Ex Parte Hampel

Patent Trial and Appeal Board

Nov 30, 2016

13189914 (P.T.A.B. Nov. 30, 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.
13/189,914 07/25/2011 Karl Georg Hampel 810176-US-NP 1158
76614 7590 12/02/2016
Terry W. Kramer, Esq.
Kramer & Amado, P.C.
330 John Carlyle Street
3rd Floor
Alexandria, VA 22314
EXAMINER
ABU ROUMI, MAHRAN Y
ART UNIT PAPER NUMBER
2455
NOTIFICATION DATE DELIVERY MODE
12/02/2016 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):
mail@krameramado.com
ipsnarocp @ alcatel-lucent, com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KARL GEORG HAMPEL
Appeal 2015-006266
Application 13/1 89,9m1
Technology Center 2400
Before JAMES R. HUGHES, MONICA S. ULLAGADDI, and
JOHN D. HAMANN, Administrative Patent Judges.
HAMANN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant files this appeal under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claims 1—21. We have jurisdiction under
35 U.S.C. § 6(b). We reverse.
THE CLAIMED INVENTION
Appellant’s claimed invention relates to communication systems
having reliable session migration without requiring additional option headers
to each packet or inducing transmission delay, including by utilizing
1 According to Appellant, the real party in interest is Alcatel-Lucent USA
Inc. App. Br. 3.
Appeal 2015-006266
Application 13/189,914
aggregated checksums. Abstract. Claim 1 is illustrative of the subject
matter of the appeal and is reproduced below.
1. A method for migrating from a first path to a second path
in a stream-oriented communication session in a multipath
communication system, the method comprising:
at a processor communicatively coupled to a digital data
storage, setting the communication session to operate in a
selected path mode over the first path;
transmitting or receiving, by the processor in cooperation
with the digital data storage, a plurality of packets over the first
path;
aggregating, by the processor in cooperation with the
digital data storage, a first checksum based on the plurality of
packets;
wherein aggregating occurs at least in part while
transmitting or receiving;
performing, by the processor in cooperation with the
digital data storage, a checksum match, the checksum match
based on the first checksum; and
migrating, by the processor in cooperation with the
digital data storage, the communication session from the first to
the second path based on the checksum match.
REJECTION ON APPEAL
The Examiner rejected claims 1—21 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Srihari et al. (US 2010/0036861 Al;
published Feb. 11, 2010) (hereinafter “Srihari”) and Wu et al.
(US 2012/0226802 Al; published Sept. 6, 2012) (hereinafter “Wu”).
DISPOSITIVE ISSUE ON APPEAL
The dispositive issue for this appeal is whether the Examiner errs in
finding the cited portions of Wu teach or suggest “migrating . . . from the
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first path to the second path,” as recited in claims 1 and 15, and similarly
recited in claim 8.
ANALYSIS
We find Appellant’s arguments persuasive with respect to the cited
portions of Wu failing to teach or suggest the above dispositive, disputed
limitation.
Appellant argues the combination, and Wu in particular, fails to teach
or suggest the above disputed limitation. App. Br. 9-10; Reply Br. 7—8.
Appellant first argues the Examiner’s construction for “path” as including
“software paths” is incorrect. App. Br. 10. Rather, Appellant contends “one
skilled in the art would understand the term path in the context of
transmitting and receiving packets in a multipath communication system to
be the physical route in the communication system.” Id. Appellant cites
dictionary definitions supporting Appellant’s construction for path. See
Newton’s Telecom Dictionary (26th ed.)2 (stating “a path is defined as,
‘ [t]he physical route a telecommunications signal follows from transmitter to
receiver’”); Webster’s New World Telecom Dictionary (stating “a path is
defined as, ‘[i]n communications, the route between any two nodes”); see
also Wikipedia (visited on May 2, 2014) (stating “definition of multipath
routing is . . . ‘the routing technique of using multiple alternative paths
through a network, which can yield a variety of benefits such as fault
tolerance, increased bandwidth, or improved security’”).
2 We understand that the twenty-sixth edition was publicly released in
August, 2011. See http://fozblog.org/archives/42754 (last visited Nov. 21,
2016).
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Appellant also argues the Specification and the claim language
supports construing “path” to be the physical route in the communication
system. See App. Br. 9. As to the Specification, Appellant argues Figure 1
illustrates two separate physical paths (120-1 and 120-2) between two end
nodes (110-1 and 110-2). See id. (citing Fig. 1). Appellant also cites to the
following passage from the Specification in support:
“Various access networks may be available to end node 110-1
to participate in a communication session with end node 110-2
to communicate session packet data. An example of two such
paths is provided by paths 120-1 and 120-2. . . . Paths 120-1
and 120-2 include access networks 150 and 160 that may
directly route session packets to end node 110-1 or
