Ex Parte Greene et al

Patent Trial and Appeal Board

Feb 17, 2016

11428428 (P.T.A.B. Feb. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111428,428 0710312006
65650 7590 03/21/2016
MARGERJOHNSON/PARC
888 SW 5th A venue, Suite 1050
PORTLAND, OR 97204
FIRST NAMED INVENTOR
Daniel H. Greene
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.
20060267Q-US-NP-9841-0ll 4004
EXAMINER
BELCHER, HERMAN A
ART UNIT PAPER NUMBER
2448
NOTIFICATION DATE DELIVERY MODE
03/21/2016 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@techlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL H. GREENE, JAMES E. REICH, JUAN LIU,
MARC E. MOSKO, and QINGFENG HUANG
Appeal2014-002192
Application 11/428,428
Technology Center 2400
Before JASON V. MORGAN, CATHERINE SHIANG, and
MELISSA HAAPALA, Administrative Patent Judges.
RAAP ALA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from a final
rejection of claims 1-32. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal2014-002192
Application 11/428,428
REPRESENTATIVE CLAIM
Claim 1 is representative of the subject matter on appeal:
1. A method of transmitting information in a network,
compnsmg:
receiving, at a receiving node on the network having a
processor, a data sample having a microutility associated with
the data sample, wherein the microutility results from
application of a utility function only at the source node and
includes information as to how the data sample is to be handled
in transit, such that the receiving node avoids evaluation of the
utility function;
using the processor at the node to execute instructions to
only to evaluate the microutility on the receiving node, using
information available at a receiving time on the receiving node
and information encoded in the microutility to determine
propagation characteristics of the data sample; and
propagating the data sample to other nodes in the
network in accordance with the propagation characteristics.
REJECTIONS ON APPEAL
Claims 1, 3-6, 9, 10, 12-15, 18-20, 22, 23, 25, 26, 30, and 32 stand
rejected as being unpatentable under 35 U.S.C. § 103(a) over Wischhof (L.
Wischhof, "Congestion Control in Vehicular Ad Hoc Networks," Proc.
IEEE International Conference on Vehicular Electronics and Safety, 2005,
pp. 58-63.) and Qu (US 2004/0203614 Al; pub. Oct. 14, 2004). Final Act.
6-15.
Claims 2, 24, and 31 stand rejected as being unpatentable under 35
U.S.C. § 103(a) over Wischhof, Qu, and Lee (US 2006/0198367 Al; pub.
Sept. 7, 2006). Final Act. 15-16.
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Appeal2014-002192
Application 11/428,428
Claims 7, 8, 11, 16, 17, 21, and 27-29 stand rejected as being
unpatentable under 35 U.S.C. § 103(a) over Wischhof, Qu, Lee, and Schmitz
(US 2006/0221891 Al; pub. Oct. 5, 2006). Final Act. 16-26.
ISSUES
Appellants' contentions present us with the following issues:
A) Have Appellants shown the applied combination of Wischhof's
and Qu's teachings ("Wischhof-Qu combination") is improper?
B) Have Appellants shown the Wischhof-Qu combination does not
suggest claim l's "information encoded in the microutility" ("microutility
information")?
C) Have Appellants shown the Wischhof-Qu combination does not
suggest claim l's "information available at a receiving time on the receiving
node" ("receiving-node information")?
ANALYSIS
We have reviewed the Examiner's rejection of representative claim 1
in consideration of Appellants' contentions. We disagree with Appellants'
conclusions that the rejection is in error.
Issue A
Appellants contend the Wischhof-Qu combination is
unreasonable because Wischhof's cited utility function and Qu's cited
routing parameters are "redundant." App. Br. 6-7. Appellants
particularly state:
If the sending parameters of Hu [sic] were used, there would be
no reason to evaluate the utility function on the node. If the
utility function exists, there would be no need to append the
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Appeal2014-002192
Application 11/428,428
sending parameters. The two approaches are redundant to each
other, not combinable .
. . . Appellant acknowledges that the references do not need to
be physically combinable to render obvious the invention under
review. However, the claimed combination cannot change the
principle of operation of the primary reference or render the
reference inoperable for its intended purpose [MPEP 2143.01].
The parameters of Qu would render the utility function in
Wischhof inoperable, as it would no longer be needed. The two
are redundant approaches.
Id. (italicized language added). We are not persuaded by this argument.
The Examiner relies on Qu to teach received information in a message
is evaluated in order to determine the criteria for routing the message. Ans.
27. The Examiner explains applying Qu's functionality would result in
Wischhof receiving packets encoded with utility information and evaluating
the packets to determine the utility value to be used as criteria for routing the
packet. Ans. 28. The Examiner finds it would have been obvious to a
