Ex Parte Diab et al

Patent Trial and Appeal Board

Jul 25, 2016

12982213 (P.T.A.B. Jul. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/982,213 12/30/2010
121312 7590 07/27/2016
Foley & Lardner LLP/ Broadcom Corporation
3000 K Street N.W
Suite 600
Washington, DC 20007-5109
FIRST NAMED INVENTOR
Wael William Diab
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.
106861-0657 7989
EXAMINER
RIV AS, SALVADORE
ART UNIT PAPER NUMBER
2479
NOTIFICATION DATE DELIVERY MODE
07/27/2016 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):
ipdocketing@foley.com
cmckenna@foley.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WAEL WILLIAM DIAB, JEYHAN KARAOGUZ,
XUEMIN CHEN, DAVID GARRETT,
DAVID LUNDGREN, and RICH PRODAN
Appeal2014-006276
Application 12/982,213
Technology Center 2400
Before JOHNNY A. KUMAR, TERRENCE W. McMILLIN, and
MONICA S. ULLAGADDI, Administrative Patent Judges.
ULLi\.Gi\DDI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 21--40. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
STATEMENT OF THE CASE
Claim 21, reproduced below, is illustrative of the claimed subject
matter:
21. A method, comprising:
detecting, using a broadband gateway, whether each of a
plurality of communication devices supports at least one first
Appeal2014-006276
Application 12/982,213
quality of service (QoS) protocol that is supported by the
broadband gateway, the broadband gateway facilitating
communication between the plurality of communication devices
and at least one content provider;
generating, using the broadband gateway, data that
represents a result of the detecting; and
transmitting, using the broadband gateway, the data that
represents the result to the content provider to determine whether
the content provider is to use at least one second QoS protocol to
deliver content to a particular one of the plurality of
communication devices.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Pessi
Uskela
Savoor
Balasubramanian
Jeong
US 2001/0022785 Al
US 2003/0026232 Al
US 2006/0274765 Al
US 2007/0286117 Al
US 2009/0034428 Al
REJECTIONS
Sept. 20, 2001
Feb. 6,2003
Dec. 7, 2006
Dec. 13, 2007
Feb. 5,2009
Claims 21, 23-27, 30, 32-35 and 36-38 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Savoor and Pessi.
Claim 22 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Savoor, Pessi, and Jeong.
Claims 28, 29, 39, and 40 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Savoor, Pessi, and Balasubramanian.
Claim 31 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Savoor, Pessi, and U skela.
2
Appeal2014-006276
Application 12/982,213
ANALYSIS
With regard to independent claim 21, Appellants argue Pessi does not
teach the "transmitting" limitation because Pessi' s path message is
transmitted between router nodes instead of to a content provider. App. Br.
7-8; see also Reply Br. 3. Appellants further argue "the path message in
Pessi does not 'determine whether ... to use at least one second QoS
protocol to deliver content,' as recited in claim 21." App. Br. 8 (emphasis
omitted). Appellants contend that "[i]nstead, the QoS signaling in Pessi is
used to determine merely 'a different route' for the packets,' 'that packets
should be 'assort[ ed] ... to a [suitable] sequence,' or that a 'different link or
link level service' should be used." Id. (emphasis omitted) (citing Pessi
ii 29).
With regard to Appellants' first argument, the Examiner finds Savoor
teaches "the broadband gateway facilitate[ es] communication between the
plurality of communication devices and at least one content provider." Final
Act. 3; Ans. 5. In Fig. 1, Savoor depicts broadband residential gateways
(BRGs) 120 connected with content service providers (CSPs) 110 and
appliances and in paragraphs 14 and 15, Savoor describes routing content
between CSPs 110 and BRGs 120, as well as BRGs 120 interconnecting and
exchanging data between devices and providing access to, for example,
video, music, and gaming downloadable content services.
Appellants' first argument is not responsive to the Examiner's specific
findings regarding Savoor. Therefore, this argument constitutes an
individual attack on the references, which is not persuasive to show non-
obviousness. Ans. 5 (citing In re Keller, 642 F.2d 413 (CCPA 1981); In re
Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986)).
