Ex Parte KOO

Patent Trial and Appeal Board

Dec 19, 2018

15288031 (P.T.A.B. Dec. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
15/288,031 10/07/2016 JahonKOO
22429 7590 12/21/2018
HAUPTMAN HAM, LLP
2318 Mill Road
Suite 1400
ALEXANDRIA, VA 22314
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.
4900-011 lCON 4916
EXAMINER
DUONG, CHRISTINE T
ART UNIT PAPER NUMBER
2462
NOTIFICATION DATE DELIVERY MODE
12/21/2018 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):
docketing@ipfirm.com
pair_lhhb@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAHON KOO
Appeal 2018-002561
Application 15/288,031
Technology Center 2400
Before JOHN A. EV ANS, JASON J. CHUNG, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
AMUNDSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134(a) from a final
rejection of claims 1-15, i.e., all pending claims. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies the real party in interest as SK Telecom Co., Ltd.
App. Br. 3.
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Application 15/288,031
STATEMENT OF THE CASE
The Invention
According to the Specification, the invention concerns "an apparatus
and a method for supporting a data transmission service in a multi-network
environment." Spec. ,r 2. 2 The Specification explains that a transmitting
device "transmit[ s] data through two or more networks including a first
network and a second network" to a receiving device, and when the
transmitting device identifies that "the receiving device is in the data
roundabout transmission request state," the transmitting device "transmit[ s]
the data, which is to be transmitted to the receiving device through the first
network, to the receiving device in a roundabout way through the second
network in response to the data roundabout transmission request state." Id.
Abstract; see id. ,r,r 9--11, 34, 135.
Exemplary Claim
Independent claim 1 exemplifies the claims at issue and reads as
follows:
1. A transmitting device, comprising:
a communication unit configured to
transmit data through two or more networks
including a first network and a second network, wherein
the data has been divided into first partial data and
second partial data; and
2 This decision uses the following abbreviations: "Spec." for the
Specification, filed October 7, 2016; "Final Act." for the Final Office
Action, mailed March 2, 2017; "App. Br." for the Appeal Brief, filed
August 17, 2017; "Claims App." for the Claims Appendix, filed
September 26, 2017; "Ans." for the Examiner's Answer, mailed
November 9, 2017; and "Reply Br." for the Reply Brief, filed January 9,
2018.
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a transmission controller configured to
control the communication unit to transmit (i) the
first partial data to the receiving device through the first
network, and (ii) the second partial data to the receiving
device through the second network,
identify that the receiving device is in a data
roundabout transmission request state with respect to the
first network, and
control the communication unit to transmit the first
partial data, which is to be transmitted to the receiving
device through the first network, and the second partial
data to the receiving device through the second network,
when the receving [sic] device with respect to the first
network is identified to be in the data roundabout
transmission request state,
wherein the transmission controller is configured to
identify whether the receiving device is in the data roundabout
transmission request state, based on at least one selected from
the group consisting of an available bandwidth, a connection
error generation state, and a predetermined delay value of
receiving the data with respect to the first network.
Claims App. 3.
The Prior Art Supporting the Rejection on Appeal
As evidence ofunpatentability under 35 U.S.C. § I03(a), the
Examiner relies on the following prior art:
Katz et al. ("Katz")
Salkintzis et al. ("Salkintzis")
US 2006/0291455 Al
US 2012/0188949 Al
The Rejection on Appeal
Dec. 28, 2006
July 26, 2012
Claims 1-15 stand rejected under 35 U.S.C. § I03(a) as unpatentable
over Salkintzis and Katz. Final Act. 2-10.
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ANALYSIS
We have reviewed the§ 103(a) rejection in light of Appellant's
arguments that the Examiner erred. For the reasons explained below, we
concur with the Examiner's conclusions concerning unpatentability under
§ 103(a). We adopt the Examiner's findings and reasoning in the Final
Office Action (Final Act. 2-11) and Answer (Ans. 3-17). We add the
following to address and emphasize specific findings and arguments.
