Ex Parte Knazik et al

Patent Trial and Appeal Board

Aug 12, 2013

11454206 (P.T.A.B. Aug. 12, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte ROBERT J. KNAZIK, DONALD L. SMITH, and
ANTHONY P. GALLUSCIO

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Appeal 2011-000129
Application 11/454,206
Technology Center 2400
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Before JOSEPH F. RUGGIERO, KALYAN K. DESHPANDE, and
JOHN G. NEW, Administrative Patent Judges.

NEW, Administrative Patent Judge.

DECISION ON APPEAL

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SUMMARY
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claims 1-20 as unpatentable under 35 U.S.C.
§ 103(a). Specifically, claims 1-3, 12-14 and 17-20 stand rejected as being
obvious over the combination of Duong et al. (US 7,349,422 B2, March 25,
2008) (“Duong”) and Thompson, III et al. (US 2004/0131014 A1, July 8,
2004) (“Thompson”).
Claims 4 and 7 stand rejected as being obvious over the combination
of Duong, Thompson, and Bess et al. (US 7,337,236 B2, February 26,
2008) (“Bess”).
Claim 5 stands rejected as being obvious over the combination of
Duong, Thompson, and Polit et al. (US 6,407,998 B1, June 18, 2002)
(“Polit”).
Claim 6 stands rejected as being obvious over the combination of
Duong, Thompson, and Lohr et al. (US 2007/0275728 A1, November 29,
2007) (“Lohr”).
Claims 8, 9, and 15 stand rejected as being obvious over the
combination of Duong, Thompson, and Ruutu (US 6,940,813 B2,
September 6, 2005) (“Ruutu”).
Claims 10, 11, and 16 stand rejected as being obvious over the
combination of Duong, Thompson, and Thompson et al. (US 2002/0062395
Al, May 23, 2002) (“Thompson ’395”).
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

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NATURE OF THE CLAIMED INVENTION
Appellants’ invention is directed to a method and system for
communicating inbound network data to provide quality of service
(“QoS”). The method includes receiving data from an application,
prioritizing the data by assigning a priority to the data, and communicating
the data over a network based at least in part on the priority of the data.
The data priority is based at least in part on message content. The system
includes a data prioritization component adapted to prioritize data by
assigning a priority to the data and a data communications component
adapted to receive the data from an application and to communicate the data
over a network based at least in part on the priority of the data. The data
priority is based at least in part on message content. Abstract.

GROUPING OF CLAIMS

Appellants argue that the Examiner erred for essentially the same
reasons with respect to claims 1-20. App. Br. 15, 18-22. We therefore
select claim 1 as representative. Claim 1 recites:

1. A method for communicating outbound network data to
provide quality of service, the method including:

receiving data from an application;

prioritizing the received data by assigning a priority to
the received data to provide quality of service, wherein the
priority of the received data is based at least in part on message
content, wherein the receiving and prioritizing steps occur at
least one of:

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in a transport layer of a network communications
protocol stack of a data communication system, and

at a top of the transport layer of the network
communications protocol stack of the data
communication system; and

communicating the prioritized data over a network based
at least in part on the priority of the prioritized data.

App. Br. 25.
Appellants also argue that claim 12 is separately patentable over the
cited prior art references. Claim 12 recites:
12. The method of claim 1, wherein the prioritizing step is
transparent to an application program.

App. Br. 27.

ISSUES AND ANALYSES
A. Independent claim 1
Issue 1
Appellants argue that the Examiner erred in finding that the
combination of Duong and Thompson teaches or suggests the limitation of
claim 1 reciting “wherein the receiving and prioritizing steps occur at least
one of: in a transport layer of a network communications protocol stack of a
data communication system, and at a top of the transport layer of the
network communications protocol stack of the data communication
system.” App. Br. 10. We therefore address the issue of whether the
Examiner so erred.

