Ex Parte Belanger et al

Patent Trial and Appeal BoardOct 12, 2012

11789584 (P.T.A.B. Oct. 12, 2012)

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. 11/789,584 04/25/2007 David Gerald Belanger 113617CON1 9443 38516 7590 10/12/2012 AT&T Legal Department - SZ Attn: Patent Docketing Room 2A-207 One AT&T Way Bedminster, NJ 07921 EXAMINER ABELSON, RONALD B ART UNIT PAPER NUMBER 2476 MAIL DATE DELIVERY MODE 10/12/2012 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 DAVID GERALD BELANGER, STEVEN MICHAEL BELLOVIN, RAMON CACERES, and DAVID C. NAGEL ____________________ Appeal 2010-005547 Application 11/789,584 Technology Center 2400 ____________________ Before ALLEN R. MacDONALD, JUSTIN BUSCH and RAMA G. ELLURU, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005547 Application 11/789,584 2 STATEMENT OF CASE Introduction Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-7. We have jurisdiction under 35 U.S.C. § 6(b). Exemplary Claim Exemplary claim 1 reads as follows: 1. A method of detecting and alleviating congestion in a packet-switched communication network, the method comprising the steps of: recognizing the occurrence of congestion at a network endpoint through dropped packets; offering, to customers already engaged in transmission on the congested packet-switched communication network, a financial incentive to utilize the packet-switched network at a later time to alleviate the congestion. Rejection 1 The Examiner rejected claims 1-4, 6, and 7 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Vedel (US 5,974,308), Kohler (US 4,486,626), and Chiu (US 6,505,253 B1). The Examiner rejected claim 5 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Vedel, Kohler, Chiu, and Vange (US 6,990,513 B2). 1 Separate patentability is not argued for claims 2-7. Except for our ultimate decision, these claims are not discussed further herein. Appeal 2010-005547 Application 11/789,584 3 Appellants’ Contentions 1. Appellants contend that the Examiner erred in rejecting claim 1 because “appellants assert that the Examiner is bringing together disparate types of teachings and applying hindsight to combine them in a manner which reads on the subject matter of independent claim 1.” (App. Br. 4). 2. Appellants contend that the Examiner erred in rejecting claim 1 because “there is no discussion or suggestion in Vedel of using a rate change to address the problem of congestion.” (App. Br. 5). Issue on Appeal Did the Examiner err in rejecting claim 1 as being obvious because the Examiner used improper hindsight? Did the Examiner err in rejecting claim 1 as being obvious because Vedel fails to teach or suggest using a rate change to address the problem of congestion? ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments that the Examiner has erred. We disagree with Appellants’ conclusions. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief. We concur with the conclusions reached by the Examiner. As to Appellants’ above contention 1, we do not agree that the Examiner’s rejection is an improper hindsight reconstruction as it does not Appeal 2010-005547 Application 11/789,584 4 include knowledge gleaned only from the Appellant's disclosure, but rather takes into account the teachings of Vedel, Kohler, and Chiu; i.e., knowledge which was within the level of ordinary skill at the time the claimed invention was made. Any judgment on obviousness is in a sense necessarily a reconstruction based on hindsight reasoning, but so long as it takes into account only knowledge which was within the level of ordinary skill in the art at the time the claimed invention was made and does not include knowledge gleaned only from applicant's disclosure, such a reconstruction is proper. In re McLaughlin 443 F.2d 1392, 1395 (CCPA 1971). As to Appellants’ above contention 2, we disagree because as the Examiner points out, Vedel (col. 9, ll. 6-7) teaches “[i]n the case of congestion the lowest charge rate would normally be increased.” (Ans. 5). Moreover, as also pointed out by the Examiner, Vedel (col. 10, ll. 24-32) indicates that a change in the charge rate can be due to “the load situation,” and that “the mobile station could also alert the subscriber if the [charge rate] changes during a conversation allowing the subscriber to determine if they wish to continue the call at the new rate. The mobile station could provide the alert either visually or audibly.” (Ans. 5). CONCLUSIONS (1) The Examiner has not erred in rejecting claims 1-7 as being unpatentable under 35 U.S.C. § 103(a). (2) Claims 1-7 are not patentable. DECISION The Examiner’s rejections of claims 1-7 are affirmed. Appeal 2010-005547 Application 11/789,584 5 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 ELD