Ex Parte BHARGHAVAN et al

Patent Trials and Appeals Board

Mar 20, 2019

14337184 - (D) (P.T.A.B. Mar. 20, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/337,184 07/21/2014 Vaduvur BHARGHA VAN
88268 7590 03/22/2019
Law Office of Dorian Cartwright
P.O. Box 7617
San Jose, CA 95150
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
FOR-002C2 9226
EXAMINER
ALI,FARHAD
ART UNIT PAPER NUMBER
2478
NOTIFICATION DATE DELIVERY MODE
03/22/2019 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):
uspto@cartwrightesq.com
vibrantnet@yahoo.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte V ADUVUR BHARGHA VAN, SUNG-WOOK HAN,
JOSEPH EPSTEIN, BEREND DUNSBERGEN, and
SARA V ANAN BALASUBRAMANIAN
Appeal2018-007201
Application 14/337, 184
Technology Center 2400
Before JENNIFER S. BISK, LARRY J. HUME, and
JULIET MITCHELL DIRBA, Administrative Patent Judges.
DIRBA, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 seek our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1, 2, 4---6, and 8. We have jurisdiction
under 35 U.S.C. § 6(b ).
We affirm.
1 This Decision uses the following abbreviations: "Spec." for the original
specification, filed July 21, 2014, which claims priority to earlier filed
applications; "Final Act." for the Final Office Action, mailed Jan. 31, 2017;
"App. Br." for Appellants' Appeal Brief, filed Nov. 1, 2017 (which was later
refiled on Dec. 11, 2017 to correct the Summary of Claimed Subject
Matter); "Ans." for Examiner's Answer, mailed Apr. 23, 2018; and "Reply
Br." for Appellants' Reply Brief, filed June 29, 2018.
2 According to Appellants, the real parties in interest are Fortinet, Inc. and
Meru Networks. App. Br. 3.
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Application 14/337, 184
BACKGROUND
Appellants' disclosed embodiments and claimed invention relate to
mobility in wireless networks. Abstract.
Claim 1, reproduced below, is representative of the claimed subject
matter (emphasis added to disputed limitation):
1. A computer-implemented method in a system
coordinator to provide seamless mobility to an end point in a
wireless network by with the use of a per-station BS SID (Basic
Service Set Identifier), the method comprising:
responsive to receiving a connection request from
a mobile station, selecting a first access point from a
plurality of access points under management of the
system coordinator to service the mobile station, wherein
the selection is based on global characteristics of the
wireless network;
associating the BSSID with the first access point,
wherein a beacon is sent from the first access point
to advertise its presence, wherein the beacon comprises
the BSSID;
responsive to the mobile station choosing the
BSSID being advertised in the beacon sent from the first
access point, uniquely assigning the BSSID to the mobile
station, the uniquely assigned BSSID being independent
of an identity of the mobile station and being eligible for
subsequent assignment to a different mobile station as
determined by the system coordinator.
App. Br. 12-13 (Claims App'x) ( emphasis added).
THE REJECTIONS
RI. Claim 1 stands rejected under pre-AIA 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
Final Act. 2-3.
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R2. Claims 1, 2, 4, and 6 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as obvious over Shpak (US 2003/0206532 Al, published
Nov. 6, 2003) in view of Volpano (US 2004/0141617 Al, published
July 22, 2004). Final Act. 3-9.
R3. Claim 5 stands rejected under pre-AIA 35 U.S.C. § I03(a) as
obvious over Shpak, Volpano, and Chou (US 7,693,513 B2, issued
Apr. 6, 2010). Final Act. 9-11.
R4. Claim 8 stands rejected under pre-AIA 35 U.S.C. § I03(a) as
obvious over Shpak, Volpano, and Cromer (US 2006/0025127 Al,
published Feb. 2, 2006). Final Act. 11-12.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010)
(precedential). To the extent Appellants have not advanced separate,
substantive arguments for particular claims, or other issues, such arguments
are waived. 37 C.F.R. § 4I.37(c)(l)(iv).
We have considered all of Appellants' arguments and any evidence
presented. We highlight and address specific findings and arguments for
emphasis in our analysis below.
Written Description Rejection RI of Claim 1
The Examiner rejected claim 1 under pre-AIA 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
Final Act. 2-3. Appellants do not list this rejection in the "Grounds of
Rejection to be Reviewed on Appeal" and do not present any arguments
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addressing it. App. Br. 7, 8-11 ( emphasis omitted). We deem Appellants to
have waived any arguments as to this rejection. See Hyatt v. Dudas, 551
F.3d 1307, 1314 (Fed. Cir. 2008) ("When the appellant fails to contest a
ground of rejection to the Board, ... the Board may treat any argument with
respect to that ground of rejection as waived."); see also 37 C.F.R.
