Ex Parte Woundy et al

Patent Trial and Appeal Board

Apr 26, 2016

13170245 (P.T.A.B. Apr. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/170,245 06/28/2011
71867 7590 04/28/2016
BANNER & WITCO FF , LTD
ATTORNEYS FOR CLIENT NUMBER 007412
1100 13th STREET, N.W.
SUITE 1200
WASHINGTON, DC 20005-4051
FIRST NAMED INVENTOR
Richard Woundy
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.
007412.01557 3456
EXAMINER
DINH, KHANH Q
ART UNIT PAPER NUMBER
2458
NOTIFICATION DATE DELIVERY MODE
04/28/2016 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):
PTO-71867@bannerwitcoff.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD WOUNDY and CHRIS BASTIAN
Appeal2014-005198
Application 13/170,245 1
Technology Center 2400
Before JOSEPH L. DIXON, ELENI MANTIS MERCADER, and
JOHN D. HAMANN, Administrative Patent Judges.
HAMANN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner's Final Rejection of claims 1, 2, 4, 5, 7, 8, and 15-17. 2 We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
THE CLAIMED INVENTION
Appellants' claimed invention relates to managing the resources of a
shared access network wherein a policy server can determine allocation of
1 According to Appellants, the real party in interest is Comcast Cable
Communications, LLC. App. Br. 1.
2 The Examiner allowed claims 18-24 and objected to claims 9-14. Claims
3 and 6 are cancelled. Final Act. 1, 8.
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Application 13/170,245
bandwidth, transmission priority, and other network resources based on
information, such as preferences, service selections, and specific
applications executing at a customer device. See Abstract. Of the claims on
appeal, claim 1 is illustrative of the subject matter of the appeal and is
reproduced below.
1. A method comprising:
receiving activity data for an account of a user, the user
account corresponding to an access device in a network, the user
account further corresponding to first and second data processing
devices communicating with the network through the access
device, the activity data indicating at least data related to first and
second application programs respectively executed by the first
and second data processing devices;
receiving information for the user account, the information
including prioritization information related to the first and
second application programs; and
determining, based at least in part on the activity data and
the received information, that data communications in the
network for the first application program should have higher
priority than data communications in the net\~1ork for the second
application program.
REJECTIONS ON APPEAL
(1) The Examiner rejected claims 1, 5, 7, 8, 15, and 1 7 under 3 5
U.S.C. § 102(e) as being anticipated by Grayson et al. (US 2008/0046963
Al; publ. Feb. 21, 2008) (hereinafter "Grayson").
(2) The Examiner rejected claims 2, 4, and 16 under 35 U.S.C.
§ 103 (a) as being unpatentable over the combination of Grayson and Dobes
et al. (US 2002/0116638 Al; publ. Aug. 22, 2002) (hereinafter "Dobes").
(3) The Examiner rejected claims 1, 5, and 8 under the doctrine of
obviousness-type double patenting as being unpatentable over claim 1 of
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Application 13/170,245
Woundy et al. (US 7,996,526 B2; iss. Aug. 9, 2011) (hereinafter
"Woundy"). 3
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
contentions that the Examiner erred. In reaching our Decision, we consider
all evidence presented and all arguments made by Appellants.
We disagree with Appellants' arguments, and we incorporate herein
and adopt as our own: ( 1) the findings and reasons set forth by the Examiner
in the May 10, 2012 Final Office Action (Final Act. 2-8) and (2) the reasons
and rebuttals set forth in the Examiner's Answer (Ans. 2--4). We
incorporate such findings, reasons, and rebuttals herein by reference unless
otherwise noted. However, we highlight and address specific findings and
arguments below for emphasis.
(1) First and second data processing devices
Appellants argue Grayson does not disclose "first and second data
processing devices communicating with the network through the access
device," as recited in claim 1. Reply Br. 4; see also App. Br. 4---6.
