereinafter “Jubin”).

Jyhi-Kong Wey, et al., “Clone Terminator: An Authentication Service for
Advanced Mobile Phone System,” IEEE, 1995, pp. 175-179 (hereinafter
“Wey”).

Admitted Prior Art, Brownrigg, U.S. Patent No. 6,044,062, March 28, 2000
(hereinafter “APA”).

The Examiner rejected claims on the following bases:
(1) claims 1-3, 5-7, 9-11, and 13-15 under 35 U.S.C. § 102(b) as
being anticipated by Jubin (Ans. 4-21); and
(2) claims 4, 8, 12, and 16 under 35 U.S.C. § 103(a) as being
unpatentable over Jubin and any one of APA (Ans. 22-23), Flanders (Ans.
24-26) or Wey (Ans. 26-27).
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ISSUES
Appellant argues that Jubin fails to disclose “the recited ‘server
including a server controller . . . implementing a server process’ and ‘a
plurality of clients each including a client controller . . . implementing a
controller process’” (App. Br. 26), “‘wherein the server process further
includes logic that maintains a client link tree having client link entries’”
(App. Br. 33), “‘logic that compares a selected link from said client to said
server to a current client link entry in said client link tree; and “logic that
updates said client link tree when said comparison meets predetermined
conditions’” (App. Br. 39-40). Appellant also argues that the combination
of Jubin and any of APA, Flanders, or Wey fails to disclose or suggest
claims 4, 8, 12, or 16 (App. Br. 43-56).
Only those arguments actually made by Appellant have been
considered in this decision. Arguments which Appellant could have made
but chose not to make in the Brief have not been considered and are deemed
to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).
Thus, the issues before us are:
(i) Did the Examiner err in finding that Jubin discloses each and
every limitation recited in claims 1-3, 5-7, 9-11, and 13-15?
(ii) Did the Examiner err in finding that the combination of Jubin
and any of APA, Flanders, or Wey discloses or suggests claims 4, 8, 12, and
16?

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FINDINGS OF FACT
1. Jubin discloses “[t]he PRNET subnet, which consists of
the packet radios. The PRNET subnet provides the means
of interconnecting a community of users” (p. 22, col. 1).
2. Jubin discloses that the system includes the subnet and a
“collection of devices (host computers and terminals),
each attached to a packet radio” (p. 22, col. 1).
3. Jubin discloses that each “PR [packet radio] is responsible
for receiving a packet and relaying it on to a PR that is
one hop closer to the final destination” and that the
“packets can be routed either to another PR . . . or to an
attached device (i.e., host computer or terminal)” (p. 22,
col. 2).
4. Jubin discloses that “[e]ach packet radio gathers and
maintains enough information about network topology so
that it can make independent decisions about how to route
data through the network to any destination” through the
use of “neighbor table[s],” “tier table[s],” and “device
table[s]” (p. 23, col. 2).
5. Jubin discloses that each packet radio “knows its distance
in tiers from any prospective destination PR and which PR
is the next PR enroute to that destination PR” via the tier
table that also maintains “the ‘best’ information about
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how to get to a destination packet radio,” the “best” route
being “defined as the shortest route with good
connectivity on each hop” (p. 24, col. 2).
6. Jubin discloses that any device in the network may
“request service from any other device in a general
category, e.g., any name server or any gateway” (p. 25,
col. 1).
7. The Specification discloses that a “server” “will influence
data flow within the network and access to certain
network functions” (col. 1, ll. 15-18) and is a “host
machine” (col. 1, l. 46) that performs “a ‘gateway’
function to another network” (col. 5, ll. 31-32).

PRINCIPLES OF LAW
Anticipation is established when a single prior art reference discloses,
expressly or under the principles of inherency, each and every limitation of
the claimed invention. Atlas Powder Co. v. IRECO, Inc., 190 F.3d 1342,
1347 (Fed. Cir. 1999); In re Paulsen, 30 F.3d 1475, 1478-79
(Fed. Cir. 1994).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
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subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007).

