Ex Parte Ahluwalia et al

Patent Trial and Appeal Board

Mar 14, 2017

13339022 (P.T.A.B. Mar. 14, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
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Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/339,022 12/28/2011 Mankesh Ahluwalia 273473 3929
23460 7590 03/16/2017
LEYDIG VOIT & MAYER, LTD
TWO PRUDENTIAL PLAZA, SUITE 4900
180 NORTH STETSON AVENUE
CHICAGO, IL 60601-6731
EXAMINER
SHEDRICK, CHARLES TERRELL
ART UNIT PAPER NUMBER
2646
NOTIFICATION DATE DELIVERY MODE
03/16/2017 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):
Chgpatent @ ley dig. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MANKESH AHLUWALIA, SUMEET SINGH
BHATIA, JAIDEEP ABICHANDANI, NAROTHUM
SAXENA, and MICHAEL SHANNON IRIZARRY
Appeal 2015-004265
Application 13/339,022
Technology Center 2600
Before JUSTIN BUSCH, DANIEL N. FISHMAN, and
JAMES W. DEJMEK, Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection
of claims 1—33 under 35 U.S.C. § 103(a). Final Act. 2—7. Oral arguments
were heard on February 13, 2017. A transcript of the hearing was added to
the record on March 9, 2017. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
Appeal 2015-004265
Application 13/339,022
CLAIMED SUBJECT MATTER
Claims 1,12, and 23 are independent claims. The claims relate
generally to “managing wireless network data resource utilization on an
individual user basis in accordance with subscriber agreements.” Spec. 11.
Claim 1 is representative and reproduced below:
1. A method for managing, by a mobile wireless data
network service provider, data resource utilization, by a plurality
of mobile wireless network service subscribers, in a wireless
network environment comprising a first data network and a
second data network, the method comprising:
monitoring, by the mobile wireless data network service
provider, data usage over the first data network;
determining that the data usage over the first data network
satisfies a specified criterion; and
in response to the determining step, administratively
disconnecting, by the mobile wireless data network service
provider, a wireless network subscriber, of the plurality of
mobile wireless network service subscribers, from the first data
network so as to cause a subsequent data session of the wireless
network subscriber to be reassigned to the second data network.
REJECTIONS
Claims 1—6, 8, 10—17, 19, 21—28, 30, 32, and 33 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Menezes (US 2012/0157038
Al; June 21, 2012) and Yip (US 2004/0177144 Al; Sept. 9, 2004). Final
Act. 2—6.
Claims 7, 18, and 29 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Menezes, Yip, and Hu (US 2008/0256238 Al; Oct. 16,
2008). Final Act. 6.
Claims 9, 20, and 31 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Menezes, Yip, and well-known art. Final Act. 6—7.
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Application 13/339,022
OPINION
Appellants contend the pending claims (i.e., claims 1—33) are not
obvious because the combination of Menezes and Yip does not teach
“administratively disconnecting, by the mobile wireless data network service
provider, a wireless network subscriber,” and because there is no reason to
combine Menezes and Yip in a way that the combination teaches or suggests
the claimed subject matter. App. Br. 13—16; Reply Br. 7—9. Appellants
point to their specification’s description of “administratively disconnecting”
a subscriber, and argue Menezes fails to teach or suggest administratively
disconnecting a subscriber because Menezes discloses management of a
current session as opposed to a subsequent session, as required by the
claims. App. Br. 13—14. Specifically, Appellants contend Menezes
discloses that a mobile device is always in control of selecting from a set of
available networks, wherein “all data networks remain available to the
subscriber at all times,” whereas the claim requires that the mobile wireless
data network service provider “bar[s] the subscriber from subsequently
establishing a data session on the particular data network.” Id. at 14
(emphases omitted).
Regarding the Examiner’s proposed combination, Appellants argue
“there is no plausible reason to migrate Menezes’ cost aware application,”
i.e., Menezes’ features that the Examiner finds teach the monitoring and
administrative disconnect steps, from the client device to the service
provider. App. Br. 13. Appellants assert it is logical for Yip’s service
provider to manage load balancing, because Yip describes balancing the load
of subscribers among multiple local service providers. Id. However,
Appellants contend it makes no sense, and would not work, for a service
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provider to manage Menezes’ cost aware functions for a single subscriber
device because the cost aware functions of the single subscriber device
include selecting from various different providers. Id. Appellants further
explain that the networks from which Menezes’ cost aware application
selects “are clearly beyond the reach of any single data network service
provider.” Id.
The Examiner finds Menezes teaches the recited mobile data network
service provider, Ans. 5, and the recited monitoring and administrative
disconnect steps, Final Act. 3; Ans. 5—7, but that Menezes does not teach
that the steps are “handled by the mobile [wireless] data network service
provider,” Final Act. 3; Ans. 7. The Examiner points to Menezes’ disclosure
of selecting an alternative network as teaching or suggesting the
administrative disconnect step. Final Act. 3; Ans. 5—6 (explaining that
Menezes may select a “local area network, rather than a mobile network”).
The Examiner further states that “as long as the condition or conditions [that
resulted in moving a subscriber to an alternate network] exists the subscriber
is barred from or restricted from connecting to the first network.” Ans. 5.
The Examiner also states that the recited administratively
disconnecting “is essentially a hard handoff which is also well-known in the
art.” Ans. 6. The Examiner provides no further explanation regarding how
a hard handoff teaches or suggests the recited “administrative disconnect,”
as defined in Appellants’ specification, and Appellants dispute that the
“claimed ‘administratively disconnecting’ operations is the same as a ‘hard
handoff.’” Reply Br. 8. Without further explanation or evidence of record,
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we would be left to speculate1 regarding the Examiner’s understanding of
how the allegedly well-known hard handoff teaches or suggests
administratively disconnecting, which we decline to do.
The Examiner finds “Yip teaches wherein the data resource utilization
