Ex Parte Hyslop et al

Patent Trial and Appeal Board

Jun 10, 2016

12027202 (P.T.A.B. Jun. 10, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/027,202 02/06/2008
23446 7590 06/14/2016
MCANDREWS HELD & MALLOY, LTD
500 WEST MADISON STREET
SUITE 3400
CHICAGO, IL 60661
FIRST NAMED INVENTOR
Bradley Thomas Hyslop
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.
E070002USU1 4379
EXAMINER
NGO, NGUYEN HOANG
ART UNIT PAPER NUMBER
2473
NOTIFICATION DATE DELIVERY MODE
06/14/2016 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):
mhmpto@mcandrews-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRADLEY THOMAS HYSLOP, ABUL QASEM SAFDAR,
ROBERT L. HARE JR., ZONG LIANG WU, INDERJIT SINGH, and
SHLOMO OV ADIA
Appeal2014-009955
Application 12/027,202
Technology Center 2400
Before JOHN A. JEFFERY, BRADLEY W. BAUMEISTER, and
DENISE M. POTHIER, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-22, 28, and 29. Claims 23-27 have been
canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
Appeal2014-009955
Application 12/027,202
STATEMENT OF THE CASE
Appellants' invention is a quality-of-service (QoS) protocol in a
network. Spec. ,-r 2. When many applications share the same network, a
bandwidth-intensive application may degrade the QoS of more important
applications. Id. ,-r 5. To ensure a performance level for guaranteed data
flows, one embodiment uses parameterized QoS. Id. ,-r 21. During a set-up
process, a Network Coordinator and nodes exchange requests and responses
to establish this performance level. Id.; see also id. ,-r 81. The Network
Coordinator is responsible for scheduling traffic for the network's nodes,
among its other roles. Id. ,-r 4. Claim 1, reproduced with our emphasis, is
illustrative:
1. A communication method, comprising:
broadcasting from a Network Coordinator to a plurality of
nodes connected to a network, a request for a guaranteed quality
of service flow in a network from a source node to one or more
egress nodes, the plurality of nodes to which the Network
Coordinator broadcasts the request includes at least the source
node and the at least one egress node;
receiving a first response to the request from the source
node, wherein the source node is the point of origin for the
purposes of guaranteed quality of service flow for data to be
communicated within the guaranteed quality of service flow, the
first response indicating whether the source node has available
resources to transmit the guaranteed quality of service flow;
receiving a second response to the request from the at least
one egress node indicating whether the at least one egress node
has available resources to receive the guaranteed quality of
service flow; and
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Application 12/027,202
allocating resources within the Network Coordinator for
the guaranteed quality of service flow if the source node has
available resources to transmit, and the at least one egress node
has available resources to receive, the guaranteed quality of
service flow.
THE REJECTIONS
The Examiner rejected claims 1-5, 11, 13-15, 28, and 29 1,2 under
35 U.S.C. § 102(b) as anticipated by Golden (US 6,272,127 Bl; patented
Aug. 7, 2001). Final Act. 2-5. 3
The Examiner rejected claims 6-10, 12, and 16-22 under 35 U.S.C.
§ 103(a) as unpatentable over Golden and Carlson (US 2007/0002821 Al;
published Jan. 4, 2007). Final Act. 6-8.
1 The Examiner states that claims 19 and 20 are rejected under§ 102(b). See
Final Act. 4--5. But claims 19 and 20 depend from claim 16, which is
rejected under§ 103(a) (id. at 6). Appellants did not contest this
inconsistency. See Br. 8-16. For the purposes of this appeal, we treat this
inconsistency as harmless error and for clarity, we present the proper
correspondence between the rejections and claim numbers.
2 Like claims 19 and 20, claim 22 is rejected under § 102(b ). See
Final Act. 5. But claim 22 depends from claim 12, which is rejected under
§ 103(a) (id. at 8). Appellants did not contest this inconsistency. See Br. 8-
16. Furthermore, claim 22 recites a product-namely, a storage medium.
Yet claim 22 depends from claim 12, which recites a method. Accordingly,
we treat claims 22' s dependency as a typographical error and presume that
claim 22 depends from claim 21, not claim 12. We treat claim 22 similar to
claims 19 and 20, presuming that claim 22 is rejected under § 103.
3 Throughout this opinion, we refer to (1) the Final Rejection mailed June
26, 2013 ("Final Act."); (2) the Appeal Brief filed May 28, 2014 ("Br."); and
(3) the Examiner's Answer mailed July 17, 2014 ("Ans.").
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Application 12/027,202
THE ANTICIPATION REJECTION
Contentions
The Examiner finds that Golden discloses every recited element of
claim 1, including the guaranteed-QoS flow between the source node and
egress nodes. Final Act. 2--4. According to the Examiner, Golden's
premises switches (e.g., 110-A and 110-B) and network-control-system
server 40 correspond to the recited nodes and Network Coordinator,
respectively. Id. at 2 (citing Golden col. 54, 11. 60-67); Ans. 2.