ANALYSIS
(1) Claims 1, 5, 9, and 13 – Anticipation under 35 U.S.C. § 102(b) by Jubin

Appellant asserts that “Jubin relates to a peer-to-peer type network”
and therefore, according to Appellant, Jubin fails to disclose a server
implementing a server process and a plurality of clients each implementing a
client process (App. Br. 27).
The Specification discloses that a “server” may be a host machine that
interfaces between different networks (FF 7). Jubin discloses devices “such
as a small host computer” (p. 22, col. 2) that run protocols that “allow hosts .
. . to communicate with computers on various other . . . local area networks”
(id.). Construing a “server” in light of Specification, we find no difference
between a “host” computer that runs protocols to allow computers to
communicate with other networks – i.e., “interfacing” between different
networks (Jubin) – and a “host” machine that interfaces between different
networks (FF 7) since both describe host machines that interface between
different networks. In addition, Jubin discloses a plurality of “clients” (i.e.,
packet radios) that connect to the host computer (FF 1-6). We therefore
disagree with Appellant that Jubin supposedly fails to disclose a server that
implements a process or a plurality of clients that implement a process.
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Appellant argues that in Jubin, the “packet radios . . . do not receive
any optimized transmission path information from a server that maintains a
client link tree or map of the optimized transmission paths of each of the
packet radios” (App. Br. 27). However, claims 1, 5, 9 and 13 merely require
a server to include a server process that includes the receipt and transmission
of data packets but do not require a server to maintain a client link tree or
map of transmission paths.
Therefore, we find no error in the Examiner’s rejection of claims 1, 5,
9, and 13 as being anticipated by Jubin.

(2) Claims 2, 3, 6, 7, 10, 11, 14, and 15 – Anticipation under 35 U.S.C. §
102(b) by Jubin

Claims 2 and 3 recite a server implementing a server process that
includes logic that maintains a client link tree having client link entries.
Claims 6, 7, 10, 11, 14, and 15 recite similar features.
Appellant argues that “Jubin fails to disclose a ‘server process . . .
includ[ing] logic that maintains a client link tree having client link entries’”
(App. Br. 33). We agree. As described, Jubin discloses packet radios (i.e.,
“clients”) that connect to devices such as host computers (i.e., “servers”) but
the Examiner has not demonstrated that Jubin also discloses that the devices
(such as host computers) also maintains a client link tree having client link
entries. Rather, Jubin appears to disclose that packet radios (i.e., “clients”)
maintain client link entries (FF 5).
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Therefore, we find that the Examiner erred in rejecting claims 2, 3, 6,
7, 10, 11, 14, and 15 as being anticipated by Jubin.

(3) Claims 4, 8, 12, and 16 – Obviousness under 35 U.S.C. § 103(a) over
Jubin and one of APA, Flanders, or Wey

The Examiner does not find that any of APA, Flanders, or Wey
discloses or suggests a server implementing a server process that includes
logic that maintains a client link tree having client link entries. Therefore,
we find that the Examiner erred in rejection claims 4, 8, 12, and 16 as being
obvious over Jubin and any of APA, Flanders, or Wey.

CONCLUSIONS
Based on the findings of facts and analysis above, we conclude that
the Examiner did not err in finding that Jubin discloses each and every
limitation recited in claims 1, 5, 9, and 13. However, we conclude that the
Examiner erred in finding that Jubin discloses a server implementing a
server process that includes logic that maintains a client link tree having
client link entries as recited in claims 2, 3, 6, 7, 10, 11, 14, and 15 and that
the Examiner also erred in finding that the combination of Jubin and any of
APA, Flanders, or Wey discloses or suggests the features of claims 4, 8, 12,
and 16.

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DECISION
The decision of the Examiner to reject claims 1, 5, 9, and 13 is
AFFIRMED and the decision of the Examiner to reject claims 2-4, 6-8, 10-
12, and 14-16 is REVERSED.
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED-IN-PART

rvb

cc:
PATENT OWNER:

Hershkovitz & Associates, LLC
2845 Duke Street
Alexandria, VA 22314

THIRD PARTY REQUESTER:

DLA Piper Rudnick Gray Cary US LLP
1650 Market St., Ste. 4900
Philadelphia, PA 19103