Ex Parte Wahl et al

Patent Trial and Appeal BoardAug 16, 2013

11483085 (P.T.A.B. Aug. 16, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte STEFAN WHAL, PETER DOMSCHITZ, KLAUS WUNSTEL, and THOMAS-ROLF BANNIZA ________________ Appeal 2011-000131 Application 11/483,085 Technology Center 2600 ________________ Before JOSEPH F. RUGGIERO, JOSEPH L. DIXON, and JOHN G. NEW, Administrative Patent Judges. NEW, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-000131 Application 11/483,085 2 SUMMARY Appellants file this appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1-30. Specifically, claims 1, 3, 4, 12- 16, 18, 19, and 27-30 stand rejected as unpatentable under 35 U.S.C. § 102(e) as being anticipated by Binding et al. (US 2006/0126532 A1, June 15, 2006) (“Binding”). Claims 5, 8, 20, and 23 stand rejected as unpatentable under 35 U.S.C. § 103(a) as being obvious over the combination of Binding and Gustafsson et al. (US 7,436,843 B2, October 14, 2008) (“Gustafsson”). Claims 9, 10, 24, and 25 stand rejected as unpatentable under 35 U.S.C. § 103(a) as being obvious over the combination of Binding and Knauerhause et al. (US 2004/0203718 A1, October 14, 2004) (“Knauerhause”). Claims 11 and 26 stand rejected as unpatentable under 35 U.S.C. § 103(a) as being obvious over the combination of Binding and Alperovich et al. (US 6,408,172 B1, June 18, 2002) (“Alperovich”). Claims 6 and 21 stand rejected as unpatentable under 35 U.S.C. § 103(a) as being obvious over the combination of Binding, Gustafsson and Knauerhause. Claims 7 and 22 stand rejected as unpatentable under 35 U.S.C. § 103(a) as being obvious over the combination of Binding and Jakel et al. (US 2006/0135180 A1, June 22, 2006) (“Jakel”). Claims 2 and 17 stand rejected as unpatentable under 35 U.S.C. § 103(a) as being obvious over the combination of Binding and Whinnett et al. (US 5,983,092 A1, November 9, 1999) (“Whinnett”). We have jurisdiction under 35 U.S.C. § 6(b). Appeal 2011-000131 Application 11/483,085 3 We AFFIRM. NATURE OF THE CLAIMED INVENTION Appellants’ invention is directed to a method for supporting mobility of at least one mobile telecommunications terminal in operative connection with a telecommunications network having a plurality of telecommunications resources accessible via a plurality of access networks and associated access technologies in operative connection with the telecommunications network, wherein the mobile telecommunications terminal is provided with information about access networks and access technologies available at least at its present geographic location for choosing an access to the telecommunications network via one of the respective access networks and associated access technologies in accordance with specifications of at least one telecommunications resource requested by the mobile telecommunications terminal, and wherein the information are provided independently of the access networks by means of a mobility service broker system in operative connection with a plurality of access networks. Introduction of an operator independent broker system leads to considerable advantages on the subscriber terminal side, e.g., for reasons of pricing and by limiting. Abstract. GROUPING OF CLAIMS Appellants argue that the Examiner erred for essentially the same reasons with respect to claims 1, 3, 4, 12-16, 18, 19, and 27-30. App. Br. 15. We therefore select independent claim 1 as representative. Moreover, Appellants make no separate argument for patentability with respect to Appeal 2011-000131 Application 11/483,085 4 claims 5-11 and 20-26 and these claims therefore stand or fall with claim 1. Id. Claim 1 recites: 1. Method for supporting mobility of at least one mobile telecommunications terminal in operative connection with a telecommunications network having a plurality of telecommunications resources accessible via a plurality of access networks and associated access technologies in operative connection with the telecommunications network, the method comprising: sending, from the mobile telecommunications terminal, at least one of an access request and a service request to a mobility service broker system such that the mobility service broker system evaluates the plurality of access networks upon receipt of at least one of the access request and the service request; receiving, at the mobile telecommunications terminal, information about available access networks and associated access technologies available based on at least the present geographic location of the mobile telecommunications terminal; choosing an access to the telecommunications network via one of the available access networks and the associated access technologies in accordance with specifications of at least one telecommunications resource requested by the mobile telecommunications terminal, wherein the information is received from a mobility service broker system independently of the access networks, the mobility service broker system being in operative connection with the plurality of access networks. App. Br. 21. Appellants argue that the Examiner erred for substantially the same reasons with respect to claims 2 and 17. App. Br. 