Ex Parte 7,417,568 et al

Patent Trial and Appeal Board

Oct 31, 2013

95001533 (P.T.A.B. Oct. 31, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
95/001,533 03/01/2011 7,417,568 2855.001REX3 8183
26111 7590 11/01/2013
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005
EXAMINER
HUGHES, DEANDRA M
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
11/01/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
1

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

CME GROUP, INC., NEW YORK MERCANTILE EXCHANGE, INC.,
and BOARD OF TRADE OF THE CITY OF CHICAGO, INC.
Requester

v.

REALTIME DATA LLC.
Patent Owner
____

Appeal 2013-007689
Inter partes Reexamination Control No. 95/001,533
United States Patent 7,417,568 B2
Technology Center 3900
____________

Before ALLEN R. MacDONALD, THU A. DANG, and STEPHEN C. SIU,
Administrative Patent Judges.

SIU, Administrative Patent Judge.

DECISION ON APPEAL
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This proceeding arose from a third party request on behalf of CME
Group, Inc., New York Mercantile Exchange, Inc., and Board of Trade of
the City of Chicago, Inc. for an inter partes reexamination of U. S. Patent
7,417,568 B2 (the ’568 patent), entitled “System and Method for Data Feed
Acceleration and Encryption,” assigned to Realtime Data LLC and issued to
James J. Fallon, Paul F. Pickel, Stephen J. McErlain, and Carlton W. Melone
(August 26, 2008). The Examiner refuses to adopt the proposed rejections
of claims 3, 6-8, 10, 12, 14, 15, 17, 18, 20-27, 29-37, 40, 41, 45-51, 53-62,
67, 69, and 70. We have jurisdiction under 35 U.S.C. §§ 134(b) and 306.

STATEMENT OF THE CASE
The ’568 patent describes transmission of broadcast data over a
communication channel using data compression and decompression (col. 6,
ll. 4-7).
Claim 20 on appeal reads as follows:
20. A method for creating a data feed dependent data compression
routine, the method comprising:
creating a description file that describes one or more data fields and
one or more encoders associated with each data field;
processing the description file with a data compression compiler; and
outputting an executable file that is used to process a stream of data
by recognizing data field types in the data stream and applying encoders
associated with the recognized data field types to encode the data stream.

(App. Br. 30, Claims Appendix.)

The Examiner relies upon the following prior art references:
Sebastian U.S. 6,253,264 B1 Jun. 26, 2001
Fascenda U.S. 5,045,848 Sept. 3, 1991
Carr U.S. 5,293,379 Mar. 8, 1994
Hauck U.S. 4,626,829 Dec. 2, 1986
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Willis U.S. 4,745,559 May 17, 1988
Birdwell U.S. 6,032,197 Feb. 29, 2000
Osler U.S. 6,768,749 B1 Jul. 27, 2004
Franaszek U.S. 5,870,036 Feb. 9, 1999

XML-Xpress White Paper, December 2000 (“XML”).

Danskin, J., “Compressing the X Graphics Protocol,” Jan. 1995 (“Danskin-
1”).

Danskin et al., “Fast Higher Bandwidth X,” Proceedings of Multimedia
Networking, IEEE Computer Society Press, pp. 192-199 (“Danskin-2”).

Hartmut Liefke and Dan Suciu, “XMill, an Efficient Compressor for XML
Data,” Oct. 1999 (“XMill”).

