Ex Parte Balay

Patent Trial and Appeal Board

Jul 1, 2016

13016490 (P.T.A.B. Jul. 1, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/016,490 01/28/2011 Rajini Balay
56436 7590 07/06/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
84277097 4666
EXAMINER
TRAN, TONGOC
ART UNIT PAPER NUMBER
2434
NOTIFICATION DATE DELIVERY MODE
07/06/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte RAJINI BALAY 1
Appeal2015-000826
Application 13/016,490
Technology Center 2400
Before DEBRA K. STEPHENS, JOHN R. KENNY, and
MICHAEL J. ENGLE, Administrative Patent Judges.
ENGLE, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1 and 19--35, which are all of the claims pending in the application.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Technology
The application is related to "[d]etecting rogue access points (APs) or
rogue router APs on the wireless network." Abstract.
1 According to Appellant, the real party in interest is Aruba Networks, Inc.
App. Br. 1.
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Application 13/016,490
Representative Claim
Claim 1 is representative and reproduced below with the key
limitations emphasized:
1. A method comprising:
identifying a plurality of Media Access Control (MAC)
addresses used by one or more devices on a wired network;
determining that a particular Basic Service Set Identifier
(BSSID) is advertised in a wireless signal transmitted by a
particular device;
determining that a portion of the particular BSSID
matches at least a portion of a MAC address from the plurality
of MAC addresses used by the one or more devices on the wired
network; and
responsive at least to determining that the portion of the
particular BSSID matches at least the portion of the MAC
address from the plurality of MAC addresses used by the one or
more devices: determining that the particular device, that
transmitted the wireless signal, is one of the one or more devices
on the wired network.
Rejection
Claims 1 and 19--35 are rejected as obvious under 35 U.S.C. § 103(a)
over Jim Geier, Identifj;ing Rogue Access Points (Jan. 6, 2003),
http://www.wi-fiplanet.com/tutorials/article.php/1564431. Final Act. 3.
ISSUES
1. Did the Examiner err in finding Geier teaches or suggests
"determining that a portion of the particular BS SID matches at least a
portion of a MAC address from the plurality of MAC addresses used by the
one or more devices on the wired network," as in claims 1, 24, and 30?
2. Did the Examiner err in finding Geier teaches or suggests
"determining that the particular device, that transmitted the wireless signal,
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Application 13/016,490
is one of the one or more devices on the wired network," as recited in claims
1, 24, and 30?
3. Did the Examiner err in finding Geier teaches or suggests the
third "determining" step is "responsive at least to" the second "determining"
step, as recited in claims 1, 24, and 30?
4. Did the Examiner err in finding Geier teaches or suggests the
limitations added by dependent claims 19--23, 25-29, and 31-35?
ANALYSIS
We only consider the arguments Appellant actually raised in the
briefs. Arguments Appellant could have made, but chose not to, have not
been considered and are deemed waived. See 37 C.F.R. § 41.37(c)(l)(iv).
Claims 1, 24, and 30
The application has three independent claims: 1, 24, and 30. The
disputed limitations are recited identically in all three and we thus address
them together.
Appellant first contends Geier performs "a comparison or match
between any two random MAC addresses" whereas the claims require "a
comparison of at least a portion of BS SID that was transmitted in a wireless
signal." App. Br. 5.
We are not persuaded by Appellant's argument. Appellant has not
dissuaded us from the Examiner's finding that a "BSSID is the MAC
address of [a] wireless access point (W AP)" which is "generated by
combining the 24 bit Organization Unique Identifier (the manufacturer's
identity) with the manufacturer's assigned 24 bit identifier for the radio
chipset in the WAP." Ans. 3; see also Spec. i-fi-f 14, 10; App. Br. 5. We also
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Application 13/016,490
agree with the Examiner that Geier teaches "using wireless sniffing tools" to
"look for access points" by comparing each discovered access point with a
list of authorized MAC addresses or vendor names (e.g., the Organization
Unique Identifier, which is part of the BSSID). Ans. 7-8 (citing Geier 2).
Thus, we find Geier teaches not merely a comparison between "random"
MAC addresses as Appellant contends (App. Br. 5), but rather "a
comparison of at least a portion of BS SID that was transmitted in a wireless
