Ex Parte Patel et al

Patent Trial and Appeal Board

Nov 29, 2017

12965750 (P.T.A.B. Nov. 29, 2017)

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.
12/965,750 12/10/2010 Sujal M. Patel 116538-220104
(P46144C2)
7432
31817 7590 12/01/2017
SCHWABE, WILLIAMSON & WYATT, P.C.
1211 SW 5th Avenue, Suite 1600
Portland, OR 97204
EXAMINER
NGO, NGUYEN HOANG
ART UNIT PAPER NUMBER
2473
NOTIFICATION DATE DELIVERY MODE
12/01/2017 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):
IPDocketing @ S CHWABE.com
intelparalegal@ schwabe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUJAL M. PATEL, JEFFREY M. AYARS, RAHUL AGARWAL,
BRADLEY D. HEFTA-GAUB, PETER S. HAIGHT,
DALE R. STAMMEN, and PHILIP ROSED ALE
Appeal 2016-006739
Application 12/965,750
Technology Center 2400
Before CARLA M. KRIVAK, CAROLYN D. THOMAS, and
DAVID J. CUTITTAII, Administrative Patent Judges.
KRIVAK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 25^44. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appeal 2016-006739
Application 12/965,750
STATEMENT OF THE CASE
Appellants’ invention is directed to “a system and a method for
determining a transmission latency and a maximum transmission bandwidth
for a network connection between a server computer and a client computer”
(Spec. 12).
Independent claim 25, reproduced below, is exemplary of the subject
matter on appeal.
25. A method of determining network conditions, the
method comprising:
determining a first time associated with receipt of a first data
packet;
determining a second time associated with receipt of a second
data packet sent immediately after the first data packet;
determining a size of the second data packet; and
calculating a transmission bandwidth by dividing the size of the
second data packet by a function of a difference between the first and
second times.
REFERENCES and REJECTION1
The Examiner rejected claims 25^44 under 35 U.S.C. § 103(a) based
upon the teachings of Reynolds (US 6,791,943 Bl, issued Sep. 14, 2004) in
view of Yamato (US 6,094,431, issued Jul. 25, 2000).
ANALYSIS
Appellants contend neither Reynolds nor Yamamoto “use RM
[resource management] Cells to determine transmission bandwidth, by
1 A rejection of claims 42-44 under 35 U.S.C. §112, second paragraph as
being indefinite, was withdrawn by the “Applicant-Initiated Interview
Summary” mailed August 5, 2013.
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Application 12/965,750
definition these RM Cells are not back to back data packets” and “cannot be
sent one ‘immediately after’ the other” (Br. 19-20, 23—24). Appellants
further contend Reynolds could not be combined with Yamamoto as
Reynolds “explicitly teaches against the proposed implementation” because
Reynolds requires the number of user cells to be counted between first and
second RM cells (Br. 23). Finally, Appellants contend, neither Reynolds nor
Yamamoto teach or suggest a header in the first data packet indicates the
second data packet will be transmitted immediately after the first data packet
such that the first and second data packets are back-to-back data packets, as
recited in dependent claims 26, 33, 38, and 44 (Br. 25—26).
The Examiner finds the successive RM cells as disclosed by Reynolds
do not correlate to a first or second packets; rather, the Examiner “correlates
the RM cells to indicate an event such as the receipt of a second packet as
taught by Yamato,” which teaches “an ATM block is enclosed by RM cells”
(col. 7,11. 5—25 and Figure 5), the RM cell indicating the end of a received
ATM block (col. 7,11. 20—25) (Final Act. 6; Advisory Act. 2). Therefore,
the Examiner “correlates an ATM block to a data packet,” i.e., RM cells are
correlated to “events of a first and second time associated with the data
packets” (Final Act. 6—7).
The Examiner relies on Reynolds for teaching “determining the
timestamp of the successive RM cells [Reynolds col. 13,11. 17—18]
correlates to determining a first time associated with receipt of a first packet
(first RM cell indicating receipt of a first ATM block received (first data
packet)) and determining a second time associated with receipt of a second
data packet (second RM cell indicating receipt of a second ATM block
received (second data block)) sent immediately after the first data packet
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Application 12/965,750
(ATM blocks sent after each other)” (Final Act. 6—7; Reynolds col. 14,11.
44—51). Therefore, Reynolds’ successive RM cells correlate to the claimed
“second data packet sent immediately after the first data packet,” and the
“the combination of Reynolds and Yamato discloses a method by which a
transmission bandwidth is calculated based on a difference in times
associated with receipt of two data packets (difference in time between RM
cells in which RM cells may indicate an end of a ATM block (times
associated with receipt of two data packets))” (Final Act. 7; Ans. 3—4)), as
claimed.
Appellants also contend the Examiner did not make a prima facie case
of obviousness and the references would be inoperable if combined (Br. 18—
19). We do not agree. Appellants provide no persuasive evidence of error
in the Examiner’s findings, but merely provide conclusory attorney
commentary that the claimed features are not obvious, which is insufficient.
See 37 C.F.R. § 41.37(c)(l)(iv); see also In re Lovin, 652 F.3d 1349, 1357
(Fed. Cir. 2011). It is well settled that mere attorney’s arguments and
conclusory statements, which are unsupported by factual evidence, are
entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997). With respect to Appellants’ contention that Reynolds “explicitly
teaches against the proposed implementation” (Br. 23), we are unpersuaded
because Appellants do not proffer sufficient evidence or argument that
Reynolds criticizes, discredits, or otherwise discourages the claimed
solution. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Thus, we sustain the Examiner’s rejection of independent claims 25,
29, 33, and 44, and dependent claims 27, 28, 30-32, 35—37, 39, 40, 42, and
43, not separately argued.
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Application 12/965,750
Appellants contend dependent claims 26, 33, 38, and 44 are not taught
or suggested by the combination of Reynolds and Yamamoto because
although the header in Reynolds includes both a virtual path identifier and a
virtual channel identifier, as well as a payload type indicator and cell loss
priority fields, the header fails to include an indication that the second data
packet will be immediately transferred after the first data packet (i.e., back-
to-back packets) (Br. 25—26). We agree.
The Examiner finds Yamamoto teaches and suggests RM cells
indicating an end of a received ATM block and the next or neighboring
ATM block is considered back-to-back “as this ATM block is the next block
transmitted and as determined by the RM cell indication the end of the
previous ATM block” (Ans. 5). However, the Examiner has not identified
where in Reynolds or Yamamoto the limitation “reading a header in the first
data packet, wherein the header includes data indicating the second data
packet will be transmitted immediately” is found. Although Reynolds
recites a header, it is merely for classifying cells and Yamamoto does not
cure this deficiency.
Thus, we do not sustain the Examiner’s rejection of dependent claims
26, 33, 38, and 44.
DECISION
The Examiner’s decision rejecting claims 25, 27—32, 34—37, and 39-
43 is affirmed.
The Examiner’s decision rejecting claims 26, 33, 38, and 44 is
reversed.
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Appeal 2016-006739
Application 12/965,750
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-IN-PART
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