Ex Parte Haggar et al

Patent Trial and Appeal Board

Mar 31, 2016

13309655 (P.T.A.B. Mar. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/309,655 12/02/2011
58505 7590 04/04/2016
STEVENS & SHOWALTER, LLP,
BOX IBM
7019 CORPORATE WAY
DAYTON, OH 45459-4238
FIRST NAMED INVENTOR
Jeffrey Douglas Haggar
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.
RSW920010036US3/IBM008N2A 1045
EXAMINER
LEE, ANDREW CHUNG CHEUNG
ARTUNIT PAPER NUMBER
2411
NOTIFICATION DATE DELIVERY MODE
04/04/2016 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):
PTO@sspatlaw.com
ssllp@speakeasy.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY DOUGLAS HAGGAR, LAP THIET HUYNH,
and MAURICE ISREL JR.
Appeal2014-008376
Application 13/309,655
Technology Center 2400
Before JENNIFER L. McKEOWN, NATHAN A. ENGELS, and
NORMAN H. BEAMER, Administrative Patent Judges.
McKEOWN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-19, which constitute all the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
Appeal2014-008376
Application 13/309,655
STATEMENT OF THE CASE
Appellants' invention relates to "an improved data processing system,
and in particular to a method and apparatus for managing the flow of data in
a network data processing system. Still more particularly, the present
invention provides a method, apparatus, and computer implemented
instructions for managing traffic for a set of network connections." Spec.
1:14--20.
Claim 1 is illustrative and reads as follows:
1. A method in a data processing system for managing
traffic in a network data processing system, the method
compnsmg:
monitoring at a server traffic for each of a plurality of
TCP connections or UDP associations through a given network
path; and
prior to sending a packet on a selected TCP connection or
UDP association within the plurality of TCP connections and
UDP associations, determining, by the server, if the packet will
cause the traffic for the network path to exceed a level of traffic
allowed for the network path and, if the packet will cause the
traffic for the network path to exceed the level, further
determining, by the server, if the packet will cause the traffic
for the selected TCP connection or UDP association to exceed
its fair share amount of the network path and if so, reducing, by
the server, the traffic for the selected TCP connection or UDP
association using an action based on a transmission protocol
corresponding to the selected TCP connection or UDP
association.
THE REJECTIONS
The Examiner rejected claims 1-5 on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over claims 1, 2, 6,
and 7 of U.S. Patent No. 8,130,647 B2 (Mar. 6, 2012). Final Act. 5-7.
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Application 13/309,655
The Examiner rejected claims 1-5 on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over claims 1, 2, 4,
and 5 of U.S. Patent No. 7,542,419 (June 2, 2009)). Final Act. 8-9.
The Examiner rejected claims 1-7, 9-16, 18, and 19 under 35 U.S.C.
§ 103(a) as unpatentable over Wilson (US 2001/0032269 Al; Oct. 18, 2001)
and Sabry et al. (US 6,628,612 Bl; Sept. 30, 2003). Final Act. 10-18. 1
The Examiner rejected claims 8 and 17 under 35 U.S.C. § 103(a) as
unpatentable over Wilson, Sabry, and Ong (US 7 ,304,948 B 1; Dec. 4, 2007).
Final Act. 18-19.
THE DOUBLE PATENTING REJECTIONS
Appellants do not challenge either rejection of claims 1-5 under the
obviousness-type double patenting. See App. Br. 4 (Noting that an
appropriate terminal disclaimer would be filed with respect to the
obviousness-type double patenting rejection). As such, we summarily affirm
the rejections of claims 1-5 for obviousness-type double patenting.
THE OBVIOUSNESS REJECTIONS BASED ON
WILSON AND SABRY
The Examiner finds that Wilson teaches the recited elements of claim
1 except "Wilson does not disclose explicitly [state] if the packet will cause
the traffic for the network path to exceed a level of traffic allowed for the
1 Throughout this opinion, we refer to (1) the Appeal Brief, filed March 26,
2014 ("App. Br."); (2) the Examiner's Answer, mailed June 5, 2014
("Ans."); (3) the Examiner's Final Action, mailed October 23, 2013 ("Final
Act."); and (4) the Reply Brief, filed July 31, 2014 ("Reply Br.").
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Application 13/309,655
network path." Final Act. 11. The Examiner, however, relies on Wilson in
combination with Sabry for this limitation. Id. at 11-12.
Appellants contend that Sabry fails to teach determining if the packet
will cause the traffic for the network path to exceed an allowed level of
traffic for the path. App. Br. 9-10. According to Appellants, Sabry instead
determines whether to establish a connection based on a projected
bandwidth estimation. Id. at 10. Additionally, Appellants argue that Wilson
does not teach determining if the packet will cause the traffic for the selected
TCP connection of UDP association to exceed its fair share amount of the
network path. Specifically, Appellants assert that "[i]n Wilson, there is
simply no discussion of 'fair share amount."' App. Br. 11. Appellants also
point out that the Examiner relies on Wilson's sending switch as performing
the recited determining if the packet will exceed a traffic level threshold, but
Wilson's sending host for performing the recited determining if the packet
will exceed its fair share amount. Reply Br. 5. According to Appellants,
claim 1 requires the same server to perform both recited steps.
ISSUE
Under Section 103, has the Examiner erred in rejecting the claimed
invention by finding that Wilson and Sabry combined teaches "determining .
. . if the packet will cause the traffic for the network path to exceed a level of
traffic allowed for the network path" and "determining ... if the packet will
