12356438 (P.T.A.B. Mar. 22, 2016)

Ex Parte YE et al

Patent Trial and Appeal BoardMar 22, 2016

12356438 (P.T.A.B. Mar. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. 12/356,438 90073 7590 Docket Clerk/HTCL P.O. Drawer 800889 Dallas, TX 75380 FILING DATE FIRST NAMED INVENTOR 0112012009 Sihai YE 03/24/2016 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. HUAW06-13924 8811 EXAMINER CEHIC, KENAN ART UNIT PAPER NUMBER 2479 NOTIFICATION DATE DELIVERY MODE 03/24/2016 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): patents@munckwilson.com munckwilson@gmail.com uspatent@huawei.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SIHAI YE, XIAOCHUN CUI, BEI WANG, ZHENHUA LIU, HUALIN LUO, HAO ZHANG, and PUDONG ZENG Appeal2014-004835 Application 12/356,438 Technology Center 2400 Before BRUCE R. WINSOR, JON M. JURGOV AN, and AARON W. MOORE, Administrative Patent Judges. MOORE, Administrative Patent Judge. DECISION ON APPEAL Appeal2014-004835 Application 12/356,438 STATEMENT OF THE CASE Appellants 1 appeal under 35 U.S.C. Â§ 134(a) from a Final Rejection of claims 2---6, 10-13, 15-17, 19, and 22-26, which constitute all of the claims pending in the application. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. THE INVENTION The application is directed to "a method for realizing a Mobile Switch Center (MSC) pool, a system for realizing an MSC pool and a Media Gateway (MGW)." (Abstract.) Claim 2, reproduced below, is illustrative: 2. A method for selecting a Mobile Switch Center (MSC) server by a first Media Gateway (MGW) coupled to a plurality of MSC servers, compnsmg: receiving a message in which a destination signaling point is a common signaling point from a Base Station Controller (BSC)/Radio Network Controller (RNC), wherein the first MGW is connected to the BSC/RNC via the common signaling point through which a second MGW is connected to the BSC/RNC; and upon receipt of the message from the BSC/RNC, determining a destination MSC server among the plurality of MSC servers according to identification (ID) information carried in the mes- sage; and sending the received message to the destination MSC server over a Mc interface between the first MGW and the destination MSC server. 1 Appellants identify Huawei Technologies Co., Ltd. as the real party in interest. (See App. Br. 4.) 2 Appeal2014-004835 Application 12/356,438 REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Bhatia Barany Namihira et al. Lundin et al. us 6,028,848 US 6,434,140 Bl US 2006/002907 6 Al US 2007 /0091877 Al Feb.22,2000 Aug. 13, 2002 Feb.9,2006 Apr. 26, 2007 3rd Generation Partnership Project; Technical Specification Group Services and System Aspects; Intra-domain Connection of Radio Access Network (RAN) Nodes to Multiple Core Network (CN) Nodes (Release 10), 3GPP TS 23.236 VI0.3.0 (2012-03) (hereinafter, "TS 23.236"). THE REJECTIONS 1. Claims 2---6, 10-13, 15-17, 19, and 22-26 stand rejected under 35 U.S.C. Â§ 112, first paragraph, as failing to comply with the written description requirement. (See Final Act. 2-3.) 2. Claims 2---6, 10-13, 15-17, 19, and 22-26 stand rejected under 35 U.S.C. Â§ 112, second paragraph, as being indefinite. (See Final Act. 3.) 3. Claims 2, 15, and 22-25 stand rejected under 35 U.S.C. Â§ 102(b) as being anticipated by TS 23.236, "as evidenced by Lundin." (See Final Act. 4--7.) 4. Claims 3---6 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over TS 23.236/Lundin. (See Final Act. 8-13.) 5. Claims 12, 16, 19, and 26 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over TS 23.236/Lundin and Namihira. (See Final Act. 13-19.) 3 Appeal2014-004835 Application 12/356,438 6. Claims 13 and 17 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over TS 23.236/Lundin, Bhatia, and Barany. (See Final Act. 19-21.) APPELLANTS' CONTENTIONS Appellants make the following arguments on appeal: 1. With respect to the written description and indefiniteness rejections, the "Mc interface between the MGW and the MSC server is inherent in the specification." (See App. Br. 13-16.) 2. With respect to the anticipation rejections, (a) neither TS 23.236 nor Lundin discloses selecting a Mobile Switch Center (MSC) server by a Media gateway (MGW) coupled to a plurality of MSC servers, (b) neither TS 23.236 nor Lundin discloses a first MGW connected to a BSC/RNC via a common signaling point through which a second MGW is connected to the BSC/RNC, (c) neither TS 23.236 nor Lundin discloses a MGW that sends a message to a destination MSC server over a Mc interface, ( d) the Office ignored the limitation "over a Mc interface," and ( e) the Examiner's reliance on Lundin was "improper." (See App. Br. 16-21.) 