The Requester appeals the Examiner’s decision not to adopt the
following proposed rejections:
Claims 6, 10, 12, 14, 15, 17, 18, 20-26, 29-32, 40, and 46-48 under
35 U.S.C. § 102(b) as being anticipated by XMill;
Claims 3, 6-8, 33-37, 51, 53-56, and 60-62 under 35 U.S.C. § 103(a)
as unpatentable over XMill, Danskin-1, and Birdwell;
Claims 26, 27, and 49 under 35 U.S.C. § 103(a) as unpatentable over
XMill and Willis;
Claims 6-8, 12, 14, 15, 17, 18, 20-26, 29-32, 34-37, 40, and 46-48
under 35 U.S.C. § 102(b) as being anticipated by Danskin-1;
Claim 50 under 35 U.S.C. § 103(a) as unpatentable over Danskin-1,
alone or in combination with Danskin-2;
Claims 3, 33, 37, 53-62, 69, and 70 under 35 U.S.C. § 103(a) as
unpatentable over Danskin-1 and Birdwell;
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Claims 26, 27, and 49 under 35 U.S.C. § 103(a) as unpatentable over
Danskin-1 and Willis;
Claims 6, 10, 12, 15, 20-25, 29-33, and 40 under 35 U.S.C. § 102 as
being anticipated by Sebastian;
Claims 14, 26, 27, 37, and 49 under 35 U.S.C. § 103(a) as
unpatentable over Sebastian and Willis;
Claims 30, 32, 33, 47, and 48 under 35 U.S.C. § 103(a) as
unpatentable over Sebastian and Osler;
Claim 46 under 35 U.S.C. § 103(a) as unpatentable over Sebastian,
Willis, and Osler;
Claims 14 and 15 under 35 U.S.C. § 103(a) as unpatentable over
Sebastian and Danskin-1;
Claim 3 under 35 U.S.C. § 103(a) as unpatentable over Sebastian and
Birdwell;
Claims 3, 6, 8, 14, 15, 31, 32, 40, and 47 under 35 U.S.C. § 103(a) as
unpatentable over Carr and Franaszek;
Claims 15, 26, 27, and 49 under 35 U.S.C. § 103(a) as unpatentable
over Carr, Franaszek, and Fascenda;
Claims 25, 27, 29, 30, 33, 37, 47 and 48 under 35 U.S.C. § 103(a) as
unpatentable over Carr, Franaszek, and Birdwell;
Claims 6, 8, 12, 31, 32, 34, 40, 41, and 45 under 35 U.S.C. § 102 as
being anticipated by Hauck;
Claims 3, 27, 29, 30, 33, 37, and 67 under 35 U.S.C. § 103(a) as
unpatentable over Hauck and Birdwell;
Claims 6, 14, 20, 22, 24, 25, 31, 32, 40, 47, and 48 under 35 U.S.C. §
102 as being anticipated by XML;
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Claims 3, 15, and 23 under 35 U.S.C. § 103(a) as unpatentable over
XML and Carr;
Claims 25, 27, 29, 30, 33, and 37 under 35 U.S.C. § 103(a) as
unpatentable over XML and Birdwell;
Claims 14, 26, 27, 37, and 46 under 35 U.S.C. § 103(a) as
unpatentable over XML and Willis;
Claims 15, 26, 27, 46, and 49 under 35 U.S.C. § 103(a) as
unpatentable over XML and Fascenda;
Claims 6, 29, 30, 47, and 48 under 35 U.S.C. § 103(a) as unpatentable
over XML and Sebastian;
Claim 14 under 35 U.S.C. § 103(a) as unpatentable over Carr and
Franaszek.
The Requester also argues that claims 1-41, 45-62, 67, 69, and 70 are
not entitled to the priority date of U.S. Patent Application No. 09/969,987,
filed October 3, 2001.

