Ex Parte Bleumer et al

Patent Trial and Appeal Board

Nov 10, 2014

11229466 (P.T.A.B. Nov. 10, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/229,466 09/16/2005 Gerrit Bleumer P05,0223 9445
7590 11/10/2014
SCHIFF HARDIN LLP
Patent Department
6600 Sears Tower
233 South Wacker Drive
Chicago, IL 60606
EXAMINER
NGUY, CHI D
ART UNIT PAPER NUMBER
2435
MAIL DATE DELIVERY MODE
11/10/2014 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 PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte GERRIT BLEUMER, CLEMENS HEINRICH, and
VOLKER BAUM
____________________

Appeal 2012–005167
Application 11/229,466
Technology Center 2400
____________________

Before CARL W. WHITEHEAD JR., MICHAEL J. STRAUSS, and
MICHELLE N. WORMMEESTER, Administrative Patent Judges.

STRAUSS, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1, 2, 8–17, 20, 21, 23, 30–38, 42, and 43. Claims 3–7, 18, 19, 22, 24–29, 39–
41, 44, and 45 are canceled. We have jurisdiction over the pending claims
under 35 U.S.C. § 6(b).
We affirm.

THE INVENTION
The claims are directed to exchanging cryptography data. Abst. Claim
1, reproduced below, is representative of the claimed subject matter:
1. A method for exchanging cryptography data comprising the
steps of:
electronically storing current, cryptography data, having an
expiration point in time, in a memory at a first data
processing device;
using said current cryptography data in a plurality of
cryptographic operations to secure other data in said first
data processing device;
establishing a communication between said first data processing
device and a second data processing device located
remote from said first data processing device and, in said
second data processing device, determining, as an
exchange criterion associated with at least one of said
current cryptography data and said first data processing
device, whether said plurality of cryptographic operations
using said current cryptography data in said first data
processing device has exceeded a predetermined number
of cryptographic operations;
if said exchange criterion is fulfilled, initiating, in said second
data processing device, an exchange procedure;
in said exchange procedure, at said second data processing
device, providing new cryptography data, which are to be
loaded into said memory at said first data processing
device at a loading point in time, with a validity point in
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time, at which said new cryptography data become valid
for use by said first data processing device, that is later
than said loading point in time and not after said
expiration point in time and, from said second data
processing device, loading said new cryptography data
with said associated validity point in time into said
memory at said first data processing device at said
loading point in time; and;
upon reaching said expiration point time, automatically
beginning usage of new cryptography data, instead of
said current cryptography data, in said first data
processing device.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Brookner
Pierce
Teppler
1

US 6,041,317
US 6,868,407 B1
US 6,948,069 B1
Mar. 21, 2000
Mar. 15, 2005
Sept. 20, 2005
Hamai US 2006/0155855 A1 July 13, 2006

REJECTIONS
2

The Examiner rejected claims 1, 2, 8–17, 20, 21, 23, 30–38, 42, and
43 under 35 U.S.C. § 103(a) as being unpatentable over Pierce, Brookner,
Hamai, and Teppler. Ans. 5–20.

1
Due to a typographical error, Appellants’ references to Howard
2002/12689 should instead be to Teppler US 6,948,069. See Ans. 6.
2
Appellants collectively argue the rejection of independent claims 1 and 23
under 35 U.S.C. § 103(a). Separate patentability is not argued for dependent
claims 2, 8–17, 20, 21, 30–38, 42, and 43. Therefore, we decide the appeal
of all pending claims based on claim 1 alone. See 37 C.F.R.
§ 41.37(c)(1)(iv).

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APPELLANTS’ CONTENTIONS
1. Brookner’s criteria for initiating a key exchange relates to a first,
preferably, self-updating data processing device using the key, not a
remote second data processing device, while Peirce’s non-temporal
criteria are not used to determine if a new cryptographic key should be
implemented as required by claim 1. App. Br. 7.
2. Hamai’s validity point is prior to completion of certificate generation,
not later than the loading point in time as required by claim 1. App.
Br. 9.
3. Teppler’s3 operational period which may begin at a later time than
stated in the certificate is a generalized teaching lacking in any
guidance or motivation necessary to render claim 1 obvious. App. Br.
9.
4. “[T]he Examiner has not provided persuasive substantiating evidence
as to how or why a person of ordinary skill in the field of
cryptographic data processing would be guided or motivated to
modify the Pierce/Brookner combination in view of the . . . general
teachings in the Howard, Jr. [(i.e., Teppler)] reference, and the
contrary teachings in Hamai.” App. Br. 10.