§ 4I.37(c)(l)(iv) ("The arguments shall explain why the examiner erred as
to each ground of rejection contested by appellant."). Accordingly, we
summarily sustain rejection RI.
Obviousness Rejections R2 through R4 of Claims 1, 2, 4-6, and 8
The Examiner rejects claims 1, 2, 4, and 6 over a combination of
Shpak and Volpano. Final Act. 3-9. Based on Appellants' arguments (App.
Br. 8-10), we decide the appeal of obviousness rejection R2 of claims 1, 2, 4
and 6 on the basis of representative claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
Dependent claims 2, 4 and 6 stand or fall with independent claim 1.
In rejections R3 and R4, the Examiner rejects dependent claim 5 over
a combination of Shpak, Volpano, and Chou and rejects dependent claim 8
over a combination of Shpak, Volpano, and Cromer. Final Act. 9-12.
Appellants do not address either of these rejections (see App. Br. 8-10), and
thus, dependent claims 5 and 8 stand or fall with independent claim 1, from
which they depend.
Claim 1
Claim 1 recites: "uniquely assigning the BSSID to the mobile station."
App. Br. 12 (Claims App.). 3 For this limitation, the Examiner relies on
3 Claim 1 also recites "a per-station BSSID (Basic Service Set Identifier)."
4
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Volpano. Final Act. 6, 13-14 (citing Volpano ,r,r 9, 28); Ans. 5 (citing
Volpano ,r 48).
Volpano describes a shared public basic service set (BSS) as a
potential "electronic cesspool" where any member of the BSS can
contaminate other members' stations with worms and Trojan horses.
Volpano ,r,r 5---6. To both improve security and retain the benefits of a
shared BSS, Volpano creates multiple virtual BSSes that share a single
physical BSS. Id. ,r 9. For example, at a meeting, a virtual BSS may include
a projector and the presenters' stations, but not each of the participants'
stations. Id. ,r 10. Volpano teaches "any number of end stations can belong
to a virtual BSS" (id. ,r 9), and "[e]ach virtual BSS ... has its own identifier,
or BS SID" (id. ,r 28). In addition, Volpano describes the creation of "a new
Class-3 virtual BSS for [a] user." Id. ,r 48.
The Examiner found Volpano teaches "uniquely assigning the BSSID
to the mobile station," as required by claim 1. Final Act. 6, 13-14 (citing
Volpano ,r,r 9, 28). The Examiner noted Volpano's virtual BSS has an
identifier (the BSSID), and Volpano states "'any number' of end stations"
can belong to a virtual BSS. Id. at 6, 13. The Examiner found this teaches
"a single station belonging to a virtual BSS," even though Volpano also
allows multiple stations in a virtual BSS. Id. at 13-14.
Appellants contend Volpano fails to teach or suggest the claim
limitations because Volpano allows several mobile stations to use the same
virtual BSS. App. Br. 9. Appellants do not dispute that "any number of end
stations" includes a single station, as the Examiner found. See id. But,
Appellants assert, Volpano teaches away from the claimed invention by
allowing more than one station to be included in a virtual BSS. Id.
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Appellants further explain Volpano does not "stop[] a second station ...
from joining the same BSSID," and Appellants generally allege the
Examiner has used impermissible hindsight. Id. at 10.
In response, the Examiner asserts claim 1 does not include the
limitations argued by Appellants, pointing to the claim language and the
Specification in support. Ans. 6-7 (citing Spec. ,r 158 in support). 4 The
Examiner maintains Volpano teaches the claim limitation (id. at 3-5), and in
further support, the Examiner points to Volpano's process for creating a new
Class-3 virtual BSS for a user (id. at 5 (citing Volpano ,r 48)). Appellants
reply by asserting Volpano's paragraph 48 establishes "group rules for
stations," and by failing to describe these rules in detail, Volpano fails to
disclose a uniquely-assigned BS SID. Reply Br. 2 ( emphasis omitted).
Appellants' arguments do not persuade us of error. Volpano' s virtual
BSS may include one station or multiple stations (Volpano ,r 9), and
Volpano creates "a new Class-3 virtual BSS" for a particular station (id.
,r 48). Accordingly, and as the Examiner found, Volpano teaches a virtual
BSS may include only one mobile station, and in that situation, the BSSID
will be unique to that station. Final Act. 6, 13; Ans. 3-5; Volpano ,r,r 9, 48.