The§ 103(a) Rejection of Claim 1
ANALOGOUS OR NONANALOGOUS ART
Appellant argues that the Examiner erred in rejecting claim 1 because
Salkintzis and Katz concern a different technical field than the claimed
invention. See App. Br. 9-10; Reply Br. 4--6. Appellant asserts that the
claimed invention "is related to the data roundabout transmission in the
heterogeneous networks," specifically:
how to transmit the data in a roundabout way in the
heterogeneous networks, when a data roundabout transmission
request state is occurred while partial data (e.g., first partial data
and second partial data) are transmitted through a first network
and a second network included in the heterogeneous networks.
App. Br. 9; Reply Br. 4--5. Appellant also asserts that the claimed invention
"is not related to data transmission in the field of handoff (or handover)
technology in cellular telecommunications network." App. Br. 9; Reply
Br. 4--5.
In addition, Appellant contends that the claimed invention concerns
"the technical field of the simultaneous trasmission [sic] in the
heterogeneous networks." App. Br. 10-12; Reply Br. 6. Appellant disputes
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that Salkintzis and Katz concern that technical field. App. Br. 9--10; Reply
Br. 4---6.
Appellant's arguments do not persuade us of Examiner error because
Salkintzis and Katz constitute analogous art. The scope of analogous art
includes references "from the same field of endeavor" as the claimed
invention and references "reasonably pertinent to the particular problem"
confronting the inventor. In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004);
see In re Wood, 599 F.2d 1032, 1036 (CCPA 1979). Here, the field of
endeavor concerns data transmission through two different networks and
using only one of the two networks when preferable, e.g., due to decreased
signal intensity, signal quality, or bandwidth in one of the two networks.
See, e.g., Spec. ,r,r 2-11, 18, 33-34, 40-111, 135, Abstract, Figs. 4---6;
Claims App. 4 (claims 5-6); Ans. 11-12.
The Specification distinguishes between cellular networks ( e.g., 3G)
and WiFi networks (e.g., IEEE 802.11). See, e.g., Spec. ,r,r 3, 22-34, 50, 58,
62, 70-71, 105-106, 110-111, 130. The Specification describes data
transmission through two different networks, e.g., a cellular network and a
WiFi network. See, e.g., id. ,r,r 20-71, Fig. 1. A sufficient decrease in, for
example, signal intensity, signal quality, or bandwidth in one of the two
networks results in a "data roundabout transmission request state" at a
receiving device. See, e.g., id. ,r,r 9-11, 43-54, 94, Figs. 4--6. In response to
a "data roundabout transmission request state" at a receiving device, a
transmitting device directs all data through only one of the two networks.
See, e.g., id. ,r,r 9-11, 55-57, 84, 86, 89, 93, Figs. 4--6.
Salkintzis and Katz constitute analogous art because they are "from
the same field of endeavor" as the claimed invention. See Ans. 11-12;
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Salkintzis ,r,r 8, 17, 23, 33-34, 40-41, 43, 47--48, 60, 70-74, Abstract, Fig. 3;
Katz,r,r 1, 8, 21,242,511, 519-520, 531-532, 534, 548-550, 556, 558-559,
562, 574, Abstract.
Salkintzis concerns data transmission through two different networks,
e.g., a cellular network and a WLAN (WiFi network). Salkintzis ,r,r 8, 17,
23, 33-34, 40-41, 43, 47--48, 60, 70-74, Abstract, Fig. 3; see Final Act. 3-5;
Ans. 3---6. Salkintzis discloses splitting data between the two networks, e.g.,
to achieve 50%-50% load balancing. Salkintzis ,r,r 33, 40, 47--48, 60, 70, 74.
For example, Salkintzis describes splitting streaming video data between a
cellular network and a WiFi network for load-balancing purposes. Id. ,r 74.
But the WiFi network "take[ s] over all streaming traffic" as "the user moves
out of' cellular coverage. Id. Salkintzis instructs that if one of the two
networks "becomes temporarily unavailable," e.g., due to "slow-fading
propagation," the other network could "carry all the flow traffic." Id. ,r 72;
see id. ,r 34.
Katz also concerns data transmission through two different networks,
e.g., a PLMN (public land mobile network), such as a cellular network, and
a non-PLMN, such as a WiFi network. Katz ,r,r 1, 8, 21, 511, 519-520,
531-532, 534, 548-550, 556, 558-559, 562, Abstract; see Final Act. 5---6;
Ans. 6-7. Upon a sufficient decrease in the quality of service in a WiFi
network, e.g., due to a "severely degraded" connection, a mobile device
connects to a cellular network before losing the connection to the WiFi
network. Katz ,r,r 242, 519-520, 548-550, 556, 558-559, 562. The mobile
device does so to maintain seamless continuity of communication. Id.
