Ex Parte Sonnenberg et al

Patent Trial and Appeal BoardJan 28, 2014

11751683 (P.T.A.B. Jan. 28, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JEROME SONNENBERG and JOSEPH BIBB CAIN ____________ Appeal 2011-008076 Application 11/751,683 Technology Center 2400 ____________ Before ST. JOHN COURTENAY III, THU A. DANG, and CARL W. WHITEHEAD JR., Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-008076 Application 11/751,683 2 Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-4, 6-11, 13-16 and 18-21. Claims 5, 12, 17 and 22 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellants’ claimed invention “relates to the field of communication networks, and, more particularly, to mobile ad hoc wireless networks and related methods.” (Spec. ¶[0001]. Independent claim 1, reproduced below, is representative of the subject matter on appeal: 1. A method for managing and controlling the discovery and maintenance of routes in a mobile ad hoc network (MANET) comprising a plurality of wireless mobile nodes, the method comprising: determining, at [ ] least one wireless mobile node, additions and drop outs over time of neighboring nodes in communication with the at least one wireless mobile node; generating a motion-inferred link metric based upon the additions and drop outs over time; calculating an overhead cost for each of the plurality of possible routing protocols based upon the motion- inferred link metric; selecting a routing protocol from a plurality of possible routing protocols based upon the motion- inferred link metric and the calculated overhead cost; and discovering routes, with the selected routing protocol, from the at least one wireless mobile node to other wireless mobile nodes within the MANET. Appeal 2011-008076 Application 11/751,683 3 (Contested limitations emphasized). REJECTIONS A. Claims 1, 3, 4, 7, 8, 13, 15, 16, 18, 20, and 21 stand rejected under 35 U.S.C. §103(a) as being unpatentable over the combined teachings and suggestions of Sulaiman (International Publication No. WO 2007/015089 A1) and Joshi (US Pat. 7,447,174 B2). B. Claims 2, 14, and 19 stand rejected under 35 U.S.C. §103(a) as being unpatentable over the combined teachings and suggestions of Sulaiman, Joshi, and Labrador (US Pat. 7,512,079 B2). C. Claim 6 stands rejected under 35 U.S.C. §103(a) as being unpatentable over the combined teachings and suggestions of Sulaiman, Joshi, and Kennedy (US Pat. 6,754,192 B2). D. Claims 9-11 stand rejected under 35 U.S.C. §103(a) as being unpatentable over the combined teachings and suggestions of Sulaiman, Joshi, and Labrador. GROUPING OF CLAIMS Based on Appellants’ arguments, we decide the appeal of rejections A, B, C, and D on the basis of representative claims 1, 2, 6, and 9, respectively. See 37 C.F.R. § 41.37(c)(1)(vii)(2004).1 1 Appellants filed a Notice of Appeal on June 22, 2010. The date of filing the Notice of Appeal determines which set of rules applies to an ex parte appeal. If a Notice of Appeal is filed prior to January 23, 2012, then the 2004 version of the Board Rules last published in the 2011 edition of Title 37 of the Code of Federal Regulations (37 C.F.R. § 41.1) applies to the appeal. See also MPEP 1220, Rev. 8, July 2010. Appeal 2011-008076 Application 11/751,683 4 ANALYSIS Responsive to Appellants’ arguments, we review rejections A-D seriatim: Rejection A - Independent Claim 1 Issue: Under § 103, did the Examiner err in finding that the cited references, either alone or in combination, would have taught or suggested the contested limitations of: [L1] calculating an overhead cost for each of the plurality of possible routing protocols based upon the motion-inferred link metric; [and] [L2] selecting a routing protocol from a plurality of possible routing protocols based upon the motion-inferred link metric and the calculated overhead cost; within the meaning of representative claim 1? (Emphasis added). As an initial matter of claim construction, we conclude there is no antecedent basis for “the plurality of possible routing protocols” recited in contested limitation L1, thus raising a question of how much patentable weight, if any, should be given to a limitation that refers to something not previously introduced in the claim. 2 Assuming arguendo that our reviewing court may give weight to the aforementioned limitation having no 2 In the event of further prosecution, we leave it to the Examiner to consider a rejection under §112, second paragraph, for claim 1 and all claims that depend thereon (lack of antecedent basis for “the plurality of possible routing protocols . . . . ”)(Claim 1). While the Board is authorized to reject claims under 37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects not to do so. See Manual of Patent Examining Procedure (MPEP) § 1213.02. Appeal 2011-008076 Application 11/751,683 5 antecedent basis, we consider the Appellants’ arguments on the merits, as advanced in the Briefs. Appellants contend, inter alia: independent Claims 1, 13 and 18 emphasize the feature of calculating an overhead cost for each of the plurality of possible routing protocols based upon the motion-inferred link metric, and