Ex Parte Polk et al

Patent Trial and Appeal Board

Jan 23, 2017

13558596 (P.T.A.B. Jan. 23, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/558,596 07/26/2012 James M. Polk 974127 1048
86421 7590 01/25/2017
Patent Partita 1 Omim - Pisien
EXAMINER
2816 Lago Vista Lane
Rockwall, TX 75032
LUO, ANTHONY L
ART UNIT PAPER NUMBER
2465
NOTIFICATION DATE DELIVERY MODE
01/25/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES M. POLK, PAUL E. JONES,
and SUBHASRI DHESIKAN
Appeal 2015-006226
Application 13/558,596
Technology Center 2400
Before JOHN A. JEFFERY, ERIC S. FRAHM, and
JOHN P. PINKERTON, 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—11 and 13—23. We have jurisdiction under 35
U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
Appellants’ invention allocates bandwidth efficiently to ensure robust
delivery of voice, video, and presentation data without wasting bandwidth.
In one aspect, a message is obtained from an application associated with a
variable bit-rate media flow, where the message includes (1) a minimum
bandwidth at which the flow may operate, and (2) the amount by which the
Appeal 2015-006226
Application 13/558,596
flow’s bandwidth can be trimmed. See generally Abstract; Spec. H 1, 18.
Claim 1 is illustrative:
1. A method comprising:
obtaining a first message from an application, the
application being associated with a variable bit-rate media flow,
the first message including information, the information
including at least an approximately minimum bandwidth at
which the variable bit-rate media flow may operate and an
increment by which a bandwidth of the variable bit-rate media
flow may be trimmed;
determining an amount of available bandwidth in a
network;
identifying, from the first message, the approximately
minimum bandwidth at which the variable bit-rate media flow
may operate and the increment by which the bandwidth of the
variable bit-rate media flow may be trimmed; and
identifying a bandwidth allocation, the bandwidth
allocation being identified based on the amount of available
bandwidth in the network, the approximately minimum
bandwidth at which the variable bit-rate media flow may operate,
and the increment by which the bandwidth of the variable bit-rate
media flow may be trimmed.
THE REJECTIONS
The Examiner rejected claims 1—5, 7—10, 13—17, and 19-22 under 35
U.S.C. § 103(a) as unpatentable over Songhurst (US 7,907,519 B2; Mar. 15,
2011) and Maciocco (US 2005/0039051 Al; Feb. 10, 2005). Ans. 2-9.1
1 Throughout this opinion, we refer to (1) the Appeal Brief filed February 2,
2015 (“App. Br.”), (2) the Examiner’s Answer mailed April 7, 2015
(“Ans.”), and (3) the Reply Brief filed June 5, 2015 (“Reply Br.”).
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Application 13/558,596
The Examiner rejected claims 6 and 18 under 35 U.S.C. § 103(a) as
unpatentable over Songhurst, Maciocco, and Sen (US 7,532,613 Bl; May
12,2009). Ans. 9-10.
The Examiner rejected claim 11 under 35 U.S.C. § 103(a) as
unpatentable over Songhurst, Maciocco, and Bims (US 2011/0039554 Al;
Feb. 17,2011). Ans. 10-11.
The Examiner rejected claim 23 under 35 U.S.C. § 103(a) as
unpatentable over Leung (US 2012/0226816 Al; Sept. 6, 2012), Songhurst,
and Oh (US 2004/0252714 Al; Dec. 16, 2004). Ans. 11-14.
THE REJECTION OVER SONGHURST AND MACIOCCO
The Examiner finds that Songhurst discloses many recited elements of
claim 1, including a first message, namely a packet, with information
including (1) an approximately minimum bandwidth at which variable bit-
rate media flow may operate, and (2) an increment by which an associated
bandwidth may be trimmed, namely via the token rate. Ans. 2-4, 14—17.
Although the Examiner acknowledges that Songhurst does not obtain a first
message from an application, nor determine an amount of available
bandwidth in a network, the Examiner cites Maciocco for teaching these
features in concluding that the claim would have been obvious. Ans. 4.
