Ex Parte Doyle

Patent Trial and Appeal Board

Jun 25, 2013

10154657 (P.T.A.B. Jun. 25, 2013)

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.
10/154,657 05/24/2002 Chris Doyle 1400.1374330 9633
25697 7590 06/25/2013
ROSS D. SNYDER & ASSOCIATES, INC.
PO BOX 164075
AUSTIN, TX 78716-4075
EXAMINER
AHMED, SALMAN
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
06/25/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte CHRIS DOYLE
____________________

Appeal 2010-0122891
Application 10/154,657
Technology Center 2400
____________________

Before JOSEPH F. RUGGIERO, JOSEPH L. DIXON,
and JEAN R. HOMERE, Administrative Patent Judges.

Opinion for the Board filed by Administrative Patent Judge JEAN R.
HOMERE.

Opinion Dissenting filed by Administrative Patent Judge JOSEPH L.
DIXON.

HOMERE, Administrative Patent Judge.

DECISION ON APPEAL

1 The real party in interest is Alcatel-Lucent Canada, Inc. (App. Br. 2.)
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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-56. (App. Br. 2.) We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
Appellant’s Invention
Appellant invented a method and system for synchronously
communicating frames of digital information by transmitting bits of data
thereof in a temporally sequential manner. (Spec. 1, [0001], [0002].) In
particular, upon receiving a synchronous clock signal (112) from a clock
generator, a transmitter (Fig. 2) transmits to a receiver (Fig. 3) a data stream
(110) including sequential bits contiguously arranged in a framing pattern
(101-105) and a payload data (106-111) in the order in which they were
generated (i.e. temporally), wherein the frame pattern length is greater than
that of the payload data. (Fig. 1-5, [0012]-[0014].)
Illustrative Claims
Independent claims 1 and 45 further illustrate the invention as
follows:

1. A method for communicating data comprising the steps
of:
transmitting a data signal, the data signal including
frames, each frame including:
one of a plurality of payloads of the data, and
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a framing pattern, the framing pattern having a framing
pattern length greater than a payload length of each of the
plurality of the payloads of the data; and
transmitting a clock signal, the clock signal allowing
synchronous sampling of the data signal.

45. A system for communication of frames of data, the
system comprising:
a clock generator for generating a clock signal;
a transmitter coupled to the clock generator for
transmitting a data signal including a framing pattern and a
payload of the data;
a bus including a first conductor and a second conductor,
the first conductor coupled to the transmitter and the second
conductor coupled to the clock generator, the first conductor for
communicating the data signal and the second conductor for
communicating the clock signal; and
a receiver coupled to the first conductor and to the
second conductor for receiving the data signal, identifying the
framing pattern, and providing a data output based on the
payload.

Prior Art Relied Upon
The Examiner relies on the following prior art as evidence of
unpatentability:
Beeman US 4,719,643 Jan. 12, 1988
Harris US 5,200,979 Apr. 6, 1993
Sagesaka US 5,619,361 Apr. 8, 1997
Venters US 5,875,202 Feb. 23, 1999
Petersen US 6,005,871 Dec. 21, 1999
Wang US 6,157,635 Dec. 5, 2000
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Yu US 2001/0043603 Al Nov. 22, 2001
Tran US 2002/0001315 Al Jan. 3, 2002
Lincoln US 2005/0069041 A1 Mar. 31, 2005
Grohn US 6,925,072 B1 Aug. 2, 2005

Rejections on Appeal
The Examiner rejects the claims on appeal as follows:
1. Claims 45 and 46 are rejected under 35 U.S.C. § 102(e) as being
anticipated by Lincoln.
2. Claim 47 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lincoln and Petersen.
3. Claims 1-3, 16, and 17 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wang and Tran.
4. Claims 4-6 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wang, Tran, and Harris.
5. Claims 7-15 and 18-20 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wang, Tran, Harris, and Sagesaka.
6. Claim 21 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Wang, Tran, and Yu.
7. Claims 22-26 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wang, Tran, and Sagesaka.
8. Claims 27, 28, 35, and 36 are rejected under 35 U.S.C. § 103(a) as
being unpatentable Wang, Tran, Venters, and Grohn.
9. Claims 29-34 and 37-44 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wang, Tran, Venters, Grohn, and Beeman.
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10. Claim 48 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lincoln and Tran.
11. Claims 49-56 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lincoln, Tran, and Sagesaka.