3
Appeal2014-006276
Application 12/982,213
With regard to Appellants' second argument, the Examiner cited
paragraphs 2, 10, 25, and 29 of Pessi to teach "the data that represents the
result to the content provider to determine whether the content provider is to
use at least one second QoS protocol," as recited in claim 21. Final Act. 4--
6. We note that the portion of Pessi quoted in Appellants' second argument
is actually found in paragraph 2, not paragraph 29. Compare App. Br. 8,
with id. at 7 (citing Pessi i-fi-12, 29). In cited paragraph 29, Pessi describes
how "nodes 2a, 2b, 2c, 2d between the source la and the destination lb can
add QoS resource definitions and the available properties in an ADspec
object in the Path message" and "[ c ]onsequently, when arriving at the
receiver lb, the Path message contains a data stream description (Tspec) and
a description on the QoS resources available on the route (ADspec )."
Claim 21 does not require a determination of which particular "at least
one second QoS protocol" will be used to deliver content. Claim 21 also
does not specify how the determination of the at least one second QoS
protocol is made. For example, claim 21 does not require "the at least one
second QoS protocol" to be determined only based on "the data that
represents the result." Appellants do not present sufficient evidence to
persuade us the combination of Savoor and Pessi would not have at least
suggested, to one of ordinary skill in the art, using QoS resource definitions
added to Pessi's Path message in the process of determining "at least one
second QoS protocol to deliver content to a particular one of the plurality of
communication devices," as recited in claim 21.
In claim 21, "the result" in the "transmitting" limitation refers to a
result of "detecting, using a broadband gateway, whether each of a plurality
of communication devices supports at least one first quality of service (QoS)
4
Appeal2014-006276
Application 12/982,213
protocol that is supported by the broadband gateway." Appellants argue that
Pessi's QoS resource definitions do not represent "the result of detecting
whether a communication device supports at least one first QoS protocol that
is supported by the broadband gateway." Reply Br. 2-3. This argument was
raised for the first time in the Reply Brief and is therefore waived. See
37 C.F.R. § 41.41(b)(2).
Although Appellants briefly address QoS signaling in the Appeal
Brief, Appellants do not persuasively argue that the Examiner improperly
mapped differing portions of Pessi to teach "detecting" limitation as
compared with "the data that represents the result" in the "transmitting"
limitation of claim 21. We have only considered those arguments that
Appellants actually raised in the Briefs. Arguments Appellants could have
made but chose not to make in the Briefs have not been considered and are
deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv).
For the foregoing reasons, we are not persuaded the Examiner erred in
finding the combination of Savoor and Pessi teaches or suggests the disputed
"transmitting" limitation as recited in claim 21, the commensurate
limitations recited in claims 30 and 36, and the limitations recited in claims
25, 27, 34, 35, and 37, not separately argued. Claims 22, 28, 29, 31, 39, and
40 stand rejected over various combinations of Savoor, Pessi, Jeong,
Balasubramanian, and U skela. As these claims are not separately argued,
we reach the same conclusion with respect to these claims as we reach with
respect to claims 21, 30, and 36, from which they depend, for substantially
similar reasons.
Therefore, we sustain the rejection of claims 21, 22, 25, 27-31, 34--
37, 39, and 40 under 35 U.S.C. § 103(a).
5
Appeal2014-006276
Application 12/982,213
Claim 23 recites "the data that represents the result determines a
configuration for the content provider." Claim 32 recites a commensurate
limitation.
The Examiner finds Savoor teaches the disputed limitation in
paragraph 21, which discloses that, "by monitoring the behavior ofBRG 120
users while the[y] explore content, a use behavior can be developed and
exploited by dynamically adapting the content profile associated with each
BRG 12." See Final Act. 12.
