Ex Parte Bitterlich

Patent Trial and Appeal Board

Jul 31, 2017

11664128 (P.T.A.B. Jul. 31, 2017)

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.
11/664,128 03/29/2007 Jean-Yves Bitterlich BITTERLICH 6083
20151 7590 08/02/2017
HENRY M FEIEREISEN, LLC
HENRY M FEIEREISEN
708 THIRD AVENUE
SUITE 1501
NEW YORK, NY 10017
EXAMINER
SALAD, ABDULLAHI ELMI
ART UNIT PAPER NUMBER
2456
NOTIFICATION DATE DELIVERY MODE
08/02/2017 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):
INFO @ FEIEREISENLLC.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEAN-YVES BITTERLICH
Appeal 2016-000038
Application 11/664,1281
Technology Center 2400
Before CARLA M. KRIVAK, JASON V. MORGAN, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
MORGAN, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 33—35, 39-43, and 47—60. Claims 1—32, 36—38, and 44—
46 are canceled. App. Br. 2. An oral hearing scheduled for July 25, 2017,
was waived. See Notice of Hearing Response (June 12, 2017). We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies SIEMENS AKTIENGESELLSCHAFT as the real
party in interest. App. Br. 2.
Appeal 2016-000038
Application 11/664,128
Invention
Appellant discloses distribution of software or data by subdividing the
data into data blocks and generating a corresponding list. Abstract. A
subscriber does not receive all of the data blocks, but instead uses the list to
determine “which data blocks [the subscriber] can receive from other
subscribers by spontaneous communication, i.e.[,] by a P2P [peer-to-peer]
connection or, as the case may be, an ad hoc network.” See Spec.219.
Exemplary Claim
Claim 33, reproduced below with key limitations emphasized, is
representative:
33. A method of distributing a data package in a data network
including a plurality of subscribers with corresponding
subscriber devices and at least one central device, comprising:
subdividing, by the at least one central device, the data package
to be distributed into several data blocks;
generating, by the at least one central device, a list detailing all
data blocks that constitute the data package',
distributing, by the at least one central device, the data package
by sending the data blocks of the data package to a subset of
said plurality of subscriber devices from the at least one central
device of the data network, whereby only one data block of the
data package together with the list is sent to each subscriber
device of said subset;
continuing, by each subscriber device having received a data
block, distribution of said data blocks together with said list
between the subscriber devices of said plurality of subscribers
by way of ad hoc connection with another subscriber device.
2 References to the “Spec.” refer to the Substitute Specification (Mar. 29,
2007).
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Appeal 2016-000038
Application 11/664,128
Rejections3
The Examiner rejects claims 33—35, 40-43, and 48—60 under 35
U.S.C. § 102(b) as being anticipated by Ikami et al. (US 2002/0059400 Al;
May 16, 2002). Final Act. 5—9.
The Examiner rejects claims 39 and 47 under 35 U.S.C. § 103(a) as
being unpatentable over Ikami and Collins et al. (US 6,138,153; issued Oct.
24,2000). Final Act. 9-10.
ANALYSIS
We agree with and adopt as our own the Examiner’s findings of facts
and conclusions as set forth in the Answer and in the Action from which this
appeal was taken. We have considered Appellant’s arguments, but do not
find them persuasive of error. We provide the following explanation for
emphasis.
In rejecting claim 33, the Examiner finds that Ikami’s delivery server
and process for dividing data among user terminals discloses the claimed
invention. See Final Act. 5—6. Particularly, the Examiner finds that Ikami’s
distribution of groups of data fragments and a split download map to user
terminals discloses generating a list detailing all data blocks that constitute
the data package and distributing the data package by sending the data
blocks of the data package to a subset of a plurality of subscriber devices.
Id. (citing Ikami ]f]f 35—37, 40-43). The Examiner further finds Ikami’s
3 The Examiner entered an alternative 35 U.S.C. § 103(a) rejection of the
claims using a third reference directed to peer-to-peer computing in mobile
ad hoc networks. Final Act. 10—14. However, the Examiner withdrew this
rejection. Ans. 11.
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Appeal 2016-000038
Application 11/664,128
process of user terminals starting one-to-one mutual transmissions to
exchange data fragments and update split download maps discloses
continuing, by each subscriber device having received a data block,
distribution of said data blocks together with said list between the
subscriber devices of said plurality of subscribers by way of ad hoc
connection with another subscriber device. See Final Act. 6 (citing Ikami
27, 41—46, Fig. 3E); Ans. 8—9 (citing, e.g., Ikami Figs. 1, 6, 9).
Appellant argues that “[cjontrary to Ikami’s split download map
indicating data on the number and position of the data fragments assigned to
a respective user terminal. . . the claimed invention recites ... ‘a list
detailing all data blocks that constitute the data package.’” App. Br. 9.
However, as acknowledged by Appellant, the split download map of Ikami
that is attached to each of the groups of data fragments includes “a database
including data on the number and position of the data fragments assigned to
the respective user terminal.” Ikami 137; see also id. Fig. 5B; App. Br. 9.
Appellant does not proffer what feature distinguishes the claimed list—
which details but is not limited to detailing all data blocks that constitute the
data package—from Ikami’s split download map database and its data