ANALYSIS
We consider Appellant’s arguments seriatim as they are presented in
the Appeal Brief, pages 17-39 and the Reply Brief, pages 17-34.
Representative Claim 45
Dispositive Issue 1: Has Appellant shown the Examiner erred in
finding that Lincoln describes transmitting a data signal including a framing
pattern and a payload of the data, as recited in claim 45?
Appellant argues that the Examiner erred in finding that Lincoln’s
disclosure of transmitting a data stream inherently describes that the
transmitted data has some framing (e.g., header or trailer) associated with it,
and thereby describes disputed limitations emphasized above. (App. Br. 17-
18; Reply Br. 17-19.) According to Appellant, because the Examiner has
provided no evidence to substantiate this finding of inherency, the Examiner
has failed to make a prima facie case of anticipation. (Id.)
In response, the Examiner finds that because the transmission of data
stream from a transmitter to a receiver necessarily involves a frame (e.g., a
header, a trailer or both) to carry the payload data from its source to its
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destination, Lincoln’s disclosure of such a transmission of a data stream
inherently describes the disputed limitations. (Ans. 27-28.)
On the record before us, we agree with the Examiner’s finding of
anticipation. Our reviewing court has previously held that “[i]n relying upon
the theory of inherency, the examiner must provide a basis in fact and/or
technical reasoning to reasonably support the determination that the
allegedly inherent characteristic necessarily flows from the teachings of the
applied prior art.” Ex parte Levy, 17 USPQ2d 1461, 1464 (BPAI 1990)
(citation omitted). Further, the court has held that “after the PTO establishes
a prima facie case of anticipation based on inherency, the burden shifts to
appellant to ‘prove that the subject matter shown to be in the prior art does
not possess the characteristic relied on.’” In re King, 801 F.2d 1324, 1327
(Fed. Cir. 1986) (quoting In re Swinehart, 439 F.2d 210, 212-13 (CCPA
1971)). See also MPEP §§ 2112 (IV), (V).
This reasoning is applicable here. As set forth above, the Examiner
finds that because Lincoln’s disclosure of transmitting a data stream from a
transmitter to a receiver necessarily involves a frame to provide a boundary
for the payload data. In particular, the Examiner finds that “[d]ata streams
inherently cannot be transferred between devices without some sort of
boundary involving header, trailer or both or flags to bound (sic) the data
streams to a useable and understandable chunks.” (Ans. 27, 29 (emphasis
omitted).) In our view, this technical reasoning provided by the Examiner is
sufficient to support the finding that the use of frames necessarily flows
from the transmission of data streams. We are thus satisfied that the
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Examiner adequately established a prima facie case of anticipation based on
inherency thereby shifting the burden on Appellant. However, we find
Appellant’s response has failed to show by a preponderance of the evidence
that the data stream transmission disclosed in Lincoln does not involve a
frame to carry the data as alleged by the Examiner. Merely reciting the
claim language, and asserting that the Examiner’s findings do not describe
such limitations is not a persuasive argument. It follows that Appellant has
failed to show error in the Examiner’s anticipation rejection of claim 45.
Regarding claim 46, Appellant argues that the Examiner erred in
finding that Lincoln’s disclosure of transmitting a predetermined serial sync
detect pattern during each half of successive transmitted clock periods does
not describe a clock signal being synchronous to a data signal because the
time delays, and phase shifts between the transmitted bits (disclosed in
paragraph 3 of Lincoln) can be as large as several clock signals. (App. Br.
19; Reply Br. 19.) We do not agree with Appellant. We note Lincoln’s
disclosed sync detect pattern [0029] is in fact offered as a way to overcome
the phase shift and time delay problem discussed in the background [0003]
of Lincoln’s invention. That is, by synchronizing the data signal with the
clock signal the phase shift and time delay deficiencies will be remedied.
Accordingly, we find that Lincoln’s disclosure of synchronizing the data
signal with the clock signal describes that the two signals are synchronous.
It follows Appellant has not shown error in the Examiner’s rejection of
claim 46.
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Regarding the rejection of claim 47, Appellant argues that the
Examiner erred in finding that Petersen’s disclosure of multiplexing payload
portions and header portions into contiguous locations in a data cell teaches
the payload data and frame being temporally contiguous. (App. Br. 21;
Reply Br. 20.) We do not agree with Appellant. We note that while
Appellant’s Specification indicates that bits in the data stream are
contiguously sequential [0013] and that they have a temporal relationship
[0016], the Specification does not provide a definition for temporally
contiguous. Therefore, under the broadest reasonable interpretation,
consistent with the Specification, we construe that the bits in the data stream
are temporally contiguous as the bits are sequentially allocated to contiguous
regions of the frame and the payload data synchronously with the clock. We
find Lincoln’s disclosure of synchronizing the transmission of the data
stream with a clock signal taken in combination with Petersen’s disclosure
of allocating data signals to contiguous portions thereof would predictably
result in the data stream (framing pattern + payload data) being temporally
contiguous. It follows that Appellant has not shown error in the Examiner’s
obviousness rejection of claim 47.