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Analysis
Appellants argue that claim 1 recites “[a] method for communicating
outbound network data to provide quality of service” and claims receiving
data from an application, prioritizing the received data, and communicating
the prioritized data over a network. App. Br. 11. As such, argue
Appellants, claim 1 defines the data that is received, prioritized and
communicated over a network as outbound network data. Id.
Appellants contend further that the language of claim 1 reciting “the
receiving and prioritizing steps occur at least one of: in a transport layer of
a network communications protocol stack of a data communication system,
and at a top of the transport layer of the network communications protocol
stack of the data communications system” claims the receiving and
prioritizing of the outbound network data occurs in and/or at the top of a
transport layer of the network communications protocol stack of the data
communication system. App. Br. 11.
Appellants point out that the Examiner has acknowledged that Duong
fails to teach receiving and prioritizing outbound network data in and/or at
the top of a transport layer of the network communications protocol stack of
the data communication system. App. Br. 12 (citing Final Office Action, p.
4, ll. 4-8). However, argue Appellants, Thompson likewise fails to teach or
suggest the same limitation. App. Br. 12.
Specifically, Appellants argue that Thompson fails to disclose that
the receiving and prioritizing of the outbound network data occurs in or at
the top of a transport layer of the network communications protocol stack of
the data communication system. App. Br. 12. According to Appellants,
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Thompson teaches that priority data requests are not communicated over a
network, but are rather sent from applications to the transport layer in a
client device. Appellants argue that the transport layer sorts the priority
requests and requests the highest priority inbound data from the network
layer; the network layer then forwards the requested inbound data to the
application. Id. (citing Thompson, ¶ [0078], claim 51). Appellants
contend, therefore, that because Thompson teaches that priority data
requests are not communicated over a network, the combination of Duong
and Thompson fails to teach the receiving and prioritizing of the outbound
network data occurs in and/or at the top of a transport layer of the network
communications protocol stack of the data communication system, as
required by claim 1. App. Br. 12.
Appellants argue further that the transport layer taught by Thompson
does not prioritize requests by assigning a priority to the request, as the
Examiner suggests, but rather teaches that the applications prioritize the
requests and the transport layer merely uses the priority assigned to the
request by the application to sort through the requests from the various
applications. App. Br. 13-14 (citing Thompson, ¶¶ [0078], [0143], claim
51). Appellants argue, therefore, that Thompson’s teaching of sending a
data request with an assigned priority from the application to the transport
layer is different than assigning a priority to data received from an
application in and/or at a top of the transport layer. App. Br. 14.
The Examiner responds that, as an initial matter, the language of
claim 1 reciting “outbound network data” is not given patentable weight by
the Examiner, because the recitation occurs in the preamble and merely
recites the purpose of a process or the intended use of a structure, and the
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body of the claim does not depend on the preamble for completeness. Ans.
33-34 (citing In re Hirao, 535 F.2d 67, 70 (C.C.P.A. 1976); Kropa v. Robie,
187 F.2d 150, 152 (C.C.P.A. 1951).
The Examiner finds that Duong teaches scheduling for transmission
based on weighted priority (i.e., data can be transferred from a lower
priority queue to a network interface for delivery to an access point). Ans.
35 (citing Duong, Fig. 2, col. 9, ll. 14-15). Specifically, the Examiner finds
that Duong teaches or suggests assigning a priority to data received from an
application (i.e., a classification module can assign data with more
restrictive time constraints, such as, for example, voice over IP data or
stream video (“type of data”)), to a queue with a higher priority. Ans. 36.
Alternatively, the Examiner finds, the classification module can assign data
with less restrictive time constraints, such as, for example, file transfer data
or Web page data to a queue with a lower priority. Ans. 36-37 (citing
Duong, col. 8, ll. 65-67).
The Examiner finds that Thompson remedies the deficiencies of
Duong by teaching that the prioritizing steps occurs at least one of: in a
transport layer of a network communication protocol stack of a data
communication system (i.e., the transport layer receives data from
application and prioritizes data from application). Ans. 35 (citing
Thompson, Fig. 10, ¶ [0141]).
We are persuaded by the Examiner’s reasoning and adopt it as our
own. We agree with Appellants that Thompson does not teach priority
requests transmitted as outbound data over a network. However, the
Examiner is not citing Thompson for that purpose, but rather for the more
limited purpose of teaching that prioritizing steps occur in a transport layer
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of a network communication protocol stack of a data communication
system. See Ans. 35 (citing Thompson, Fig. 10, ¶ [0141]). It is well-settled
that all elements of each prior art reference need not read on the claimed
invention, rather, the proper test for obviousness is what the combined
teachings would have suggested to a person of ordinary skill in the art. See
In re Kotzab, 217 F.3d 1365, 1370 (Fed. Cir. 2000).
Thompson teaches that:
Each application is free to define the formatting of packets
associated with that application. The transport layer is unaware
of the semantics that are required by the application, and
instead is only concerned with the receipt and disbursement of
logical packets from the network layer. However, since
multiple applications are in contention for packets, the transport
layer must prioritize the requests for data from each application.

