Ex Parte Myers et al

Board of Patent Appeals and Interferences

Sep 11, 2012

10421716 (B.P.A.I. Sep. 11, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ROBERT L. MYERS and PAULO NEVES FRANCISCO
____________________

Appeal 2009-015090
Application 10/421,716
Technology Center 2400
____________________

Before ALLEN R. MacDONALD, ERIC S. FRAHM, and
TREVOR JEFFERSON, Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-18, 20, and 21, all the claims pending in the application. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
Appellants’ Invention
Appellants disclose a method of preventing network address spoofing
within a wireless network. Abs. More particularly, Appellants claim a
method of preventing network address spoofing in respect of a plurality of
mobile units including executing an anti-spoofing protocol upon the
determination of first and second mobile units having network addresses that
match (claim 1), and wireless networks including similarly recited execution
of an anti-spoofing protocol (claims 11 and 21).
Exemplary Claim
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below with emphases added
(parentheses and lettering in original):
1. A method for preventing network address spoofing in
respect of a plurality of mobile units within a wireless network,
said wireless network including an access controller:

(a) registering first and second radio units with the access
controller, said access controller providing control and data
path linkage to said first and second radio units, packet based
communications between said first and second radio units and
said access controller having two separate layers, said first and
second radio units communicating with said access controller in
a first of said two separate layers,

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(b) associating in said access controller a first mobile unit
to the first radio unit, determining from a second layer of said
two separate layers the network address of said first mobile unit
and maintaining a connectivity record in said access controller
that contains said network address and that indicates an
association with said first radio unit;

(c) receiving in said access controller an associate request
in said second layer from a second mobile unit to associate with
the second radio unit and determining from said second layer
the network address of said second mobile unit;

(d) determining if the network address of the second
mobile unit is the same as the network address of the first
mobile unit;

(e) if the determination in (d) is true then retrieving the
connectivity record associated with the network address of said
first and second mobile units and determining whether said
connectivity record indicates an association with the first radio
unit; and

(f ) if the determination in (e) is true then executing an
anti-spoofing protocol.

The Examiner’s Rejection1
The Examiner rejected claims 1-18, 20, and 21 as being anticipated
under 35 U.S.C. § 102(e) by Whelan (US 2004/0003285) (Ans. 3-8).

1 In the Final Rejection, claims 1-10 were rejected under 35 U.S.C. § 112,
second paragraph, for ambiguities (Final Rej. 2-3). Appellants corrected the
ambiguities in an after-Final Amendment that was entered by the Examiner
(see Advisory Action mailed Oct. 20, 2008). Thus, the § 112, second
paragraph, rejection has been withdrawn.
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Appellants’ Contentions
Appellants contend (App. Br. 8-13; Reply Br. 3-5) that the Examiner
erred in rejecting claims 1-18, 20, and 21 under 35 U.S.C. § 102(e) for
numerous reasons, including Whelan does not disclose:
(1) executing an anti-spoofing protocol (App. Br. 10-11, 13; Reply Br.
4-5);
(2) associating the mobile units with the access controller (App. Br.
10, 12-13);
(3) communications between the first and second radio units and the
access controller (App. Br. 8-10, 12; Reply Br. 3-5);
(4) communication having two separate layers (App. Br. 12; Reply Br.
2-4); and
(5) a radio unit layer and a mobile unit layer (App. Br. 12; Reply Br.
1-2).
37 CFR § 41.37(c)(1)(vii) -- Claim Groupings
Appellants present two major sets of contentions. A first set of
contentions is directed at limitations found in independent claims 1, 11, and
21 (App. Br. 8-13; Reply Br. 2-5). This first set of contentions is generic to
all claims, for which claim 1 is representative.
The remaining and second set of contentions is directed to limitations
found in dependent claim 7, dependent claim 17, and independent claim 21
(App. Br. 12; Reply Br. 1-2). These contentions are exclusive to dependent
claim 7 which depends from independent claim 1, dependent claim 17 which
depends from independent claim 11, and independent claim 21.
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No separate patentability arguments are made for any other dependent
claims 2-6, 8-16, 18, and 20. Pursuant to our authority, under 37 C.F.R.
§ 41.37(c)(1)(vii), we select claims 1 and 7 as representative as follows:
We select independent claim 1 as being representative of claims 1-18,
20, and 21 as related to the first group of arguments (App. Br. 8-13; Reply
Br. 2-5).
We select dependent claim 7 as being representative of claims 7, 17,
and 21 as related to the second group of arguments (App. Br. 12; Reply Br.
1-2).
Issues on Appeal
Based on Appellants’ arguments, the following issues are presented:
Did the Examiner err in rejecting claims 1-18, 20, and 21as being
anticipated under 35 U.S.C. § 102(e) because Whelan fails to disclose:
(1) in the first group of contentions, applicable to all claims:
(i) executing an anti-spoofing protocol;
(ii) associating the mobile units with the access controller;
(iii) communication between the first and second radio units
and the access controller;
(iv) communication having two separate layers; and
(2) in the remaining and second set of contentions, applicable
exclusively to claims 7, 17, and 21:
(v) a radio unit layer and a mobile unit layer?

