International Business Machines Corporation

Patent Trials and Appeals Board

Apr 29, 2020

15365774 - (D) (P.T.A.B. Apr. 29, 2020)

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.
15/365,774 11/30/2016 Subil M. Abraham CHA920100027US2_8134-0139 1855
73109 7590 04/29/2020
Cuenot, Forsythe & Kim, LLC
20283 State Road 7
Ste. 300
Boca Raton, FL 33498
EXAMINER
TSVEY, GENNADIY
ART UNIT PAPER NUMBER
2648
NOTIFICATION DATE DELIVERY MODE
04/29/2020 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):
ibmptomail@iplawpro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SUBIL M. ABRAHAM, VINOD A. BIJLANI, and
MATHEWS THOMAS
___________

Appeal 2019-001046
Application 15/365,774
Technology Center 2600
____________

Before CARL W. WHITEHEAD JR., ERIC B. CHEN, and
DAVID J. CUTITTA II, Administrative Patent Judges.

CHEN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2019-001046
Application 15/365,774

2
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 26–45. Claims 1–25 have been
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

CLAIMED SUBJECT MATTER
The claims are directed to identifying network traffic associated with
a communication request within a computing device, the computing device
including a first and second communication stack, which can address a first
and a second network interface within the computing device. (Spec.,
Abstract.)
Claim 26, reproduced below, is illustrative of the claimed subject
matter, with disputed limitations in italics:
26. A computer-implemented method within a
computer hardware system implementing an application layer
and a data link layer, comprising:
identifying, using a network fusion layer disposed
between the application layer and the data link layer, a first
portion of network traffic from the application layer;
identifying, using the network fusion layer, a second
portion of the network traffic from the application layer;
routing, using the network fusion layer, the first portion
to a first network interface associated with a computing
network; and

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as IBM
Corporation. (Appeal Br. 1.)
Appeal 2019-001046
Application 15/365,774

3
routing, using the network fusion layer, the second
portion to a second network interface associated with a mobile
phone network, wherein
the identifying and the routing of the first and second
portions occurs simultaneously.

REFERENCES
Name Reference Date
Gilliland et al. US 6,785,149 B2 Aug. 31, 2004
Brahmavar et al. US 2010/0107154 A1 Apr. 29, 2010
van der Linden et al. US 2011/0022812 A1 Jan. 27, 2011
Kruglick US 2011/0154345 A1 June 23, 2011
Eleftheriadis US 2011/0222545 A1 Sept. 15, 2011
Sivakumar et al. US 2012/0057511 A1 Mar. 8, 2012
Abraham et al. US 2012/0077483 A1 Mar. 29, 2012

REJECTIONS
The Examiner rejects claims 26, 28, 33, 35, 40, and 42 under 35
U.S.C. § 102(a)(2) as being anticipated by Sivakumar.
The Examiner rejects claims 27, 29, 34, 36, 41, and 43 under 35
U.S.C. § 103 as being unpatentable over Sivakumar.
The Examiner rejects claims 30, 37, and 44 under 35 U.S.C. § 103 as
being unpatentable over Sivakumar and Brahmavar.
The Examiner rejects claims 31, 38, and 45 under 35 U.S.C. § 103 as
being unpatentable over Sivakumar and Gilliland.
The Examiner rejects claims 32 and 39 under 35 U.S.C. § 103 as
being unpatentable over Sivakumar, van der Linden, Eleftheriadis, and
Kruglick.
The Examiner rejects claims 26, 28, 30–33, 35, 37–40, 42, 44, and 45
under the judicially created doctrine of obviousness-type double patenting as
Appeal 2019-001046
Application 15/365,774

4
being unpatentable over claims 1, 6, 9, 10, 12, 14, 15, 21 and 23 of
commonly owned Abraham.2
OPINION
§ 102 Rejection— Sivakumar
We are persuaded by Appellant’s arguments (Reply Br. 3) that
Sivakumar does not describe the limitations “identifying, using a network
fusion layer disposed between the application layer and the data link layer, a
first portion of network traffic from the application layer,” “identifying,
using the network fusion layer, a second portion of the network traffic from
the application layer,” “routing, using the network fusion layer, the first
portion to a first network interface associated with a computing network,”
and “routing, using the network fusion layer, the second portion to a second
network interface associated with a mobile phone network,” as recited in
independent claim 26.
The Examiner found that Transport Layer 4 of Sivakumar, which
monitors and intercepts network traffic, corresponds to the limitations
“identifying, using a network fusion layer disposed between the application
layer and the data link layer, a first portion of network traffic from the
application layer” and “identifying, using the network fusion layer, a second
portion of the network traffic from the application layer.” (Final Act. 14–
15.) In particular, the Examiner found that “all data packets handed down