ISSUES ON APPEAL
Based on Appellants’ arguments in the Appeal Brief (App. Br. 5–14)
and Reply Brief (Reply Br. 2–5), the issues presented on appeal are:
1. Whether the Examiner erred in concluding the combination of Pierce,
Brookner, Hamai, and Teppler teaches or suggests the disputed

3
Appellants’ reference to Howard should instead be to Teppler. See fn. 1.
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limitations of (i) determining, as an exchange criterion associated
with at least one of said current cryptography data and said first data
processing device, whether said plurality of cryptographic operations
using said current cryptography data in said first data processing
device has exceeded a predetermined number of cryptographic
operations and (ii) providing new cryptography data, which are to be
loaded into said memory at said first data processing device at a
loading point in time, with a validity point in time, at which said new
cryptography data become valid for use by said first data processing
device, that is later than said loading point in time and not after said
expiration point in time and, from said second data processing device.
2. Whether the Examiner erred in concluding the combination of Pierce,
Brookner, Hamai, and Teppler was obvious at the time of the
invention.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments the Examiner has erred. We disagree with Appellants’
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken (Ans. 5–20) and
(2) the reasons set forth by the Examiner in the Examiner’s Answer in
response to Appellants’ Appeal Brief (Ans. 20–26) and concur with the
conclusions reached by the Examiner. We highlight the following for
emphasis.
In connection with contention 1 Appellants argue Brookner’s key
exchange criteria, such as a number of pieces processed, “relate to different
types of criterion that may be employed at the first data processing device
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. . . [not] at a second data processing device that is [in] communication with
the first processing device, to determine when an exchange of cryptographic
data should occur [as required by claim 1].” App. Br. 7. The Examiner
responds by finding Pierce, not Brookner, is relied upon for teaching a data
center (i.e., second data processing device) which determines when to
change an active cryptographic key and issue a command to the PSD (i.e.,
first data processing device.) Ans. 7, 21–22. Brookner is relied upon for
teaching a non-temporal key, i.e., whether a plurality of cryptographic
operations using current cryptography data in a first device has exceeded a
predetermined number of cryptographic operations. Ans. 7. The Examiner
concludes it would have been obvious to modify the teachings of Pierce by
substituting Brookner’s non-temporal key updating criteria for Pierce’s
temporal criteria. Ans. 8.
We agree with the Examiner. Appellants are arguing the teachings of
Brookner separately without considering the teachings of Pierce. “Non-
obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). Appellants have not
explained why it would not be obvious to use the updating criteria of
Brookner in the system of Pierce or presented evidence the combination
would not result in teaching or suggesting the disputed limitation. In
contrast, we find the Examiner’s findings and conclusion of obviousness to
be supported by the evidence of record. Therefore, in the absence of
sufficient evidence, Appellants’ contention 1 is not persuasive of Examiner
error.
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Appellants’ arguments in support of contention 2 are unpersuasive for
similar reasons. In particular, although Appellants argue “the validity point
in time of the certificate in Hamai cannot be later than the loading point in
time” (App. Br. 9), the Examiner applies Teppler, not Hamai, for disclosing a
validity period starting from the date and time the certificate is used or a
later date or time, thereby teaching the disputed limitation (Ans. 9, 22–23).
Therefore, we agree with the Examiner the combination of Hamai and
Teppler teaches or suggests the disputed features of the exchange procedure
including “a validity point in time . . . that is later than said loading point in
time and not after said expiration point in time” as required by claim 1.
Furthermore, we disagree Hamai teaches away from the proposed
modification according to Teppler. See App. Br. 9. “A reference may be
said to teach away when a person of ordinary skill, upon reading the
reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was
taken by the applicant.” Ricoh Co., Ltd. v. Quanta Computer, Inc., 550 F.3d
1325, 1332 (Fed. Cir. 2008) (citations and quotations omitted). A reference
does not teach away if it merely expresses a general preference for an
alternative invention from amongst options available to the ordinarily skilled
artisan, and the reference does not discredit or discourage investigation into
the invention claimed. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Furthermore, “[a] known or obvious composition does not become
patentable simply because it has been described as somewhat inferior to
some other product for the same use.” In re Gurley, 27 F.3d 551, 553 (Fed.
Cir. 1994). Merely because “the validity point in time according to Hamai is
the point in time at which the certificate is generated . . .” (App. Br. 9) does
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not mean that one skilled in the art would be discouraged from, nonetheless,
