Ex Parte Ashkenazi et alDownload PDFPatent Trial and Appeal BoardSep 26, 201612376069 (P.T.A.B. Sep. 26, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/376,069 0210212009 34814 7590 09/28/2016 NXP-LARSON NEWMAN, LLP 6501 William Cannon Drive West Austin, TX 78735 FIRST NAMED INVENTOR Asaf Ashkenazi 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. NC10076EH 3624 EXAMINER KIM,TAEK ART UNIT PAPER NUMBER 2492 NOTIFICATION DATE DELIVERY MODE 09/28/2016 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): ip.department.us@nxp.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ASAP ASHKENAZI and DAVID HOLMES HAR TLEY1 Appeal2015-006153 Application 12/376,069 Technology Center 2400 Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and JAMES W. DEJMEK, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1-19 and 21. Claim 20 has been cancelled. App. Br. 18. We have jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify Freescale Semiconductor, Inc. as the real party in interest. App. Br. 1. Appeal2015-006153 Application 12/376,069 STATEMENT OF THE CASE Introduction Appellants' invention is directed to monotonically counting. Abstract. Claim 1 is representative of the subject matter on appeal and is reproduced below with the disputed limitations emphasized in italics: 1. A device having monotonically counting capabilities, the device comprises: a monotonic counter; an average request rate limiter circuit; an input interface adapted to receive requests to update a value of the monotonic counter; wherein the average request rate limiter circuit is adapted to selectively reject all requests to update the value of the monotonic counter if an amount of monotonic counter value updates within a predefined time window exceeded a threshold, wherein the value of the monotonic counter is updated when the request to update the value of the monotonic counter is not rejected, and the value of the monotonic counter is not updated when the request to update the value of the monotonic counter is rejected in response to the amount of monotonic counter value updates exceeding the threshold within the predefined time window; wherein the threshold and the predefined time window are defined in response to at least one legitimate request pattern. The Examiner's References and Rejections Claims 1, 6-9, 14, 19, and 21 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kaniyar et al. (US 2005/0198509 Al; Sept. 8, 2005) ("Kaniyar") and Zhang et al. (US 7,321,926 Bl; Jan. 22, 2008) ("Zhang"). Final Act. 2-8. 2 Appeal2015-006153 Application 12/376,069 Claims 2-5, 10-13, and 15-18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kaniyar, Zhang, and Oner (US 2005/0078669 Al; Apr. 14, 2005). Final Act. 8-17. ANALYSIS2 We have reviewed the Examiner's rejections in light of Appellants' arguments the Examiner has erred. App. Br. 6-14. We disagree with Appellants' conclusions. We 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. 2-17), and (2) the reasons set forth by the Examiner in the Answer in response to arguments made in Appellants' Appeal Brief (Ans. 2-7). We highlight and address specific findings and arguments below. Claims 1-7 Appellants contend the Examiner erred in finding the combination of Kaniyar and Zhang teaches or suggests "the value of the monotonic counter is not updated when the request to update the value of the monotonic counter is rejected in response to the amount of monotonic counter value updates exceeding the threshold within the predefined time window," as recited in claim 1. App. Br. 7-11; Reply Br. 3-7. In particular, Appellants argue Kaniyar teaches updating a counter in response to a number of connections 2 In this Opinion, we refer to Appellants' Appeal Brief ("App. Br.," filed November 5, 2014); Appellants' Reply Brief ("Reply Br.," filed June 1, 2015); the Final Office Action ("Final Act.," mailed April 21, 2014); the Advisory Action ("Adv. Act.," mailed November 26, 2014); and the Examiner's Answer ("Ans.," mailed on April 1, 2015). 3 Appeal2015-006153 Application 12/376,069 both below and above a threshold and, therefore, Kaniyar teaches always updating the counter in response to the number of connections. App. Br. 7- 8 and 10 (citing Kaniyar i-fi-141and44); see also Reply Br. 4--5 and 7 (citing Kaniyar i152). Further, Appellants assert Zhang discloses updating an initial sequence number (ISN) by adding a 32K value in response to a received service request. App. Br. 10 (citing Zhang, col. 12, line 67---col. 13, line 5). Appellants argue Zhang does not disclose or suggest that the number of ISN updates exceed a threshold within a predefined time window. Id.; see also Reply Br. 5-6. We are unpersuaded of Examiner error because Appellants' contentions are not responsive to the rejection as articulated by the Examiner. The Examiner relies on the combination of Kaniyar and Zhang for the suggestion of the limitation at issue. Final Act. 2--4; Adv. Act. 2; Ans. 2---6. Specifically, the Examiner finds Kaniyar teaches generating ISN numbers by incrementing a monotonically increasing counter using both a timer and a connection rate. Final Act. 2-3 (citing Kaniyar i-fi-141--44); Adv. Act. 2. The Examiner further relies on Kaniyar, not Zhang, for disclosing solely relying on the timer when an amount of monotonic counter value updates exceed a threshold within a predefined time window. Final Act. 3; Adv. Act. 2. The Examiner finds Zhang teaches, for each new service request, incrementing a fixed value to a previous ISN number to generate a new ISN number without the use of a timer. Final Act. 3--4 (citing Zhang, col. 13, 11. 