fragments numbers, positions, and assigned user terminals. The information
in Ikami’s split download map details all the data blocks by identifying the
groups of data fragments that constitute the data package made up by the
data fragments. The claimed list does not preclude the inclusion of
additional information (e.g., positions and assigned user terminals).
Therefore, Appellant’s arguments do not show the Examiner erred in finding
Ikami discloses “generating ... a list detailing all data blocks that constitute
the data package,” as recited in claim 33.
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Application 11/664,128
Appellant argues that “[i]n Ikami, there is no ‘subset of subscriber
devices’ which receive the data block and subsequently trigger ‘ad hoc
connection with another subscriber device’ to continue transmission.” App.
Br. 8. However, Appellant does not persuasively distinguish the claimed
subset of said plurality of subscriber devices from the user terminals of
Ikami. Even if the all of the user terminals in Ikami receive a group of data
fragments (i.e., a data block) and a split download map (i.e., a corresponding
list), the claim is directed to a subset, rather than a proper subset or strict
subset, of the plurality of subscriber devices. Thus, the entirety of the
plurality of subscriber devices is included in, and therefore represents, a
subset of the plurality of subscriber devices. Therefore, we agree with the
Examiner that Ikami discloses “distributing ... the data package by sending
the data blocks of the data package to a subset of said plurality of subscriber
devices,” as recited in claim 33.
Appellant contends the Examiner erred because:
[tjhere is no teaching in Ikami that the user terminals 21—23 [,]
after having received the data portions[,] . . . further distribute
the data portions by triggering [an] “ad hoc connection” . . .
because the ad hoc decentralized autonomous network in Ikami
is already set up for delivery from the delivery server 1 to the
download network 31 and the mutual transmission of the data
portions [occurs] only within this already setup network.
App. Br. 8; see also Reply Br. 3.4
Appellant’s argument unpersuasively fails to distinguish the claimed
use of an ad hoc connection from the mutual transmission that takes place in
4 Page numbers are omitted from the Reply Brief. Thus, we refer to pages in
order starting from the cover page.
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Appeal 2016-000038
Application 11/664,128
Tkami. The claimed invention, even in light of the Specification, does not
require that the network in which connections are made be ad hoc in nature.
See, e.g., Spec. 125. Even if the claimed ad hoc connection does require
that the network in which the connection is made be ad hoc, Appellant does
not identify a definition in the Specification for an ad hoc network that
precludes the network being set up specifically for the mutual transmission
of data among subscribers in the network. See Spec. Tflf 8—11, 23, 25, Fig. 1.
Moreover, Tkami discloses that “user terminals, which are at a relatively long
distance from one another within the download user network, sometimes
cannot communicate with one another.” Tkami 145, cited in Final Act. 6.
When this happens, “the user terminals each obtain the required data
fragments from a nearer user terminal, which has the required data
fragments, instead.” Ikami 145 (emphasis added), cited in Final Act. 6.
Given that the transmission connections in Tkami are not fixed, but are made
opportunistically when needed, we agree with the Examiner’s
characterization of Ikami’s transmission connections as ad hoc in the
manner claimed. See Final Act. 6; Ans. 9.
Appellant also argues that “Ikami user terminals that have received
data do not ‘continue’ distribution by ‘each subscriber device having
received a data block’ as claimed . . ., but instead the user terminals wait
until the representative user terminal ‘instructs’ the user terminals to start
one-to-one mutual transmission.” App. Br. 9; see also Reply Br. 4 (“a
representative user terminal. . . takes a predominant or coordinating role in
the distribution of the fragments”). Appellant also argues “the user
terminals of Ikami need to obtain the necessary data fragments that would
need to be combined to make up a file from their decentralized user
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Application 11/664,128
network.” App. Br. 10. However, Appellant’s arguments are not
commensurate with the scope of the claimed invention, which does not
preclude additional steps such as a representative user terminal providing an
instruction to start transmission or user terminals requesting fragments.
For these reasons, we agree with the Examiner that Ikami discloses
“continuing, by each subscriber device having received a data block,
distribution of said data blocks together with said list between the subscriber
devices of said plurality of subscribers by way of ad hoc connection with
another subscriber device,” as recited in claim 33.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 102(b) rejection
of claim 33, and claims 34, 35, 40-43, and 48—60, which Appellant does not
argue separately. Appellant merely contends Collins fails to cure the alleged
deficiencies of Ikami. See App. Br. 11—14; Reply Br. 5. Because Ikami is
not deficient, we also sustain the Examiner’s 35 U.S.C. § 103(a) rejection,
based on Ikami and Collins, of claims 39 and 47, not argued with
particularity.
DECISION
We affirm the Examiner’s decision rejecting claims 33—35, 39-43,
and 47—60.
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(f).
AFFIRMED
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