Ex Parte Briscoe et al

Patent Trial and Appeal Board

Dec 30, 2013

10593442 (P.T.A.B. Dec. 30, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte ROBERT J. BRISCOE, ARNAUD JACQUET,
ANDREA SOPPERA, and SEBASTIEN CAZALET
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Appeal 2011-006165
Application 10/593,442
Technology Center 2400
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Before JAMES R. HUGHES, JEFFREY S. SMITH, and JUSTIN BUSCH,
Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

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Appellants request rehearing under 37 C.F.R. § 41.52 of our Decision
mailed October 1, 2013 (“Decision”), in which we affirmed the Examiner’s
decision rejecting claims 1-14. Appellants filed the Request for Rehearing
(“Request”) on December 2, 2013.
A request for rehearing must state with particularity the points
believed to have been misapprehended or overlooked by the Patent Trial and
Appeal Board (“the Board”) in rendering the original decision. 37 C.F.R.
§ 41.52. Appellants’ Request asserts the Decision was in error because the
Board misapprehended and/or overlooked various arguments from
Appellants’ Appeal Brief, Reply Brief, and oral argument. Request 2-11.

ANALYSIS
Appellants’ Point #1
Essentially, Appellants argue Cain’s receipt of an RREQQ message
(and handling of the message) is not the same as the recited “receiving path
characterization information” and deriving therefrom “information
indicative of a characteristic of a portion of” a downstream path. Request 2-
4. The details of the argument include the sub-arguments that Cain’s receipt
of an RREQQ message to establish a route involves an “entirely different
concept[]” than Appellants’ invention (Request 2) and that the information
received in Cain is not actual path information (i.e., not “information that
characterizes a portion of an ‘actual’ downstream path” as opposed to a
desired characteristic) (Request 2-4). Appellants also nominally argue in
this point that Cain’s provider node, not an intermediate node, makes
decisions. Request 4-5. These are the same arguments Appellants presented
in their prior briefs. App. Br. 14, 16-20; Reply 2-5. The Board did not
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misapprehend or overlook these arguments, but rather found them
unpersuasive. Decision 5-7. To reiterate, Appellants’ arguments that the
types of information received in Cain and in Appellants’ invention “involve
entirely different concepts” is unpersuasive because we do not look to the
concept of what is being claimed beyond how it is embodied in the
limitations of the claim. Rather, we evaluate the recited language, giving the
claims the broadest reasonable interpretation in light of the Specification.
While the goals and concepts of Appellants’ invention may differ from what
is disclosed by Cain, we are not persuaded that the claim limitations
distinguish over Cain’s disclosure. Below, we address Appellants’
arguments that Cain does not receive actual path information and that it is
Cain’s provider node, rather than an intermediate node, making decisions.

Appellants’ Points #2 and #3
Appellants provide further argument that Cain’s receipt of desired
QoS information does not disclose the recited limitation. Request 5-7.
Appellants repeatedly reference the recited limitations of the “path
characterization information being dependent on information fed back from
the receiver node to the provider node” and the intermediate node receives
path characterization information from an upstream node and “derive[es]
therefrom information indicative of a characteristic of a portion of the path
between the intermediate node and the receiver node” to argue that Cain
does not disclose “‘actual’ path characterization information that
characterizes a portion of an ‘actual’ downstream path,” as opposed to a
desired characteristic of a potential path. Request 5; see also Request 2-10.
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Appellants provide multiple exemplary phrases for which Appellants
assert the plain and ordinary meaning implicitly refers to an actual element.
Request 5-6. For example, Appellants assert
the phrase “a characteristic of the actual road ahead” means, to
the ordinary English language user, the same as the phrase “a
characteristic of the road ahead”. On the other hand, such
phrases do not equate to the phrase “a desired characteristic of
the road ahead”.
Request 6. Appellants then conclude that Cain’s information contained in
the RREQQ messages identifying requested QoS metrics for a downstream
path do not disclose the recited “information indicative of a characteristic of
a portion of the path between the intermediate node and the receiver node.”
Request 7.
We do not find Appellants’ arguments persuasive. As an initial
matter, we note that the claim recites “path characterization information
being dependent on information fed back” and deriving “information
indicative of a characteristic [of a portion of a downstream path]” from path
characterization information. We understand and fully considered
Appellants’ arguments but we disagree with Appellants’ assertion that the
Examiner’s construction is unreasonably broad. Appellants acknowledge
that it is reasonable “to consider Cain’s route request messages (RREQQ) to
contain some sort of ‘path characterization information’ – because those
messages contain QoS metrics.” Request 8-9. As explained in the Decision,
subsequent RREQQ messages are sent in response to a receiver node
sending a QoS error message to the provider node. Decision 4-5. Therefore,
because these subsequent RREQQ messages would not be sent without
receiving the error message from the receiver node, the RREQQ messages
are “dependent on information fed back from the receiver node to the
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provider node,” giving the claim its broadest reasonable interpretation. As
Appellants have acknowledged that Cain’s RREQQ messages contain path
characterization information and we find they are dependent on fed-back
information, we agree that Cain discloses the recited path characterization
information.
Furthermore, and also as explained in the Decision, the Examiner
finds the QoS metric contained within Cain’s RREQQ message discloses the
recited “information indicative of a characteristic.” Decision 4 (citing Ans.
11). Appellants’ claims recite that the “information indicative of a
characteristic [of a portion of a downstream path]” is derived from path
characterization information. This QoS metric derived from the RREQQ
messages is “indicative” of the quality of service of a portion of a
downstream path.
To continue one of Appellants’ analogies, we find the phrase
“information indicative of a characteristic of a road between Seattle,
Washington and San Diego, California” to be an apt comparison (we further
note that in all of Appellants’ analogies, the phrase proposed by Appellants
focused on characteristics of certain elements rather than information
indicative of such characteristics). In the exemplary path from Seattle to San
Diego, “information indicative of” the characteristic of speed at an
intermediate point (such as Portland, Oregon) would reasonably include an
indication of whether or not a particular road supports the ability to go 65
miles per hour (or any other speed). This indication would be analogous to
information indicative of whether a part of a downstream is capable of
providing a given quality of service. In summary, the broadest reasonable
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interpretation of “information indicative of a characteristic” is much broader
than the actual value of a characteristic.
Given that we find Cain discloses the recited path characterization
information and that the QoS metric contained within Cain’s RREQQ
messages is derived by the intermediate node from the path characterization
information, we find Cain discloses “deriving [from path characterization
information] information indicative of a characteristic of a portion of the
path between the intermediate node and the receiver node.”
In the section titled “Point #3,” Appellants further clarify that
Appellants’ argument regarding the path characterization is related to an
assertion that Cain discloses only required or request path characterization
information and not actual path characterization information. Request 7-10.
This potential interpretation of Appellants’ arguments was addressed in the
Decision for completeness. The clarified argument was thoroughly
addressed below and herein.

Appellants’ Point #4
Appellants argue the Board did not address Appellants’ arguments
that it is Cain’s provider node, not an intermediate node, that selects a
manner of treatment for forwarding and forward data downstream. Request
10-11. The Decision found that the Examiner sufficiently identified where
Cain disclosed the recited limitations as occurring at or present in an
intermediate node. Decision 4 (citing Ans. 3-5, 10-15), 5.

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DECISION
We have considered the reasons Appellants provide as grounds for
reversal, but adhere to the original Decision and affirm the Examiner’s
rejections of the claims as obvious. Therefore, Appellants’ request has been
granted to the extent that the Decision has been reconsidered, but denied
with respect to making any modifications therein.

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). See also
37 C.F.R. § 41.52(b).
DENIED

msc