Daniel Nathan. Frydman et al.

Patent Trials and Appeals Board

Jul 15, 2020

2018009182 (P.T.A.B. Jul. 15, 2020)

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.
14/714,372 05/18/2015 Daniel Nathan Frydman SGN-PU-014-US1 3981
60956 7590 07/15/2020
Professional Patent Solutions
P.O. BOX 654
HERZELIYA PITUACH, 46105
ISRAEL
EXAMINER
LIN, WILL W
ART UNIT PAPER NUMBER
2412
NOTIFICATION DATE DELIVERY MODE
07/15/2020 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DANIEL NATHAN FRYDMAN and LIOR FITE

Appeal 2018-009182
Application 14/714,372
Technology Center 2400
____________

Before MAHSHID D. SAADAT, NORMAN H. BEAMER,
and STEVEN M. AMUNDSON, Administrative Patent Judges.

BEAMER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1–20. We have jurisdiction over the pending
rejected claims under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
Appellant’s disclosed and claimed invention is directed to regulating
congestion levels in a data communication network, including a traffic
monitor to measure a downlink congestion level and a transmission manager

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Saguna
Networks Ltd. (Appeal Br. 2.)
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to intercept or suppress uplink data traffic when the traffic monitor indicates
a downlink congestion level exceeding a first threshold level. (Abstract.)
Independent claim 1, reproduced below, is illustrative of the subject
matter on appeal:
1. A data traffic management appliance for a mobile
communication network, said appliance comprising:
a traffic monitor to measure a downlink congestion level
on a segment of the network downlink; and
a transmission manager to intercept or suppress uplink
data traffic when said traffic monitor indicates a downlink
congestion level exceeding a first threshold level.
REJECTION
The Examiner rejected claims 1–20 under 35 U.S.C. § 103 as being
unpatentable over Tsuruoka (US 2015/0156129 A1, pub. June 4, 2015) and
Zahemszky et al. (US 2016/0164791 A1, pub. June 9, 2016). (Final Act. 3–
13.)
ISSUE ON APPEAL
Appellant’s arguments present the following dispositive issue:2
Whether the Examiner erred in finding the combination of Tsuruoka
and Zahemszky taught or suggested the subject matter of independent claims
1, 8, and 15. (Appeal Br. 9–12.)