wherein selecting the routing protocol from the plurality of possible routing protocols comprises selecting the routing protocol based upon the calculated overhead cost. Such a feature is not taught in either of the cited references, and the Examiner has mischaracterized the Joshi reference with respect to this feature. (App. Br. 10). We disagree with Appellants’ contentions. We note the Examiner looks to the Sulaiman reference for teaching or suggesting the contested “calculating an overhead cost for each of the plurality of possible routing protocols” (Claim 1; Ans. 5). We observe Sulaiman teaches selecting an optimal routing protocol using mobility as a factor: In the first network context, where the mobility of the computer systems 10-14 is high, the optimal routing protocol selected by the network apparatus 30 may be selected as AODV. In the second network context, a proactive routing protocol (such as DSDV) may instead be chosen. As such, the network operates under AODV during the majority of the day and switches to DSDV during the meeting. The reason for these choices is that AODV out-performs DSDV when the mobility level of the network wireless nodes is high. However, where mobility of the computer systems 10-14 changes, DSDV is more determined to be effective and is chosen accordingly. (Sulaiman, p. 9, ll. 1-13). Appeal 2011-008076 Application 11/751,683 6 Regarding the contested “motion-inferred link metric based upon the additions and drop outs over time” (claim 1) that is used in combination with the calculated overhead cost to select a routing protocol, we note the Examiner looks particularly to Joshi, in combination with the teachings and suggestions of Sulaiman: generating a motion-inferred link metric based upon the additions and drop outs over time (see col. 9 line 61- col. 10 line 11); wherein determining the mobile node is [in a] mobile or fixed state, which in stationary state, the data exchange rate is reduce[d] and [a] given node consumes much less overhead and in mobile state, the nodes are rapidly changing topology and the routing data are exchange[d] [which] must occur more frequently (see col. 13 line 54-col. 14 line 11, the overhead cost for the routing algorithms of the stationary state is less than the routing algorithms use[d] in the mobile state); (Ans. 6; emphasis omitted). Appellants additionally advance a “teaching away” argument regarding Sulaiman: at the bottom of page 10 in Sulaiman, it is exactly this "network context" being described as being dependent on the node detected mobility. As such, the Examiner's reliance on this teaching is puzzling as the Sulaiman approach teaches away from the Examiner's hypothetical combination. (App. Br. 9-10). “What the prior art teaches and whether it teaches toward or away from the claimed invention . . . is a determination of fact.” Para-Ordnance Mfg., Inc. v. SGS Importers Int'l, Inc., 73 F.3d 1085, 1088 (Fed. Cir. 1995). “A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path Appeal 2011-008076 Application 11/751,683 7 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). Teaching an alternative or equivalent method, however, does not teach away from the use of a claimed method. See In re Dunn, 349 F.2d 433, 438 (CCPA 1965). This reasoning is applicable here. We observe that Sulaiman is directed to a “network management method and network apparatus which is particularly applicable to ad hoc data communications networks.” (Sulaiman p. 1, ll. 4-6). Appellants’ claim 1 is similarly directed to “[a] method for managing and controlling the discovery and maintenance of routes in a mobile ad hoc network (MANET) comprising a plurality of wireless mobile nodes.” Therefore, on this record, we are not persuaded that Sulaiman “teaches away” from Appellants’ claimed method (Claim 1). Moreover, we find all the references relied on by the Examiner are analogous art to the claimed invention (i.e., each cited reference is directed to ad hoc networks in some aspect). Appellants’ arguments notwithstanding, on this record, we are not persuaded of error regarding the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness. Therefore, we sustain the § 103 rejection of representative claim 1, and grouped claims 3, 4, 7, 8, 13, 15, 16, 18, 20, and 21(not argued separately) which fall therewith. See 37 C.F.R. § 41.37(c)(1)(vii)(2004). Rejection B - Dependent Claim 2 Issue: Under § 103, did the Examiner err in finding that the cited references, either alone or in combination, would have taught or suggested Appeal 2011-008076 Application 11/751,683 8 the contested limitations of “wherein determining additions and drop outs over time of neighboring nodes in communication with the at least one wireless mobile node is performed at the data link layer; and wherein generating the motion-inferred link metric and selecting the routing protocol are performed at the network layer,” within the meaning of representative claim 2? Appellants contend: although Labrador et al. mentions a conventional use of multilayer protocol hierarchy, there is no discussion regarding the data link layer determining the additions and drop