Ex Parte ELLIOTT et al

Patent Trial and Appeal Board

Dec 31, 2018

14648442 (P.T.A.B. Dec. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/648,442 05/29/2015
23117 7590 01/03/2019
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
David Mark ELLIOTT
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.
RYM-36-2526 8130
EXAMINER
MCCALLUM, LATRESA A
ART UNIT PAPER NUMBER
2469
NOTIFICATION DATE DELIVERY MODE
01/03/2019 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID MARK ELLIOTT, CRAIG DAVID MULVANEY, and
DAVID ANDREW BRUCE
Appeal 2018-004369
Application 14/648,442 1
Technology Center 2400
Before TERRENCE W. McMILLIN, KARA L. SZPONDOWSKI, and
SCOTT B. HOWARD, Administrative Patent Judges.
McMILLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the final
rejection of claims 1, 2, 4, 6-11, 13, and 14. Claims 5 and 12 are allowed.
Ans. 20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is British
Telecommunications Public Limited Company. App. Br. 3.
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Application 14/648,442
THE CLAIMED INVENTION
The present invention relates generally to "connection of data
terminals to a data network through wireless access points, and in particular
to restoration of such access in the event of failure of a primary connection
between an access point and the data network." Spec. 1, 11. 1-3.
Independent claim 1 is directed to a process; independent claim 7 is directed
to an access point; independent claim 8 is directed to a user terminal; and
independent claim 14 is directed to a non-transitory computer-readable
storage medium. App. Br. 14, 16, 18-19.
Claim 1, reproduced below, is representative of the claimed subject
matter:
1. A process for restoration of network access for a wireless-
enabled data processing device, initially connected to a data
network by means of a first access point, after connection
between the first access point and the data network is lost,
comprising the steps of
a. in the first access point, detecting loss of connection to
the data network;
b. transmitting instructions from the first access point to
the data processing device to cause the data processing device to
i. scan for beacon signals to identify operational
wireless access points;
ii. identify a suitable redirection routing through a
selected one of the further wireless access points; and
iii. establish connection to the data network through
the selected further wireless access point;
wherein the instructions are retrieved by the data
processing device from the first access point while connection
between the first access point and the data network is lost.
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App. Br. 14 (Claims Appendix).
REJECTIONS ON APPEAL
Claims 1, 2, 6-10, 13, and 14 stand rejected under 35 U.S.C. § I03(a)
as being unpatentable over Isaksson et al. (US 2011/0032816 Al; published
Feb. 10, 2011) ("Isaksson"), Gandhi (Tolerance to Access-Point Failures in
Dependable Wireless Local-Area Networks, IEEE International Workshop
on Object-Oriented Real-Time Dependable Systems (2004)), and Maharana
et al. (US 2011/0280118 Al; published Nov. 17, 2011) ("Maharana").
Ans. 2, 10.
Claims 4 and 11 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over Isaksson, Gandhi, Maharana, and Hartog et al. (US
2013/0182560 Al; published July 18, 2013) ("Hartog"). Ans. 17, 18.
ANALYSIS
Appellants contend none of the references teaches "the idea of
transmitting instructions from the access point to the terminals to seek an
alternative access point after the backhaul is lost from the original access
point" because "Gandhi and Maharana both have terminals which already
have the capability to do so without prompting" and "Isaksson, which is the
only one to transmit any instructions, specifies a neighbour rather than allow
the terminal to seek one for itself." App. Br. 12; see App. Br. 10-11; see
Reply Br. 3. According to Appellants, all of the references teach "the device
that is to do the scanning/handover already has the capability installed, ready
to be run in response to the trigger," and that the "trigger may be the
transmission of a neighbor list (Isaksson), loss of connection to the access
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Application 14/648,442
point (Gandhi) or de-authentication (Maharana), but none of those prompts
include the downloading of program data to a device not already having a
handover program installed." Reply Br. 4. We are not persuaded of
Examiner error.
First, we agree with the Examiner's conclusion that Appellants'
argument relies on features that are not recited in the rejected claims. See
Ans. 45. Contrary to Appellants' contention that claim 1 requires
"downloading of program data to a device not already having a handover
program installed," the claim instead recites "transmitting instructions from
the first access point to the data processing device ... that are retrieved by
the data processing device from the first access point while connection
between the first access point and the data network is lost" and that cause the
data processing device to scan for, identify, and establish connection with
suitable redirection routing operational access points. In other words, claim
1 does not require downloading program data or that the device does not
already have a handover program installed, as argued by Appellants. Rather,
