Ex Parte Skraba et al

Patent Trial and Appeal Board

Mar 15, 2013

11152244 (P.T.A.B. Mar. 15, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
11/152,244 06/15/2005 Ryan Skraba LUTZ 200726 9379
48116 7590 03/15/2013
FAY SHARPE/LUCENT
1228 Euclid Avenue, 5th Floor
The Halle Building
Cleveland, OH 44115-1843
EXAMINER
FAN, HUA
ART UNIT PAPER NUMBER
2456
MAIL DATE DELIVERY MODE
03/15/2013 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 RYAN SKRABA, GREGORY WATTS, FREDERIC WEIS, and
MICHEL BANATRE
____________
Appeal 2010-011549
Application 11/152,244
Technology Center 2400
____________

Before JOSIAH C. COCKS, MICHAEL R. ZECHER, and
JENNIFER S. BISK, Administrative Patent Judges.

ZECHER, Administrative Patent Judge.

DECISION ON APPEAL
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Application 11/152,244

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I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-3 and 6-9. App. Br. 4.
1
Claims 4 and 5 were cancelled.
Id. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellants’ Invention
Appellants invented a method, apparatus, and computer program
product that enables an application associated with a device that has multiple
network interfaces to select a network interface for transmitting data.
Abstract. According to Appellants, the disclosed invention also includes an
interface between the application and a network layer of a protocol stack
that: (1) provides information concerning the availability of each network
interface from the network layer of the protocol stack to the application; (2)
allows the application to select a particular network interface; and (3) allows
the application to submit the selected network interface as a parameter to the
network layer of the protocol stack. Id.
Illustrative Claim
Claims 1, 7, and 9 are independent claims. Independent claim 1 is
illustrative:
1. A method for enabling an application for a device
with multiple network interfaces to select among network
interfaces to transmit its data, by providing an interface between
the application and the network layer of a protocol stack for
providing information on network interface availability
to the application;
selecting the network interface by the application;

1
All references to the Appeal Brief are to the Appeal Brief filed on April 16,
2010, which replaced the Appeal Brief filed on January 11, 2010.
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Application 11/152,244

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submitting the selected network interface as parameter to
the network layer, wherein the information on network interface
availability is provided by the application layer querying
information from the network layer.
2

Prior Art Relied Upon
Dilip US 6,094,673 July 25, 2000
Lym US 2004/0133896 A1 July 8, 2004
(filed Dec. 20, 2002)

Chiu WO 2004/031488 A1 Apr. 15, 2004

Rejections on Appeal
Claims 1, 3, and 6-9 were rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Chiu and Lym. Ans. 3-7.
Claim 2 was rejected under 35 U.S.C. § 103(a) as being unpatentable
over the combination of Chiu, Lym and Official Notice. Id. at 7.
Examiner’s Findings and Conclusions
The Examiner finds that Chiu discloses if more than one available
network connection is found, the connection manager uses selection criteria
and other information to select the best available network connection. Ans.
4 (citing to p. 11, l. 27-p. 12, l. 6). The Examiner also finds that Chiu’s
connection manager switches to a different network by causing the routing
manager to negotiate Internet Protocol tunneling. Id. at 4-5 (citing to p. 11,
ll. 4-26). Based on those cited disclosures, the Examiner finds that Chiu
teaches “selecting the network interface by the application,” as recited in

2
We note in passing that no antecedent basis exists for “the network layer of
a protocol stack” and “the application layer,” as recited in independent claim
1. We leave the patentability of independent claim 1 under 35 U.S.C. § 112,
second paragraph, to the Examiner should further prosecution follow this
opinion.
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independent claim 1. Id. Further, the Examiner finds that the combined
disclosures of Chiu and Lym teach querying the network layer for
information concerning network interface availability, as required by
independent claim 1. Id. at 5-6, 9-10.
Appellants’ Contentions
Appellants contend that Chiu’s connection manager is a module
independent from any specification application that gathers information on
network availability and selects a network with the help of a connection
detector. App. Br. 10 (citing to Fig. 2, p. 8, p. 11, ll. 27-32). Given that
assertion, Appellants argue that Chiu’s applications, which require a network
connection, do not select a network or network interface, as required by
independent claim 1. Id. Further, Appellants argue that while Lym’s
interface layer communicates with the applications and the network layer
and provides control, query, and event communications between
applications and one or more network devices, there is no indication that
Lym’s applications query the network layer for information concerning
network interface availability. Id. at 10-11 (citing to ¶ [0029]). Therefore,
Appellants assert that Lym does not teach that “the information on network
interface availability is provided by the application layer querying
information from the network layer,” as recited in independent claim 1. Id.
at 11.
Appellants rely upon the same arguments presented for the
obviousness rejection of independent claim 1 to rebut the obviousness
rejection of independent claims 7 and 9. App. Br. 11.