outs of neighboring nodes, and the network layer generating the motion-inferred link metric and select the routing protocol, as claimed. (App. Br. 12). The Examiner disagrees: LABRADOR shows the cross-layer interaction of the data link layer and the network layer, which the data link layer is used for determining the connectivity and the network layer is selecting the routing protocol, is well known. Thus in view of LABRADOR, one of ordinary skill in the art would implement the data link layer to determine the connectivity to indicate the add or drop of neighboring nodes and using the network layer to determine the routing protocol based on the add or drop of neighboring nodes for the system of SULAIMAN and JOSHI to use the data link layer to perform the determining additions and drop outs over time of neighboring nodes in communication with the at least one wireless mobile node and the network layer to perform the generating the motion-inferred link metric and selecting the routing protocol and the interaction between the layers to selecting the protocol. (Ans. 29, emphasis added). Appeal 2011-008076 Application 11/751,683 9 We note the Examiner’s rejection is based on the combination of Sulaiman, Joshi, and Labrador. The Examiner relies on Joshi for generating a motion-inferred link metric based upon the additions and drop outs over time (see col. 9 line 61- col. 10, line 11), as discussed above regarding claim 1. We find Labrador, in particular, in combination with Sulaiman and Joshi, would have at least suggested the disputed “wherein” clause limitations of claim 2. We observe Labrador teaches a method of selecting between a routing layer and a data link layer implemented at a control layer which operates between the routing layer and the data link layer: In a particular embodiment, the method and system to assure node connectivity in accordance with the present invention are adapted to be implemented at a control layer, thereby operating between a routing layer and a data link layer. The routing layer may be selected from any number of routing protocols known in the art. In a particular embodiment, the routing layer selected is AODV protocol. Additionally, the data link layer may be selected from any number of data link layers known in the art and in a particular embodiment the IEEE 802.11b MAC protocol is selected. (Labrador, col. 6, ll. 29-38). Therefore, on this record, we find the weight of the evidence supports the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness. Moreover, Appellants have not specifically addressed the Examiner’s response regarding the rejection of claim 2 in the Reply Brief. 3 Accordingly, for essentially the same reasons articulated by the Examiner (Ans. 28-29), we sustain §103 rejection B of dependent claim 2. Grouped 3 See particularly the Examiner’s response: “LABRADOR shows the cross- layer interaction of the data link layer and the network layer, which the data link layer is used for determining the connectivity and the network layer is selecting the routing protocol, is well known.” (Ans. 29, emphasis added). Appeal 2011-008076 Application 11/751,683 10 claims 14 and 19 (not argued separately) fall therewith. See 37 C.F.R. § 41.37(c)(1)(vii)(2004). Rejection C - Dependent Claim 6 Appellants contend: “Kennedy does not make up for the deficiencies of the hypothetical combination of Sulaiman and Joshi as detailed above. Accordingly, Appellants maintain that dependent Claim 6 also defines over the combination of primary references Sulaiman and Joshi for the reasons set forth above with respect to the independent claims.” (App. Br. 13). We find no deficiencies regarding Sulaiman and Joshi for the reasons discussed above regarding rejection A of claim 1. Therefore, we sustain the Examiner’s rejection C of claim 6 for the same reasons discussed supra regarding claim 1. Rejection D - Independent Claim 9 We sustain the Examiner’s obviousness rejection of claim 9 for the same reasons discussed above regarding claims 1 and 2. In particular, we find no deficiencies regarding Sulaiman and Joshi for the reasons discussed above regarding rejection A of claim 1. Additionally, regarding the calculated “rate of change of neighboring nodes based upon the monitoring” limitation, we agree with the Examiner (Ans. 23) that Joshi (col. 9, line 61 – col 10, line 11), in combination with Sulaiman and Labrador, at least suggests this contested limitation. Specifically, Joshi (id.) refers to monitoring mobility changes between nodes over a first, second, and third time periods which we find suggests “calculating a rate of change of neighboring nodes based upon the monitoring” as recited in claim 9. (Emphasis added). Therefore, we sustain the Examiner’s §103 rejection of Appeal 2011-008076 Application 11/751,683 11 claim 9, and of claims 10-11 (not argued separately) over the combined teachings and suggestions of Sulaiman, Joshi, and Labrador. See 37 C.F.R. § 41.37(c)(1)(vii)(2004). DECISION We affirm the Examiner’s decision rejecting claims 1-4, 6-11, 13-16 and 18-21 under §103. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 41.50(f). AFFIRMED tj