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ANALYSIS
We have reviewed the Examiner’s rejections in light of the
Appellants’ contention in the Appeal Brief (App. Br. 8-13) and the Reply
Brief (Reply Br. 1-5) that 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 and
(2) the reasons set forth by the Examiner in the Examiner’s Answer in
response to the Appellants’ Appeal Brief (see Ans. 4-5, 9-10). We concur
with the conclusion of anticipation reached by the Examiner, and highlight,
address, and amplify specific findings and arguments for emphasis as
follows.
(1) Appellants’ Contentions regarding representative claim 1
(i) Anti-spoofing protocol
Appellants argue (App. Br. 10-11, 13; Reply Br. 4-5) that Whelan
fails to disclose “executing an anti-spoofing protocol” as required by claim
1(f). We disagree.
The “anti-spoofing protocol” required by claim 1(f) must be read in
the context of “determining if the network addresses of [the first and] second
mobile unit[s] [match]” required by claim 1(d).
The Examiner properly rejected claim 1(d) and claim 1(f) with
paragraphs [0039] and [0041], respectively (Ans. 5). These paragraphs are
reproduced below for convenience:
[0039] The network monitor may also attempt to disable
communications between the network and the rogue access
point from the network in step 250. In one embodiment, the
monitor changes the MAC address filter settings on the rogue
access point to exclude all MAC addresses, effectively
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preventing the use on the rogue access point on the network. In
another embodiment, the monitor changes the routing table
settings of network devices such as routers or switches to
prevent network traffic to and from the rogue access point and
thereby minimize the risk to the network. The network monitor
may also attempt to disable the radio of rogue access point, or
to reset the rogue access point to factory default settings that are
more easily managed. Other techniques, such as an echo attack,
or sending connection close or reset TCP/IP messages to rogue
wireless devices may alternatively be used to disable
communications.

(Whelan, ¶ [0039] (emphasis added)).

[0041] In one preferred embodiment, the network monitor
monitors the network for spoofing by checking switch interface
tables for MAC addresses that appear on more than one port. If
the same MAC address appears on two different ports of a
switch, then one of the MAC addresses is a rogue device.