15. We consequently select claim 2 as representative of this group. Claim 2 recites: Appeal 2011-000131 Application 11/483,085 5 2. Method according to claim 1, wherein the mobility service broker system evaluates the availability of access networks being able to provide the requested resource by sending out dynamic request messages to the available access networks, and actively checks the appropriate quality parameters at the location of the mobile telecommunications terminal. App. Br. 21-22 ISSUES AND ANALYSES A. Claim 1 Issue Appellants argue that the Examiner erred in finding that Binding discloses the limitation of claim 1 reciting “choosing an access to the telecommunications network via one of the available access networks and the associated access technologies in accordance with specifications of at least one telecommunications resource requested by the mobile telecommunications terminal.” App. Br. 15. We therefore address the issue of whether the Examiner so erred. Analysis Appellants argue that Binding discloses a network control unit that identifies the availability of different communications networks for a communication device. According to Appellants, Binding discloses that a user is allowed to select any recommended network and is not restricted to “choosing an access to the telecommunications network via one of the available access networks and the associated access technologies in accordance with specifications of at least one telecommunications resource Appeal 2011-000131 Application 11/483,085 6 requested by the mobile telecommunications terminal” as required by claim 1. App. Br. 16. Appellants argue, therefore, that the disclosure of Binding allowing a user to select a recommended network is not synonymous with the disputed limitation. The Examiner responds that Binding discloses that the network control unit (i.e., broker) selects one or more networks based on specifications of the resources requested by the communication terminal. Ans. 18. The Examiner finds, by way of example, that paragraph [0012] of Binding discloses that the network control unit selects one or more networks that have the required resources in terms of processing capabilities, or network bandwidth, to establish a link with the device. Ans. 18-19 (also citing Binding, ¶¶ [0061]-[0064]). The Examiner finds that, although Binding discloses that the selected networks are a recommendation, the selected networks are based on the required resources of the communication terminal and used for communications when the user confirms. Ans. 19 (citing Binding, ¶ [0041]). Appellants reply that the system taught by Binding discloses, at most, a system where a network selection engine sends a recommendation of a plurality of networks to a communication device based on selection criteria from the communication device. Reply Br. 2. Appellants contend, however, that recommending available networks based on a communications device’s selection criteria is not the equivalent of “choosing an access to the telecommunications network via one of the available access networks and the associated access technologies in accordance with specifications of at least one telecommunications resource Appeal 2011-000131 Application 11/483,085 7 requested by the mobile telecommunications terminal” as recited in claim 1. Id. We are not persuaded by Appellants’ arguments. Binding discloses that: [T]he network control unit basically recommends a network but the user of the device has to confirm that this recommended network should be chosen for further communications. This embodiment is especially advantageous, when the notification received by the device comprises more than one recommended network. Then, the user can actively choose one of the recommended networks for establishing the communication channel. Binding, ¶ [0041] (emphasis added); see also Ans. 19. Binding thus discloses the choosing of one of the recommended channels by the user. The plain language of claim 1 does not prohibit the choice of channel being made by a user. We therefore conclude that the Examiner did not err in finding that Binding discloses the limitation of claim 1 reciting “choosing an access to the telecommunications network via one of the available access networks and the associated access technologies in accordance with specifications of at least one telecommunications resource requested by the mobile telecommunications terminal.” B. Claim 2 Issue Appellants argue that the Examiner erred in finding that the combination of Binding and Whinnett teaches or suggests the limitation of claim 2 reciting “the mobility service broker system evaluates the availability of access networks being able to provide the requested resource Appeal 2011-000131 Application 11/483,085 8 by sending out dynamic request messages to the available access networks.” App. Br. 19. We therefore address the issue of whether the Examiner so erred. Analysis Appellants argue that Whinnett discloses a mobile terminal sending candidate systems a required service message; and polling each candidate system by accessing each candidate system. App. Br. 19 (citing Whinnett, col. 3, ll. 27-52; Fig. 