Ex Parte DE POORTER et al

Patent Trial and Appeal Board

Dec 20, 2016

14204902 (P.T.A.B. Dec. 20, 2016)

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.
14/204,902 03/11/2014 Eli DE POORTER 19826.16.1 1008
22913 7590
Workman Nydegger
60 East South Temple
Suite 1000
Salt Lake City, UT 84111
12/22/2016 EXAMINER
REDDIVALAM, SRINIVASA R
ART UNIT PAPER NUMBER
2477
NOTIFICATION DATE DELIVERY MODE
12/22/2016 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):
Docketing @ wnlaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ELI DE POORTER and
INGRID ALICE ROBERT MOERMAN
Appeal 2015-008197
Application 14/204,902
Technology Center 2400
Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM,
Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2015-008197
Application 14/204,902
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1—26. Because the claims on appeal have been twice rejected, we have
jurisdiction pursuant to 35 U.S.C. §§ 6 and 134(a). Ex parte Lemoine, 46
USPQ2d 1420, 1423 (BPAI 1994) (“Precedential”).
We affirm.
The invention relates to “the handling of information that is locally
generated in or received by network nodes” (Spec. 12). Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A node able to generate or receive, process and transmit
information packets in a network with embedded devices using
at least one of heterogeneous data formats and protocols at
different network layers,
wherein for each information packet the node is configured to:
dynamically determine and select one or more of a
plurality of protocols for processing the packet in the node
based on protocol rules that specify when a protocol can
be used; and
activate at runtime the one or more selected
protocols for processing the packet, and
wherein at least two different protocols of the plurality of
protocols are selectable and activateable by the node for
processing two different packets for the same network layer.
The prior art relied upon by the Examiner in rejecting the claims on
REFERENCES
appeal is:
Stumiolo
Bronez
US 2006/0123079 A1 June 8, 2006
US 2007/0239862 A1 Oct. 11, 2007
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Application 14/204,902
Jain US 2012/0051272 A1 Mar. 1,2012
DePoorter US 8,711,743 B2 Apr. 29,2014
Troubleyn, “AMoQoSA: Adaptive Modular QoS Architecture for Wireless
Sensor Networks,” 2008
REJECTIONS
The Examiner made the following rejections:
Claims 1—26 stand rejected under the non-statutory doctrine of
obviousness-type double patenting over U.S. Patent 8,711,743 to De Poorter.
Claims 1, 2, 9, 10, 12—15, 22, 23, 25, and 26 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Jain and Stumiolo.
Claims 3—6 and 16—19 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Jain, Stumiolo, and Bronez.
Claims 7, 8, 20, and 21 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Jain, Stumiolo, and Troubleyn.
ANALYSIS
The Double Patenting Rejection
Appellants do not present specific arguments regarding the double
patenting rejection of claims 1—26 (see Br. 7—16), and we, thus, pro forma
affirm this rejection.
The Obviousness Rejections
Appellants contend Jain is not analogous art to the present invention
(Br. 8—10). Appellants further contend the combination of Jain and
Stumiolo fails to teach a node used in a network with embedded devices (Br.
10-11). Finally, Appellants contend Jain and Stumiolo fail to teach dynamic
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Application 14/204,902
selection of packet-specific protocols and runtime activation of the selected
protocols (Br. 11—16). We disagree with Appellants’ arguments.
First, even if we agree with Appellants’ characterization of the field of
invention as “processing information in heterogeneous network
environments,” we find Jain to be analogous art. Br. 9. Jain describes an
intelligent cover for a consumer device that can connect to a variety of
wireless broadband services such as “WiMax, 3GPP LTE, HSPA, UMB,
and/or other broadband signals” (see Jain, Abstract; 139). Moreover, Jain
discloses the service card 104 that interfaces between the consumer device
106 and the wireless broadband services can “translate between wireless
protocols (e.g. wireless broadband protocols) and protocols compatible with
the service card 104” (Jain, || 36, 39). The capability of Jain’s service card
104 to interface with different wireless broadband services demonstrates
Jain’s place in the field of “processing information in heterogeneous
network environments.”
Second, we are not persuaded by Appellants’ argument that neither
Jain nor Stumiolo teaches a network with embedded devices (Br. 10-11).
We find that the claim 1 preamble language “[a] node able to generate or
receive, process and transmit information packets in a network with
embedded devices” merely indicates an intended use. That is, the ability of
the “node” to operate in a network that contains “embedded devices” is a
desirable implementation, but is not required by claim 1 because the body of
the claim sets forth the complete structural and functional limitations of the
“node” without tying any limitations to “embedded devices”. See Pitney
Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999)
(“If. . . the body of the claim fully and intrinsically sets forth the complete
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Application 14/204,902
invention, including all of its limitations, and the preamble offers no distinct
definition of any of the claimed invention’s limitations, but rather merely
states, for example, the purpose or intended use of the invention, then the
preamble is of no significance to claim construction because it cannot be
said to constitute or explain a claim limitation.”). Accordingly, we do not
give the “embedded devices” language patentable weight and disagree with
Appellants that it distinguishes the claim over Jain and Stumiolo.
Finally, we are not persuaded by Appellants’ argument that the
combination of Jane and Stumiolo fails to teach the claim 1 limitations “for
each information packet. . . dynamically determine and select one or more
of a plurality of protocols . . . and activate at mntime the one or more
selected protocols for processing the packet” (see Br. 11—16). Jain describes
“service card 104 can include any software, hardware, and/or firmware
configured to wirelessly access foreign services through the access point
1146 and/or the access point 114a” (Jain, 139). Further, “the service card
104 may include one or more chipsets that execute an operating system and
security processes to access foreign services independent of the consumer
host device 106” so that the consumer device can “wirelessly access a
foreign service such as uploading contents of memory to the Internet” (id.).
A CPU 610 that manages operational aspects of the service card 104 “may
include a mntime environment for executing broadband applications for
accessing foreign services using broadband signals” (Jain, | 65).
Accordingly, we find Jain discloses a service card that allows a consumer
device to upload data to the Internet—i.e., a packet-switched network—via a
wireless broadband network.
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Stumiolo teaches a Mobile Proxy Communications Service (MPCS)
that can communicate with other devices using either or both of the IPv4 and
IPv6 protocols (Stumiolo, 1484; Figs. 26, 30). Thus, the Examiner’s
combination of Stumiolo with Jain results in a system where the service card
of Jain could packetize data for two different applications in the two
different protocols of IPv4 and IPv6. One of ordinary skill in the art would
have understood that, at the packet level, the service card would have to
determine when to use which protocol, i.e., when the instant data belonged
to an application using IPv4, and when it belonged to an application using
IPv6. Further, this packetization would be performed at mntime by Jain’s
CPU 610 mentioned above. We find this combination meets the claim 1
limitations of “dynamically determine and select one or more of a plurality
of protocols . . . and activate at mntime the one or more selected protocols
for processing the packet.”
Appellants argue that:
communication is always set up in Jain such that the entire
protocol stack for processing information on the intelligent
service card 104 is known beforehand and not determined at
mntime on a packet-by-packet basis. As such, Jain does not
teach or suggest dynamic determination of protocols to use at
different layers on a packet-by-packet basis.
(Br. 15). Appellants also argue in Stumiolo:
the selection of the protocol (i.e. either IPv4 or IPv6) is not done
at packet-level. It is done at the application level in view of
requirements of the application. Further, the selection of either
IPv4 or IPv6 is not done at mntime, i.e. between receipt of a
packet and the processing of that same packet.
(Id.). We are not persuaded by these arguments because in the Examiner’s
combination some determination must be made as to which protocol out of
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the at least two protocols of IPv4 and IPv6 is to be used to packetize data
before it is transmitted. Further, claim 1 does not preclude making a
decision on which protocol to use at the application level before then also
determining at the packet level which application the instant data belongs to
and then selecting the predetermined protocol for packetizing the data.
Rather, claim 1 recites that the dynamic determining and selecting of a
protocol is “based on protocol rules that specify when a protocol can be
used,” and, thus, the dynamically determined and selected protocol of claim
1 is to some extent known beforehand, as in the Examiner’s combination of
Jain and Stumiolo.
We are, therefore, not persuaded the Examiner erred in rejecting claim
1, and claims 2—26 not specifically argued separately.
CONCLUSIONS
Under the non-statutory doctrine of obviousness-type double
patenting, Appellants have not shown the Examiner erred in rejecting claims
1-26.
Under 35 U.S.C. § 103(a), the Examiner did not err in rejecting claims
1-26.
DECISION
For the above reasons, the Examiner’s rejection of claims 1—26 is
affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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