Thompson, ¶ [0141]; see Ans. 35. Thompson thus teaches that
prioritization occurs in the transport layer, as required by the language of
the disputed limitation reciting “wherein the receiving and prioritizing steps
occur at least one of: in a transport layer of a network communications
protocol stack of a data communication system.”
We further agree with the Examiner that Duong teaches receiving
data from an application, assigning a priority to the received data, and
transmitting it as outgoing data to a network access point. Ans. 35 (citing
Duong, Fig. 2, col. 9, ll. 5-16). We consequently find that the combined
prior art references teach or suggest the disputed limitation and conclude
that the Examiner did not err in so finding.

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Issue 2
Appellants argue that the Examiner erred in finding that an artisan of
ordinary skill would be motivated to combine the teachings of Duong and
Thompson. App. Br. 14. We therefore address the issue of whether the
Examiner so erred.

Analysis
Appellants argue that Thompson teaches quality of service with
respect to the data streams being broadcast from the broadcast server to
client devices, (i.e., incoming data). App. Br. 14. According to Appellants,
the priority data requests within a client device (i.e., a receiving device)
have nothing to do with transmission scheduling occurring at the broadcast
server (i.e., the transmitting device). Id. Appellants contend that
Thompson’s priority data requests are not even communicated over a
network, but rather are used to determine which incoming data streams are
forwarded to one or more applications. App. Br. 14-15. Appellants argue,
therefore, that an artisan of ordinary skill would not be motivated to
combine Thompson’s teachings of handling inbound data at a client device
with Duong’s teaching of prioritizing outbound data. App. Br. 15.
The Examiner responds that it would have been obvious to one of
ordinary skill in the contemporaneous art to modify Duong in view of
Thompson because Thompson suggests that the data streams are scheduled
for transmission based on weighted priorities including quality of service
metrics. Ans. 38 (citing Thompson, ¶ [0001]).
We are not persuaded by Appellants’ arguments. Duong and
Thompson are analogous art; both relate to QoS in wireless
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telecommunication networks. Compare Duong, Abstract with Thompson,
Abstract, see also Ans. 8. Moreover, both references teach prioritizing
information. We agree with the Examiner that one of ordinary skill in the
contemporaneous art would have been motivated to combine the
prioritizing system of Duong with Thompson’s teaching of prioritization in
the transport layer as a means of facilitating the prioritizing of outbound
information from the mobile device. We therefore conclude that the
Examiner did not err in finding that an artisan of ordinary skill would be
motivated to combine the teachings and suggestions of the cited prior art
references.

B. Dependent claim 12
Issue
Appellants argue that the Examiner erred in finding that the
combination of Duong and Thompson teaches or suggests the limitation of
claim 12 reciting “wherein the prioritizing step is transparent to an
application program.” App. Br. 18. We therefore address the issue of
whether the Examiner so erred.

Analysis
Appellants allege that the Examiner found that Duong’s disclosure of
a classification module 242 detecting a packet type corresponding to data
sent from applications 222 (at Duong, col. 8, ll. 42-45, 53-54, 65-67)
teaches the disputed limitation. App. Br. 18-19 (citing Final Office Action,
p. 6, ll. 1-15). However, argue Appellants, Duong explicitly states that the
disclosed application indicates higher priority data. App. Br. 19.
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Appellants argue therefore, that one of ordinary skill in the art would
understand that such priority indication is for the purpose of indicating a
priority to the known classification module. Id. (citing Duong, col. 3, ll. 29-
32).
The Examiner responds that Duong teaches that the prioritizing step
is transparent to an application program. Ans. 42. Specifically, the
Examiner finds that Duong teaches that a classification module 242 detects
packet types corresponding to data that is sent from applications, such as
electronic conference software, electronic mail clients, web browsers, etc.
Id. (citing Duong, Fig. 2; col. 8, ll. 42-67; col. 9, ll. 1-5; col. 1, ll. 60-64).
The Examiner finds that, based upon a detected packet type, the
classification module can assign data to a queue with higher priority, or a
queue with a lower priority. Id.
We agree with the Examiner’s reasoning. Duong teaches that:

when a classification module detects a Real Time Streaming
Protocol (“RTSP”) packet, the classification module may
classify the data contained [in] the RTSP packet as streaming
video and/or audio data. A classification module can assign
data to a queue based at least in part on the restrictiveness of
time constraints associated with the data.

Duong, col. 8, ll. 58-64; see Ans. 42. Duong thus teaches that the
classification module classifies the RTSP packet based upon the data
contained within. We therefore find that the Examiner did not err in
finding that the combined cited prior art references teach or suggest
the disputed limitation of claim 12.

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DECISION
The Examiner’s rejection of claims 1-20 under 35 U.S.C. § 103(a) is
affirmed.

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2011).

AFFIRMED

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