Ex Parte Ahluwalia et alDownload PDFPatent Trial and Appeal BoardMar 14, 201713339022 (P.T.A.B. Mar. 14, 2017) Copy Citation 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. 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. 2 Appeal 2015-004265 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 3 Appeal 2015-004265 Application 13/339,022 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, 4 Appeal 2015-004265 Application 13/339,022 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. 5 Appeal 2015-004265 Application 13/339,022 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, 6 Appeal 2015-004265 Application 13/339,022 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 7 Appeal 2015-004265 Application 13/339,022 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 8 Copy with citationCopy as parenthetical citation