cause the traffic for the selected TCP connection or UDP association to
exceed its fair share amount of the network path" as recited in claim 1?
ANALYSIS
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Appeal2014-008376
Application 13/309,655
Claims 1-7, 9-16, 18, and 19
Based on the record before us, we are not persuaded that the Examiner
erred in rejecting claims 11-7, 9-16, 18, and 19 as unpatentable over Wilson
and Sabry.
Appellants' argument with respect to Sabry is unpersuasive.
Appellants contend that claim 1 "particularly describes consideration of a
packet of one of the TCP connections or UDP associations being
monitored." App. Br. 10. Thus, because there is no already existing TCP
connections or UDP associations being monitored, Sabry cannot teach the
recited determining step. Id.; Reply Br. 6-7; see also App. Br. 13-14
(presenting similar arguments for claim 6).
Appellants' argument, however, fails to consider the combination of
Sabry together with Wilson as proposed by the Examiner. See, e.g., Final
Act. 10-12. Namely, Sabry is directed to managing and controlling traffic
and congestion in networks. See Sabry, col. 1, 11. 6-28. Sabry generally
teaches it is beneficial to determine if a packet will exceed an allowed level
of traffic for a yet to be established network path connection. Sabry, col. 1,
11. 13-28; col. 6, 11. 1-12; col. 6, 11. 55-63; see also Final Act. 11-12.
Wilson, though, describes monitoring of the server traffic over already
established network paths. These teachings together would at least suggest
to a skilled artisan modifying Wilson, in view of Sabry, to determine if a
packet will cause the traffic to exceed an allowed level of traffic for the
already established network path.
Appellants additionally argue that Wilson fails to teach determining if
the packet will cause traffic for the selected TCP connection or UDP
association to exceed its fair share amount of the network path. App.
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Application 13/309,655
Br. 11-12. Appellants argue that "determining a percentage of marked
packets in a network path, as done by the sending TCP host of Wilson, is not
analogous to" the recited determining if the packet will exceed its fair share
amount of the network path. Reply Br. 6; see also App. Br. 11-12.
Appellants' argument is unavailing. Wilson, prior to sending a
packet, will use fairness principles to optimize data throughput and then
decrease the data transfer rate in response to this calculation. In other words,
Wilson determines, prior to a new send window, the fair share of a network
path for each of the connections or associations (new send window) and
reduces the number of packets if necessary. See, e.g., Wilson i-f 63; Ans. 6.
As such, we are not persuaded that the Examiner erred in these findings.
Finally, Appellants also argue that the Examiner erred by relying on
Wilson's sending switch for teaching the determination of exceeding
allowed traffic level and Wilson's sending host for teaching the determining
of exceeding the fair share amount of the network path. Reply Br. 5.
According to the Appellants, these determinations must both be by the same
recited server.
This argument fails to consider that the Examiner merely notes that
Wilson implicitly teaches this limitation and combines Wilson with Sabry
for teaching determining whether the packet will cause traffic to exceed the
allowed level for the network path. One cannot show nonobviousness by
attacking references individually where the rejections are based on
combinations of references. See In re Keller, 642 F.2d 413, 426 (CCPA
1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). As
such, we find this argument unpersuasive.
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Accordingly, for the reasons discussed above and by the Examiner,
we are not persuaded that the Examiner erred in rejecting claims 1 and 62 as
well as claims 2-5, 7, 9-16, 18 and 19, not argued with particularity, as
unpatentable over Wilson and Sabry.
THE OBVIOUSNESS REJECTIONS BASED ON
WILSON, SABRY, AND ONG
Claims 8 and 17
With respect to claims 8 and 17, Appellants rely on the argument
presented for claims 6 and 11. For the reasons discussed above, we find
these arguments unpersuasive. Accordingly, for the reasons discussed above
and by the Examiner, we are not persuaded that the Examiner erred in
rejecting claims 8 and 17 as unpatentable over Wilson, Sabry, and Ong.
CONCLUSION
The Examiner did not err in rejecting claims 1-19.
2 In the Reply Brief, Appellants argue, with respect to claim 6, that a skilled
artisan would not combine Wilson and Sabry because Wilson is directed to
an already established network connection which is in "direct contrast" to
the principles of operation of the system of Sabry. Reply Br. 8. This
argument, however, was raised for the first time in the Reply Brief and is
therefore waived as untimely. Compare Reply Br. 8 with App. Br. 13-14.
See Exparte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative)
("[The reply brief [is not] an opportunity to make arguments that could have
been made in the principal brief on appeal to rebut the Examiner's
rejections, but were not."). Moreover, we note that "[t]he test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference.... Rather, the
test is what the combined teachings of those references would have
suggested to those of ordinary skill in the art." In re Keller, 642 F.2d 413,
425 (CCPA 1981).
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Appeal2014-008376
Application 13/309,655
DECISION
We affirm the Examiner's decision to reject claims 1-19.
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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