claim 1 merely requires transmitting instructions, during a lost connection,
to enable handover.
Second, we agree with the Examiner that Appellants' argument
separately against Isaksson, Gandhi, and Maharana does not persuasively
rebut the combination made by the Examiner. See Ans. 35. One cannot
show non-obviousness by attacking references individually, where the
rejections are based on combinations of references. In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413,425 (CCPA
1981 ).
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Specifically, we agree with the Examiner's finding that Isaksson's
broadcasting notifications from the access point to the mobile device teaches
the claimed transmitting instructions from the first access point to the data
processing device. Ans. 3 (citing Isaksson Figs. 1-2, ,r,r 13-14). We further
agree with the Examiner that Isaksson's monitoring state of the access point
connection to the core network and broadcasting a notification to the mobile
devices when the connection is interrupted or fails, and accessing one of the
alternate access points identified by the broadcasted notification message to
continue communications with the core network, teaches the claimed
transmitted instructions being retrieved by the data processing device from
the first access point while connection between the first access point and the
data network is lost. Ans. 34 (citing Isaksson Fig. 1, ,r,r 13, 16). We also
agree with the Examiner's finding that Gandhi's sweeping for beacon frames
to identify operational wireless access points teaches the claimed scanning
for beacon signals to identify operational wireless access points. Ans. 3
(citing Gandhi 2, § 2, 11. 10-16, 19-21).
As cited by the Examiner (Ans. 3, 34), Isaksson teaches "an access
point 50 monitors the state of its connection to the core network 30 and
broadcasts a notification to the mobile devices 20 when the connection is
interrupted or fails" and the "access point 40 may also broadcast redirect
information to the mobile devices 20 to indicate the preferred access points
40 available for reselection by the mobile devices 20." Isaksson ,r 13.
Gandhi teaches "a mobile station sweeps from channel-to-channel ... to
detect the presence of Beacon frames which are periodically transmitted by
the access-points" and "contain all the information that is needed by a
mobile station to associate itself with the access-point" as part of passive
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scanning for handover. Gandhi 2, § 2. In other words, Isaksson teaches an
access point transmitting (i.e., broadcasting) instructions for establishing
connection through an alternative access point (i.e., notification and redirect
information) to the data processing device (i.e., mobile devices) while the
connection between the access point and data network is lost (i.e., when the
connection between the access point and the core network is interrupted or
fails); and Gandhi teaches scanning for beacon signals (i.e., beacon frames)
to identify operational wireless access points (i.e., the beacon frames are
transmitted by access points and contain information for association with the
access points).
Appellants have not provided persuasive argument or evidence that
the claimed transmitting instructions from the first access point to the data
processing device, retrieved by the data processing device while connection
between the first access point and the data network is lost, that cause the data
processing device to identify, and establish connection with a suitable
redirection operational access point, is not taught or otherwise suggested by
Isaksson's broadcasting notification and redirection information from the
access point to the mobile devices, when the connection between the access
point and the core network is interrupted or fails, that cause the mobile
devices to identify and establish connection with a suitable redirection
access point; or that the claimed scanning for operational access points is not
taught or otherwise suggested by Gandhi's scanning for operational access
points.
Appellants further argue, for the first time in the Reply Brief, that
"one of ordinary skill in the art would not have been motivated to modify the
teachings of Isaksson and Gandhi in view of those of Maharana to arrive at
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transmitting a handover application ... from an access point in response to
loss of a connection." Reply Br. 4. Appellants' contentions in the Reply
Brief are untimely. 37 C.F.R. § 41.41(b)(2) (2012) ("Any argument raised
in the reply brief which was not raised in the appeal brief ... will not be
considered by the Board for purposes of the present appeal, unless good
cause is shown."). Here, no good cause having been shown, Appellants
have waived such untimely arguments.
Accordingly, we sustain the 35 U.S.C. § 103 rejection of independent
claim 1, as well as the independent claims 7, 8, and 14, with commensurate
limitations, and dependent claims 2, 4, 6, 9-11, and 13, not separately
argued. See App. Br. 12-13.
DECISION
The Examiner's rejections of claims 1, 2, 4, 6-11, 13, and 14 under 35
U.S.C. § 103 are 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)(l )(iv).
AFFIRMED
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