Ex Parte Bentall

Patent Trial and Appeal BoardMay 5, 2017

12735483 (P.T.A.B. May. 5, 2017)

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. 12/735,483 10/12/2010 Mark Bentall D-3326 4971 33197 7590 05/08/2017 STOUT, UXA & BUYAN, LLP 23461 South Pointe Drive Suite 120 Laguna Hills, CA 92653 EXAMINER CHIANG, JASON ART UNIT PAPER NUMBER 2431 MAIL DATE DELIVERY MODE 05/08/2017 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 MARK BENTALL ____________________ Appeal 2015-002398 Application 12/735,483 Technology Center 2400 ____________________ Before THU A. DANG, CATHERINE SHIANG, and LINZY T. McCARTNEY, Administrative Patent Judges. McCARTNEY, Administrative Patent Judge. Opinion dissenting-in-part filed by Administrative Patent Judge THU A. DANG. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims 1, 2, 4–14, and 16. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE Appeal 2015-002398 Application 12/735,483 2 STATEMENT OF THE CASE The present patent application concerns “secure communication systems.” Spec. 1. Claims 1 and 14 are independent. Claim 1 illustrates the claimed subject matter: 1. A communications system comprising a first entity, a first encryption device and a network, wherein said first encryption device is adapted to decrypt, using a first decryption algorithm, data sent from a first destination to said first entity via said network, to block network metric data that is not one of a predetermined set of data words and to pass network metric data concerning at least one route between said first entity and said first destination to said first entity without subjecting said network metric data to said first decryption algorithm. App. Br. 26 (formatting altered). REJECTIONS Claims 1, 2, 11–14, and 16 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Klish II (US 7,680,115 B2; Mar. 16, 2010), Lloyd et al. (US 2006/0072543 Al; Apr. 6, 2006), and Hui et al. (US 7,441,262 B2; Oct. 21, 2008). Claims 4–10 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Klish, Lloyd, Hui, and Aziz et al. (US RE39,360 E; Oct. 17, 2006). Claim 14 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Klish and Hui. Appeal 2015-002398 Application 12/735,483 3 ANALYSIS The Examiner found Klish discloses a “bypass method [that] involves transmitting a signaling protocol packet whose transport mechanism is the GIST protocol . . . along a path that bypasses a decryptor.” Non-Final 3 (quoting Klish 11:55–59). The Examiner also found Klish discloses “signaling protocols for quality of service application[s] (network metric data).” Id. (citing Klish 12:51–53). Based on these disclosures, the Examiner found Klish teaches or suggests “said first encryption device is adapted to . . . pass network metric data . . . to said first entity without subjecting said first metric data to said first decryption algorithm” as recited in claim 1. See Non-Final Act. 3. The Examiner found Klish does not teach or suggest the “network metric data” “concern[s] at least one route between said first entity and said first destination” but found Lloyd remedies this deficiency. Id. at 4. The Examiner concluded it would have been obvious to combine Klish’s and Lloyd’s teachings to arrive at the claimed invention. Id. Appellant contends the Examiner’s obviousness conclusion and underlying factual findings are erroneous. According to Appellant, the cited portions of Klish simply discloses a bypass mechanism for signal protocol packets that use the GIST protocol; the cited portions of Klish do not teach or suggest passing “network metric data” to an entity without decrypting the data. See App. Br. 6. With respect to Lloyd, Appellant argues Lloyd teaches away from transmitting “network metric data.” Id. at 7. Finally, Appellant contends the Examiner has not provided sufficient rationale to Appeal 2015-002398 Application 12/735,483 4 modify the cited art to process “network metric data” in the manner required by the claims. Id. at 7–8. We find Appellant’s arguments persuasive. The disputed limitation recites “said first encryption device is adapted to . . . pass network metric data . . . without subjecting said network metric data to said first decryption algorithm.” Id. at 26 (emphasis added). Appellant’s written description discloses that “network metric data describes attributes of the network.” Spec. 4:9–10. By contrast, as argued by Appellant, the cited portions of Klish disclose a bypass method for a “signaling protocol packet whose transport mechanism is the GIST protocol.” Klish 11:56–60 (emphasis added). The Examiner has not established that Klish’s “signaling protocol packet” encompasses “network metric data.” Klish’s disclosure that an “NSLP layer . . . provides signaling protocols for quality of service applications” (id. at 12:51–53) does not, without additional reasoning or evidence absent here, establish that “a signaling protocol packet whose transport mechanism is the GIST protocol” (id. at 11:56–58) includes “network metric data.” The Examiner’s reliance on Lloyd does not remedy this deficiency. Even