Representative Claim 1
Dispositive Issue 2: Has Appellant shown the Examiner erred in
finding that the combination of Wang and Tran teaches or suggests a
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framing pattern having a greater length than that of a payload data, as
recited claim 1?
Appellant argues that the Examiner erred in finding that Tran’s
disclosure of a framing pattern in a header having a length greater than that
of the data payload associated therewith teaches the disputed limitations
emphasized above. According to Appellant, while the header may have
framing pattern, it is only for the purpose of identifying the elements within
the header, and that the Examiner has presented no evidence that such
framing pattern within the header qualifies as the claimed framing pattern.
(App. Br. 22-23; Reply Br. 20-23.) In response, the Examiner finds that
Tran discloses a packet having a 60 byte-long IP header portion and a 30-
byte long payload data portion. According to the Examiner, because the IP
header portion is longer than the payload data portion, Tran’s packet teaches
the disputed limitations. (Ans. 33-34.) Further, in an attempt to present
additional evidence, as per Appellant’s request, to substantiate the finding
that Tran’s IP header teaches the claimed framing pattern, the Examiner
provides an annotated illustration at page 37 of the Answer. Appellant,
however, protests that the Examiner’s expanded explanation in the Answer
of how Tran’s header teaches the framing pattern constitutes a new ground
of rejection.2 (Reply Br. 23-28.) We do not agree with Appellant.

2 Regarding Appellant’s argument that the Examiner’s annotated Figure
(Ans. 37) to clearly identify the IP header teaches a framing pattern
constitutes a new ground of rejection (Reply Br. 5), we note this is a
petitionable matter, which must be brought before the director of the
Examiner’s Technology Center. Nevertheless, we note that such explanation
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We note at the outset that Appellant’s Specification has not provided a
definition for the framing pattern. Thus, upon giving “framing pattern” its
broadest reasonable interpretation consistent with Appellant’s Specification
[0012]-[0014], we construe it as merely a pattern of bits within a data stream
for framing or carrying the payload data associated therewith in the data
stream. Consequently, we find that because the data stream having an IP
header portion that is longer than the data portion thereof, wherein the IP
header includes identification information as well as destination information
therein [0022]-[0024], the IP header serves, inter alia, for identifying where
the payload data should be forwarded to thereby frame it. We thus agree
with the Examiner that the IP header does teach the framing pattern recited
in the claim. Consequently, we are satisfied that the combination of Wang
and Tran teaches the disputed limitations. It follows that Appellant has not
shown error in the Examiner’s rejection of claim 1.
Regarding claims 2-44 and 48-56, Appellant reiterates substantially
the same arguments submitted for patentability of claims 1 and 45-47 above.
(App. Br. 24-38; Reply Br. 24-34.) As discussed above, these arguments are
not persuasive. See 37 C.F.R. § 41.37(c)(1)(vii). Further, while Appellant
raised additional arguments for patentability of the cited claims, we find that
the Examiner has rebutted in the Answer each of those arguments by a
preponderance of the evidence. (Ans. 33-61.) Therefore, we adopt as our

was in response to Appellant’s request for additional evidence in the Appeal
Brief (App Br. 22-23), and Appellant further availed themselves of the
opportunity to respond in the Reply Brief (Reply Br. 24-28) to these alleged
new findings made by Examiner in the Answer.
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own the Examiner’s findings and underlying reasoning, which are
incorporated herein by reference. Consequently, Appellant has failed to
show error in the Examiner’s rejections of claims 2-44 and 48-56.