signal," i.e., the MAC address of a wireless access point detected by the
wireless sniffing tool.
Accordingly, Appellant has not persuaded us of any error in the
Examiner's finding that Geier teaches or suggests "determining that a
portion of the particular BS SID matches at least a portion of a MAC address
from the plurality of MAC addresses used by the one or more devices on the
wired network," as recited in claims 1, 24, and 30.
Appellant next contends the Examiner erred in finding Geier teaches
or suggests "determining that the particular device, that transmitted the
wireless signal, is one of the one or more devices on the wired network"
because Geier' s "[ d]etermination of a rogue access point ... is irrelevant to
rejection of Claim 1." App. Br. 6; Reply Br. 2. However, Appellant has not
sufficiently explained what teaching Geier lacks. For example, we agree
with the Examiner that Geier teaches "using wireless sniffing tools" to "look
for access points." Ans. 9; Geier 2. Thus, we find Geier teaches a device
that transmits a wireless signal (i.e., access points). Geier also teaches:
A hacker can install a rogue access point to provide an open, non-
secure interface to a corporate network. In order to do this, the
hacker must directly connect the access point to an active
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network port within the facility. This requires the hacker to pass
through physical security.
Geier 2 (emphasis added). Appellant has not persuaded us that a physical
direct connection within a facility does not suggest wired connections within
that facility. Finally, Geier teaches comparing the MAC address or vendor
name of each discovered access point to "a list of MAC addresses of the
authorized access points." Geier 2; Ans. 10. Therefore, we find Geier
teaches or suggests that a determination is made whether the BS SID of the
discovered access point (e.g., vendor name) matches the MAC addresses in
the list of authorized MAC addresses, and that at least some of those MAC
addresses are for "devices on the wired network."
Accordingly, Appellant has not sufficiently shown any error in the
Examiner's finding that Geier teaches or suggests "determining that the
particular device, that transmitted the wireless signal, is one of the one or
more devices on the wired network," as recited in claims 1, 24, and 30.
Finally, Appellant contends Geier fails to teach or suggest the third
determining step ("determining that the particular device, that transmitted
the wireless signal, is one of the one or more devices on the wired network")
is "responsive at least to" the second determining step ("determining that the
portion of the particular BS SID matches at least the portion of the MAC
address from the plurality of MAC addresses used by the one or more
devices"). However, Appellant's argument is based on the premise that the
Examiner failed to show the second determining step. App. Br. 6. We do
not agree with that argument for the reasons discussed above.
Thus, we sustain the Examiner's rejection of claims 1, 24, and 30.
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Claims 19--23, 25-29, and 31-35
Appellant contends the Office Action "fails to address each and every
recitation of each dependent claim" (App. Br. 6) and "the Examiner now
introduces new grounds of rejections for the first time" in the Answer.
Reply Br. 2. While we are not unsympathetic to Appellant's argument given
the Examiner's failure to sufficiently address the dependent claims in the
office actions, 37 C.F.R. § 41.40(a) expressly states:
Any request to seek review of the primary examiner's failure to
designate a rejection as a new ground of rejection in an
examiner's answer must be by way of a petition to the Director
... filed within two months from the entry of the examiner's
answer and before the filing of any reply brief. Failure of
appellant to timely file such a petition will constitute a waiver of
any arguments that a rejection must be designated as a new
ground of rejection.
Here, Appellant did not timely file any such petition and thus has waived
any argument about the Examiner's Answer containing new grounds.
Moreover, Appellant has not sufficiently persuaded us of any error in the
Examiner's findings for the dependent claims. Ans. 10-12.
Accordingly, we sustain the Examiner's rejection of claims 19-23,
25-29, and 31-35.
DECISION
For the reasons above, we affirm the Examiner's decision rejecting
claims 1 and 19-35.
No time period for taking subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a). 37 C.F.R. § 41.50(f).
AFFIRMED
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