3. With respect to the obviousness rejections of claims 3---6, (a) neither TS 23.236 nor Lundin discloses selecting a Mobile Switch Center (MSC) server by a Media gateway (MGW) coupled to a plurality of MSC servers, (b) neither TS 23.236 nor Lundin discloses a first MGW connected to a BSC/RNC via a common signaling point through which a second MGW is connected to the BSC/RNC, (c) neither TS 23.236 nor Lundin discloses a MGW that sends a message to a destination MSC server over a Mc interface, 4 Appeal2014-004835 Application 12/356,438 and (d) the Otlice ignored the limitation "over a Mc interface." (See App. Br. 22-27.) 4. With respect to the obviousness rejections of claims 12, 16, 19, and 26, (a) none of TS 23.236, Lundin, and Namihira disclose a MGW, (b) none of TS 23.236, Lundin, and Namihira disclose that a MGW is connected with a MSC server over a Mc interface, and ( c) the Office ignored the limitation "over a Mc interface." (See App. Br. 27-31.) ANALYSIS Grounds 1 and 2: Written Description and Indefiniteness Each of the pending claims recites "a Mc interface" between or coupling the MGW and the MSC server. (See Claim 2 ("over a Mc interface between the first MGW and the destination MSC server"); Claim 3 (same); Claim 15 ("a plurality of MSC servers each of which is coupled to the MGW over a Mc interface"); Claim 19 ("the MGW is connected with each of the plurality of MSC servers over a Mc interface.").) In the Final Action, the Examiner rejected all of the claims on the grounds that "the specification fails to disclose that each MSC server(s) is connected to an MGW over a Mc interface and similarly sending received messages between a MGW and a destination MSC server over a Mc interface." (Final Act. 2-3.) Appellants now argue that the written description rejection should be withdrawn because "even if the specification does not expressly disclose a Mc interface between the MGW and MSC server, the Mc interface between the MGW and the MSC server is inherent in the specification." (App. Br. 13.) For support, Appellants point to "3GPP TS 23.205 V5.0.0 (which was 5 Appeal2014-004835 Application 12/356,438 published in December 2001)." (App. Br. 13-14.) This document is alleged to show that "the Mc interface is defined as an interface which 'considers the aspects of the interface between the (G)MSC server and the MGW'" and is also said to "describe[] a network architecture showing the relation of MGW, MSC server and the Mc interface." (App. Br. 13-14.) The document "3GPP TS 23.205 V5.0.0" was never made of record during the prosecution and, therefore, is not available as evidence to support Appellants' arguments in this proceeding. See 37 C.F.R. Â§ 41.30 (definition of record); 37 C.F.R. Â§ 41.37(c)(2) (appeal brief shall not include any new or non-admitted evidence). For this reason, we sustain the rejections of claims 2---6, 10-13, 15-17, 19, and 22-26 under 35 U.S.C. Â§ 112, first paragraph, as failing to comply with the written description requirement and, for the same reasons, we sustain the rejections of the same claims under 35 U.S.C. Â§ 112, second paragraph, as indefinite. Ground 3: Anticipation of Claims 2, 15, and 22-25 Appellants first argue that neither TS 23.236 nor Lundin discloses selecting a Mobile Switch Center ("MSC") server by a Media Gateway ("MGW") coupled to a plurality of MSC servers. (See App. Br. 16-18.) They maintain that in TS 23.236 "a RAN node (e.g., BSC/RNC) selects an MSC/SGSN from a plurality ofMSCs/SGSNs" or, alternately, "the SGSN selects an MSC from a plurality of MSCs." (App. Br. 16-17 (emphasis added).) The Examiner finds it "clearly disclosed that the SGSN also performs the selection of a MSC from the MSC pool" and that "[a] 'SGSN' under the broadest reasonable interpretation is a 'Media Gateway' since it provides connectivity for the radio network to a core network." (Ans. 7-8.) 