,r,r 242, 548.
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In addition, Salkintzis and Katz constitute analogous art because they
are "reasonably pertinent to the particular problem" confronting the
inventor. The Specification explains that WiFi networks do not have a
handover function like cellular networks. Spec. ,r,r 8, 33-34; see also Katz
,r 21. To provide seamless data service when transmitting data through a
cellular network and a WiFi network, "data is transmitted in a roundabout
way through" the cellular network before losing the connection to the WiFi
network, "and thus an effect such as the handover function is created."
Spec. ,r 135; see id. ,r,r 18, 34, 51. Salkintzis and Katz describe techniques
for providing seamless data service. See, e.g., Salkintzis ,r,r 8, 17, 23, 33-34,
40-41, 43, 47--48, 60, 70-74, Abstract, Fig. 3; Katz ,r,r 242, 519-520,
548-550, 556, 558-559, 562. As the Examiner correctly reasons, the phrase
"data roundabout transmission" relates to "alternative routing functionality."
Ans. 12.
Appellant's contention that the claimed invention concerns "the
technical field of the simultaneous trasmission [sic] in the heterogeneous
networks" does not demonstrate Examiner error. See App. Br. 10-12; Reply
Br. 6. Salkintzis addresses simultaneous transmission in heterogeneous
networks, e.g., a cellular network and a WLAN (WiFi network). See, e.g.,
Salkintzis ,r,r 8, 17, 23, 33-34, 40-41, 43, 47--48, 60, 70-74, Abstract, Fig. 3.
As discussed above, Salkintzis discloses splitting data between the two
networks, e.g., to achieve 50%-50% load balancing. Id. ,r,r 33, 40, 47--48,
60, 70, 74. Katz also addresses simultaneous transmission in heterogeneous
networks, e.g., a PLMN and a non-PLMN. See, e.g., Katz ,r,r 1, 8,242, 511,
519-520, 531-532, 534, 548-550, 556, 558-559, 562, 574, Abstract.
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Further, under the heading "Technical Field," the Specification states
that the "disclosure relates to an apparatus and a method for supporting a
data transmission service in a multi-network environment." Spec. ,r 2. As
explained above, Salkintzis and Katz relate to that technical field.
ALLEGED DIFFERENCES BETWEEN CLAIM 1 AND THE REFERENCES
Appellant argues that the Examiner erred in rejecting claim 1 because
Salkintzis and Katz, "either alone or in the combination, fail to disclose or
teach" the following limitations in claim 1:
(a) "transmit data through two or more networks
including a first network and a second network, wherein the
data has been divided into first partial data and second partial
data·"
'
(b) "transmit (i) the first partial data to the receiving
device through the first network, and (ii) the second partial data
to the receiving device through the second network;"
( c) "identify that the receiving device is in a data
roundabout transmission request state with respect to the first
network" ( emphasis added); and
( d) "control the communication unit to transmit the first
partial data, which is to be transmitted to the receiving device
through the first network, and the second partial data to the
receiving device through the second network, when the
receving [sic] device with respect to the first network is
identified to be in the data roundabout transmission request
state" ( emphasis added).
App. Br. 8-9 ( emphasis in original); Reply Br. 4.
Specifically, Appellant asserts that Salkintzis "does not explicitly
disclose or teach the features of transmitting partial data ... through the first
network and the second network included in heterogeneous networks of the
simultaneous data transmission system." App. Br. 10-11; see Reply
Br. 6-7. Appellant also asserts that Salkintzis "fails to disclose the features
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related to how to identify and determine the data roundabout transmission
request state of the receiving device with respect to the first network." App.
Br. 12; see Reply Br. 7-8.
In addition, Appellant contends that Katz "is silent as to the feature
how to identify and determine the data roundabout transmission request state
of the receiving device with respect to the first network." App. Br. 13; see
Reply Br. 9. According to Appellant, a handoff in Katz "relate[ s] to the
process of transferring on [sic] ongoing call or data session from a current
channel of the source cell to the channel of the target cell in [a] cellular
telecommunications network," i.e., "releasing [the] current channel of the
source cell and engaging the channel, to be established, of a target cell."