1-3). We agree with the Examiner's findings and adopt them as our own. A claim can be obvious even where all of the claimed features are not found in specific prior art references, where "there is a showing of a 4 Appeal2015-006153 Application 12/376,069 suggestion or motivation to modify the teachings of [the prior art] to the claimed invention." SIEJA Neurosciences, Inc. v. Cadus Pharm. Corp., 225 F.3d 1349, 1356 (Fed. Cir. 2000); see also Ormco Corp. v. Align Technology Inc., 463 F.3d 1299, 1307 (Fed. Cir. 2006). Additionally, Kaniyar teaches "when the connection rate exceeds a given threshold value, the incrementing of the counter 440 should not be based on the detection of a connection, but rather should be strictly time based." Kaniyar i-f 44. The Examiner finds Zhang suggests eliminating Kaniyar' s use of a timer to increment the counter. Final Act. 4. The Examiner further finds, upon eliminating Kaniyar's timer used to increment the counter, the combination of Kaniyar and Zhang teaches that "all requests to update the value of the monotonic counter are rejected in response to the amount of monotonic counter value updates exceeded the threshold within the predefined threshold." Final Act. 4; see also Adv. Act. 2 and Ans. 4--5. Thus, the Examiner finds the combination of Kaniyar and Zhang teaches when the connection rate (i.e., requests to update the value of the counter) exceeds a given threshold value in the absence of a timer, then "the counter used to generate the ISN is incremented on a per connection basis, which would be rate limited." Final Act. 4. Appellants do not provide sufficient evidence or argument to persuasively rebut these findings. Therefore, in the absence of persuasive rebuttal in reply to the Examiner's analysis, we find the Examiner's findings to be reasonable and agree with the Examiner's unrebutted finding that the combination of Kaniyar and Zhang teaches Kaniyar' s monotonic counter is not updated when a request to update the value of the monotonic counter is rejected because the amount of monotonic counter value updates exceeds a 5 Appeal2015-006153 Application 12/376,069 given threshold value (the claimed "threshold") within a predefined time window. Appellants further contend the combination of Kaniyar and Zhang fails to teach or suggest, in addition to the disputed limitation discussed supra, "selectively reject[ing] all requests to update the value of the monotonic counter if an amount of monotonic counter value updates within a predefined time window exceeded a threshold," as recited in claim 1. Reply Br. 3-7. In particular, Appellants assert if Kaniyar always updates a counter for all requests, and Zhang always updates a counter for a particular connection type, then "[t]he only possible combination of Kaniyar and Zhang Appellant[ s] can envision is replacing the connection requests portion of Kaniyar with the specific type requirement of Zhang." Id. at 7. Appellants argue the combination of Kaniyar and Zhang would cause the counter to update in response to a specific type of request and not in response to other types of requests while the number of request is belov,r a threshold, and then update based on the expiration of the timer when the number of requests is above the threshold. However, this combination would disclose always updating the counter, not to reject all requests to update the value of the monotonic counter if an amount of monotonic counter value updates within a predefined time window exceeded a threshold as provided by claim 1. Id. We decline to consider this argument first raised in the Reply Brief, because Appellants do not provide a basis that this argument is responsive to the Examiner's Answer or show good cause for its untimely presentation. See 37 C.F.R. § 41.41 (b )(2) (2013) ("Any argument raised in the reply brief which was not raised in the appeal brief, or is not responsive to an argument raised in the examiner's answer ... will not be considered by the Board for 6 Appeal2015-006153 Application 12/376,069 purposes of the present appeal, unless good cause is shown."); 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.") Furthermore, we remain unpersuaded the Examiner erred because Appellants' argument is not responsive to the Examiner's rejection, as discussed supra. Appellants further argue the removal of Kaniyar' s timer, as taught by Zhang, counters the intended purpose of Kaniyar. App. Br. 11-12 (citing Kaniyar i-fi-f 13 and 44 ). In particular, Appellants argue if Kaniyar' s timer is removed, "the sequence numbers would no longer be increased in response to the connection rate exceeding a threshold and data collision may occur." Id. at 12. Appellants further argue removing Kaniyar's timer will result in a counter not always increasing in response to valid requests (both above and below a threshold) and, therefore, destroys the functionality and intended purpose of Kaniyar. Reply Br. 2-3 (citing Kaniyar i1 52). We remain unpersuaded of Examiner error. Appellants provide only unsupported assertions and fail to identify any evidence in Kaniyar that removal of Kaniyar's timer would result in data collision or a counter that would not always increase in response to valid requests. It is well settled that mere attorney arguments and conclusory statements, which are unsupported by factual evidence, are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Attorney argument is not evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such argument take the place of evidence lacking in the record. Meitzner v. Mindick, 7 Appeal2015-006153 Application 12/376,069 549 F.2d 775, 782 (CCPA 1977). Rather, as discussed supra, we agree the combination of Kaniyar and Zhang teaches a "counter used to generate the ISN is incremented on a per connection basis, which would be rate limited." Final Act. 4. Therefore, we are not persuaded by Appellants' arguments that the proposed combination of Kaniyar and Zhang would render Kaniyar inoperable. For the reasons discussed supra, we are unpersuaded of Examiner error. Accordingly, we sustain the Examiner's rejection of independent claim 1. Additionally, we sustain the Examiner's rejections of dependent claims 2-7, which are not argued separately with particularity. App. Br. 14. Claims 8-19 Appellants do not argue separately with particularity the rejection of independent claim 8 and, thus, we sustain the rejection of independent claim 8, which contains similar limitations as in independent claim 1. Id. at 12-13. Additionally, we sustain the Examiner's rejections of dependent claims 9- 19, which are not argued separately with particularity. Id. at 14. Claim 21 Appellants do not argue separately with particularity the rejection of claim 21 and, thus, we sustain the rejection of claim 21, which contains similar limitations. Id. at 13. 8 Appeal2015-006153 Application 12/376,069 DECISION We affirm the Examiner's decision to reject claims 1-19 and 21. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 41.50(±). AFFIRMED 9 Copy with citationCopy as parenthetical citation