DISCUSSION
XMill Reference
The Examiner finds that XMill fails to disclose a data packet because,
according to the Examiner, a “packet” as recited in claim 3, for example,
“include[s] more than a mere segregation of data” (ACP 21). In support of
this finding, the Examiner states that Birdwell discloses “‘packets’ with
uncompressed/compressed headers,” Carr discloses “data ‘packets’ which
include at least static and dynamic fields,” and XML discloses “compression
at a ‘file’ level [that is distinguished] from compression at the ‘packet’
level” (ACP 21). Hence, the Examiner defines a data packet, as recited in
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claim 3, for example, as a “segregation of data” that also must include
“uncompressed/compressed headers” (according to Birdwell), “static and
dynamic fields” (according to Carr), and a method of compression that is
“distinguished from” compression of a “file” (according to XML).
The Examiner relies on the Birdwell reference to support the position
that a data packet must contain “uncompressed/compressed headers.” As the
Examiner points out, Birdwell discloses “full-length data packets, which
have uncompressed headers, and reduced-length data packets, which have
compressed headers” (col. 2, ll. 15-17). However, at best, Birdwell discloses
the use of full-length data packets, which have compressed headers and
reduced-length data packets, which have compressed headers. The
Examiner does not persuasively demonstrate that Birdwell also discloses that
all data packets must include compressed or uncompressed headers and that
one of ordinary skill in the art would understand that any segregation of data
lacking an uncompressed or compressed header is not a data packet.
Similarly, the Examiner relies on the Carr reference to support the
position that a data packet must contain “static and dynamic fields.” As the
Examiner points out, Carr discloses a system “that employs data packets
which include at least static and dynamic fields” (col. 3, ll. 31-33). At best,
Carr discloses a system that utilizes data packets with static or dynamic
fields. The Examiner does not persuasively demonstrate that Carr also
discloses that all data packets must include static and/or dynamic fields and
that one of ordinary skill in the art would understand that any segregation of
data lacking a static or dynamic field is not a data packet.
The Examiner relies on the XML reference to support the position that
a data packet must be compressed in a manner that is “distinguished from”
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compression of a “file.” As the Examiner points out, XML discloses a
“demo” that “compresses at the file level” and a system in which “each input
packet is encoded as [quickly] as it is received” (p. 4). At best, XML
discloses a system that encodes packets as quickly as they are received. The
Examiner does not persuasively demonstrate that XML discloses that all
data packets must include any specific feature. While XML discloses, a
system that encodes packets as quickly as the packets are received, we
disagree with the Examiner that the system quickly encoding packets
constitutes a definition of a data packet as would have been understood by
one of ordinary skill in the art.
Given that none of Birdwell, Carr, or XML discloses a specific
definition of a data packet and none of the references disclose any
specifically required feature of a data packet as would have been understood
by one of ordinary skill in the art, we cannot agree with Examiner’s position
a data packet must “include . . . more than a mere segregation of data” (ACP
21).
Patent Owner argues that a “data packet” is a “unit of information
transmitted from one device to another on a network” (PO Rebuttal Br. 6,
citing Microsoft Computer Dictionary, 327 (4th ed. 1999)). Even assuming
Patent Owner’s contention to be correct, Patent Owner has not persuasively
demonstrated that XMill fails to disclose a “unit of information transmitted
from one device to another.” For example, XMill discloses “data exchange”
(p. 1) and an “information source, a channel, and a destination” for data and
“information can be sent by the source to the destination through the
channel” (p. 8). Hence, XMill discloses data that is transmitted (i.e., from a
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source to a destination), which Patent Owner argues is the definition of the
term “packet.”
Also, as the Requester points out, the Specification discloses that “[i]f
there is internal structure to packets, such as a header . . ., additional global
states could be added” (col. 10, ll. 39-53; 3PR App. Br. 7; Declaration under
37 C.F.R. 1.132 of Paul C. Clark, dated August 17, 2011 (“Clark
Declaration”), ¶ 47). In other words, the Specification does not disclose that
a data packet must contain an internal structure. Indeed, the Specification
explicitly discloses that a packet may have an internal structure (i.e., “if”
there is an internal structure), such as a header, and therefore implies that an
internal structure is an optional feature of a data packet. The Examiner does
not persuasively rebut the Requester’s argument. Therefore, we agree with
Requester that a broad but reasonable construction of the term “data packet”
includes a segregation of data that does not require a specific internal
structure.
XMill discloses compression and decompression of XML data (p. 2, l.
1) that is “semistructured data” (p. 2, l. 4) that may be grouped into
“containers” (p. 2. – “grouping data items in containers”). The Examiner
does not adequately point out any substantial differences between the
“semistructured data” in containers (i.e., segregation of data) and the “data
packet” as claimed. While Patent Owner argues that “the container-specific
encoders in XMill [do not] apply to, or operate on ‘data packets’” (PO
Rebuttal Br. 10), Patent Owner does not persuasively demonstrate a
difference between the “container” of XMill and the claimed “packet.” Both
the “container” of XMill and the claimed “packet” contain data and are
transmitted from a source to a destination.
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The Examiner states that XMill fails to disclose recognizing a data
field type of a data field included in a packet because, according to the
Examiner, XMill fails to disclose a data packet (ACP 23, 25). We disagree
with the Examiner for previously stated reasons and for reasons set forth by
the Requester (3PR App. Br. 6-8).
The Examiner also states that while XMill discloses a compressor, the
compressor of XMill is not the same as an “executable file” as claimed
because the compressor of XMill, according to Requester, is the claimed
“encoder” and “cannot read on both the distinctly claimed ‘executable file’
and ‘encoder’” (ACP 28). Claims 20-23, for example, recite an executable
file that is used to process a stream of data by recognizing data field types in
the data stream and applying encoders associated with the recognized data
field types. We disagree with the Examiner for at least the reasons set forth
by the Requester (3PR App. Br. 8-9).
As the Requester points out, XMill discloses different compressors
that are used to compress different types of data, including “specialized
compressors if [users] have complex, application specific data types” (p. 2).1
Hence, XMill discloses processing a stream of data and applying a
corresponding encoder based on the types of data in the data stream. The
Examiner does not persuasively demonstrate a difference between applying
encoders associated with recognized data types (e.g., applying a specialized