(Whelan, ¶ [0041] (emphasis added)).
Whelan discloses the network monitor finds rogue wireless devices by
checking for MAC spoofing, or i.e., if the network addresses of two wireless
devices match, then one of the two is identified as a rogue wireless device
(¶ [0041]). Whelan further discloses that the network monitor disables
communication between the network and the rogue device (¶ [0039]).
Disabling communication is not limited to only rogue access points, but to
rogue wireless devices (e.g., ¶ [0039]; also see Fig. 1, element labeled
“rogue MU,” which is a rogue mobile unit not a rogue access point). The
disabling of communication between the network and a rogue wireless
device, that was found during the checking for MAC spoofing, meets the
required anti-spoofing protocol (¶¶ [0039], [0041]).
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Therefore, we agree with the Examiner (Ans. 5, 10) that Whelan
discloses executing an anti-spoofing protocol as required by representative
claim 1.
(ii) Associating the mobile units with the access controller
Appellants’ contentions (App. Br. 10, 12-13) that Whelan does not
disclose associating the mobile units with the access controller is
unpersuasive because these arguments are not commensurate in scope with
the language of representative claim 1.
Appellants allege that claim 1(b) requires “associating the mobile
units with the access controller” (App. Br. 10). We disagree.
Presently, with respect to the first mobile unit, claim 1 requires
“associating in said access controller a first mobile unit to the first radio
unit” (claim 1(b)). Or in other words, the first mobile unit is associated with
the first radio unit, not with the access controller. With respect to the second
mobile unit, claim 1 requires “receiving in said access controller an associate
request... from a second mobile unit to associate with the second radio unit”
(claim 1(c)). Or in short, the access controller receives an associate request
to associate with the second radio unit, but does not require associating the
second mobile.
Therefore, representative claim 1 does not require the argued
limitations and these arguments are not commensurate in scope.
Appellants argue (App. Br. 10, 12-13) that Whelan does not disclose
associating the mobile units with the access controller. These arguments are
not commensurate in scope with the language of representative claim 1.
Representative claim 1 requires associating a first mobile unit with the first
radio unit and maintaining a connectivity record in the access controller.
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Insofar that Appellants have argued that Whelan fails to disclose these
limitations which are present in the claim, we disagree.
Appellants acknowledge that Whelan’s network monitor maintains a
database of known and/or authorized wireless devices and known or
authorized access points (App. Br. 11).
The Examiner asserts that the access points are configured to report
all wireless devices heard by the access point and the network monitor
receives those reported devices of the access points to verify against the
database of known or authorized wireless devices or access points (Ans. 4).
Whelan’s network monitor, or “access controller” as claimed, maintains a
list of known wireless devices that includes not only the wireless access
points, but also the other wireless devices including the mobile units that are
connected to the network (see e.g., ¶ [0039]).
Therefore, we agree with the Examiner (Ans. 4) that Whelan discloses
associating a first mobile unit with the first radio unit and maintaining a
connectivity record in the access controller as required by representative
claim 1.
(iii) Communication between the first and second radio units and the
access controller
Many of Appellants’ assertions are not commensurate in scope with
the claim. As brief examples, Appellants assert, inter alia: (1) Whelan does
not disclose the access controller provides a strong control and data path
linkage to the registered radio units and not rogue access points (App. Br.
11-12); and (2) the “ID information being reported is not being directly
reported to the network monitor” (App. Br. 9). However, representative
claim 1 claim requires neither a control and data path linkage nor direct
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reporting.
Of the limitations that are present, it appears that Appellants argue
(App. Br. 8-10, 12; Reply Br. 3-5) that Whelan does not disclose
communication between the first and second radio units and the network
controller because Whelan's network monitor merely “glean[s] [ID
information] from the [network] traffic” (e.g., App. Br. 9). We disagree.
The Examiner asserts that Whelan discloses communication between
the first and second radio units and the network controller because the
“network monitor [is] configured to determine whether the reported wireless
devices are connected to the network” (¶ [0024]) (Ans. 4, 9-10). Or in other
words, information from communications of other wireless devices, notably
other access points, on the network is communicated to the network
controller.
Therefore, we agree with the Examiner (Ans. 4, 9-10) that Whelan
discloses communications between the first and second radio units and the
access controller.
(iv) Communication having two separate layers
Appellants argue (App. Br. 12; Reply Br. 2-4) that Whelan fails to
disclose communication having two separate layers. We disagree.
Appellants acknowledge that, “[t]he best-known example of a [OSI]
[l]ayer 3 protocol is the Internet Protocol (IP)” (Reply Br. 2). Appellants
also acknowledge that OSI layer 1 has a data unit of a bit and OSI layer 2
has a data unit of a frame, which includes a plurality of bits (Reply. Br. 3;
Reply Br., Ex. J). Appellants further acknowledge that the data unit for OSI
layer 3, or i.e. the data unit for IP transmissions, is a packet (Reply Br. 2;
Reply. Br., Ex. J).
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The Examiner asserts that Whelan discloses the communication
between the wirelessly connected devices involves at least two separate
layers of the OSI model, namely layer 1 and layer 2 (¶ [0005]) (Ans. 10).
We agree.
Further, Whelan discloses the network communicates via TCP/IP (see
e.g., ¶ [0039]), which, per Appellants’ acknowledgments (Reply Br. 2-3, Ex.
J), involves OSI layer 3 because TCP/IP relies upon the Internet Protocol
(IP). We note that each subsequent layer of the OSI model builds off of the
prior layer (see Reply Br., Ex. J). Or in other words, a packet from layer 3
encapsulates a frame from layer 2, which is a plurality of bits from layer 1.
Thus, a packet-based transmission utilizing the Internet Protocol involves
OSI model layers 3, 2, and 1. These layers are separate layers and there are
at least two.
Therefore, we agree with the Examiner that Whelan discloses
communication having two separate layers.
(2) Appellants’ Contentions exclusive to Claims 7, 17, and 21
(v) a radio unit layer and a mobile unit layer2
Appellants argue (App. Br. 12; Reply Br. 1-2) that Whelan fails to