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II. ISSUE
Has the Examiner erred in determining that the combination of Chiu
and Lynn collectively teach the following claim limitations recited in
independent claim 1, and similarly recited in independent claims 7 and 9:
(a) “selecting the network interface by the application;” and
(b) “wherein the information on network interface availability is
provided by the application layer querying information from the network
layer[]”?

III. ANALYSIS
35 U.S.C. § 103(a) Rejection—Combination of Chiu and Lym
Claims 1, 7, and 9
Based on the record before us, we do not discern error in the
Examiner’s obviousness rejection of independent claim 1, which recites,
inter alia: (1) “selecting the network interface by the application;” and (2)
“wherein the information on network interface availability is provided by the
application layer querying information from the network layer.” We also do
not discern error in the Examiner’s obviousness rejection of independent
claims 7 and 9, which recite similar claim limitations.
We begin our analysis by first determining the scope and meaning of
the claim term “application.” During examination, claims are given their
broadest reasonable interpretation consistent with the Specification, and
claim language is read in light of the Specification as it would be interpreted
by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech Ctr., 367
F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted). Consequently, we turn
to Appellants’ Specification for context in properly construing the claim
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term “application.” Appellants’ Specification states that “[p]ossible
applications 2 could be e.g. sending/receiving SMS (short message service),
MMS (multimedia message service), emails, music, synchronizing data
etc.[]” Based on the cited disclosure in Appellants’ Specification, we
conclude that one with ordinary skill in the art would have understood that
the claim term “application” may be reasonably construed as a software
component that is capable of various functions, including synchronizing
data. With that claim construction in mind, we turn to the merits of the
Examiner’s obviousness rejection.
The Examiner takes the position that the connection manager
illustrated in Figure 2 of Chiu constitutes the claimed “application.” Ans. 4.
We agree with the Examiner. Consistent with our claim construction above,
Chiu’s connection manager amounts to a software component that is capable
synchronizing data, or operating together, with the wireless adaption layer to
switch between network drivers/interfaces associated with each available
network connection. See p. 11, ll. 4-26.
To the extent that Appellants argue that Chiu’s connection manager is
not an application that is involved in selecting a network or network
interface (App. Br. 10), we are not persuaded. The Examiner finds that if
Chiu’s connection manager discovers more than one available network
connection, it uses selection criteria and other information to select the best
available network connection. Ans. 4 (citing to p. 11, l. 27-p. 12, l. 6).
Given that disclosure, one with ordinary skill in the art would have
understood that Chui’s connection manager selects the network
driver/interface associated with the best available network connection.
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Therefore, Chiu teaches “selecting the network interface by the
application[,]” as recited in independent claim 1.
Next, the Examiner takes the position that the combined disclosures of
Chiu and Lym teach “wherein the information on network interface
availability is provided by the application layer querying information from
the network layer,” as recited in independent claim 1. Ans. 9-10. We agree
with the Examiner. First, the Examiner finds that Chiu’s connection
manager scans the available network drivers/interfaces. Id. at 4, 9 (citing to
p. 11, 27-28). Next, the Examiner finds that Lym’s interface layer is capable
of providing query communications between the applications and network
layer. Id. at 5-6, 9-10 (citing to ¶ [0029]). Given the cited disclosures, one
with ordinary skill in the art would have readily appreciated that Lym’s
functionality of querying information from a network layer may be
incorporated into Chiu’s connection manager, thereby allowing Chiu’s
connection manager to accommodate additional network drivers/interfaces
by querying information regarding their availability from a network layer.
Therefore, the combined disclosures of Chiu and Lym teach “wherein the
information on network interface availability is provided by the application
layer querying information from the network layer[,]” as recited in
independent claim 1.
We are not persuaded by Appellants’ argument that Lym does not
teach that the applications query the network layer for information
concerning network interface availability, as required by independent claim
1. App. Br. 11. When assessing an obviousness rejection, the test is what
the combined teachings of the references would have suggested to one with
ordinary skill in the art. In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991).
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Here, Appellants failed to take into account the Examiner’s position that the
combined disclosures of Chiu and Lym teach that the application layer
queries the network layer for information concerning network interface
availability, as required by independent claim 1. Ans. 4-6, 9-10. It follows
that the Examiner has not erred in determining that the combination of Chiu
and Lym renders independent claims 1, 7 and 9 unpatentable.
Claims 3, 6, and 8
Appellants do not provide separate and distinct arguments for
patentability with respect to dependent claims 3, 6, and 8. App. Br. 11.
Therefore, we accept Appellants’ grouping of these dependent claims with
their underlying base claim. Id. Consequently, dependent claims 3, 6, and 8
fall with independent claims 1 and 7, respectively. See 37 C.F.R.
§ 41.37(c)(1)(vii).
35 U.S.C. § 103(a) Rejection—Combination of Chiu, Lym, and
Official Notice

