09790998 (B.P.A.I. Apr. 24, 2012)

Ex Parte Krause

Board of Patent Appeals and InterferencesApr 24, 2012

09790998 (B.P.A.I. Apr. 24, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 09/790,998 02/22/2001 Karl-Heinz Krause 2000P21991US 4489 22116 7590 04/25/2012 SIEMENS CORPORATION INTELLECTUAL PROPERTY DEPARTMENT 170 WOOD AVENUE SOUTH ISELIN, NJ 08830 EXAMINER WONG, WARNER ART UNIT PAPER NUMBER 2471 MAIL DATE DELIVERY MODE 04/25/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte KARL-HEINZ KRAUSE ____________ Appeal 2009-014506 Application 09/790,998 Technology Center 2400 ____________ Before ROBERT E. NAPPI, JEFFREY S. SMITH, and ERIC B. CHEN, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-014506 Application 09/790,998 2 STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1, 4, 5, 7-10, 12-23, 26-31, and 33-64, which are all the claims remaining in the application. Claims 2, 3, 6, 11, 24, 25, and 32 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Invention Appellants’ invention relates to a system and method for providing real time communication and non-real time communication in a switched data network. Abstract. Representative Claim 1. A method for transmitting data via a switched data network in the field of industrial systems, in which real-time- critical and non-real-time-critical data are transmitted, the switched data network being set up between at least two users, especially a transmitter and a receiver, the data being transmitted in at least one transmission cycle with adjustable period, each transmission cycle being subdivided into at least one first section for the transmission of real-time-critical data for real-time control of an automation system and at least one second section for the transmission of non-real-time-critical data, wherein each user is allocated a switching unit which is provided for transmitting and/or receiving and/or forwarding at least one of the real-time-critical and non-real-time-critical data and wherein the switching units of the switched data network exhibit a common synchronous time base due to mutual timing synchronization. Appeal 2009-014506 Application 09/790,998 3 Prior Art Schuster US 6,360,271 B1 Mar. 19, 2002 (filed Feb. 2, 1999) Naudus US 6,412,006 B2 Jun. 25, 2002 (filed Feb. 10, 1998) Huang US 6,483,846 B1 Nov. 19, 2002 (filed Jul. 10, 1998) Howe US 6,611,519 B1 Aug. 26, 2003 (filed Aug. 16, 1999) Examiner’s Rejections Claims 1, 4, 5, 7-10, 12-15, 19, 21-23, 26-31, 33-35, 39, and 41-64 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Huang and Howe. Claims 16-18 and 36-38 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Huang, Howe, and Schuster. Claims 20 and 40 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Huang, Howe, and Naudus. Claim Groupings Based on Appellants’ arguments in the Appeal Brief, we will decide the appeal on the basis of claims 1, 14, 41, 42, 60, and 61. PRINICPAL ISSUE Did the Examiner err in finding that the combination of Huang and Howe teaches the invention of claim 1? Appeal 2009-014506 Application 09/790,998 4 ANALYSIS Section 103 rejection of claims 1, 4-5, 7-10, 12, 13, 15-21, 23, 26-31, 33, 34, 36-40, 43-59, and 62 Appellants contend that the references are not combinable because Huang teaches away from using a hardware-based solution, and Howe teaches a hardware-based solution. Appellants also contend that Howe’s system of bypassing the network in a physical layer teaches away from the store and forward solution of Huang. App. Br. 11-15; Reply Br. 2-5. However, both Huang and Howe teach systems for implementing real- time communication services over a network. For example, Huang in Figures 2A and 2B teaches a switch in a node for switching between real time and non-real time traffic. Similarly, Howe in col. 4, ll. 28-52 teaches a switch in a node for switching between real time and non-real time traffic. Neither Huang nor Howe disparage the use of synchronization means to synchronize the switches in the nodes when transmitting real-time traffic. Using the synchronization means of Howe (as discussed in col. 22, ll. 23-35) to synchronize the switches 150 in the nodes 120 of Huang when transmitting the synchronous real time traffic (as shown in Figure 2A and discussed in cols. 9 and 10 of Huang) represents the combination of familiar elements according to known methods