2 Appellant has not presented any arguments with respect to the rejection of
claims 26, 28, 30–33, 35, 37–40, 42, 44, and 45 under the judicially created
doctrine of obviousness-type double patenting over Abraham. (Appeal Br. 4
n.1.) Thus, any such arguments are deemed to be waived. We summarily
affirm the Examiner’s obviousness-type double patenting rejection of claims
26, 28, 30–33, 35, 37–40, 42, 44, and 45.
Appeal 2019-001046
Application 15/365,774

5
from Transport Layer 4 are monitored and intercepted” (Final Act. 4) and
thus,
the device of Sivakumar will monitor and intercept the network
traffic originated at the Transport layer itself, if any; originated
at the Session layer, if any; originated at the Presentation layer,
if any; and originated at the Application layer, since all these
traffic will be handed down from Transport Layer 4.
(Id. at 5.) The Examiner further found that Selective Offloading Module
305 of Sivakumar corresponds to the limitations “routing, using the network
fusion layer, the first portion to a first network interface associated with a
computing network” and “routing, using the network fusion layer, the
second portion to a second network interface associated with a mobile phone
network.” (Final Act. 15–17.) In particular, the Examiner found that “[i]t is
well known in the art that voice frames originate at the highest layer which
is application layer” and “when a user uses [a] smartphone to perform voice
conversation with the remote party, this person utilizes phone application
positioned at the application layer.” (Ans. 20.) We do not agree with the
Examiner’s findings.
Independent claim 26 recites “identifying, using a network fusion
layer disposed between the application layer and the data link layer, a first
portion of network traffic from the application layer” and “routing, using the
network fusion layer, the first portion to a first network interface” (emphases
added). Thus, the limitation “a first portion of network traffic from the
application layer” provides an antecedent basis for “the first portion,” which
is routed to the first network interface.
Similarly, claim 26 recites “identifying, using the network fusion
layer, a second portion of the network traffic from the application layer” and
“routing, using the network fusion layer, the second portion to a second
Appeal 2019-001046
Application 15/365,774

6
network interface” (emphasis added). Thus, the limitation “a second portion
of the network traffic from the application layer” provides an antecedent
basis for “the second portion,” which is routed to the second network
interface.
Sivakumar relates to wireless data connectivity, in particular, “for
providing improved wireless interface aggregation.” (¶ 2.) Figure 1A of
Sivakumar illustrates a block diagram of wireless interface aggregation
system 100 (¶ 12), which includes first wireless interface 110, second
wireless interface 115, and aggregation control module 120 that “can
intelligently determine what data packets should be sent via a certain
wireless interface and when those data packets should be sent” (¶ 31). In
one embodiment, Sivakumar explains that “the Layer 3.5 software
aggregation control module 120 can monitor and/or intercept all data packets
passed up from the Network Layer 3 and all data packets handed down from
Transport Layer 4.” (¶ 32.)
Figure 3 of Sivakumar illustrates a block diagram of the architecture
for wireless interface aggregation system 100 (¶ 17), which includes Wi-Fi
first wireless interface 110, 3G second wireless interface 115 (¶ 53),
mirroring module 315 (¶ 54), and Selective Offloading Module 305 (¶ 57).
Sivakumar explains that “the Selective Offloading Module 305 can be used
for offloading ACK messages, Report Offloading and Voice Offloading for
many transmission protocols.” (¶ 60.)
While the Examiner cited to: (i) Transport Layer 4 of Sivakumar,
which monitors all data packets; and (ii) Selective Offloading Module 305 of
Sivakumar for Voice Offloading, the Examiner has provided insufficient
evidence to support a finding that Sivakumar discloses that limitations
Appeal 2019-001046
Application 15/365,774