2 The substantive arguments present for claims 7, 17, and 21 were
raised for the first time in the Reply Brief (Reply Br. 1-2) and are not present
in the principal brief. The Appeal Brief (App. Br. 12) merely point out
select claim language and cite portions of the Appellants’ Specification.
Such arguments are not considered arguments for separate patentability. 37
C.F.R. § 41.37(c)(1)(vii).
Further, these belated arguments or new arguments, unaccompanied
by a showing of good cause, were not raised in response to a change in law
or in response to a new ground of rejection. They could have been made in
the principal brief, but were not. While technically waived, pursuant to our
discretion, we respond to these arguments.
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disclose a first layer being a radio unit layer and a second layer being a
mobile unit layer. We disagree.
We agree with the Examiner (Ans. 9) that Whelan discloses the layer
in which the access points communicate with the network monitor involves a
radio unit layer (Ans. 9) and the layer in which the mobile unit identification
is communicated to the network monitor involves a mobile unit layer (Ans.
10).
Whelan incorporates by reference, in entirety, the references cited
within the disclosure (¶ [0052]), which includes at very minimum 802.11
(e.g., ¶ [0005]), OSI model (¶ [0005]), and TCP/IP (¶ [0035]). A single
prior art document may still be considered for purposes of anticipation if
further material, not so expressly disclosed, is incorporated by reference in
the single prior art document. Advanced Display Sys., Inc. v. Kent State
Univ., 212 F.3d 1272, 1282 (Fed. Cir. 2000) (citing Ultradent Prods., Inc. v.
Life-Like Cosmetics, Inc., 127 F.3d 1065, 1069 (Fed. Cir. 1997) (holding
that material incorporated by reference into a document may be considered
in an anticipation determination)).
Whelan discloses utilizing agents that receive wireless packets
transmitted on the wireless network (¶ [0043]). These agents that
communicate with the network monitor (e.g., ¶ [0043]), in which the
network monitor is preferably installed on another computer on the network
(e.g., ¶ [0034]). The agents that communicate with the network monitor,
communicate via packets (see e.g., ¶ [0034]). This wireless packet will
include, inter alia, the source address identifying the agent that is reporting
to the computer running the network monitor (see e.g., Reply Br., Ex. J
showing the OSI model’s layer 3 function is to provide logical addressing
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such as an IP address and the layer 2 function is to provide the physical
addressing such as a MAC address). The access point agent’s
communication to the computer running the network monitor, thus, includes
a layer having the access point agent’s address which would correspond to
the “radio unit layer” as required by representative claim 7.
Even further, Whelan discloses the network monitor may isolate a
rogue mobile unit by changing MAC filter settings in one of the access
points (¶ [0047]). In order for the network monitor to do so, it must
communicate the address of the access point, in order to properly
communicate to that wireless access point, so as to update that access point’s
MAC filter settings. Whelan also specifically discloses filtering out the
MAC address of the rogue mobile unit (¶ [0047]). When the network
monitor communicates with an access point to update the MAC filter
settings to exclude the rogue mobile unit, the network monitor
communicates the rogue mobile unit’s MAC address such that it can be
added to the exclusions list in the MAC filter settings.
Therefore, we agree with the Examiner that Whelan discloses a first
layer being a radio unit layer and a second layer being a mobile unit layer, as
required by representative claim 7.
In view of the foregoing, Appellants have not sufficiently shown that
Whelan as applied in the rejection fails to disclose the contested subject
matter recited in claim 1 or claim 7. Accordingly, we will sustain the
rejection of representative claims 1 and 7. For the same reasons as
representative claim 1, we will also sustain the rejection of (i) claims 2-6, 8-
10 which depend from independent claim 1; (ii) independent claim 11; and
(iii) claims 12-16, 18, and 20 which depend from independent claim 11. For
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the same reasons as representative claim 7, we will also sustain the rejection
of (i) claim 17 which depends from independent claim 11; and (ii)
independent claim 21.

CONCLUSIONS
(1) The Examiner did not err in rejecting claims 1-18, 20, and 21as
being anticipated under 35 U.S.C. § 102(e) because Whelan discloses:
(i) executing an anti-spoofing protocol;
(ii) associating the mobile units with the access controller;
(iii) communication between the first and second radio units
and the access controller;
(iv) communication having two separate layers; and
(v) a radio unit layer and a mobile unit layer
(2) Claims 1-18, 20, and 21 are not patentable.

DECISION
The Examiner's rejection of claims 1-18, 20, and 21 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

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