is handled by the mobile data network service provider[2] (i.e., the
network).” Final Act. 3. The Examiner then states it would have been
obvious to an ordinarily skilled artisan “to include wherein the data resource
utilization is handled by the mobile data network service provider for the
purpose of service provider load balancing as suggested by Yip.” Id. at 4.
The Examiner reiterates in the Answer that Yip was introduced “to illustrate
that administrative disconnection . . . can also be controlled by the network
(i.e., the service provider) such that the mobile data network service provider
for the purpose of the service provider controlled load balancing as suggest
by Yip,” and “[t]he combination shows that the mobile services can be
controlled on the client side or service provider side for the purpose of cost,
load balancing etc.” Ans. 7.
As correctly explained in more detail by Appellants, App. Br. 10—11,
Menezes describes a “cost aware” application or operating system on a
subscriber’s mobile wireless device monitoring activity and selecting a
1 Our best understanding of the Examiner’s finding that a hard handoff
teaches administratively disconnecting is that the Examiner is referring to
the transition of a subscriber’s connection from one base station to another
base station on the same network. Even assuming that, the finding does not,
on its face, sufficiently explain how such a handoff teaches the recited
administratively disconnecting a subscriber such that the subscriber is barred
from establishing another session on that network.
2 Appellants argue Yip does not teach a mobile wireless data network
service provider. App. Br. 11—13. We do not reach that argument.
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network and time for transmitting data communications based at least on the
cost that will be incurred by that subscriber. Menezes 44-47, Fig. 4. The
Examiner relies on Menezes’ disclosure of selecting alternate networks (e.g.,
using a local area network when available rather than a mobile broadband
network, Menezes 45—47) as teaching the recited “administrative
disconnect,” and asserts Yip teaches that Menezes’ administrative
disconnect could occur on the server side. Notably, Menezes does not
discuss selecting from multiple networks provided by a single data network
service provider. Rather, Menezes discusses selecting from various
networks accessed by different network interface cards. See, e.g., Menezes
47 (“FIG. 2 shows that mobile computing device 210 is configured to
interface to multiple networks [where e]ach network interface card may
support connections to a different network [such as] a Wi-Fi network
interface card [to] support a connection to a local area network”), 48
(“Network interface card 222 may be configured for communication over a
mobile broadband network”), 57 (“a user may have subscriptions to multiple
networks, and data store 252 may contain information on multiple such
networks”). Specifically, Menezes describes an application that decides,
based in part on charges that may be incurred, whether to transmit data
immediately on a metered mobile broadband network, defer transmission
until a time when the mobile broadband network is not metered, or select an
“alternate” network. Id. H 5, 21, 23, 37, 44-48.
Appellants’ specification explains that administratively disconnecting
always “results in modification of permissions assigned the subscriber
account such that a subsequent request to establish a session on the higher
tier data network, from which the account is administratively disconnected,
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will be denied by logon/authentication services.” Spec. 127. The Examiner
does not point to anything in Menezes that mentions modifying permissions
of a subscriber account or denying logon or authentication of a subsequent
request to establish a session on a network from which the subscriber
account was administratively disconnected. Accordingly, we are persuaded
by Appellants’ argument that the Examiner erred in finding Menezes teaches
or suggests the recited “administratively disconnecting” step of the claims.
Furthermore, given Menezes’ disclosures, the Examiner fails to
explain how or why Menezes’ cost aware network selection function would
be moved to the server side, while still allowing the mobile wireless device
to select from various networks, which is the aspect of Menezes that the
Examiner relies on for teaching the administratively disconnecting step. The
Examiner’s only asserted reason for moving Menezes’ functions to the
server side is “for the purpose of service provider load balancing as
suggested by Yip.” Ans. 7 (emphasis added).
As our reviewing court has stated, demonstrating “[o]bviousness
requires more than a mere showing that the prior art includes separate
references covering each separate limitation in a claim under examination,”
it “requires the additional showing that a person of ordinary skill at the time
of the invention would have selected and combined those prior art elements
in the normal course of research and development to yield the claimed
invention.” Unigene Labs., Inc. v. Apotex, Inc., 655 F.3d 1352, 1360 (Fed.
Cir. 2011) (citing KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418, 421
(2007)). Menezes addresses controlling a subscriber’s costs for using a
mobile data network, whereas Yip describes a solution for load balancing
subscribers among an Internet service provider’s intermediary local service
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providers. The Examiner does not provide sufficient rationale because there
is no explanation of why Yip’s load balancing functions are a reason to
move Menezes’ functions from the client device to the server side of a
mobile wireless data network service provider. Therefore, we are persuaded
the Examiner erred in rejecting independent claim 1 for the additional reason
that the Examiner does not provide a sufficient reason with a rational
underpinning for the proposed combination.
Independent claims 12 and 23 recite limitations commensurate in
scope to the administratively disconnecting step in claim 1, and the rejection
of clams 12 and 23 relies on the same rationale for combining Menezes and
Yip as provided for claim 1. Thus, claims 12 and 23, and claims 2—11, 13—
22, and 24—33, which depend from claims 1, 12, and 23, respectively, are
rejected using the same deficient teaching and rationale. Accordingly, we
reverse the Examiner’s rejections of claims 1—33.
DECISION
For the above reasons, the Examiner’s decision to reject claims 1—33
under 35 U.S.C. § 103(a) is reversed.
REVERSED
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