7
“identifying . . . a first portion of network traffic from the application layer”
and “routing . . . the first portion [of network traffic from the application
layer] to a first network interface.” Likewise, the Examiner has provided
insufficient evidence to support a finding that Sivakumar discloses the
limitations “identifying . . . a second portion of the network traffic from the
application layer” and “routing, using the network fusion layer, the second
portion [of the network traffic from the application layer] to a second
network interface.” In particular, the Examiner has not demonstrated that
data packets handed down from Transport Layer 4 of Sivakumar are
equivalent to the Voice Offloading from Selective Offloading Module 305
of Sivakumar, are required by independent claim 26.
Moreover, in an anticipation rejection, “it is not enough that the prior
art reference . . . includes multiple, distinct teachings that [an ordinary]
artisan might somehow combine to achieve the claimed invention.” Net
MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008).
Rather, the reference must “clearly and unequivocally disclose the claimed
[invention] or direct those skilled in the art to the [invention] without any
need for picking, choosing, and combining various disclosures not directly
related to each other by the teachings of the cited reference.” Id. (quoting In
re Arkley, 455 F.2d 586, 587 (CCPA 1972)). Thus, while “[s]uch picking
and choosing may be entirely proper in the making of a 103, obviousness
rejection . . . it has no place in the making of a 102, anticipation rejection.”
Arkley, 455 F.2d at 587–88. The Examiner’s rejection of independent
claim 26 under 35 U.S.C. § 102 is improper because it is based upon
picking, choosing, and combining the two separate embodiments of
Sivakumar.
Appeal 2019-001046
Application 15/365,774

8
Accordingly, we are persuaded by Appellant’s arguments, that “[t]he
[claimed] data being routed (i.e., ‘the first portion’ and ‘the second portion’)
are portions of network traffic from the application layer” and “data packets
[of Sivakumar] that originate from a layer above the transport layer (e.g., the
presentation layer, session layer, transport layer) is not necessarily ‘from the
application layer,’ as claimed.” (Reply Br. 3 (emphasis omitted).)
Therefore, we do not agree with the Examiner that Sivakumar
describes the limitations “identifying, using a network fusion layer disposed
between the application layer and the data link layer, a first portion of
network traffic from the application layer,” “identifying, using the network
fusion layer, a second portion of the network traffic from the application
layer,” “routing, using the network fusion layer, the first portion to a first
network interface associated with a computing network,” and “routing, using
the network fusion layer, the second portion to a second network interface
associated with a mobile phone network.”
Accordingly, we do not sustain the rejection of independent claim 26
under 35 U.S.C. § 102(a)(2). Claim 28 depends from independent claim 26.
We do not sustain the rejection of claim 28 under 35 U.S.C. § 102(a)(2) for
the same reasons discussed with respect to independent claim 26.
Independent claims 33 and 40 recite limitations similar to those
discussed with respect to independent claim 26. We do not sustain the
rejection of claims 33 and 40, as well as dependent claims 35 and 42, for the
same reasons discussed with respect to claim 26.

Appeal 2019-001046
Application 15/365,774

9
§ 103 Rejections
Claims 27, 29–32, 34, 36–39, 41, and 43–45 depend from independent
claims 26, 33, and 40. Various combinations of Sivakumar, Brahmavar,
Gilliland, van der Linden, Eleftheriadis, and Kruglick were cited by the
Examiner for teaching the additional features of claims 27, 29–32, 34, 36–
39, 41, and 43–45. (Ans. 7–17.) However, the Examiner’s application of
these references does not cure the above noted deficiencies of Sivakumar.

CONCLUSION
We reverse the Examiner’s decision rejecting claims 26, 28, 33, 35,
40, and 42 under 35 U.S.C. § 102(a)(2).
We reverse the Examiner’s decision rejecting claims 27, 29–32, 34,
36–39, 41, and 43–45 under 35 U.S.C. § 103.
We affirm the Examiner’s decision rejecting claims 26, 28, 30–33, 35,
37–40, 42, 44, and 45 under the judicially created doctrine of obviousness-
type double patenting.

DECISION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
26, 28, 33,
35, 40, 42
102(a)(2) Sivakumar 26, 28, 33,
35, 40, 42
27, 29, 34,
36, 41, 43
103 Sivakumar 27, 29, 34,
36, 41, 43
30, 37, 44 Sivakumar,
Brahmavar
30, 37, 44
31, 38, 45 103 Sivakumar,
Gilliland
31, 38, 45
Appeal 2019-001046
Application 15/365,774

10
32, 39 103 Sivakumar, van der
Linden,
Eleftheriadis,
Kruglick
32, 39
26, 28, 30–
33, 35, 37–
40, 42, 44,
45
Obviousness-Type
Double Patenting
26, 28, 30–
33, 35, 37–
40, 42, 44,
45

Overall
Outcome
26, 28, 30–
33, 35, 37–
40, 42, 44,
45
27, 29, 34,
36, 41, 43

TIME PERIOD FOR RESPONSE
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-IN-PART