person of ordinary skill in the art to use Qu's feature in Wischhof's system
to improve the system with reasonable expectation this would result in the
invention. Ans. 28.
Appellants do not persuasively argue or provide evidence why the
combination would be inoperable or change the principle of operation of
Wischhof' s system. The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the structure of the
primary reference, but what the combined teachings of the references would
have suggested to those of ordinary skill in the art. In re Keller, 642 F.2d
413, 425 (CCPA 1981). Moreover, in addition to the motivation articulated
by the Examiner (Ans. 28), we observe the combination of Qu and Wischhof
is merely a combination of familiar elements according to know methods
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Appeal2014-002192
Application 11/428,428
that yields predictable results. See KSR Int'! Co. v. Teleflex Inc., 550 U.S.
398, 416 (2007). Thus, Appellants do not persuade us the Examiner
improperly combined the teachings of Qu and Wischhof.
Issue B
Appellants contend the Wischhof-Qu combination does not
suggest claim l's microutility information, stating:
[C]ontrary to the office action, the sending parameters are not
the same as a microutility. There is no utility function in Qu.
While Wischhof teaches a utility function, neither reference,
nor the combination thereof, teaches a microutility.
App. Br. 7. Appellants add: "Wischhof does not disclose a microutility, as
it teaches a full utility function." Reply Br. 2. We are not persuaded by this
argument.
The Examiner finds Wischhof s utility value teaches a microutility
because the utility value is used to determine whether to drop the packet
when there is congestion. Ans. 26 (citing, e.g, Wischhofp. 3, col. 1, ,-i 3; p.
6, col. 2). Appellants fail to persuasively argue or explain why the broadest
reasonable interpretation of the claimed microutility information is not
taught or suggested by Wischhof s utility value.
Issue C
Appellants contend the Wischhof-Qu combination does not suggest
claim l's receiving-node information, stating:
[T]he combination of references does not teach "using
information available at a receiving time on the receiving node
and information encoded in the microutility to determine
propagation characteristics of the data sample. . ." The
information contained in the message is not ["]information
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Application 11/428,428
available at a receiving time on the receiving node. . . " The
combination of references does not teach, show or suggest this
element of the claimed invention.
App. Br. 7.
Appellants add:
... Qu analyzes and parses the content of the message,
including headers, addresses, and payload to determine one or
more routing parameters for the message. One could argue that
would be analogous to the information encoded in the
microutility. Therefore, Qu does not teach, show or suggest
using information available at a receiving time on the receiving
node.
Reply Br. 2. The argument is not persuasive for the following reasons.
The Appeal Brief contentions merely quote claim language and
summarily assert the applied art does not teach the recited subject matter.
Such contentions do not constitute separate arguments for patentability. See
37 C.F.R. § 41.37(c)(l)(iv) (2012); In re Lovin, 652 F.3d 1349, 1357 (Fed.
Cir. 2011 ). The Reply Brief contentions merely add that claim l's
microutility information and Qu's routing parameters are analogous. Even
assuming Appellants are correct, the contentions do not explain how such a
correspondence of claim l's microutility information and Qu's routing
parameters establishes an error in the Examiner's findings as to claim l's
receiving-node information. For example, the contentions do not show the
Examiner either neglected claim l's receiving-node information or failed to
recognize a patentable distinction thereof. See, In re Jung, 637 F.3d 1356,
1362 (Fed. Cir. 2011).
Conclusion
For the foregoing reasons, Appellants have not shown the Examiner
erred in rejecting representative claim 1. We accordingly sustain the
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rejection of claim 1 and represented claims 3-6, 9, 10, 12-15, 18-20, 22,
23, 25, 26, 30, and 32.
With respect to claims 2, 24, and 31, Appellants merely contend Lee
does not cure the asserted deficiencies of the Wischhof-Qu combination (see
supra). App. Br. 7. As we find no such deficiencies, we sustain the
rejection of claims claims 2, 24, and 31.
With respect to claims 7, 8, 11, 16, 17, 21, and 27-29, Appellants
merely reiterate the arguments asserted against the Wischhof-Qu
combination (see supra) and contend Schmitz does not cure the asserted
deficiencies. App. Br. 7-8. As we find no such deficiencies, we sustain the
rejection of claims 7, 8, 11, 16, 17, 21, and 27-29.
DECISION
The Examiner's decision rejecting claims 1-32 is affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § l.136(a)(l)(iv).
AFFIRMED
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