Ex Parte Gage

Board of Patent Appeals and Interferences

Jul 30, 2012

10763289 (B.P.A.I. Jul. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KENNETH L. GAGE
____________

Appeal 2010-000472
Application 10/763,289
Technology Center 2600
____________

Before DENISE M. POTHIER, BRUCE R. WINSOR,
and JOHN A. EVANS, Administrative Patent Judges.

WINSOR, Administrative Patent Judge.

DECISION ON APPEAL

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Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-32, which constitute all the claims pending in this application. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
Appellant’s described invention “relates generally to wireless
networks, and more specifically to coordination and management of such
networks.” (Spec. ¶ [1001]). Claim 1, which is illustrative of the invention,
reads as follows with emphasis added:
1. A method for selecting a wireless device network
communication link to a destination host through one of a
plurality of available wireless protocol links, the method
comprising:
selecting a first protocol link from the plurality of
available wireless protocol links based on predetermined
criteria;
establishing a first Transfer Control Protocol/Internet
Protocol (TCP/IP) network connection through the first
protocol link, wherein the wireless device has a designated IP
address:
detecting a change in status of the predetermined criteria
of the first protocol link;
selecting a second protocol link from the plurality of
available wireless protocol links based on the change in status
of the predetermined criteria;
establishing a second Transfer Control Protocol/Internet
Protocol (TCP/IP) network connection through the second
protocol link, using the designated IP address for the wireless
device; and
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terminating the first network connection through the first
protocol link, such that the wireless device does not lose
network communication with the destination host.
The Examiner relies on the following prior art1 in rejecting the claims:
Rawson US 2002/0078187 A1 June 20, 2002
Dorenbosch US 2004/0028009 A1 Feb. 12, 2004
Jones US 6,879,600 B1 Apr. 12, 2005
Siorpaes US 2005/0080884 A1 Apr. 14, 2005
Claims 1-3, 5-10, 12-15, 19-23, and 27-30 stand rejected under
35 U.S.C. § 102(e) as anticipated by Siorpaes. (Ans. 3-6).
Claims 16-18, 24-26, 31, and 32 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Siorpaes and Dorenbosch. (Ans. 6-7).
Claim 4 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Siorpaes and Jones. (Ans. 7-8).
Claim 11 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Siorpaes and Rawson. (Ans. 8).
Rather than repeat the arguments here, we refer to the Brief and the
Answer for the respective positions of Appellant and the Examiner. Only
those arguments actually made by Appellant have been considered in this
decision. Arguments that Appellant did not make in the Brief have not been
considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii)
(2010).

ISSUES
The pivotal issues raised by Appellant’s contentions are as follows:

1 The availability of the references as prior art is not disputed.
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Does Siorpaes disclose “establishing a second Transfer Control
Protocol/Internet Protocol (TCP/IP) network connection through [a] second
protocol link,” as recited in claim 1?
Does Siorpaes disclose “a Control Center configured to manage
mapping of network addresses to replace the first wireless protocol link with
another protocol link from the available protocol links,” as recited in claim
19?
Did the Examiner err in combining Siorpaes and Dorenbosch to reject
claims 16-18, 24-26, 31, and 32 under 35 U.S.C. § 103?

ANALYSIS
We have considered Appellant’s arguments (Br. 6-13) in light of the
Examiner’s findings (Ans. 3-8) and explanations in response to Appellant’s
arguments (Ans. 9-15). We agree with the Examiner’s findings and
explanations (Ans. 3-15) and adopt them as our own. We note the following
for emphasis.