DECISION
We affirm the Examiner’s rejections of claims 1-56 as set forth above.
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).

AFFIRMED

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DIXON, Administrative Patent Judge dissenting.

I respectfully dissent from the majority's opinion with respect to a
finding of anticipation based upon a finding of inherency for independent
claim 45. For various reasons, I find the Examiner’s finding of anticipation
and inherency to be clearly erroneous. Therefore, I disagree with the
majority’s affirmance based upon a finding of inherency and also the
majority’s finding that the burden had shifted to Appellant to proffer
evidence to rebut the Examiner’s finding of anticipation based upon a
finding of inherency.
“[A]nticipation of a claim under § 102 can be found only if the prior
art reference discloses every element of the claim . . . .” In re King, 801
F.2d 1324, 1326 (Fed. Cir. 1986) (citing Lindemann Maschinenfabrik
GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1458 (Fed. Cir.
1984)). “[A]bsence from the reference of any claimed element negates
anticipation.” Kloster Speedsteel AB v. Crucible, Inc., 793 F.2d 1565, 1571
(Fed. Cir. 1986).
“It is well settled that a prior art reference may anticipate when the
claim limitations not expressly found in that reference are nonetheless
inherent in it. Under the principles of inherency, if the prior art necessarily
functions in accordance with, or includes, the claimed limitations, it
anticipates.” In re Cruciferous Sprout Litig., 301 F.3d 1343, 1349 (Fed. Cir.
2002) (citations and internal quotation marks omitted). “Inherency,
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however, may not be established by probabilities or possibilities. The mere
fact that a certain thing may result from a given set of circumstances is not
sufficient.” In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (citations
and internal quotation marks omitted).

ANTICIPATION
With respect to independent claim 45, if the Examiner is relying
solely upon the statement in the rejection “a framing pattern (section 0036,
the sync multiplexer 55 multiplexes the multiple data streams 58 and the
sync detect pattern from the sync pattern provider 62 onto anyone of the data
lines 54)” (Ans. 4; Final Rej. 2), I find error in the Examiner’s reliance upon
a sync detect line with separate data lines which would provide no “framing
pattern” for data on the separate lines. I find the sync detect line would
clearly provide synchronization for this device to device communication
over the bus lines rather than “a framing pattern.” Therefore, I find the
Examiner’s statement of the rejection to fail to show anticipation.
Furthermore, the statement of rejection does not rely on inherency, but only
in the bootstrapped responsive arguments section which does not relate in
any way to the prior art descriptions relied upon in the statement of the
rejection. Therefore, I find the Examiner’s unrelated commentary regarding
inherency and the unrelated protocols to not further limit the Examiner’s
stated prior art rejection based upon anticipation.
Additionally, I find that Appellant has provided sufficient argument
and evidence to show error in the Examiner’s finding of anticipation. Since
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the non-final rejection, mailed April 10, 2008, the Examiner has made the
same basic statement of the rejection and the final rejection mailed
November 7, 2008, added commentary regarding inherency in response to
the same persuasive argument by Appellant regarding the prior art relied
upon by the Examiner in the Lincoln reference. Therefore, I find that the
Examiner realized the deficiency in the stated rejection with respect to
“framing pattern” and buttressed it with an erroneous conclusion of
inherency.