App. Br. 13 (emphasis omitted); see Reply Br. 9.
Appellant's arguments do not persuade us of Examiner error because
they mischaracterize the references. Salkintzis discloses first partial data
transmitted through a first network and second partial data transmitted
through a second network. See Final Act. 3-5; Ans. 3-6. Salkintzis
explains that wireless device 40 routes a single data flow "as two sub-flows"
through two heterogeneous networks, e.g., a cellular network and a WLAN
(WiFi network). Salkintzis ,r,r 8, 17, 23, 33-34, 40-41, 43, 47--48, 60,
70-74, Abstract, Fig. 3; see Final Act. 3-5; Ans. 3---6. For instance,
Salkintzis Figure 3 shows data sub-flow 36 transmitted through cellular
interface 46 and data sub-flow 37 transmitted through WLAN (WiFi
network) interface 48. Salkintzis ,r,r 17, 23, 43, Fig. 3. The wireless device
transmits sub-flows 36 and 37 simultaneously. Id. ,r,r 23, 43. Those
sub-flows correspond to first partial data transmitted through a first network
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and second partial data transmitted through a second network. See Final
Act. 3-5; Ans. 3-6.
Further, contrary to Appellant's contention, Katz does not simply
address data transfers or handovers between different cells in a cellular
network. As discussed above, Katz discloses data transmission through a
cellular network and a WiFi network. Katz ,r,r 1, 8, 21, 511, 519-520,
531-532, 534, 548-550, 556, 558-559, 562, Abstract; see Final Act. 5-6;
Ans. 6-7.
As for Appellant's arguments that the references fail to disclose the
feature "how to identify and determine the data roundabout transmission
request state of the receiving device with respect to the first network," the
phrase "data roundabout transmission request state" refers to any condition
where using only the second network for transmission is preferable to using
both networks for transmission. See, e.g., Spec. ,r,r 9-11, 40-111, Abstract,
Figs. 4---6; see also Ans. 11-12. Those conditions include decreased signal
intensity, signal quality, or bandwidth in the first network. See, e.g., Spec.
,r,r 42--48; see also Claims App. 4 ( claims 5---6). Those conditions also
include a "preset particular data service type" and a "selection of the data
roundabout transmission request state ... by the user." See, e.g., Spec.
,r,r 49-51, 54; see also Claims App. 4 (claims 3--4).
Salkintzis teaches or suggests identifying a condition where using
only one network for transmission is preferable to using both networks for
transmission. See Salkintzis ,r,r 34, 72; Final Act. 4--5; Ans. 5, 14.
Specifically, Salkintzis instructs that if one of the two networks "becomes
temporarily unavailable," e.g., due to "slow-fading propagation," the other
network could "carry all the flow traffic." Salkintzis ,r 72; see id. ,r,r 34, 74.
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Identifying "slow-fading propagation" satisfies claim 1 's requirement to
"identify that the receiving device is in a data roundabout transmission
request state with respect to the first network." See Ans. 14--15.
Katz also teaches or suggests identifying a condition where using only
one network for transmission is preferable to using both networks for
transmission. See Katz ,r,r 519--520; Final Act. 5-6; Ans. 6-7, 16-17. In
particular, Katz explains that a mobile device detects whether its quality of
service in a WLAN (WiFi network) is acceptable or unacceptable. Katz
,r,r 519--520; see id. ,r,r 511,526, 531-532. Detecting an unacceptable
quality of service satisfies claim 1 's requirement to "identify that the
receiving device is in a data roundabout transmission request state with
respect to the first network." See Ans. 16-17.
Appellant attempts to distinguish claim 1 from Katz by contending
that "'a WiFi network becoming unavailable' of Katz merely indicates
unavailable conditions for performing a handoff into a WiFi network."
Reply Br. 9. That contention conflicts with the Specification's explanation
that WiFi networks do not have a handover function like cellular networks.
Spec. ,r,r 8, 33-34; see also Katz ,r 21.