1; Fig. 4). Thereafter, argue Appellants, the mobile terminal selects one of the candidate systems. App. Br. 19. Appellants contend that the mobile terminal thus performs its own evaluation (i.e., “polling”) using the mobile terminals own resources and power. Id. The Examiner responds that Binding teaches that the broker (i.e., a network control unit) actively checks the quality parameters of the networks at the location of the mobile terminal (e.g., the network control unit can periodically or permanently monitor the load on the different networks). Ans. 21 (citing Binding, ¶ [0031]). The Examiner finds that Binding does not expressly teach or suggest that the monitoring method “send[s] out dynamic request messages,” however, the Examiner finds that Whinnett teaches that this is a known method of monitoring or investigating the quality of communication networks (i.e., candidate systems are polled (receive request messages) to obtain information about quality, tariff, etc.). Ans. 21 (citing Whinnett, col. 3, ll. 27-43). The Examiner thus finds that one of ordinary skill in the contemporaneous art would have been motivated to modify Binding to monitor the quality of the networks by sending out dynamic request messages (polling), as suggested by Whinnett, since such a Appeal 2011-000131 Application 11/483,085 9 modification would allow the broker (network control unit) to use standard techniques to efficiently obtain quality information from the networks. Ans. 21. Appellants reply that the combination of Binding and Whinnett frustrates the purpose of Binding. Reply Br. 3. Appellants contend that Binding teaches a system that provides access to a network wherein a network control unit identifies availability of different communication networks for a communication device. Id. Appellants argue further that Binding teaches that “[h]aving the communication device determine which network to connect to by actively scanning available networks and searching for beacon signals is detrimental with regard to consumption of communication bandwidth and with regard to consumption of power.” Id. (emphasis omitted) (citing Binding, ¶ [0005]). Appellants also argue that Whinnett teaches a system where mobile terminals poll local candidate systems. Reply Br. 4 (citing Whinnett, col. 3, ll. 30-31). According to Appellants, the system in Whinnett uses mobile terminals’ power to poll local candidates, and each mobile terminal in Whinnett is required to consume bandwidth while polling the candidate systems. Reply Br. 4. Appellants argue, therefore, that combining the teachings and suggestions of Binding and Whinnett frustrates the purpose of Binding, because Whinnett requires mobile stations to use excess power and bandwidth while polling local candidates, whereas, the system in Binding is directed towards saving mobile terminal’s power consumption and the network’s bandwidth. Id. We are persuaded by the Examiner’s reasoning and adopt it as our own. Whinnett teaches that: Appeal 2011-000131 Application 11/483,085 10 the mobile terminal 140 polls local candidate systems 120, 130 at call set up time by initially on outgoing call of non-standard type service and informing the candidate system 120, 130 of the required service (the desired service identifier), and any additional information such as quality and destination, for example, the location of the home network 102. Whinnett, col. 3, ll. 30-36; see Ans. 21. We agree with the Examiner that Whinnett thus teaches that polling is a method, known in the art, of monitoring or investigating the quality of communication networks, which, when combined with the teachings of Binding, teaches or suggests the disputed limitation of claim 2. Appellants’ argument that combining the teachings of Binding and Whinnett frustrates the purpose of Binding is initially raised in Appellants’ Reply Brief and is consequently considered waived.1 See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (Informative) (“[T]he reply brief [is not] an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner's rejections, but were not”). Consequently, we conclude that the Examiner did not err in finding that the combination of Binding and Whinnett teaches or suggests the limitation of claim 2 reciting “the mobility service broker system evaluates the availability of access networks being able to provide the requested resource by sending out dynamic request messages to the available access networks.” 1 In their Appellate Brief, Appellants state only that: “[T]he Examiner contends that one skilled in the art would have combined the teachings of Whinnett with Binding. Applicants submit that no combination of the cited art teaches or renders obvious the above mentioned limitations of dependent claim 2.” App. Br. 19. Appeal 2011-000131 Application 11/483,085 11 DECISION The Examiner’s rejection of claims 1, 3, 4, 12-16, 18, 19, and 27-30 under 35 U.S.C. § 102(e) is affirmed. The Examiner’s rejection of claims 2, 5-11, 17, and 20-26 under 35 U.S.C. § 103(a) is affirmed. TIME PERIOD FOR RESPONSE 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). See 37 C.F.R. § 1.136(a)(1)(iv) (2011). AFFIRMED msc