assuming Lloyd discloses the recited “network metric data,” the cited portions of Lloyd does not teach or suggest “pass[ing] network metric data . . . without subjecting said network metric data to said first decryption algorithm.” Indeed, as asserted by Appellant, Lloyd arguably discloses not transmitting network metric data at all. See, e.g., Lloyd ¶ 5 (“Moreover, network information is able to be updated quickly, since it need not be propagated to remote sites individually.”). And as argued by Appellant, the Examiner has not adequately explained why one of ordinary skill in the art Appeal 2015-002398 Application 12/735,483 5 would have processed “network metric data” in the claimed manner. See Non-Final Act. 3–5. Based on the record before us, we do not sustain the Examiner’s rejections of claim 1 and its dependent claims, claims 2 and 4–13. Because the Examiner’s rejections of claim 14 and 16 suffer from similar deficiencies, we also do not sustain the Examiner’s rejections of these claims. DECISION We reverse the rejection of claims 1, 2, 4–14, and 16. REVERSED UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte MARK BENTALL ____________________ Appeal 2015-002398 Application 12/735,483 Technology Center 2400 ____________________ Before THU A. DANG, CATHERINE SHIANG, and LINZY T. McCARTNEY, Administrative Patent Judges. DANG, Administrative Patent Judge dissenting-in-part: I respectfully dissent regarding the reversal of the obviousness rejection of independent claim 1, over Klish, Lloyd and Hui. Based on the reasons argued by Appellant in the Briefs, and by a preponderance of the evidence, I am not persuaded the Examiner erred regarding the obviousness rejection of at least claim 1. On this record, I would affirm the obviousness rejection of at least claim 1 (and any associated claims that depend from claim 1, not separately argued), for at least the following reasons: Claim 1 recites: A communications system comprising a first entity, a first encryption device and a network, Appeal 2015-002398 Application 12/735,483 2 wherein said first encryption device is adapted to decrypt, using a first decryption algorithm, data sent from a first destination to said first entity via said network, to block network metric data that is not one of a predetermined set of data words and to pass network metric data concerning at least one route between said first entity and said first destination to said first entity without subjecting said network metric data to said first decryption algorithm. (Emphasis added). The test for obviousness is what the combination of references cited by the Examiner teaches or suggests to one of ordinary skill in the art. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Based on the record before us, I am unpersuaded the Examiner erred in finding the combination of Klish and Lloyd (and Hui) at least suggests the contested limitations. Here, as the majority points out above, the Examiner relies on Klish for teaching and suggesting a device adapted to pass data (“network metric data”) to an entity without subjecting the data to a decryption algorithm. See Non-Final Act. 3. Thus, although Appellants contend Lloyd’s metric data is “maintained at the regional site and is never sent from the network to a first entity” (App. Br. 7), the Examiner relies on Klish for such teaching and suggestion. Furthermore, as the majority points out above, the Examiner relies on Lloyd to teach and suggest “network metric data” that “concern[s] at least one route between said first entity and said first destination.” Non-Final Act. 4. Even Appellant concedes that Lloyd discloses “metric data.” App. Br. 7. Accordingly, I find no error with the Examiner’s finding the combination of Klish and Lloyd (in view of Hui) teaches or at least suggests Appeal 2015-002398 Application 12/735,483 3 a device adapted to “block” and “pass network metric data . . . without subjecting said network metric data to said first decryption algorithm,” as recited in claim 1. The claims are given their broadest reasonable interpretation consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). While we interpret claims broadly but reasonably in light of the Specification, we nonetheless must not import limitations from the Specification into the claims. See Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc). For patent application claims before the USPTO, “[g]iving claims their broadest reasonable construction ‘serves the public interest by reducing the possibility that claims, finally allowed, will be given broader scope than is justified.’” In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (quoting In re Yamamoto, 740 F.2d 1569, 1571 (Fed. Cir. 1984)). Here, claim 1 merely recites a “system” comprising an encryption device adapted to “block” and “pass network metric data . . . without subjecting said network metric data to said decryption algorithm.” Although Appellant contends that “nothing in Klish [], (or for that matter Lloyd and/or Hui) discloses or suggests that a single encryption device should