Appellants argue that Songhurst does not teach or suggest a message
that includes both the recited minimum bandwidth and increment, let alone
identify a bandwidth allocation based on that information and the amount of
available bandwidth as claimed. App. Br. 14—17; Reply Br. 14—18.
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Application 13/558,596
ISSUE
Under § 103, has the Examiner erred in rejecting claim 1 by finding
that Songhurst and Maciocco collectively would have taught or suggested a
a first message with information including (1) an approximately minimum
bandwidth at which variable bit-rate media flow may operate, and (2) an
increment by which an associated bandwidth may be trimmed?
ANALYSIS
Claims 1—5, 7—10, 13—17, and 19—21
We begin by noting that the Examiner’s reliance on the secondary
reference to Maciocco is undisputed, as is the cited references’
combinability. Rather, as noted above, this dispute turns solely on the
Examiner’s reliance on Songhurst for teaching the recited message, and
identifying a bandwidth allocation based on information in that message.
Therefore, we confine our discussion to Songhurst.
A key aspect of claim 1 is that the information in the first message has
two components: (1) an approximately minimum bandwidth, and (2) an
increment by which an associated bandwidth may be trimmed. The
Examiner finds that this information is the class indication in Songhurst’s
received packets, which are said to correspond to “messages,” and the data
rate is increased or decreased by an increment of the token rate. Ans. 14—15.
We find this position problematic on this record. Songhurst’s packet
forwarding system includes a packet classifier that (1) reads a class
indication in received packets, and (2) passes packets to a class-based
policer associated with the indicated class. Songhurst, Abstract. The class-
based policer then assigns a provisional indication to packets of the
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Application 13/558,596
associated class responsive to measured load presented by the class’s
packets exceeding a threshold. Id. A multi-class policer then assigns a
congestion indication to packets responsive to congestion at the forwarding
apparatus. Id.
A key aspect of Songhurst’s system is that it provides distinct
minimum bandwidth guarantees for each class. Songhurst, col. 6,11. 7—10.
To this end, each class has an associated counter which filters packets of that
class into a virtual queue. Id., col. 6,11. 11—13. For low-priority classes, the
counter filters out packets of that class up to the rate M(B), which is the rate
by which the counter is incremented. Id., col. 6,11. 15—18. The counter is
also decremented by the size of each new packet. Id., col. 6,11. 19—21.
After offering a packet to the virtual queue, it may receive a congestion
indication, and the counter is incremented at rate M(B). Id., col. 6,11. 25—28.
Even if we assume, without deciding, that a received packet is a
“message” as the Examiner contends (Ans. 15), these packet-based messages
contain, at most, only a class indicator—not the two essential pieces of
information recited in claim 1 on which bandwidth allocation is identified,
namely (1) an approximately minimum bandwidth, and (2) an increment by
an associated bandwidth may be trimmed. Accord Reply Br. 13 (noting this
deficiency). That is, the message itself does not contain these two essential
informational components that are used to identify a bandwidth allocation.
To the extent that the Examiner takes the position that this information is
later derived by Songhurst’s system, and, therefore, it would have ostensibly
been obvious to include this information in the message itself (see Ans. 14—
15), the Examiner has not substantiated such a theory on this record, nor will
we speculate in that regard here in the first instance on appeal. As
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Appellants explain, including minimum bandwidth and increment
information in the message itself, such as a Resource Reservation Protocol
message, enables a network to change the bandwidth allocated to an
application dynamically. App. Br. 11—12 (citing Spec. 22, 24).
Moreover, the main point of Songhurst is not to drop packets when
there is an excess of packets in a particular class, but rather to forward them
with an appropriate congestion indication. Songhurst, col. 5,11. 14—24.
Although Songhurst’s counter is incremented and decremented, and a
minimum bandwidth is guaranteed for each class, Songhurst merely
designates packets with or without congestion indications based on their
class and placement in the virtual queue. See Songhurst, col. 5,11. 14—24,
col. 6,11. 19-62.
Therefore, we agree with Appellants that Songhurst does not teach or
suggest a first message with information including (1) an approximately
minimum bandwidth at which variable bit-rate media flow may operate, and
(2) an increment by which an associated bandwidth may be trimmed, let
alone identify a bandwidth allocation based on that message-based
information and the amount of available bandwidth as claimed. App. Br.