In addition, Salkintzis discloses controlling the transmission of the
first partial data and the second partial data using only the second network
"when the receving [sic] device with respect to the first network is identified
to be in the data roundabout transmission request state," as recited in
claim 1. As discussed above, Salkintzis instructs that if one of the two
networks "becomes temporarily unavailable," e.g., due to "slow-fading
propagation," the other network could "carry all the flow traffic." Salkintzis
,r 72; see id. ,r,r 34, 74. Salkintzis analogizes the effect to "vertical soft-
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handovers" in cellular networks, explaining that "[ t ]ransmitting a single IP
flow over heterogeneous access networks can provide an effect similar to
vertical soft-handovers." Id. ,r 74. Thus, Appellant incorrectly contends that
Salkintzis "is related to vertical soft-handovers." Reply Br. 6 ( emphasis
omitted).
Appellant attempts to distinguish claim 1 from Salkintzis by asserting
that "the data roundabout transmission request state is identified by a
transmitting device in response to a message ... from a receiving device,
informing that the receiving device is in the data roundabout transmission
request state with respect to the first network." Reply Br. 7 ( citing Spec.
,r 103, Fig. 4 ). That attempt fails because claim 1 does not require a message
from a receiving device. Although the claims are interpreted in light of the
specification, limitations from the specification are not read into the claims.
In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993); see Hill-Rom Servs.,
Inc. v. Stryker Corp., 755 F.3d 1367, 1371 (Fed. Cir. 2014). Limitations not
appearing in the claims cannot be relied upon for patentability. See In re
Self, 671 F.2d 1344, 1348, 1350 (CCPA 1982). In addition, Katz discloses a
mobile device that sends a notification to a transmitting device before
transmission through a WLAN (WiFi network) ends. Katz ,r,r 556, 562.
For the reasons discussed above, the combined disclosures in
Salkintzis and Katz teach or suggest the disputed limitations in claim 1. See
Final Act. 3-7; Ans. 3-7, 11-17.
TEACHING AWAY
Appellant asserts that Katz "teaches away from the claimed feature,
i.e., 'the data roundabout transmission in the heterogeneous networks, when
the receving [sic] device with respect to the first network is identified to be
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in the data roundabout transmission request state."' App. Br. 13-14.
Appellant also asserts that the combination of Salkintzis and Katz teaches
away from the claimed invention. Id. at 14; see Reply Br. 9.
"A reference does not teach away ... if it merely expresses a general
preference for an alternative invention but does not 'criticize, discredit, or
otherwise discourage' investigation into" the claimed invention. DePuy
Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327
(Fed. Cir. 2009) (quoting In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir.
2004)). Appellant does not explain how Salkintzis or Katz criticizes,
discredits, or otherwise discourages investigation into the claimed invention.
See App. Br. 13-14; Reply Br. 9. Hence, Appellant's teaching-away
arguments do not persuade us of Examiner error.
SUMMARY FOR CLAIM 1
For the reasons discussed above, Appellant's arguments have not
persuaded us that the Examiner erred in rejecting claim 1 under§ 103(a).
Thus, we sustain the§ 103(a) rejection of claim 1.
The§ 103 (a) Rejection of Claims 2-15
INDEPENDENT CLAIMS 7 AND 12
Appellant asserts that independent claims 7 and 12 "recite[] one or
more distinct features analogous to claim 1." App. Br. 15-16; Reply Br. 10.
Appellant's assertions do not constitute separate patentability arguments.
See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (explaining that the
applicable rules "require more substantive arguments in an appeal brief than
a mere recitation of the claim elements and a naked assertion that the
corresponding elements were not found in the prior art"). Because
Appellant does not argue the claims separately, we sustain the § 103 (a)
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rejection of claims 7 and 12 for the same reasons as claim 1. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
DEPENDENT CLAIMS 2---6, 8-11, AND 13-15
Claims 2---6 depend directly or indirectly from claim 1; claims 8-11
depend directly or indirectly from claim 7; and claims 13-15 depend directly
or indirectly from claim 12. Appellant does not argue patentability
separately for these dependent claims. App. Br. 8-14; Reply Br. 4--10.
Thus, we sustain the§ 103(a) rejection of these dependent claims for the
same reasons as the independent claims. See 37 C.F.R. § 4I.37(c)(l)(iv).
DECISION
We affirm the Examiner's decision to reject claims 1-15.
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). See
37 C.F.R. § 4I.50(f).
AFFIRMED
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