1 XMill also discloses, for example, “[c]omplex compressors . . . for a
variety of specialized data types, e.g. images, sound, DNA sequences” (p. 8)
and that “users can write new . . . compressors and link them to XMill”
which is “useful when . . . data contains highly specialized types, like DNA
sequences, for which special purpose compressors exists” (p. 9, 4th
paragraph).
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compressor to compress data of a corresponding specific data type as
disclosed by XMill) and the claim limitation of applying encoders associated
with the recognized data field types.
The Examiner states that the compressor of XMill “cannot read on
both the distinctly claimed ‘executable file’ and ‘encoder’” (ACP 28).
However, as the Requester points out, XMill discloses, for example, a “path
processor that determines how to map data values to containers” (p. 9, 2nd
paragraph) and associating “semantic compressors with containers” (p. 9, 4th
paragraph), the data in the containers being compressed by the
corresponding compressor (p. 9, 3rd paragraph – “all containers are . . .
stored on disk, and the compression resumes . . . “input file[s] . . . are
compressed independently”). In other words, XMill discloses an
“executable file” (e.g., a path processor that determines how to map data
values to containers – p. 9, Fig. 4) the recognizes data types of the input data
(and sorted into containers) and applies a corresponding encoder (data in
containers are compressed by corresponding specialized encoders). The
Examiner does not persuasively demonstrate a difference between XMill and
the disputed claim limitations.
The Examiner states that XMill (and Danskin-1) fails to disclose a
financial data feed (ACP 31, citing Clark Declaration, and Modestino
Declaration). Claims 53-62, for example, recite recognizing a data field type
of a data field in a financial data feed. We disagree with the Examiner for at
least the reasons set forth by the Requester (3PR App. Br. 9-11).
In addition, our reviewing court has held that nonfunctional
descriptive material cannot lend patentability to an invention that otherwise
would have been unpatentable over the prior art. In re Ngai, 367 F.3d 1336,
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1339 (Fed. Cir. 2004). Cf. In re Gulack, 703 F.2d 1381, 1385 (Fed. Cir.
1983) (when descriptive material is not functionally related to the substrate,
the descriptive material will not distinguish the invention from the prior art
in terms of patentability). The Examiner need not give patentable weight to
descriptive material absent a new and unobvious functional relationship
between the descriptive material and the substrate. See In re Lowry, 32 F.3d
1579, 1582-83 (Fed. Cir. 1994).
In the present case, claims 53-62 recite a data field in a financial data
feed. In each of these claims, descriptive material is recited without a
specific functional relationship to the “substrate”. For example, while claim
53 recites the data field is in a “financial data feed,” claim 53 does not recite
a specific functional relationship between the type of data (i.e., “financial
data feed”) and any of the steps of the method of recognizing a data field,
selecting an encoder, compressing data, broadcasting the compressed data,
or utilizing a descriptor. Instead, each of the steps of the method of claim 53
would exhibit no functional difference if the type of data (i.e., “financial data
feed”) were to include other types of data (e.g., non-financial data) since
claim 53 does not require any specific function of the specific type of data.
Hence, we need not accord patentable weight to non-functional
descriptive material (i.e., “financial data feed”). As such, the Examiner has
not demonstrated that XMill fails to disclose features recited in claims 53-
62.
The Examiner does not provide additional findings with respect to any
of Danskin, Birdwell, or Willis in combination with XMill.
Reversal of the Examiner’s refusal to adopt the proposed rejections of
claims 3, 6-7, 10, 12, 14, 15, 17, 18, 20-27, 29-37, 40, 46-49, 51, 53-56, 60-
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62, 67, 69, and 70 over XMill, either alone or in combination with Danskin-
1, Birdwell, and/or Willis renders it unnecessary to reach the propriety of the
Examiner’s refusal to adopt proposed rejections of those claims on a
different basis. Cf. In re Gleave, 560 F.3d 1331, 1338 (Fed. Cir. 2009). As
such, we need not reach the propriety of the Examiner’s refusal to adopt the
proposed rejections of those claims over Danskin-1, Danskin-2, Birdwell,
Willis, Sebastian, Willis, Osler, Carr, Franaszek, Fascenda, Hauck, or XML.
We also need not consider the Requester’s arguments pertaining to
priority of the ’568 patent.