Appellants do not dispute that Volpano's virtual BSS may include only one
station; rather, Appellants argue Volpano is deficient because the reference
also teaches associating the BSSID with multiple stations and, relatedly,
because Volpano fails to limit the BSSID to only one station. App. Br. 8-
10; Reply 2-3. These arguments presume claim 1 either excludes a BSSID
4 The Examiner cites to the Specification, as filed July 21, 2014. The
Examiner's citation corresponds to paragraph 57 of the published application
(US 2015/0043530 Al, published Feb. 12, 2015).
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that can be associated with multiple stations or precludes a second station
from later joining that BSSID. As explained below, we conclude claim 1
includes no such limitations.
During prosecution, claims must be given their broadest reasonable
interpretation when reading claim language in light of the specification as it
would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard,
we interpret claim terms using "the broadest reasonable meaning of the
words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
contained in the applicant's specification." In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997).
Claim 1 recites a "per-station BSSID" that is "uniquely assign[ed] ...
to the mobile station." App. Br. 12 (Claims App'x). The claim does not
expressly require the BSSID to be permanently associated with a mobile
station, and the claim does not include language prohibiting another station
from later joining the BSSID. See id. In fact, the claim specifies the
opposite-the BSSID must be "eligible for subsequent assignment to a
different mobile station." Id. at 12-13. Accordingly, the claim language
indicates the BSSID may be associated with a second station, or multiple
stations, so long as it is "uniquely assign[ ed] ... to the mobile station" at
some point in time. Accord Ans. 6 ("[T]he BSSID is not unique to the
mobile station, rather, it is 'uniquely assigned' to the mobile station at that
time."). This understanding of the claim term is further supported by
Appellants' Specification, which describes assignment of an identifier ( e.g.,
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BSSID) to multiple mobile stations. Spec. ,r,r 176, 192-93 (assigning same
identifier to multiple devices); see id. ,r 165 (BSSID is an example of an
"identifier"); see also id. ,r 158 (noting identifiers may be reused). 5
Appellants do not point to any claim language or portion of the
Specification in support of their interpretation of claim scope. See generally
App. Br. 8-10; Reply Br. 2-3. In addition, Appellants do not respond to the
Examiner's argument, or otherwise address the claim's requirement to allow
for subsequent assignment of the BS SID to a different station. See Reply
Br. 2-3.
Based on the plain language of the claim and the Specification, we
conclude the broadest reasonable interpretation of the claim allows the
uniquely assigned BSSID to be later assigned to a second mobile station.
Accordingly, we are not persuaded by Appellants' arguments that Volpano
is deficient, and we perceive no error in the Examiner's finding that Volpano
teaches the disputed claim limitation. See, e.g., Volpano ,r,r 44--48 (creating
new BSS, with a BS SID, for a particular user).
In addition, Appellants contend Volpano teaches away from the
claimed invention because it allows a virtual BSS to include multiple
stations. App. Br. 9. However, Appellants have not demonstrated that "a
person of ordinary skill, upon reading the reference, would be discouraged
from following the path set out in the reference, or would be led in a
direction divergent from the path that was taken by the applicant." In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). The prior art here merely
discloses alternatives, which is not, by itself, sufficient to demonstrate a
5 These citations correspond to paragraphs 75, 91-92, 64, and 57 in the '350
publication (the published version of the Specification).
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teaching away. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) ("The
prior art's mere disclosure of more than one alternative does not constitute a
teaching away from any of the[] [ disclosed] alternatives because such
disclosure does not criticize, discredit, or otherwise discourage the solution
claimed .... "). Accordingly, we are not persuaded by this argument.
Finally, Appellants contend the Examiner used "hindsight," but do not
address the reasoning provided except as noted above. App. Br. 10. By not
showing error in the reasoning provided, Appellants have not shown error in
the conclusion as to obviousness. See In re Cree, Inc., 818 F.3d 694, 702
n.3 (Fed. Cir. 2016) (viewing an "impermissible hindsight" argument as
"essentially a repackaging of the argument that there was insufficient
evidence of a motivation to combine the references").
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the cited prior art
combination to teach or suggest the disputed limitation of claim 1, nor do we
find error in the Examiner's resulting legal conclusion of obviousness.
Accordingly, we sustain the Examiner's obviousness rejections of
independent claim 1, and dependent claims 2, 4--6, and 8, which fall
therewith.
CONCLUSIONS
Appellants allege no error in the written description rejection RI of
claim 1 under pre-AIA 35 U.S.C. § 112, first paragraph, and we summarily
sustain that rejection.
The Examiner did not err with respect to obviousness rejections R2
through R4 of claims 1, 2, 4--6, and 8 under pre-AIA 35 U.S.C. § I03(a), and
we sustain those rejections.
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DECISION
We affirm the Examiner's decision rejecting claims 1, 2, 4---6, and 8.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See
37 C.F.R. § 41.50(±).
AFFIRMED
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