Appellants argue Savoor' s content profile is adapted in response to
user behavior, and is not determined by "the data that represents the result
[of detecting whether each of a plurality of communication devices supports
at least one first quality of service (QoS) protocol]." App. Br. 9 (emphasis
omitted). Thus, Appellants conclude Savoor and Pessi fail to disclose or
render obvious the disputed limitation recited in claim 23. See id. at 9--10.
We are not persuaded by Appellants' argument. Each reference must
be read, not in isolation, but for what it fairly teaches in combination with
the prior art as a whole. See Keller, 642 F.2d at 425 ("The test for
obviousness is not ... that the claimed invention must be expressly
suggested in any one or all of the references. Rather, the test is what the
combined teachings of the references would have suggested to those of
ordinary skill in the art."); see also Merck, 800 F.2d at 1097. Furthermore,
the skilled artisan is "a person of ordinary creativity, not an automaton," and
this is a case in which the skilled artisan would "be able to fit the teachings
of multiple patents together like pieces of a puzzle." KSR Int 'l Co. v.
Teleflex, Inc., 550 U.S. 398, 420, 421 (2007).
6
Appeal2014-006276
Application 12/982,213
As discussed above with respect to claim 21, the Examiner cites Pessi
as teaching "the data that represents the result." Final Act. 4---6. Appellants
do not present sufficient evidence that persuades us one of ordinary skill in
the art would not have adapted Savoor's content profile responsive to the
cited teachings of Pessi. See App. Br. 9--10.
Moreover, Appellants' argument is unpersuasive because it is
predicated on non-functional descriptive material (i.e., the informational
content of "the data that represents the result"). See Ex parte Nehls, 88
USPQ2d 1883, 1887-90 (BPAI 2008) (precedential). The "data that
represents the result" is not positively recited in either claim 23 or claim 32
as actually being used to change or affect any configuration of the claimed
content provider (claim 23) or the claimed service provider (claim 32). See
id.
For the foregoing reasons, we sustain the rejection of claims 23 and
32 under 35 U.S.C. § 103(a).
Claim 24 recites "transmitting the data that represents the result to the
content provider is initiated in response to receiving a request for content
from one of the plurality of communication devices." Claim 33 recites a
commensurate limitation.
Appellants argue Savoor's content profile is updated continuously or
periodically instead of "in response to receiving a request for content," as
recited in claim 24. App. Br. 10-11. However, with respect to claim 23,
Appellants argue Savoor's content profile is adapted "in response to 'the
behavior ... of users."' Id. at 9 (emphasis omitted). Savoor describes
"monitoring the behavior ofBRG 120 users while the[y] explore content."
7
Appeal2014-006276
Application 12/982,213
Savoor il 21. Accordingly, Appellants' argument does not persuade us the
Examiner erred in finding Savoor and Pessi teach or suggest the limitations
of claims 24 and 33.
Therefore, we sustain the rejection of claims 24 and 33 under
35 U.S.C. § 103(a).
Claim 26 recites "selecting, using the broadband gateway, at least one
of the plurality of physical layer connections to be used based at least in part
on a QoS metric desired for the at least one first QoS protocol." Claim 38
recites a commensurate limitation.
Appellants argue Savoor' s content profile is adapted based on a user
behavior instead of "a QoS metric" and thus, the combination of Pessi and
Savoor fail to teach or suggest disputed limitation as recited in claims 26 and
38. App. Br. 12. The Examiner interprets "a QoS metric" as "monitoring
the behavior of BRG 120 users while the[y] explore content, a use behavior
can be developed and exploited by dynamically adapting the content profile
associated with each BRG 120." Ans. 10 (citing Savoor i-fi-120, 21). We
agree with Appellants. It is not apparent to us how user behavior and/or a
content profile could be used to "select ... at least one of the plurality of
physical layer connections to be used" as claimed.
Therefore, we do not sustain the rejection of claims 26 and 38 under
35 U.S.C. § 103(a).
DECISION
The decision of the Examiner to reject claims 21-25, 27-37, 39, and
40 is affirmed.
8
Appeal2014-006276
Application 12/982,213
The decision of the Examiner to reject claims 26 and 38 is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
9