Danskin-1 – Claims 50 and 57-59
The Examiner also finds that Danskin-1 discloses a “type of the
message” but that the type of the message “do[es] not relate to encoders”
(ACP 24). Hence, the Examiner finds that Danskin-1 fails to disclose,
“providing a descriptor with the encoded data which identifies the selected
encoder.” Claim 50, which depends from claim 1, recites providing a
descriptor with the encoded data which identifies the selected encoder.
Claim 53 recites recognizing a data field type and selecting an encoder
associated with the recognized data field type.
Requester argues that Danskin discloses “message-type tags and
opcodes . . . which identifies the selected encoder” (3PR App. Br. 13, citing
Danskin 83, 91, 120). We agree with Requester that Danskin discloses
“tags” that describe a “message type” (p. 121) and “opcodes” (p. 120; Fig.
16-28). However, Requester does not sufficiently demonstrate that either
the “message-type tags” or the “opcodes” “correspond to the encoders for
that message type” as Requester asserts. Rather, it appears that the “tag”
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(along with “Offset”) corresponds to a “Predictive Model” (p. 121; Fig. 16-
28) that, in turn, “indicates which contexts were used to index models for
prediction” (p. 121, ll. 1-2). Thus, the “tag” of Danskin corresponds to a
predictive model indicating a context to index models for prediction rather
than an encoder used to compress data blocks as recited in claim 1.
Requester has also provided insufficient support for the contention
that the “opcodes” of Danskin indicate encoders used to compress data
blocks. Rather, the “opcode” of Danskin appears to be a field in a request
that corresponds to a “predictive model” described by a “tag” and offset
(Figs. 16-28). Alternatively, one of ordinary skill in the art would have
utilized a plain and customary meaning of the term “opcode” to include an
“operational code” that is used to specify an operation to be performed. In
either case, whether the “opcode” of Danskin corresponds to a “predictive
model” or whether the “opcode” of Danskin indicates an operation to be
performed, Requester has not adequately demonstrated that the “opcode”
indicates an encoder used to compress data.
Requester does not rely on Danskin-2 or Birdwell to make up for the
deficits of Danskin-1.
The Examiner did not err in not adopting the proposed rejection of
claims 50 and 57-59 over Danskin-1 alone or in combination with Danskin-2
or Birdwell.