Specifically, Appellants argue Grayson's Online Charging Systems ("OCS")
26 and OCS 16 (the first and second data processing devices, respectively)
do not communicate with Grayson's visiting and home networks (Appellants
3 Appellants chose not to address substantively this obviousness-type double
patenting rejection. App. Br. 3. We note that this rejection is based on an
issued U.S. Patent. Based on the foregoing, we summarily affirm this
rejection. SeeHyattv. Dudas, 551F.3d1307, 1313-14 (Fed. Cir. 2008) (the
Board may treat arguments the appellant fails to make for a given ground of
rejection as waived).
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Application 13/170,245
assert the Examiner identifies "both visiting network and home network" as
the network in claim 1) through the access device (visited network gateway
V-GW 30). See Reply Br. 4; see also Ans. 2-3. Appellants argue Grayson
instead discloses "OCS 26 and OCS 16 communicate with Grayson's visited
network gateway V-GW 30 through Grayson's visiting and home networks."
See Reply Br. 4 (citing Grayson Fig. 1 ("illustrat[ing] communication links
Gy and Gy' within the visited and home networks through which OCS 26
and OCS 16 communicate with V-GW 30")); see also Grayson Figs. 2---6.
Appellants contend "[ n ]one of the OCS 26 or OCS 16 communications are
through V-GW 30 to the network." Reply Br. 4.
The Examiner finds Grayson discloses first (OCS 26) and second
(OCS 16) data processing devices communicating with the network through
the visited network Gateway (V-GW 30), which is the access device. See
Ans. 2-3 (citing Grayson i-fi-f 17-21, Fig. 1 ); Final Act. 3--4. The Examiner
also finds certain features of the claimed invention are not recited in the
claims. See Ans. 3.
We are not apprised by Appellants of error in the Examiner's findings
and reasoning. We agree with the Examiner that the claim can be
reasonably interpreted to be met by the prior art. See Ans. 2-3; see also In
re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)
(providing during examination of a patent application, pending claims are
given their broadest reasonable construction consistent with the
specification). For example, we find Grayson discloses the first and second
data processing devices can at least indirectly communicate with the
network through the visited network gateway (V-GW 30). See, e.g.,
Grayson Fig. 1 (illustrating OCS 16 and OCS 26 can communicate indirectly
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Appeal2014-005198
Application 13/170,245
with network components (such as V-PCRF 28 or OFCS 34) through V-GW
30, as well as home network components, such as H-PCRF 20); see also
Grayson Figs. 2---6 (illustrating indirect communications of OCS 16 and
OCS 26 with the network through V-GW 30). Claim 1 does not require the
first and second data processing devices communicate directly with the
network through the access device. See In re Hiniker Co., 150 F.3d 1362,
1369 (Fed. Cir. 1998) (finding "the name of the game is the claim"). This
broad reasonable construction is appropriate here. See In re ICON Health &
Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) ("[A]s applicants may
amend claims to narrow their scope, a broad construction during prosecution
creates no unfairness to the applicant or patentee.").
Our findings and reasoning above also apply to claims 5 and 8, which
recite a similar feature, as well as claims 7, 15, and 17, which depend
therefrom. See App. Br. 6.
(2) Prioritization information related to the first and second
application programs
Appellants argue Grayson does not disclose "prioritization
information related to the first and second application programs," as recited
in claim 1. Reply Br. 4--5. Appellants argue Grayson instead discloses
priorities assigned by the subscriber policy that do not relate to
communications for first and second application programs, but rather refer to
assignments of wireless bearers to a user's mobile device for different
application functions. See id. (citing Grayson i-fi-f 17, 95 (disclosing a priority
for assigning a wireless bearer for a mobile device to receive an internet
protocol television (IPTV) channel)).
The Examiner finds Grayson discloses receiving activity data which
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Application 13/170,245
defines a priority associated with specific application identifiers associated
with subscribers. See Ans. 2 (citing Grayson i-fi-f 17-20); Final Act. 4 (citing
Grayson i-fi-122--40).