Appellants argue that Golden lacks the guaranteed QoS flow between
the source node and egress nodes. Br. 9-10. According to Appellants, a
switch is not a node. Id. In Appellants' view, Golden shows this distinction.
Id. at 10. In particular, Appellants contend that Golden's nodes include
workstations 100 and switches route network traffic. Id. at 10 (citing
Golden col. 6, 11. 18-38; col. 25, 11. 23--43; col. 25, 1. 63 to col. 26, 1. 56).
Appellants further contend that Golden lacks a source node as recited.
Br. 10-12. According to Appellants, claim 1 requires that the source node is
the data's point of origin. Id. at 11. Appellants argue that the Examiner
only shows that the premises switch-mapped to the source node-
originates connections, not data or data flows. Id. at 12. Appellants contend
that Golden's connections are merely physical/logical paths to transmit data,
rather than the data's origin. Id.
In Appellants' view, the Specification defines the terms "source node"
and "egress node." Id. at 11-12 (citing Spec. i-f 20). In particular,
Appellants contend that "source node" is a data flow's point of origin, where
the data is to be transmitted as recited. Br. 12.
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Application 12/027,202
Issue
Under§ 102, has the Examiner erred in rejecting claim 1 by finding
that Golden guarantees QoS flow between a source node and egress nodes?
Analysis
We begin by construing the key disputed limitation of claim 1, which
recites, in pertinent part, a "source node." Contrary to Appellants' argument
(Br. 11-12 (citing Spec. i-f 20)), Appellants have not defined "source node"
"with reasonable clarity, deliberateness, and precision" to so limit our
interpretation to the cited example. See In re Paulsen, 30 F.3d 1475, 1480
(Fed. Cir. 1994). In particular, the Specification discloses that the "source
device" could be a single ingress node. Spec. i-f 20. But the Specification
does not disclose that all source devices are required to be ingress nodes.
See id. So although this example informs our construction of "source node,"
the Specification does not define the term as limited to only ingress nodes.
Contrary to Appellants' definition of a "node" (Br. 11-12), Golden
defines nodes, quite broadly, as a functional point in the broadband network
connection topology. Golden, col. 6, 11. 7-9. Therefore, despite Golden's
labeling some elements specifically as nodes, such as the "local nodes" and
"city nodes" in column 5, lines 25 to 27, premises switch 110 is nevertheless
a node under a reasonable interpretation of Golden's definition because
switches are functional points for routing data in a network. See, e.g., id.
col. 25, 11. 23-32, cited in Br. 10. That Golden's Figure 19 shows a premises
switch 110 with a CPU 116 and other functioning components within a
network only bolsters the Examiner's position that this switch reasonably
constitutes a node under Golden's definition.
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Application 12/027,202
Appellants point to Golden's discussion of switches and nodes to
support their position. Br. 10 (citing Golden col. 6, 11. 18-38). But the cited
discussion further supports the Examiner's interpretation that switches
reasonably are nodes. See Final Act. 2; see also Ans. 2. For example,
Golden's Figure 1 shows local nodes 50-1 to 50-n. Golden Fig. l; col. 5,
11. 24--25. Likewise, Figure 2 shows that local node 50 includes premises
switch 110. Id. col. 6, 11. 18-24. That is, Golden's local node has a switch
function. See id.
We are also unpersuaded by Appellants' argument that Golden's
connections are merely physical/logical paths to transmit data, instead of the
transmitted data's point of origin. Br. 12. Notably, claim l's source node is
not merely the data's origin generally. Rather, we agree with the Examiner
that the recited node is the origin for guaranteed QoS purposes. See Ans. 3-
4. That is, claim l's source node (1) must satisfy the guaranteed QoS
purpose, and (2) must be the data's point of origin for that purpose.
Golden's switch satisfies the guaranteed QoS purpose because the
route's QoS is based on the switch's available bandwidth. Golden col. 54,
11. 66 to col. 55, 11. 1. Specifically, switches 110 send their available
bandwidth to server 40. Id. col. 54, 11. 66 to col. 55, 11. 1. Server 40 then
identifies and reserves a suitable route based on the switch's responses and
the required bandwidth-i.e., the guaranteed QoS. See id. col. 38, 11. 1-15.
Furthermore, Golden's switch is the data's origin for the devices
along this identified route. See Final Act. 9 (citing Golden col. 38, 11. 1-21;
Figs. 47, 49). For example, workstation 100-A transmits data via interface
140-A to switch 110-A, which, in tum, transmits data to city nodes 10-A,
and so on, to reach workstation 100-B. See Golden Fig. 49. Because switch
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110 originates and terminates connections in the route (see id. col. 38, 11. 1-
15), the switch begins---or is the origin of-the data flow's route.
Accordingly, we agree that Golden's switches reasonably are deemed
to be the recited point of origin, because ( 1) the route's QoS is based on the
switch's available bandwidth (id. col. 38, 11. 1-15, cited in Final Act. 9), and
(2) Golden's switches begin that route (see Golden Fig. 49, cited in
Final Act. 3).