that yields the predictable result of nodes in a network delivering traffic from a transmitter to a receiver in real time. Appellants contend that the combination of Huang and Howe does not teach critical data for real-time control of an automation system in the field of industrial systems. App. Br. 15-16; Reply Br. 5-6. The Examiner finds that the control of an automation system in the field of industrial systems is Appeal 2009-014506 Application 09/790,998 5 an intended use that is not entitled to patentable weight. Ans. 21-22. We agree with the Examiner. Appellants assert on page 20 of the Appeal Brief, that the rejection of claims 16 through 18, 36 through 38 and the rejection of claims 20 and 40 are in error for the same reasons as asserted with respect to claim 1. Thus, we sustain the rejection of claims 1, 4-5, 7-10, 12, 13, 15-21,23, 26-31, 33, 34, 36-40, 43-59, and 62 under 35 U.S.C. § 103. Section 103 rejection of claims 14 and 35 Appellants contend that Huang does not teach that data for organization of data transmission are transmitted at the beginning of the section for the transmission of real time data. App. Br. 17. The Examiner finds that the token taught by Huang teaches this limitation. Ans. 22. Appellants have not provided evidence or persuasive argument to rebut the Examiner’s finding. We sustain the rejection of claims 14 and 35 under 35 U.S.C. § 103. Section 103 rejection of claim 41 Appellants contend that Huang does not teach each user is allocated a switching unit. App. Br. 18. The Examiner finds that Howe teaches this limitation. Ans. 23. Appellants have not provided evidence or persuasive argument to rebut the Examiner’s finding. We sustain the rejection of claim 41 under 35 U.S.C. § 103. Appeal 2009-014506 Application 09/790,998 6 Section 103 rejection of claim 42 Appellants contend that Huang does not teach a switching unit having two separate accesses to the respective user, one access for exchanging real time data and the other access for exchanging non-real time data as required by claim 42. App. Br. 18. The Examiner finds that Figure 2A of Huang teaches this limitation. Ans. 23. Appellants have not provided evidence or persuasive argument to rebut the Examiner’s finding. We sustain the rejection of claim 42 under 35 U.S.C. § 103. Section 103 rejection of claims 60 and 63 Appellants contend that the combination of Huang and Howe does not teach that “the real-time-critical data is for real-time control of an industrial, distributed automation system” as recited in claim 60. App. Br. 18-19; Reply Br. 7. However, the real-time control of an industrial, distributed automation system is a description of the real-time-critical data that does not affect any steps or alter any structural limitations recited in the method of claim 60. Therefore, the claimed “real-time control” is non-functional descriptive material that does not distinguish the claim from the prior art in terms of patentability. See In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004). Cf. In re Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983). See also Ex parte Nehls, 88 USPQ2d 1883, 1887-90 (BPAI 2008)(precedential). We sustain the rejection of claims 60 and 63 under 35 U.S.C. § 103. Section 103 rejection of claims 61 and 64 Appellants contend that the combination of Huang and Howe does not teach “the real-time-critical data is for real-time control of a drive in the Appeal 2009-014506 Application 09/790,998 7 industrial, distributed automation system” as recited in claim 61. App. Br. 19. However, this limitation recites non-functional descriptive material that is not entitled to patentable weight. We sustain the rejection of claims 61 and 64 under 35 U.S.C. § 103. CONCLUSION The Examiner did not err in finding that the combination of Huang and Howe teaches the invention of claim 1. DECISION The rejection of claims 1, 4, 5, 7-10, 12-15, 19, 21-23, 26-31, 33-35, 39, and 41-64 under 35 U.S.C. § 103(a) as being unpatentable over Huang and Howe is affirmed. The rejection of claims 16-18 and 36-38 under 35 U.S.C. § 103(a) as being unpatentable over Huang, Howe, and Schuster is affirmed. The rejection of claims 20 and 40 under 35 U.S.C. § 103(a) as being unpatentable over Huang, Howe, and Naudus 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). See 37 C.F.R. § 41.50(f). AFFIRMED rwk