Ex Parte Kambhatla

Patent Trial and Appeal Board

Aug 17, 2016

12821306 (P.T.A.B. Aug. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/821,306 06/23/2010
47795 7590 08/19/2016
TROP, PRUNER & HU, P.C.
c/o CPA Global
900 2nd A venue South, Suite 600
Minneapolis, MN 55402
FIRST NAMED INVENTOR
Srikanth Kambhatla
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.
ITL.2322US (P34958) 3730
EXAMINER
SCOTT, RANDY A
ART UNIT PAPER NUMBER
2453
NOTIFICATION DATE DELIVERY MODE
08/19/2016 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):
tphpto@tphm.com
Inteldocs _ docketing@cpaglobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SRIKANTH KAMBHATLA
Appeal2015-001239
Application 12/821,306
Technology Center 2400
Before JOHN A. JEFFERY, BRADLEY W. BAUMEISTER, and
DENISE M. POTHIER, Administrative Patent Judges.
BAUMEISTER, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Under 37 C.F.R. § 41.52, Appellant submitted a timely Request for
Rehearing dated July 27, 2016 ("Request"), requesting rehearing of the July
1, 2016 opinion ("Op.") reversing the Examiner's rejection of claims 1-24,
and newly rejecting claims 1, 11, and 21 under§ 102(e). Op. 13.
We have reconsidered the Opinion in light of Appellant's comments
in the Request. Our decision is not modified for the reasons discussed
below.
Appeal2015-001239
Application 12/821,306
ANALYSIS
I
Appellant argues that in making a new ground of rejection, the Board
must address all pending claims-not just the independent claims.
Request 2. According to Appellant, the Examiner has no authority to initiate
a new ground of rejection except under very limited circumstances.
Id. (citing MPEP § 1214.04 (9th ed. Rev. 07.2015, Nov. 2015)).
Appellant's argument is unpersuasive. Our authority to enter a new
ground of rejection is discretionary. See 37 C.F.R. § 41.50(b) (stating, inter
alia, that should the Board have knowledge of any grounds not involved in
the appeal for rejecting any pending claim, it may include in its opinion a
statement to that effect with its reasons for so holding, and designate such a
statement as a new ground of rejection of the claim) (emphases added).
The Manual of Patent Examining Procedure provides further guidance
on how the Office interprets Rule 41.50(b): "Under 37 CPR 41.50(b), the
Board may, in its decision, make a new rejection of one or more of any of
the claims pending in the case, including claims which have been allowed by
the examiner." MPEP § 1213.02 (emphases added). Moreover, "no
inference should be drawn from a failure to exercise [our] discretion." Id.
In other words, Rule 41.50(b) clearly sets forth that the Board need not reject
every pending claim. And our decision not to reject every claim, as is the
case here, does not mean that the remaining claims are necessarily
patentable. See id.
As for the Examiner's authority to initiate a new ground of rejection
after a Decision by the Board, the MPEP states that if the Examiner "has
specific knowledge of the existence of a particular reference," the Examiner
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"should submit the matter to the Technology Center (TC) Director" for
authorization to reopen prosecution and enter a new rejection.
MPEP § 1214.04, quoted in Request 2. Here, the Examiner has specific
knowledge of a new interpretation of the Jiang reference.
Even assuming for the sake of argument, then, that "the Examiner has
no authority to initiate new grounds of rejection except under very limited
circumstances," as Appellant asserts (Request 2), Appellant has not
explained sufficiently why the present situation fails to constitute one such
"very limited circumstance." The decision to reopen prosecution after our
decision reversing the Examiner's rejection is, then, a matter to be decided
by the Examining Corps-not the Board. MPEP § 1214.04. If the Examiner
determines that the remaining claims are unpatentable over Jiang, either
alone or combined with other prior art, for example, the Examiner "should
submit the matter" to the TC Director, as described in the above-quoted
MPEP section. Id.
II
In our original Opinion, we found that the intermediate device
corresponds to Jiang's wireless router 101. Op. 11 (citing Jiang i-f 3).
Wireless router 101 is configured to transmit packets from server 102 to
television 103. Op. 11 (citing Jiang i-f 3). These devices are part of a
network. See Jiang i-f 3. We further found that prioritized Quality of Service
(QoS) involves marking packets with a priority and transmitting them
according to their priority. Op. 11 (citing Jiang i-f 6). Because the relied-
upon network devices are part of the network that provides QoS, we found
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that each of Jiang's devices takes an action to implement the QoS technique.
Op. 11 (citing Jiang i-f 7).
Appellant argues on Rehearing that the Opinion does not contain a
basis or analysis to support the finding that Jiang's intermediate or receiving
device initiates an action based on the message. Request 3. Appellant
