Ex Parte Vyas et al

Patent Trial and Appeal BoardDec 27, 2016

13462852 (P.T.A.B. Dec. 27, 2016)

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. 13/462,852 05/03/2012 Pankaj Vyas GSPN-012-US 1028 26392 7590 12/29/2016 TPH0RT70NS PT T C EXAMINER C/O Landon IP COX, BRIAN P 1725 Jamieson Avenue Alexandria, VA 22314 ART UNIT PAPER NUMBER 2474 NOTIFICATION DATE DELIVERY MODE 12/29/2016 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): general @ IPHORIZONS .COM lfnt2000@yahoo.com intercomm @ iphorizons. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PANKAJ VYAS and VISHAL BATRA Appeal 2016-002026 Application 13/462,8521 Technology Center 2400 Before LARRY J. HUME, CARL L. SILVERMAN, and JAMES W. DEJMEK, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. Â§ 134(a) of the Final Rejection of claims 1, 4â€”11, 15, 16, 19, and 20, all claims pending in the application. Appellants have canceled claims 2, 3, 12â€”14, 17, and 18. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is Gainspan Corp. App. Br. 2. Appeal 2016-002026 Application 13/462,852 STATEMENT OF THE CASE2 The Invention Appellants' disclosed and claimed inventions "relate generally to wireless networks, and more specifically to providing connectivity to end devices using wireless local area network technologies." Spec. 12 ("Technical Field"). Exemplary Claim Claim 1, reproduced below, is representative of the subject matter on appeal (emphases added): 1. A system comprising: a wireless station according to a wireless local area network (WLAN) protocol of IEEE 802.11 standards; and an end device operating as an access point according to said WLAN protocol of IEEE 802.11 standards, in communicating with said wireless station also operating in accordance with said WLAN protocol of IEEE 802.11 standards, wherein said end device operates as said access point in sending data to said wireless station in the form of packets, wherein each of said packets has a frame control field, which in turn contains 'From DS' and 'To DS' bits in accordance with said WLAN protocol of said IEEE 802.11 standards, wherein said 'From DS' and 'To DS' bits are respectively set to logic 1 and logic 0 in each of said packets to indicate that 2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed Apr. 23, 2015); Reply Brief ("Reply Br.," filed Dec. E, 2015); Examiner's Answer ("Ans.," mailed Oct. 30, 2015); Final Office Action ("Final Act.," mailed Feb. 4, 2015); and the original Specification ("Spec.," filed May 3, 2012). 2 Appeal 2016-002026 Application 13/462,852 said data is being sent with said end device operating as said access point, wherein said data sent to said wireless station originates at said end device such that said end device is a source of said data sent to said wireless station. Prior Art The Examiner relies upon the following prior art as evidence in rejecting the claims on appeal: Ohlenbusch et al. US 2012/0155353 A1 June 21, 2012 ("Ohlenbusch") Batkin et al. US 2012/0283583 Al Nov. 8, 2012 ("Batkin") Denteneer et al. US 2011/0149804 Al June 23, 2011 ("Denteneer") Abdel-Kader et al. US 2011/0134846 Al June 9, 2011 ("Abdel-Kader") Rejections on Appeal Rl. Claims 1, 4â€”11, and 15 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of Ohlenbusch and Batkin. Ans. 2; Final Act. 3. R2. Claims 16, 19, and 20 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of Ohlenbusch, Batkin, Denteneer, and Abdel-Kader. Ans. 2; Final Act 15. 3 Appeal 2016-002026 Application 13/462,852 CLAIM GROUPING Based on Appellant's arguments (App. Br. 6â€”13), we decide the appeal of obviousness Rejection R1 of claims 1, 4â€”11, and 15 on the basis of representative claim 1. Remaining claims 16, 19, and 20 in Rejection R2, not argued separately, stand or fall with the respective independent claim from which they depend.3 ISSUE Appellants argue (App. Br. 6â€”9; Reply Br. 1â€”3) the Examiner's rejection of claim 1 under 35 U.S.C. Â§ 103(a) as being obvious over the combination of Ohlenbusch and Batkin is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art combination teaches or suggests a system that includes "an end device operating as an access point according to said WLAN protocol of IEEE 802.11 standards," wherein, inter alia, "said end device operates as said access point in sending data to said wireless station in the form of packets," and "data sent to said wireless station originates at said end device such that said end device is a source of said data sent to said wireless station," as recited in claim 1? 3 "Notwithstanding any other provision of this paragraph, the failure of appellant to separately argue claims which appellant has grouped together shall constitute a waiver of any argument that the Board must consider the patentability of any grouped claim separately." 37 C.F.R. Â§ 41.37(c)(l)(iv) 4 Appeal 2016-002026 Application 13/462,852 ANALYSIS In reaching this decision, we consider all evidence presented and all arguments actually made by Appellants. We do not consider arguments that Appellants could have made but chose not to make in the Briefs, and we deem any such arguments waived. 37 C.F.R. Â§ 41.37(c)(l)(iv). We disagree with Appellants' arguments with respect to claims 1, 4â€” 11, 15, 16, 19, and 20, and we incorporate herein and 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 and rebuttals set forth in the Examiner's Answer in response to Appellants' arguments. We incorporate such findings, reasons, and rebuttals herein by reference unless otherwise noted. However, we highlight and address specific findings and arguments regarding claim 1 for emphasis as follows. Appellants contend: For the present purpose, it is acknowledged that Ohlenbusch discloses that node 104(c) can operate as a gateway and also that the node can be a source of data. Even ignoring the difference between general understanding of 'gateway' and claimed 'access point', it is submitted that such disclosure does not mean the claimed feature of "wherein said end device operates as said access point in sending data to said wireless station in the form of