We are not apprised by Appellants of error in the Examiner's findings
and reasoning. We agree with the Examiner that Grayson discloses
prioritization information that is related to the first and second application
programs. See, e.g., Grayson i-f 17 (disclosing defining priorities for specific
application identifiers for each subscriber for application interaction, which
priorities can include establishment and retention priorities); see also Final
Act. 4 (citing Grayson i-fi-122--40). We disagree with Appellants that
Grayson's disclosure is limited to assignments of wireless bearers to a user's
mobile device for different application functions. See, e.g., Grayson i-f 17
(disclosing in addition to defining priorities associated with specific
application identifiers, priorities "may be further qualified with bearer
specific attributes"); see also In re Mouttet, 686 F.3d 1322, 1331 (Fed. Cir.
2012) ("A reference may be read for all that it teaches, including uses
beyond its primary purpose.") (citing KSR Int 'l Co. v. Teleflex Inc., 550 U.S.
398, 418-21 (2007)); EWP Corp. v. Reliance Universal Inc., 755 F.2d 898,
907 (Fed. Cir. 1985) ("A reference must be considered for everything it
teaches by way of technology and is not limited to the particular invention it
is describing and attempting to protect.").
Our findings and reasoning above also apply to claims 5 and 8, which
recite a similar feature, as well as claims 7, 15, and 17, which depend
therefrom. See Reply Br. 5---6.
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Application 13/170,245
(3) Combining of Grayson and Dobes
Appellants argue "a person of ordinary skill in the art would not have
modified the system of Grayson to include features of Dobes as suggested
by the" Examiner in rejecting claims 2, 4, and 16 under 3 5 U.S. C. § 1 0 3 (a).
See App. Br. 7. Specifically, Appellants argue Grayson does not indicate
some advantage could be obtained by providing end users high speed
network connections to a common data center, and that the Examiner fails to
explain why the combination would be desirable. See App. Br. 7.
In addition, Appellants also argue modifying Grayson to use Dobes'
cable modems would substantially change the operating principles of
Grayson- Grayson is directed to mobile wireless communications while
Dobes is directed to fixed wired cable hybrid fiber-coaxial networks. See
App. Br. 7; see also Reply Br. 6-7 (arguing the "proposed combination
changes the principle of operation of Grayson and renders Grayson
unsatisfactory for its intended purpose, because Grayson as allegedly
modified by Dobes would no longer relate to or solve the problem of policy
and charging control for roaming users in a wireless mobile
telecommunications system").
The Examiner finds both Grayson and Dobes relate to network
communications and that one of ordinary skill in the art would have found it
obvious to combine Grayson and Dobes to provide network services and
access to users, including to provide connections for users to a common data
center. See Ans. 4 (citing Grayson i-fi-f 17-19, Dobes i-fi-16-9, 12, 38); Final
Act. 7. The Examiner also finds modifying Grayson with Dobes' teachings
would not change the operating principles of Grayson. See Ans. 4.
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Application 13/170,245
We find Appellants' arguments unpersuasive. We find the Examiner
provides "articulated reasoning with some rational underpinning to support
the legal conclusion of obviousness." In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006). The Examiner reasons a person of ordinary skill in the art would
have been motivated to combine Grayson and Dobes to provide high speed
access to users for connections allowing added functionality. See Ans. 4.
We also are not persuaded that combining Grayson and Dobes changes the
principle of operation of Grayson or renders Grayson unsatisfactory for its
intended purpose. See KSR, 550 U.S. at 420 ("[I]n many cases a person of
ordinary skill will be able to fit the teachings of multiple patents together
like pieces of a puzzle."); see also id. at 421 ("A person of ordinary skill is
also a person of ordinary creativity, not an automaton.").
DECISION
In accordance with the reasoning above:
We affirm the Examiner's obviousness-type double patenting
rejection of claims 1, 5, and 8.
We affirm the Examiner's anticipation rejection of claims 1, 5, 7, 8,
15, and 17.
We affirm the Examiner's obviousness rejection of claims 2, 4, and
16.
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).
AFFIRMED
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