6 Appeal2014-004835 Application 12/356,438 We agree with the Examiner's findings. While Appellants argue that a media gateway "is an entity that converts the format of the media of a network to meet the format requirement of another network" (App. Br. 17), they offer no support for that interpretation, and we find nothing in the Specification or in the art to require such a narrow construction. Attorney argument is not a substitute for actual evidence. See, e.g., In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Appellants next argue that neither TS 23.236 nor Lundin discloses a first MGW connected to a BSC/RNC via a common signaling point through which a second MGW is connected to the BSC/RNC. (See App. Br. 18-19.) They assert that TS 23 .23 6 "at best discloses that two MS Cs connect with the RAN node (i.e., BSC or RNC) through the SGSN (common signaling point)," but that "the MSC in [TS 23.236] is not the same as the MGW in Claim 2." (App. Br. 18.) We agree with the Examiner's findings and disagree with Appellants' characterization of the Examiner's position and the reference. The Examiner finds that the RAN nodes of TS 23.236 correspond to the BSC/RNCs of the claims, and that the SGSNs of TS 23.236 correspond to the claimed MGWs. With respect to claim 2, the Examiner finds in TS 23.236 "a first MGW ... connected to [a] BSC/RNC via [a] common signaling point through which a second MGW is connected to the BSC/RNC" in that a particular SGSN (the claimed "first MGW") is connected to the RAN (the claimed "BSC/RNC") through a "common signaling point" (that associated with the SGSN pool) through which a different SGSN of the pool (the claimed "second MGW") is also connected to the RAN (the claimed "BSC/RNC"). (See Ans. 9-11.) 7 Appeal2014-004835 Application 12/356,438 Appellants' argument that "the MSC in [TS 23.236] is not the same as the MGW in Claim 2," is beside the point, because, in the Examiner's analysis, it is the SGSN-not the MSC-that corresponds to the claimed MGW. Appellants next argue that neither 3GPP nor Lundin discloses that the MGW sends a message to a destination MSC server "over a Mc interface" and that the Office ignored the limitation "over a Mc interface." (See App. Br. 19-20.) The Examiner finds that "[u]nder the broadest reasonable interpretation the GS interface [of TS 23.236] corresponds to a 'Mc' interface, because both provide the exact same function and the Appellant did not provide or disclose a specific definition of what a 'Mc' interface is." (Ans. 12-13.) We agree with the Examiner. As the Specification does not define this term, and as Appellants do not provide evidence that it has any specific meaning in the art, we find no basis, on this record, for narrowing the meaning of "Mc interface." Finally, Appellants argue that the Examiner's reliance on Lundin was "improper." (See App. Br. 20-21.) We disagree. Appellants correctly observe that a second reference may be used in an anticipation rejection to "[s]how that a characteristic not disclosed in the reference is inherent." (App. Br. 21.) See Continental Can Co. USA v. Monsanto Co., 948 F.2d 1264, 1268 (Fed. Cir. 1991). Here, the Examiner used Lundin only to show the inherent interface between MSCs and SGSNs. (See, e.g., Final Act. 4 ("see Lundin figure 2; SGSN2, MSC Pool and GS interface; GS interface is connecting SGSN to MSC Pool; RAN node (BSC) is connected with SGSN which connects to MSC pool via GS interface").) 8 Appeal2014-004835 Application 12/356,438 For these reasons, we sustain the Examiner's rejection of claims 2, 15, and 22-25 as anticipated by TS 23.236. Ground 4: Obviousness of Claims 3-6 Appellants' arguments for these claims (that the art does not disclose selecting a MSC server by a MGW coupled to a plurality of MSC servers, (b) that the art does not disclose a first MGW connected to a BSC/RNC via a common signaling point, ( c) that the art does not disclose that a MGW that sends a message to a destination MSC server "over a Mc interface," and ( d) that the Office ignored the limitation "over a Mc interface") are repeated from the anticipation rejection. We find the arguments unpersuasive, as discussed above, and, accordingly, we sustain the Examiner's rejection of claims 3---6 as obvious in light of TS 23 .23 6. Grounds 5 and 6: Obviousness of Claims 12, 13, 16, 17, 19, and 26 Appellants' arguments for claims 12, 16, 19, and 26 (that the art does not disclose a MGW or a MGW connected with an MSC server "over a Mc interface," and that the Office ignored the limitation "over a Mc interface") are also repeated from the anticipation rejection and are not persuasive of error for the reasons stated above. We accordingly sustain the Examiner's rejection of claims 12, 16, 19, and 26 as obvious in light of TS 23.236 and Namihira. Because claims 13 and 17 are not argued separately, we also sustain the Examiner's rejection of claims 13 and 17 as obvious in light of TS 23.236, Bhatia, and Barany, for the reasons stated above. 9 Appeal2014-004835 Application 12/356,438 DECISION The rejections of claims 2-6, 10-13, 15-17, 19, and 22-26 are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 10