subsequently route packets through the internet cloud 170 to
end node 110-2”.
Id. (citing Spec. 4,11. 11—20).
As to the claim language, Appellant cites claim 1 to argue the first and
second paths refer to the multipath communication system of the preamble,
and evidence a requirement of having two separate, physical paths. See id.',
see also Reply 7—8 (arguing the preamble should be given patentable weight
(i) because it is essential to the point of the invention defined by the claims
and (ii) preamble terms are included in the body of the claims).
Turning to the combination’s teachings, and Wu in particular,
Appellant argues Wu fails to teach or suggest the disputed limitation because
Wu fails to teach or suggest two physical paths. See id. Appellant argues
Wu instead teaches two operational modes (i.e., mode A and mode B),
which the Examiner describes as “software paths,” but which are not two
separate physical paths as required by the claims. See App. Br. 9—10 (citing
Final Act. 4 (citing Wu Tflf 133, 136)).
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Application 13/189,914
The Examiner finds “[t]he limitation ‘path’ to one of ordinary skill in
the art and in light of the specification may be implemented in hardware,
software or a combination of hardware and software.” Ans. 3. In support of
this construction, the Examiner also cites published patent applications for
how they use the term “path.” See Ans. 13—15 (finding references disclose a
software path through the storage operating system layers, a virtual or
software path to migrate from a LAN to a WAN connection, and selecting a
different I/O software path to resend a request to a storage array). The
Examiner also finds “multipath communication system” is recited in the
preamble and should not be afforded patentable weight because it merely
recites the purpose or intended use of the claims. See Ans. 8—9.
As to Wu, the Examiner finds “[o]ne of ordinary skill in the art would
understand that Wu teachings of modes A and B to be ‘first path to a second
path.’” Ans. 4 (citing Wu 1122 (finding “various events could cause the
receiver device to switch between mode A and mod[e] B”)). For mode A,
the Examiner finds the sender transmits a checksum-match to notify the
receiver that the transparent middlebox assumption is true, and the sender
therefore does not have to use a receiver checksum to validate that feedback
is from the receiver. See Ans. 9 (citing Wu 1133). For mode B, the
Examiner finds the sender determines whether the received message
contains a predefined receiver option (either an MPTCP-specific option or a
Receiver Originated Flag), and if so, the sender uses the subflow-level
acknowledgment from the receiver. See Ans. 9-10 (citing Wu 1136).
We are persuaded by Appellant’s arguments. We agree with
Appellant that the Examiner’s construction for “path” is incorrect. Although
“the PTO must give claims their broadest reasonable construction consistent
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with the specification^]. . . claims should always be read in light of the
specification and teachings in the underlying patent.” In re Suitco Surface,
Inc., 603 F.3d 1255, 1259-60 (Fed. Cir. 2010) (citation omitted); Microsoft
Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015). We find one
of ordinary skill in the art, in light of the Specification and claim language,
would have understood path to mean a physical route in a communication
system. The Specification clearly uses the term “path” in the context of a
separate physical route. See Spec. Fig. 1; 4,11. 11—20. The claim language
also uses the term path in the context of a multipath communication system
(which has multiple physical paths), and we agree with Appellant that the
preamble should be given patentable weight, including because it is relied
upon by the first and second path limitations in the body of the claim for
antecedent basis. We also note that it also further informs one of ordinary
skill in the art of the meaning of path ascribed by Appellant. Furthermore,
we find the dictionary definitions for path cited by Appellant (i.e., defining
paths as physical routes) consistent with the Specification, while finding the
published patent applications cited by the Examiner (i.e., defining paths as
including software and virtual paths) are not consistent with the
Specification. See Spec. Fig. 1; 4,11. 11—20; see also Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1584 n.6 (Fed. Cir. 1996) (“[We] may []
rely on dictionary definitions when construing claim terms, so long as the
dictionary definition does not contradict any definition found in or
ascertained by a reading of the patent documents.”).
Lastly, in light of our construction for path, we agree with Appellant
that the cited portions of Wu fail to teach or suggest “migrating . . . from the
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first path to the second path” because they fail to teach or suggest physical
paths. See Wu^ 133, 136.
Accordingly, we do not sustain the Examiner’s § 103(a) rejection of
claims 1, 8, and 15, as well as claims 2—7, 9-14, and 16—21, which depend
from one of these claims.
DECISION
We reverse the Examiner’s decision rejecting claims 1—21.
REVERSED
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