be employed to perform both encryption and decryption” (App. Br. 6), such contention is not commensurate in scope with the recited language of claim 1. In particular, claim 1 does not require any “single” encryption device that performs “both encryption and decryption.” In fact, I note that there is no “encryption” performed at all according to claim 1. Similarly, although Appellant contends that in Klish, “the actual content of the data packet (such as user data or network metric data that is (or is not) one of a predetermined Appeal 2015-002398 Application 12/735,483 4 set of data words), is not examined . . .” (App. Br. 6), there is no “examining” recited in claim 1. Giving claim 1 its broadest reasonable interpretation, I conclude that claim 1 merely requires a device in a system that is adapted to block and pass a certain type of data, such as “network metric data,” without subjecting that data to decryption. Furthermore, the Specification and claims do not provide any clear definition for “network metric data” as recited in claim 1. Nor has Appellant pointed to any definition provided in the Specification or claim. Applying the guidance of Morris and Am. Acad. of Sci. Tech Ctr., here, I turn to the Specification for context. As the Majority points out, Appellant’s written description merely discloses that “network metric data describes attributes of the network.” Spec. 4:9–10. The Specification also describes that the “network metric data” can be “such as . . . quality-of-service data” but the Specification specifically points out that the data “could, of course, take many other forms as is well known in the art.” Id., emphasis added. That is, as also set forth in the Specification, “such data” as “network metric data” includes “but is not limited to” the exemplary types of information listed. Spec. 2:30–3:6, emphasis added. Contrary to the Majority, I find the various descriptions of exemplary embodiments of “network metric data” in the Specification are non-limiting. In claim 1, “network metric data” is merely the type of data being blocked and passed. Here, I agree with the Examiner that Klish discloses a “bypass” method that involves transmitting a “signaling protocol packet” along a path that “bypasses a decryptor” as well as using a “signaling protocol packet” for “quality of service.” Ans. 24–25, citing Klish 11:55–59, 12:51–55. As Appeal 2015-002398 Application 12/735,483 5 set forth in Klish’s Figure 3A, a signaling protocol packet 300 comprises “data” 310, wherein the data 310 “can be signaling protocol data, user data . . . , or management data.” Klish 7:23–25, emphasis added. Thus, without importing the non-limiting examples of the Specification into the claims, I conclude that nothing in the Specification and claims precludes the Examiner’s broad but reasonable interpretation of the claimed “network metric data” as encompassing Klish’s data being bypassed, i.e., blocked and then passed without decryption. Furthermore, as Appellant concedes, Lloyd discloses “network metric data.” App. Br. 7. I conclude that it would have been well within the skill of one skilled in the art to combine Lloyd’s metric data into Klish’s device adapted to block/pass data without decryption, thereby provide a device adapted to “block” and “pass network metric data . . . without subject said network metric data to said decryption algorithm,” as that recited in claim 1. Such a combination would have been well within the skill of the art. See KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). Appellants have presented no evidence that applying Klish’s blocking/passing data (including metric/management data) without decryption with Lloyd’s metric data would have been “uniquely challenging or difficult for one of ordinary skill in the art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 420). In fact, as discussed above, “network metric data” is merely the type of data being blocked and passed without decryption, wherein replacing one data (such as that of Klish) without another (Lloyd’s) does not provide any change or effect to the claimed device. Thus, I find Appellant’s invention is simply a modification of familiar prior art teachings (as taught Appeal 2015-002398 Application 12/735,483 6 or suggested by the cited references) that would have realized a predictable result. KSR, 550 U.S. at 416. That is, the Examiner’s findings are reasonable because the skilled artisan would “be able to fit the teachings of multiple patents together like pieces of a puzzle” since the skilled artisan is “a person of ordinary creativity, not an automaton.” Id. at 420–21. Based on this record, I cannot find any error in the Examiner’s obviousness rejection of independent claim 1 over the combination of Klish, Lloyd, and Hui. Accordingly, for at least the aforementioned reasons, and by a preponderance of the evidence, I am not persuaded the Examiner erred regarding the obviousness rejection of claim 1, and any associated dependent claims (that depend from claim 1) that are not separately argued by Appellant.