contends that although Jiang's sending device prioritizes a packet's
transmission, the Opinion lacks a reason why the intermediate and receiving
devices do as well. Id.
Appellant argues that priority transmission is met when packets are
transmitted by the sender without any action by the intermediate device or
the receiving devices. Id. Appellant further argues that in parameterized
QoS-an alternative to prioritized QoS-the sending devices reserves some
network resources before transmission starts. Id. According to Appellants,
this suggests that the sending device performs the entire the QoS service for
prioritized QoS as well. Id.
But even assuming, without deciding, that Appellant is correct that
only Jiang's sending device prioritizes transmission, Appellant's arguments
still would be unpersuasive. Claims 1, 11, and 21 only recite that the
devices "take an action specified in the message .... " So if the sender
prioritizes transmission, the receivers-i.e., wireless router 101 and
television 103-receive the packet sooner than they otherwise would had the
transmission not been prioritized. See Jiang i-f 6. This action-receiving a
data packet sooner-is specified in the message's priority marker. Id.
Nowhere does the claim require, for example, that each device read the
message type or determine the action indicated by the message type. Rather,
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claims 1, 11, and 21 only require that the devices "take an action specified in
the message .... "
Furthermore, Appellant's argument ignores Jiang's explanation that
QoS is used when "all network devices [plural] of a wireless network share
channel(s)." Jiang i-f 2 (emphasis added). That is, QoS is useful for dealing
with transmissions from multiple devices, not just transmissions from a
single sending device. Id.
For example, without QoS, Jiang explains that the transmission of a
high-definition video stream are affected by other applications on the
network. Id. i-f 4. Put in the context of the relied upon embodiment (see
Op. 11, citing Jiang i-f 3), if Jiang's wireless router 101 were transmitting this
high-definition video from media 102 to television 103 and another
application requiring a large amount of bandwidth uses the network, the
video stream playback will be affected. See Jiang i-f 4. If priority
transmission were met fully when packets are transmitted by the sender, as
Appellant's argue (Request 3), then prioritized QoS would be of little use in
the situation where the high-bandwidth application is executing on a device
other than the media server 102. That is, if the media server 102 shares the
channel with another device running the high-bandwidth application,
playback at television 103 will be affected. See Jiang i-f 3.
Instead, to address multiple devices sharing the same channel (see
id. i-f 2), data packets from media server 102 are marked with a higher
priority over packets from another device's application. See id. i-fi-1 3, 6.
Likewise, wireless router 101 sends those higher priority packets to
television 103 through the downlink channel. See id. In this way, traffic on
the shared channel is prioritized so that the video stream at television 103 is
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less affected by network conditions. See id. il 4. As such, we understand
Jiang to teach that all of the system's devices-not just the sending device-
prioritize transmissions.
Appellant further argues that there is no reason to presume that the
intermediate and receiving devices have a processor to implement the QoS.
Request 3. According to Appellant, Jiang' s wireless router could be a
"dumb" transmission device that simply routes and forwards. Id.
This argument is unpersuasive because Appellant provides
insufficient evidence to suggest that Jiang uses a "dumb" transmission
device. See id. Rather, using a processor-less, dumb device to carry out the
disclosed protocol contradicts the express teachings of Jiang. Specifically, a
QoS technique at least depends on lower-layer protocols to access the media
for transmitting packets, and possibly, cooperation from upper-layer
protocols. Jiang i-f 8. For example, a QoS technique depends on the physical
and media-access layers-i.e., lower-layer protocols in the Open System
Interconnect (OSI) model. Id. These layers handle and process data packets
for transmission. Id. And as stated in the Opinion, configuring a network
device, like wireless router 101, to handle and process digital data inherently
requires a computer processor. Op. 12. Accordingly, we find no support for
Appellant's argument that Jiang's wireless router and television are "dumb"
transmission devices lacking processors (Request 2).
CONCLUSION
We discern no error in our conclusions regarding Jiang's teachings.
Accordingly, we decline to modify our decision.
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No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R.
§ 1.136(a)(l )(iv).
REHEARING DENIED
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