REJECTION UNDER 35 U.S.C. § 102(E)
Claim 1
Appellant contends that the cited passage of Siorpaes (Siorpaes
¶ [0100]) discloses homogenous roaming using the same protocol
technology for each connection, whereas claim 1 calls for roaming where the
connections use a plurality of different wireless protocol technologies. (Br.
7). In other words, Appellant contends that the claimed first and second
protocol links are to be construed as having different protocol technologies.
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The Examiner responds that “the ‘first protocol link’ and the ‘second
protocol link’ may be interpreted as two different links that operate under a
protocol, regardless of whether the protocol is the same or different because
there is no distinction in the claim language.” (Ans. 10). We agree with the
Examiner.
[The USPTO] applies to the verbiage of the proposed claims
the broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in
the art, taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant’s specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
Appellant has not directed us to any passage of the Specification or
other evidence that would persuade us that the Examiner’s claim
construction is in error.
The Examiner additionally explains that Siorpaes discloses switching
or a handover between links having different technologies. (Ans. 9-10; see
Siorpaes ¶¶ [0056], [0057], [0084], [0088], [0110], [0113], [0129], [0134],
[0136]-[0146]). In other words, the Examiner has explained that even under
Appellant’s proposed claim construction, Siorpaes discloses “establishing a
second Transfer Control Protocol/Internet Protocol (TCP/IP) network
connection through the second protocol link,” as recited in claim 1. We find
the Examiner’s explanation to be reasonable and Appellant has not
persuasively rebutted this additional explanation.
Accordingly, we will sustain the rejection of claim 1. Appellant
makes substantially the same argument for the patentability of claims 27 (Br.
8-9) and 30 (Br. 9-10), which we find to be unpersuasive for the same
reasons. Therefore, we will sustain the rejections of claims 27 and 30.
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Claim 19
Appellant makes substantially the same argument for the patentability
of claim 19 (Br. 8) as was made for claim 1 and we find it to be
unpersuasive for the reasons set forth supra. (See also Ans. 10-11).
In addition, Appellant contends that the Examiner’s findings do not
address how Siorpaes discloses “a Control Center configured to manage
mapping of network addresses to replace the first wireless protocol link with
another protocol link from the available protocol links.” (Br. 10-11). The
Examiner explains that “control center” reads on Siorpaes’s servers because
they perform the “mapping” function recited for the Control Center (Ans.
13; see Siorpaes ¶¶ [0096], [0115], [0121]-[0133], [0135]-[0146]). “[For a
finding of anticipation the] elements must be arranged as in the claim under
review, but this is not an ‘ipsissimis verbis’ test.” In re Bond, 910 F.2d 831,
832 (Fed. Cir. 1990) (citations omitted). The Examiner construes
“mapping” in claim 19 as follows:
As defined by the claim language, “mapping” is the
replacement of a first protocol link with another protocol link.
Thus when the mobile terminal conducts a handover, a first
protocol link would be “mapped” or replaced by another
protocol link in both instances of roaming between access
points of the same IP subnet or roaming to another technology.
(Ans. 13). Appellant has not directed us to any passage of the Specification
or other evidence that would persuade us that the Examiner’s claim
construction is in error. In addition, we find the Examiner’s explanation to
be reasonable and not persuasively rebutted by Appellant.
Lastly, Appellant observes that “Appellant fails to see how Siorpaes
can teach mapping network addresses without generating a mapping table.”
(Br. 10). We note that the Examiner’s construction of “mapping,” quoted
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supra, addresses this observation (see Ans. 13). Additionally, a recitation to
“a mapping table” is not found in claim 19. Rather, this language is found in
claim 16, for example, which is separately rejected based on Siorpaes and
Dorenbosch. Ans. 6-7. The Examiner further points to the citation of
Dorenbosch against those claims that recite that the mapping is done with a
“mapping table.” (Id.).
Accordingly, we will sustain the rejection of claim 19.
Claims 2, 3, 5-10, 12-15, 20-23, 28, and 29
Appellant argues that dependent claims 2, 3, 5-10, 12-15, 20-23, 28,
and 29 are allowable because they depend from one of claims 1, 19, and 27.
(Br. 12). Appellant does not otherwise argue the patentability of claims 2, 3,
5-10, 12-15, 20-23, 28, and 29 with particularity. Accordingly, for the
reasons set forth supra regarding claims 1 and 19, we will sustain the
rejections of claims 2, 3, 5-10, 12-15, 20-23, 28, and 29.

REJECTIONS UNDER 35 U.S.C. § 103(A)
Claims 16-18, 24-26, 31, and 32
Appellant argues that Dorenbosch fails to cure the deficiencies of
Siorpaes and that claims 16-18, 24-26, 31, and 32 are allowable because they
depend from one of claims 1, 19, and 30. (Br. 13). We find these arguments
to be unpersuasive for the reasons set forth supra regarding claims 1 and 19.
Appellant further contends (Br. 11-12) that combining Siorpaes’s TCP
protocol with Dorenbosch’s SCTP protocol would render Siorpaes
unsuitable for its intended purpose and change its principle of operation.
The Examiner responds that “Dorenbosch was cited explicitly to teach the
use of a network address translation of an IP address between two different
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networks.” (Ans. 14; see also Ans. 7). In other words, Appellant’s
arguments are not commensurate with the rejection articulated by the
Examiner. We agree with the Examiner.
“[T]he [obviousness] 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.” KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007). “A person of ordinary skill is also a person of
ordinary creativity, not an automaton.” Id. at 421.
To justify combining reference teachings in support of a
rejection it is not necessary that a device shown in one
reference can be physically inserted into the device shown in
the other. The test for obviousness is not whether the features
of a secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill
in the art.
In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted). Appellant
has not persuaded us that using network address translation as taught
Dorenbosch, combined with Siorpaes’s method of connecting a mobile
device to the internet, as articulated by the Examiner (Ans. 7), would change
the principle of operation of Siorpaes’s method or render it inoperable or
unsuitable for its intended purpose. (App. Br. 11-12).
Appellant further contends that, because Dorenbosch teaches the use
of two IP addresses to enable two connections, while the claimed invention
uses only a single IP address, Dorenbosch teaches away from the claimed
invention. However, Appellant has, at most, established that Dorenbosch
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has differences from Siorpaes and the claimed invention. “[A] disclosure
. . . does not constitute a teaching away . . . [if] such disclosure does not
criticize, discredit, or otherwise discourage the solution claimed.” In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Appellant has not identified
any passage in Dorenbosch or Siorpaes that persuasively “criticize[s],
discredit[s], or otherwise discourage[s] the solution claimed” (id.).
Appellant has not persuaded us that the Examiner erred in combining
Siorpaes and Dorenbosch to reject claims 16-18, 24-26, 31, and 32.
Accordingly we will sustain the rejection of claims 16-18, 24-26, 31, and 32.
Claim 4
Appellant argues that Jones fails to cure the deficiencies of Siorpaes
and that claim 4 is allowable because it depends from claim 1. (Br. 13).
Appellant does not otherwise argue the patentability of claim 4 with
particularity. Accordingly, for the reasons set forth supra regarding claim 1
we will sustain the rejection of claim 4.
Claim 11
Appellant argues that Rawson fails to cure the deficiencies of Siorpaes
and that claim 11 is allowable because it depends from claim 1. (Br. 13).
Appellant does not otherwise argue the patentability of claim 11 with
particularity. Accordingly, for the reasons set forth supra regarding claim 1
we will sustain the rejection of claim 11.

ORDER
The decision of the Examiner to reject claims 1-32 is affirmed.
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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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2010).

AFFIRMED

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