2 Rather than reiterate the arguments of Appellant and the positions of the
Examiner, we refer to the Appeal Brief (filed April 18, 2018); the Reply
Brief (filed Sept. 26, 2018); the Final Office Action (mailed Aug. 16, 2017);
and the Examiner’s Answer (mailed July 26, 2018) for the respective details.
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ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We disagree with Appellant’s
arguments, and adopt as our own: (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken (Final Act. 3–13);
and (2) the reasons set forth by the Examiner in the Examiner’s Answer in
response to Appellant’s Appeal Brief (Ans. 3–9), and concur with the
conclusions reached by the Examiner.
In rejecting the independent claims, the Examiner relies on the
disclosure in Tsuruoka of a communication node which controls flow and
congestion using a storage device to store packets in a queue in the uplink
path, where the period of time for retaining the packets in the queue is
controlled on the basis of the current bandwidth in the downlink path. (Final
Act. 3–4; Ans. 4–5; Tsuruoka Fig. 5, ¶¶ 57–58, 60, 68–69, 76, 84.)
The Examiner also relies on the disclosure of Zahemszky of
congestion management by means of a measuring node that takes action if a
load threshold is exceeded. (Final Act. 4–5; Ans. 6–7; Zahemszky, Fig. 3,
¶¶ 13, 39, 73–74, 101.) The Examiner found:
[I]t would have been obvious to one of ordinary skill in the art
before the effective filing date of the claimed invention to in-
corporate the indications of downlink congestion of Zahemszky
into the congestion detection techniques taught by Tsuruoka in
order to improve congestion management . . . in the analogous
art of congestion control for wireless communication networks.
This provides an obvious motivation for combining.
(Final Act. 5; see also Ans. 7–8.)
Appellant argues the cited references fail to teach a data network
intercepting or suppressing uplink data traffic based on measurements of
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downlink congestion levels in the network. (Appeal Br. 9.) Appellant also
argues that Zahemszky teaches away from the combination because it
discloses suppressing downlink transmission rates in response to downlink
congestion, and is silent with regard to upstream transmission. (Id. at 10.)
Appellant further argues the Examiner uses improper hindsight in relying on
the combination of Tsuruoka and Zahemszky. (Id. at 11.)
Appellant’s conclusory attorney arguments asserting that Tsuruoka
does not teach a data network intercepting or suppressing uplink data traffic
based on measurements of downlink congestion levels in the network are
directly contradicted by the portions of Tsuruoka relied on by the Examiner
and cited above. (See also Ans. 4–5.) In re Geisler, 116 F.3d 1465, 1470
(Fed. Cir. 1997) (“attorney argument [is] not the kind of factual evidence
that is required to rebut a prima facie case of obviousness”); Meitzner v.
Mindick, 549 F.2d 775, 782 (CCPA 1977) (“Argument of counsel cannot
take the place of evidence lacking in the record.”).
Appellant’s arguments are also unpersuasive as arguing the references
separately, whereas the Examiner’s rejection is based on the combination of
references. Non-obviousness cannot be established by attacking references
individually where, as here, the ground of unpatentability is based upon the
teachings of a combination of references. In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986). Rather, the test for obviousness is whether the
combination of references, taken as a whole, would have suggested the
claimed invention to a person having ordinary skill in the art. In re Keller,
642 F.2d 413, 425 (CCPA 1981). Here, the Examiner has combined the
teachings of Tsuruoka, which discloses the claimed relationship between
suppression of uplink data traffic and measurement of downlink congestion,
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with Zahemszky, which discloses the required use of a threshold level.
(Ans. 4–8.)
Appellant’s argument that Zahemszky teaches away from the
combination is unsound. “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 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); Para-Ordnance Mfg., Inc. v. SGS
Importers Int’l, Inc., 73 F.3d 1085, 1090 (Fed. Cir. 1995). A reference does
not teach away if it merely expresses a general preference for an alternative
invention from amongst options available to the ordinarily skilled artisan,
and the reference does not discredit or discourage investigation into the
invention claimed. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). As
the Examiner finds, Zahemszky teaches measuring congestion in both the
uplink and downlink directions. (Ans. 6.) This teaching of alternatives is
not a “teaching away.” We agree with the Examiner that “Zahemszky was
introduced simply to teach expressly the element of a threshold level to
which a downlink congestion level is compared,” and “[t]his teaching by
Zahemszky [is a] proper combination with Tsuruoka.” (Ans. 8. (emphasis
omitted).)
Based on the Examiner’s articulation, set forth above, of why one of
ordinary skill would have combined the references to reach the claimed
subject matter, we are not persuaded the Examiner erred in so finding.
(Final Act. 5; Ans. 7–8.) In particular, we are unpersuaded the Examiner has
used improper hindsight rather than considering the claimed subject matter
as a whole. Any judgment on obviousness is in a sense necessarily a
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reconstruction based upon hindsight reasoning. However, so long as it takes
into account only knowledge which was within the level of ordinary skill at
the time the claimed invention was made, and does not include knowledge
gleaned only from the Appellant’s disclosure, such a reconstruction is
proper. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). We are
not persuaded that the Examiner strayed from these guidelines.
Moreover, Appellant does not point to any evidence of record that the
resulting combination would be “uniquely challenging or difficult for one of
ordinary skill in the art” or “represented an unobvious step over the prior
art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed.
Cir. 2007) (citing KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418–19
(2007)). The Examiner’s findings are reasonable because the skilled artisan
would “be able to fit the teachings of multiple patents together like pieces of
a puzzle” because the skilled artisan is “a person of ordinary creativity, not
an automaton.” KSR, 550 U.S. at 420–21. We are persuaded the claimed
subject matter exemplifies the principle that “[t]he combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” KSR, 550 U.S. at 416.
Accordingly, we sustain the Examiner’s rejections of independent
claims 1, 8, and 15 over Tsuruoka and Zahemszky. We also sustain the
obviousness rejections of claims 2–7, 9–14, and 16–20 over Tsuruoka and
Zahemszky, which rejections are not argued separately with particularity.
(Appeal Br. 12.)
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1–20 103 Tsuruoka,
Zahemszky
1–20

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)(iv).

AFFIRMED