Claim 2
With respect to dependent claim 2, the Examiner takes Official Notice
that using Java to implement an application interface was known in the art.
Ans. 7. In particular, the Examiner relies upon that finding of Official
Notice in connection with the limitation “the interface between the
application and the network layer is a Java interface,” as recited in
dependent claim 2. Id. Appellants traverse the Examiner’s finding of
Official Notice by presenting the following arguments: (1) it is improper to
use Official Notice for conclusions of law; (2) it is unreasonable for the
Examiner to use Official Notice to “fill in” a gap in the proposed
obviousness rejection; and (3) the Examiner’s attempt to take Official Notice
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of the level of ordinary skill in the art is improper as a matter of law. App.
Br. 11-13. In response to Appellants’ traversal, the Examiner relies upon
Dilip as documentary evidence to support the finding of Official Notice and,
therefore, concludes that the rejection of dependent claim 2 should be
maintained. Ans. 11. (citing to Dilip, Fig. 4, col. 10, ll. 20-40). We agree
with the Examiner.
Our reviewing court has held that a traversal of an Examiner’s finding
of Official Notice must “contain adequate information or argument” to
create on its face “a reasonable doubt regarding the circumstances justifying
the . . . notice” of what is well known to one with ordinary skill in the art. In
re Boon, 439 F.2d 724, 728 (CCPA 1971). “To adequately traverse such a
finding [of Official Notice], an applicant must specifically point out the
supposed errors in the [E]xaminer’s action, which would include stating why
the noticed fact is not considered to be common knowledge or well-known
in the art.” Manual of Patent Examining Procedure (“MPEP”) § 2144.03(C).
See also 37 CFR 1.111(b); In re Chevenard, 139 F.2d 711, 713 (CCPA
1943). “If applicant does not traverse the [E]xaminer’s assertion of
[O]fficial [N]otice or applicant’s traverse is not adequate, . . . the common
knowledge or well-known in the art statement is taken to be admitted prior
art . . . .” MPEP § 2144.03(C).
In this case, Appellants do not present sufficient information or
argument to create on its face a reasonable doubt regarding the
circumstances justifying the Examiner’s finding of Official Notice. None of
Appellants’ above-noted arguments provide a reasonable explanation
indicating why the use of Java to implement an application interface would
not have been considered common knowledge or well-known to one with
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ordinary skill in the art. As a result, Appellants’ traversal of the Examiner’s
finding of Official Notice is inadequate.
Nonetheless, the Examiner provides documentary evidence to support
the finding of Official Notice. In particular, the Examiner finds that Dilip
discloses using a Java server as an interface for communicating between
Java Servlets and a Network Layer. Ans. 11 (citing to Dilip, Fig. 4, col. 10,
ll. 20-40). Appellants do not challenge the Examiner’s finding in that
regard. We also do not discern that the Examiner’s finding is incorrect. As
such, Dilip supports the Examiner’s finding of Official Notice that “a Java
interface” was known in the art. It follows that the Examiner has not erred
in determining that the combination of Chiu, Lym, and Official Notice
renders dependent claim 2 unpatentable.

IV. CONCLUSION
For the foregoing reasons, the Examiner has not erred in rejecting
claims 1-3 and 6-9 as being unpatentable under 35 U.S.C. § 103(a).

V. DECISION
We affirm the Examiner’s decision to reject claims 1-3 and 6-9.
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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