employing a validity period starting from the date and time the certificate is
used or a later date or time as taught by Teppler. Therefore, for the reasons
supra, we find Hamai does not teach away from “a validity point in time . . .
that is later than said loading point in time and not after said expiration point
in time” as required by claim 1.
Appellant’s contention 3 is likewise unpersuasive of error. In
particular, Appellants’ contention arguing Teppler (mistakenly referenced as
Howard) is a very general teaching and “in no manner suggests the overall
combination of claims 1 and 23 as set forth in those claims” (App. Br. 9) is
unpersuasive because it amounts to arguing the teachings of Teppler
separately without considering the combined teachings of Pierce, Brookner,
Hamai, and Teppler.
We are also not persuaded by Appellants’ contention 4 arguing the
combination of Pierce, Brookner, Hamai, and Teppler is improper. App. Br.
10–14. According to Appellants:
[T]he Examiner has not provided persuasive substantiating
evidence as to how or why a person of ordinary skill in the field
of cryptographic data processing would be guided or motivated
to modify the Pierce/Brookner combination in view of the
aforementioned general teachings in the Howard, Jr.[sic.,
Teppler] reference, and the contrary teachings in Hamai.
App. Br. 10. The Examiner responds by finding:
[I]t would have been obvious to one of ordinary skill in the art
at the time the invention was made to modify the invention of
Pierce or Hamai with Teppler’s teaching to specify in the public
key certificates or the cryptographic data a valid date that is
later than the date that the certificates or the cryptographic data
is transmitted or provided to the to the device or receivers in
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order to increase the flexibility of controlling the use of
cryptographic information.
Ans. 26.
We agree with the Examiner and find Appellants’ arguments
unpersuasive of error. Rejections on obviousness grounds must be supported
by “some articulated reasoning with some rational underpinning” to combine
the known elements in the manner required in the claim at issue. KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). However, “the analysis need
not seek out precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences and creative
steps that a person of ordinary skill in the art would employ.” Id.
[I]f a technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill. .
. . [A] court must ask whether the improvement is more than the
predictable use of prior art elements according to their
established functions.
Id. at 417.
In the instant appeal, the Examiner relies on Hamai for teaching the
exchange procedure but for the limitation “a validity point in time . . . that is
later than said loading point in time and not after said expiration point in
time.” Ans. 8–9, 26. We are not persuaded that modifying the teachings of
Hamai to use a validity period starting from the date and time the certificate
is used or a later date or time according to the teachings of Teppler was
“uniquely challenging or difficult for one of ordinary skill in the art.” See
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007) (citing KSR, 550 U.S. at 418). Neither are we persuaded Hamai
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teaches away from the applied combination (App. Br. 10) for the reasons
supra.
In summary we find the Examiner has articulated reasoning with
rational underpinnings sufficient to justify the legal conclusion of
obviousness and Appellants’ contentions are unpersuasive of Examiner error.
Therefore, on the record before us, Appellants’ contentions that the
references were improperly combined are not persuasive of error and,
accordingly, the Examiner has properly relied upon the combination of
Pierce, Brookner, Hamai, and Teppler in formulating the disputed rejection
under 35 U.S.C. § 103(a).
For the reasons supra, we are unpersuaded of Examiner error.
Accordingly, we sustain the rejections of independent claim 1 and, for the
same reasons, independent claim 23 under 35 U.S.C. § 103(a) over Pierce,
Brookner, Hamai, and Teppler together with the rejection of dependent
claims 2, 8–17, 20, 21, 30–38, 42 and 43 which were not argued separately.

CONCLUSIONS
1. The Examiner did not err in concluding the combination of Pierce,
Brookner, Hamai, and Teppler teaches or suggests the disputed
limitations of (i) determining, as an exchange criterion associated with at
least one of said current cryptography data and said first data processing
device, whether said plurality of cryptographic operations using said
current cryptography data in said first data processing device has
exceeded a predetermined number of cryptographic operations and (ii)
providing new cryptography data, which are to be loaded into said
memory at said first data processing device at a loading point in time,
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with a validity point in time, at which said new cryptography data
become valid for use by said first data processing device, that is later than
said loading point in time and not after said expiration point in time and,
from said second data processing device.
2. The Examiner did not err in concluding the combination of Pierce,
Brookner, Hamai, and Teppler was obvious at the time of the invention.

DECISION
The Examiner’s decision to reject claims 1, 2, 8–17, 20, 21, 23, 30–
38, 42 and 43 is affirmed.
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

ELD