Accordingly, we sustain the Examiner's rejection of claim 1, as well
as claims 2-5, 11, 13-15, 28, and 29, not argued separately with
particularity. See Br. 12; see also Br. 11 n.1 (noting that independent claims
13 and 28 recite similar limitations to those in claim 1 ).
THE OBVIOUSNESS REJECTION
I
Appellants argue that the Examiner's Final Rejection does not contain
a response to Appellants' arguments. Br. 14. According to Appellants, the
Examiner merely repeated the rejection without answering the arguments
accompanying Appellants' response. Id. (citing Final Act. 5-8). In
Appellants' view, the Examiner's lack of a response shows that the Final
Action is improper. Br. 14 (citing Manual of Patent Examining Procedure
(MPEP) § 707.07(f)).
To the extent that Appellants' arguments are directed to an allegedly
improper procedure used by the Examiner in finally rejecting the claims,
such arguments are petitionable-not appealable-matters, and are,
therefore, not before us. See MPEP § 1201, Rev. 07.2015, 9th ed., (Nov.
2015) ("The Board will not ordinarily hear a question that should be decided
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Application 12/027,202
by the Director on petition .... "). And to the extent that Appellants'
arguments pertain to the substance of the rejection itself, we are unpersuaded
by such arguments for the reasons noted below.
II
Appellants further argue that Carlson lacks a Network Coordinator
broadcasting, as recited, from a source node to one or more egress nodes.
Br. 14. In Appellants' view, Carlson's source node transmits a request over
a transmission path to a destination node via intermediate nodes. Id. (citing
Carlson i-fi-1 42--43).
Although this argument appears under a heading that refers to claims
6-10, 12, 16, 17 and 18, Appellants do not point to any specific claim in
connection with this argument. See Br. 14. Rather, Appellants' argument
refers to limitations that appear in independent claims 1 and 13. See id. As
discussed above, the Examiner finds that Golden, not Carlson, discloses the
Network Coordinator, source node, egress node(s), and the corresponding
responses and messages recited in claims 1 and 13. Final Act. 2--4.
Accordingly, Appellants' arguments directed to Carlson (Br. 14) are
unpersuasive because the arguments are not germane to the Examiner's
rationale when rejecting claims 1 and 13 (Final Act. 2--4).
III
Appellants' additional arguments refer explicitly to claims 6-8, 16,
and 17. Br. 15. According to Appellants, these claims recite that the
Network Coordinator receives from the source node time-slot, packet size,
and bandwidth information originatedfrom the source node. Id. Appellants
contend that Carlson's source node makes a request to the destination node
and the information is reported to, notfrom, the source node. Id.
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But the Examiner does not rely on Carlson for the recited message's
sequence, timing, and origin. See Final Act. 6-7. Rather, the Examiner
finds that Golden discloses the Network Coordinator, source node,
destination node, and corresponding message sequence, timing, and origin.
Final Act. 2--4; see also Ans. 4--5 (citing Golden col. 45, 11. 20-26; col. 55,
11. 1-25; Figs. 47, 49). The Examiner, however, finds that Golden's
responses lack the time-slot, packet size, and bandwidth information recited
in claims 6-8, 16, and 17. Final Act. 6-7.
In concluding that claims 6, 8, and 16 would have been obvious, the
Examiner additionally cites Carlson for the limited purpose of showing that
resource reservation for a period is known. Id. at 6. Regarding claims 7 and
17, the Examiner further cites Carlson for the limited purpose of showing
that determining the available resources' acceptability is known. Id. at 6-7.
The Examiner concludes that it would have been obvious to modify
Golden's received response with Carlson's teachings to arrive at the claimed
responses including time-slot, packet size, and bandwidth information. Id.
Therefore, Appellants' arguments do not squarely address, let alone
persuasively rebut, the Examiner's rejection. See Br. 14--15.
Accordingly, we sustain the Examiner's rejection of claims 6-10,4 12,
16-22.
4 We note in passing that claims 6-10 include a step performed only ifthe
received response satisfies a condition. Notably, the Federal Circuit has held
that "[i]f the condition for performing a contingent step is not satisfied, the
performance recited by the step need not be carried out in order for the
claimed method to be performed." Cybersettle, Inc. v. Nat 'l Arbitration
Forum, Inc., 243 F. App'x 603, 607 (Fed. Cir. 2007) (unpublished); see also
Applera Corp.-Applied Biosystems Grp. v. Illumina, Inc., 375 F. App'x 12,
21 (Fed. Cir. 2010) (unpublished) (affirming a method claim's interpretation
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CONCLUSION
The Examiner did not err in rejecting (1) claims 1-5, 11, 13-15, 28,
and 29 under§ 102, and (2) claims 6-10, 12, and 16-22 under§ 103.
DECISION
The Examiner's decision rejecting claims 1-22, 28, and 29 is
affirmed.
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
as including a step that need not be practiced if the condition for practicing
the step is not met). The Examiner, however, did not articulate such a
construction. See Final Act. 6-7. Nor will we speculate in that regard here
in the first instance on appeal.
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