packets" in combination with "wherein said data sent to said wireless station originates at said end device such that said end device is a source of said data sent to said wireless station". App. Br. 7. Appellants further "consider[] multiple cases within the operation of Ohlenbusch" (App. Br. 7), and then present three hypothetical 5 Appeal 2016-002026 Application 13/462,852 operational situations purporting to represent the operation of Ohlenbusch. App. Br. 7â€”8. In particular, Appellants contend: [E]ven if such an external network is hypothetically assumed to be a 802.11 compatible network with node 104(c) as a gateway between network 100 and the 802.11 network, it is Applicant's understanding that node 104(c) may operate merely as a[] wireless station within the 802.11 network (and not necessarily as an access point as claimed). In this respect, it is pointed out that claim 1 recites that, "wherein said 'From DS' and 'To DS' bits are set in said packet to indicate that said end device is operating as said access point in exchanging said data packets." Id. "[TJhere is no individual transaction in Ohlenbusch (either alone or in combination with other references of record) that renders obvious the features of independent claim 1." App. Br. 8. Appellants further contrast the operation of "gateways" and "access points" {id.), and then contend "[t]he Examiner has shown no evidence that the node 104(c) of Ohlenbusch can operate as an access point. To the contrary, it is pointed out Ohlenbusch discloses master device 102, which is disclosed as connecting nodes communicating according to the same protocol." Id. Appellants then conclude claim 1 represents more than the "predictable use of prior-art elements according to their established functions," such that the cited prior art does not render claim 1 obvious under Â§ 103. App. Br. 9. The Examiner responds to each operational scenario of Ohlenbusch presented by Appellants. Ans. 4â€”6. The Examiner further finds, and we agree: NODE 104 of the PLAN 100 may, for example, be integrated into a small device that acts as a gateway device between other networks (i.e., it terminates the communication link of the 6 Appeal 2016-002026 Application 13/462,852 PLAN 100 network)]. NODE 104 is further acting as an Access Point in that it connects users to other users within the network and also can serve as the point of interconnection (i.e., gateway) between the WLAN and a fixed wire network [Ohlenbusch 10023: the disclosure contemplates the implementation of more than one MASTER DEVICE 102; 10024: each MASTER DEVICE 102 is interconnected with every NODE 104 of PLAN 100 (i.e., while NODE 104 is never explicitly labeled an access point its functional interconnectivity within PLAN 100 and with outside networks is precisely what one of ordinary skill in the art would understand an access point to be. Ans. 3 (emphasis added). The Examiner further finds: While it is true, as Appellant states, that NODE 104 acts as a gateway with respect to data packets generated on an outside network [see Ohlenbusch 10093], this function does not preclude or teach away from NODE 104 acting as an access point. Ohlenbusch clearly teaches NODE 104 having interconnectivity within PLAN 100 as a primary function [Ohlenbusch Fig. 1 shows an exemplary embodiement [sic] of PLAN 100, a single network in which NODEs 104 are interconnected with MASTER DEVICE 102], Therefore, Appellants argument is not persuasive as NODE 104 can obviously be interpreted to be acting as an access point as explained in the responses above. Ans. 5â€”6. In the Reply Brief, Appellants argue, "[o]ne skilled in the relevant arts would simply not ignore the difference [between an access point and a gateway]," such that the Examiner's rejection is in error. Reply Br. 2. We disagree with Appellants. We disagree because Appellants' assertions regarding how a person with skill in the art would view Ohlenbusch's teachings and the Examiner's 7 Appeal 2016-002026 Application 13/462,852 findings related thereto amount to unsupported attorney argument, and therefore we give them little weight. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Huang, 100 F.3d 135, 139-140 (Fed. Cir. 1996). Thus, we do not find error in the Examiner's reliance on the combined teachings and suggestions of Ohlenbusch and Batkin. Accordingly, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the combined teachings and suggestions of 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. Therefore, we sustain the Examiner's obviousness rejection of independent claim 1, and grouped claims 4â€”11, and 15 which fall therewith. See Claim Grouping, supra. Â§ 103(a) Rejection R2 of Claims 16, 19, and 20 In view of the lack of any substantive or separate arguments directed to the obviousness rejection of claims 16, 19, and 20 under Â§ 103 (see App. Br. 9), we sustain the Examiner's rejection of these claims. We deem arguments not made waived.4 REPLY BRIEF To the extent Appellants may advance new arguments in the Reply Brief (Reply Br. 1â€”3) not in response to a shift in the Examiner's position in the Answer, we note arguments raised in a Reply Brief that were not raised in the Appeal Brief or are not responsive to arguments raised in the 4 Appellants merely argue, "[t]he PTAB is respectfully requested to overturn this rejection at least for the reasons noted above with respect to corresponding allowable base claims." App. Br. 9. 8 Appeal 2016-002026 Application 13/462,852 Examinerâ€™s Answer will not be considered except for good cause (see 37 C.F.R. Â§ 41.41(b)(2)), which Appellants have not shown. CONCLUSION The Examiner did not err with respect to obviousness Rejections R1 andR2 of claims 1, 4â€”11, 15, 16, 19, and 20 under 35 U.S.C. Â§ 103(a) over the cited prior art combinations of record, and we sustain the rejections. 9 Appeal 2016-002026 Application 13/462,852 DECISION We affirm the Examiner's decision rejecting claims 1, 4â€”11, 15, 16, 19, and 20. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l)(iv). See 37 C.F.R. Â§41.50(f). AFFIRMED 10