14-17; Reply Br. 14-18.
Accordingly, we are persuaded that the Examiner erred in rejecting
(1) independent claim 1, (2) independent claim 13 which recites
commensurate limitations, and (3) dependent claims 2—5, 7—10, 14—17, and
19-21 for similar reasons. Because this issue is dispositive regarding our
reversing the Examiner’s rejection of these claims, we need not address
Appellants’ other associated arguments.
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Application 13/558,596
Claim 22
We also do not sustain the Examiner’s rejection of independent claim
22, which recites, in pertinent part, the first message including information
that includes at least an approximately minimum bandwidth at which a
construct associated with an application may operate. Unlike independent
claims 1 and 13, the message of claim 22 does not include an increment, but
rather includes only a minimum bandwidth. Although the increment of
claim 22 is identified, only the minimum bandwidth is identified from the
message.
Despite this distinction, we still find the Examiner’s reliance on
Songhurst problematic on this record. For the reasons explained previously,
Songhurst’s packet-based message does not include a minimum bandwidth
at which a construct may operate, nor does Songhurst use that message-
based information along with the identified increment and available
bandwidth to identify a bandwidth allocation as claimed. Therefore, we are
persuaded that the Examiner erred in rejecting independent claim 22.
THE REJECTION OVER LEUNG, SONGHURST, AND OH
We likewise do not sustain the Examiner’s rejection of independent
claim 23 over Leung, Songhurst, and Oh. Ans. 11—14. Claim 23 recites, in
pertinent part, a message including information that includes (1) a minimum
bandwidth, (2) a maximum bandwidth, and (3) an increment by which a
bandwidth of variable bit-rate media flow may be augmented. As with the
other rejections, the Examiner cites Songhurst for teaching the recited
message including a minimum bandwidth and increment (Ans. 11—12, 23)—
findings that are erroneous for the reasons previously discussed.
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Therefore, regardless of whether Leung and Oh teach or suggest the
particular elements of claim 23 for which they were cited, the Examiner has
still not shown that the cited prior art teaches or suggests a message
including a minimum bandwidth and increment as claimed.
We reach this conclusion despite claim 23 reciting various conditional
limitations in the last two clauses that are performed if the available
bandwidth amount is—or is not—equal to or more than the maximum
bandwidth. Because these steps are contingent on meeting the recited
conditions, one step would not occur to satisfy the claim. See Ex parte
Schulhauser, No. 2013-007847 (PTAB Apr. 28, 2016) (precedential); see
also Cybersettle, Inc. v. Natl Arbitration Forum, Inc., 243 F. App’x 603,
607 (Fed. Cir. 2007) (unpublished) (“It is of course true that method steps
may be contingent. If 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.”); Applera Corp. v. Illumina, Inc.,
375 F. App’x 12, 21 (Fed. Cir. 2010) (unpublished) (affirming a district
court’s interpretation of a method claim as including a step that need not be
practiced if the condition for practicing the step is not met).
As such, Appellants’ arguments regarding the cited prior art’s alleged
failure to disclose the recited aspects of the conditional limitation in claim
23’s last clause (App. Br. 45—48; Reply Br. 47—50) are not commensurate
with the scope of the claim, for the condition need not be satisfied to
perform the recited method. Nevertheless, we still find that the Examiner
erred by relying on Songhurst for teaching the recited message including a
minimum bandwidth and increment (Ans. 11—12, 23) in connection with the
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first recited step that is required by claim 23 for the reasons previously
discussed.
Therefore, we are persuaded that the Examiner erred in rejecting
claim 23.
THE OTHER OBVIOUSNESS REJECTIONS
Because the Examiner has not shown that the cited prior art cures the
foregoing deficiencies regarding the rejection of independent claims 1 and
13, we will not sustain the obviousness rejections of dependent claims 6, 11,
and 18 (Ans. 9—11) for similar reasons.
CONCLUSION
The Examiner erred in rejecting claims 1—11 and 13—23 under § 103.
DECISION
The Examiner’s decision rejecting claims 1—11 and 13—23 is reversed.
REVERSED
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