INHERENCY
With respect to independent claim 45, I find that the Lincoln reference
does not describe any communications which would “necessarily” require
any “framing pattern” as maintained by the Examiner for “data streams
inherently cannot be transferred between devices without some sort of
boundary, involving header, footer or both or flags to bound the data streams
to a useable and understandable chunks.” (Ans. 27 (emphasis omitted);
Final Rej. 25). The Examiner maintains:
Lincoln teaches in paragraph 0005 that the communication is
done using “Modem digital computers” and “Communication
equipments”. Examiner submits various modem protocols (Bell
103, CCITT V.21, Bell 212A, CCITT V.22, CCITT V.22 bis,
CCITT V.32, CCITT V.32 bis, US Robotics HST, “V.Terbo”,
“V.Fast”, “V.FC”, “V. Fast-Class”, ITU-T V.34) inherently
have underlying framing associated with it.
(Ans. 26; Final Rej. 25 (emphasis added)). Appellant has argued that
“modem” is a typographical error in the Lincoln reference. (App. Br. 18). I
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agree with Appellant. From my reading the background of the Lincoln
reference (which was cited by the Examiner and the majority), it is quite
clear to me that the Lincoln reference does not relate to packetized
communication data in a modem having “header, footer or both or flags to
bound the data” as maintained by the Examiner. Additionally, the various
protocols identified by the Examiner transmit data (below 56,600 bps) at
data rates significantly well below the 1 Gbit per second discussed in the
background of the Lincoln reference. Therefore, I find the Examiner’s
showing to be inadequate for anticipation based on inherency.
The Lincoln reference discloses “high-speed interface for passing an
N bit wide data stream between two physical devices … during chip-to-chip
communications.” ( ¶ [0002]). Therefore, the communications do not leave
the two devices as speculated by the Examiner. I find the Lincoln reference
discusses “modern digital computers and communications” which relate to
“speeds around 1 Gbit per second … between two devices at high speeds.”
(¶ [0003] (emphasis added)). The Lincoln reference also discusses
coherence of data across a data bus. (¶ [0004]). Again, not leaving a chip to
chip environment. Finally, the Summary of the Invention of the Lincoln
reference discusses synchronization. With synchronization to be a concern
in the communications, I find that the Examiner’s proffered (generally)
asynchronous communications protocols to be irrelevant.
Alternatively, if the Examiner is relying upon the statement in the
rejection “a framing pattern (section 0036, the sync multiplexer 55
multiplexes the multiple data streams 58 and the sync detect pattern from the
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sync pattern provider 62 onto anyone of the data lines 54)” (Ans. 4), I find
error in the Examiner’s reliance upon a sync detect line with separate data
lines which would provide no “framing pattern” for data on the separate
lines, but would clearly provide synchronization for this device to device
communication over the bus lines. Therefore, I find the Examiner’s
statement of the rejection to fail to show anticipation and furthermore does
not rely on inherency in the statement of the rejection but only in the
bootstrap arguments in the responsive arguments section.
Additionally, I find that a stream of data may merely be serial
communication over a serial bus which is well-structured and would not
necessarily require any header, footer, trailer or flags due to its well-
structured format. Therefore, this example shows a lack of inherency in all
digital communications, as proffered by the Examiner. Therefore, I find that
the Examiner has set forth a clearly erroneous conclusion of inherency based
upon the Lincoln reference and the burden does not shift with such a clearly
erroneous finding by the Examiner.

OBVIOUSNESS
I respectfully dissent from the majority’s opinion with respect to a
conclusion of obviousness for independent claims 1, 16, 27, and 35. For
various reasons, I find the Examiner’s conclusion of obviousness to be
erroneous, and I would reverse the rejection of claims 1, 16, 27, and 35 and
their respective dependent claims. I respectfully dissent from the majority’s
opinion with respect to a conclusion of obviousness for dependent claim 47
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based upon my discussion above with respect to anticipation of independent
claim 45.
With respect to a dependent claim 47, based on my finding of a
deficiency with respect to independent claim 45 addressed above, I find the
Examiner’s conclusion of obviousness based upon Lincoln in combination
with the Peterson reference to be in error. Additionally, I find the
Examiner’s treatment of “temporally contiguous” to be flawed. I find the
Examiner’s factual finding that the Peterson reference teaches “temporally
contiguous” data to be in error. Even after the Appellant has identified the
clear error in the Examiner’s finding of “temporary” contiguousness only
during transmission (App. Br.21), the “Examiner points out that such
arrangement of contiguousness is indeed ‘temporary’, as only during
transmission times such steps are performed; i.e. ‘temporary
contiguousness’ is adapted during transmission purpose.” (Ans. 32
(underlining in original omitted, emphases added)). Therefore, I find the
Examiner has not made a requisite showing of obviousness of dependent
claim 47 with respect to “temporally contiguous.”
Furthermore, I find the majority opinion attempts to reconstruct the
claimed invention based upon citations which were not relied upon by the
Examiner to present the showing of obviousness. Furthermore, in my
opinion, the majority merely provides additional teachings and concludes
predictability with the combination of two disparate references (Lincoln with
serial-type communication and Peterson with packetized-type
communication). Therefore, I find the majority’s treatment of claim 47 to be
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hindsight reconstruction in an attempt to save the Examiner’s poorly stated
rejection, and I cannot agree with the majority to sustain the rejection
presented by the Examiner.
With respect to independent claim 1, the majority states:
According to Appellant, while the header may have framing
pattern, it is only for the purpose of identifying the elements
within the header, and that the Examiner has presented no
evidence that such framing pattern within the header qualifies
as the claimed framing pattern. (App. Br. 22-23; Reply Br. 20-
23.)