Hauck – claims 41 and 45
As described above, the Examiner finds that Hauck fails to disclose a
data “packet” (ACP 23). Claims 41 and 45, which depend from claim 1,
recite a data packet. We disagree with the Examiner for at least the reasons
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set forth by the Requester (3PR App. Br. 23-24) and reasons previously
described above.
For example, Hauck discloses “compressing and/or decompressing
data during transmission of data within a computer system” (col. 5, ll. 45-
47). The Examiner does not persuasively demonstrate a difference between
computer data that is transmitted (i.e., transmission of data within a
computer system) and a data packet (or a “segregation” of data – see above).
The Examiner erred in not adopting the proposed rejection of claims
41 and 45 over Hauck.

DECISION
The Examiner’s decision not to reject claim 50 under 35 U.S.C.
§ 103(a) as unpatentable over Danskin-1, alone or in combination with
Danskin-2, and claims 57-69 under 35 U.S.C. § 103(a) as unpatentable over
Danskin-1 and Birdwell is affirmed.
The Examiner’s decision not to reject claims 6, 10, 12, 14, 15, 17, 18,
20-26, 29-32, 40, and 46-48 under 35 U.S.C. § 102(b) as being anticipated
by XMill; claims 3, 6-8, 33-37, 51, 53-56, and 60-62 under 35 U.S.C. §
103(a) as unpatentable over XMill, Danskin-1, and Birdwell; claims 26, 27,
and 49 under 35 U.S.C. § 103(a) as unpatentable over XMill and Willis; and
claims 41 and 45 under 35 U.S.C. § 102 as being anticipated by Hauck is
reversed.
Pursuant to 37 C.F.R. § 41.77(a), the above-noted reversal constitutes
a new ground of rejection. Section 41.77(b) provides that “[a] new ground
of rejection . . . shall not be considered final for judicial review.” That
section also provides that Patent Owner, WITHIN ONE MONTH FROM
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THE DATE OF THE DECISION, must exercise one of the following two
options with respect to the new grounds of rejection to avoid termination of
the appeal proceeding as to the rejected claims:
(1) Reopen prosecution. The owner may file a response
requesting reopening of prosecution before the examiner. Such a
response must be either an amendment of the claims so rejected
or new evidence relating to the claims so rejected, or both.

(2) Request rehearing. The owner may request that
the proceeding be reheard under § 41.79 by the Board
upon the same record. The request for rehearing must
address any new ground of rejection and state with
particularity the points believed to have been
misapprehended or overlooked in entering the new
ground of rejection and also state all other grounds
upon which rehearing is sought.

In accordance with 37 C.F.R. § 41.79(a)(1), the “[p]arties to the
appeal may file a request for rehearing of the decision within one month of
the date of: . . . [t]he original decision of the Board under § 41.77(a).” A
request for rehearing must be in compliance with 37 C.F.R. § 41.79(b).
Comments in opposition to the request and additional requests for rehearing
must be in accordance with 37 C.F.R. § 41.79(c) & (d), respectively. Under
37 C.F.R. § 41.79(e), the times for requesting rehearing under paragraph (a)
of this section, for requesting further rehearing under paragraph (d) of this
section, and for submitting comments under paragraph (c) of this section
may not be extended.
An appeal to the United States Court of Appeals for the Federal
Circuit under 35 U.S.C. §§ 141-144 and 315 and 37 C.F.R. § 1.983 for an
inter partes reexamination proceeding “commenced” on or after November
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2, 2002 may not be taken “until all parties' rights to request rehearing have
been exhausted, at which time the decision of the Board is final and
appealable by any party to the appeal to the Board.” 37 C.F.R. § 41.81. See
also MPEP § 2682 (8th ed., Rev. 8, July 2010).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. See 37 C.F.R. § 41.79.

AFFIRMED-IN-PART
37 C.F.R. § 41.77

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PATENT OWNER:

STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005

THIRD PARTY REQUESTER:

BAKER BOTTS L.L.P.
910 LOUISIANA STREET
ONE SHELL PLAZA
HOUSTON, TX 77002

cu