(Decision 9).
The majority appears to take the quotation of the Examiner’s position
as an admission by Appellant rather than a contention that the Examiner has
provided no evidence to support the finding and does not respond to any of
Appellant’s contentions. (Id.). I find the Examiner identified that “headers
have a particular pattern in them which is used to identify particular
elements of the headers. Without such framing patterns individual elements
of the header or the header itself cannot be identified” (Final Rej. 6; Ans. 7),
and Appellant disputes the Examiner’s finding. The Examiner and the
majority do not address the Appellant’s contentions and merely go on to
state differing sizes of the “IP header portion” and the “payload data
portion” which meets the limitations of the claim. (Decision 9).
Appellant argues “the Examiner appears to distinguish between
‘headers’ and ‘a particular pattern in them,’ which the Examiner appears to
regard as disclosing ‘framing patterns.’” (App. Br. 22).
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I agree with Appellant and find a difference between structured data
in a header versus a framing pattern in the data/bits. I find that the Examiner
refers to the “IP header” but identifies the length with respect to a composite
of all the “header” portions and does not identify any specific “framing
patterns” and its size. (Ans. 33-34; Wang cols. 7-8; figure 3A). At best, I
find that Wang teaches a pattern or sequence with respect to the start and
end frame flags. Wang discloses “[a] detailed view of the HDLC DLL
frame is shown in FIG. 3A. The binary 01111110 sequence 300 contained in
the start flag 250 for the frame is shown. The binary 01111110 sequence 302
for the end of frame flag 260 is also shown.” (Wang col. 7, ll. 52-56). The
size of these sequences do not exceed the payload. Therefore, I disagree
with the majority and cannot sustain the rejection of independent claim 1.
Additionally, the Examiner appears to just cite the general sizes of a
header and payload, but does not address the aspects of the structured
packetized data in the header. I find much of the data in the header would
vary within each packet so that the header would not provide a “framing
pattern.” I find the header to be a structured data format, but within the
structure would be a portion to identify the beginning of the header which
would then allow the relevant control data and payload data to be
determined. I disagree with the Examiner and the majority that this whole
header would be a “framing of pattern” and that its size is greater than the
size of the payload.
Moreover, I find the illustration relied upon in the Examiner’s Answer
at page 37 to be unsupported by the references relied upon and does not
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teach or suggest any specific size of a “framing pattern” relative to a payload
size.
Finally, the majority states:
Regarding claims 2-44 and 48-56, Appellant reiterates
substantially the same arguments submitted for patentability of
claims 1 and 45-47 above. (App. Br. 24-38; Reply Br. 24-34.)
As discussed above, these arguments are not persuasive. See 37
C.F.R. § 41.37(c)(1)(vii). Further, while Appellant raised
additional arguments for patentability of the cited claims, we
find that the Examiner has rebutted in the Answer each of those
arguments by a preponderance of the evidence. (Ans. 33-61.)
Therefore, we adopt as our own the Examiner’s findings and
underlying reasoning, which are incorporated herein by
reference. Consequently, Appellant has failed to show error in
the Examiner’s rejections of claims 2-44 and 48-56.
(Decision 10-11).
I disagree with the majority with respect to the grouping of claims. I
find that independent claims 16, 27, and 35 contain similar limitations and
arguments by Appellant. The Examiner has treated these claims in the same
manner and has not identified how the additional references remedy the
deficiencies noted with respect to independent claim 1. Therefore, I find the
same error as discussed above. Therefore, I would reverse the Examiner’s
rejection based upon the same deficiency in the base combination of the
Wang and Tran references.

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