Ex Parte Rödbro et al

Patent Trial and Appeal Board

Feb 27, 2017

13339956 (P.T.A.B. Feb. 27, 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.
13/339,956 12/29/2011 Christoffer Rodbro 336071.02 4224
69316 7590 03/01/2017
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
EXAMINER
VU, QUOC THAI NGOC
ART UNIT PAPER NUMBER
2642
NOTIFICATION DATE DELIVERY MODE
03/01/2017 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):
u sdocket @ micro soft .com
chriochs @microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOFFER RODBRO and SOREN VANG ANDERSEN
Appeal 2016-005766
Application 13/339,956
Technology Center 2600
Before BRUCE R. WINSOR, LINZY T. McCARTNEY, and
NATHAN A. ENGELS, Administrative Patent Judges.
PER CURIAM.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1—10, 12—15, and 17—22. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART and enter a NEW GROUND OF
REJECTION within the provisions of 37 C.F.R. § 41.50(b).
Appeal 2016-005766
Application 13/339,956
CLAIMED INVENTION
Claim 1 recites the following:
1. A method of transmitting data from a source device to a
destination device in a communications system, the method
comprising:
generating data according to an application layer protocol
and supplying the data to a first network interface for
transmission in a communications session over a first channel;
determining to effect a handover and causing a second
channel to be opened for the communication session;
supplying data to a second network interface for
transmission over the second channel and generating a message
for transmission prior to the handover over one or more of the
first channel or the second channel to the destination device, said
message including:
a destination address identifying the second
network interface for receiving data over the second
channel; and
a notification from the source device instructing the
destination device to increase a jitter buffer delay on the
destination device prior to for an interval from the
handover.
Br. 25.
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Appeal 2016-005766
Application 13/339,956
REFERENCES AND REJECTIONS
The Examiner rejected claims 1—10 and 12—15 under 35 U.S.C.
§ 103(a) as unpatentable over Sachs,1 Kim,2 and one or more of Spindola,3
Yokota,4 and Sapkota5. Final Act. 3—13.
The Examiner rejected claims 17—22 under 35 U.S.C. § 103(a) as
unpatentable over Sachs and one or more of Spindola, Mohebbi,6 Adachi,7
and Takano8. Id. at 13—20.
ANALYSIS
NEW GROUND OF REJECTION WITHIN 37 C.F.R. § 41.50(b)
We enter a new ground of rejection for claims 1—10 and 12 under 35
U.S.C. § 112, second paragraph, as indefinite for failing to particularly point
out and distinctly claim the subject matter which the Appellants regard as
the invention.
“It is of utmost importance that patents issue with definite claims that
clearly and precisely inform persons skilled in the art of the boundaries of
protected subject matter.” MPEP § 2173. During prosecution “[a] claim is
indefinite when it contains words or phrases whose meaning is unclear.” Id.
§ 2173.05(e). Language in a claim is unclear if it is “ambiguous, vague,
incoherent, opaque, or otherwise unclear in describing and defining the
1 Sachs et al. (US 2009/0131053 Al; published May 21, 2009).
2 Kim et al. (US 2011/0110330 Al; published May 12, 2011).
3 Spindola et al. (US 2006/0077994 Al; published Apr. 13, 2006)
4 Yokota et al. (US 2011/0044210 Al; published Feb. 24, 2011).
5 Sapkota et al. (US 2010/0009674 Al; published Jan. 14, 2010).
6 Mohebbi et al. (US 2003/0186653 Al; published Oct. 2, 2003).
7 Adachi (US 5,953,324; issued Sept. 14, 1999).
8 Takano et al. (WO 2011/074200 Al; published June 23, 2011).
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Application 13/339,956
claimed invention . . . ,” In re Packard, 751 F.3d 1307, 1311 (Fed. Cir.
2014), or if it is “is amenable to two or more plausible claim constructions
. . . ,” Ex Parte Miyazaki, 89 USPQ2d 1207, 1211 (BPAI 2008)
(precedential). However, “[t]he requirement, applied to the real world of
modem technology, does not contemplate in every case a verbal precision of
the kind found in mathematics.” Packard, 751 F.3dat 1313. Furthermore
“[b]readth of a claim is not to be equated with indefiniteness.” MPEP
§ 2173.04, citing In re Miller, 441 F.2d 689, 693 (CCPA 1971).
Claim 1 recites “a notification from the source device instmcting the
destination device to increase a jitter buffer delay on the destination device
prior to for an interval from the handover.” Br. 25 (emphasis added). The
phrase “prior to for an interval from the handover” is incoherent, and we
find no guidance as its meaning in either the written description or the
claims. Accordingly, the phrase renders claim 1 indefinite. See Packard,
751 F.3d at 1311. Claims 2—10 and 12 depend, directly or indirectly, from
claim 1 and are indefinite at least because they depend from, and
incorporate, an indefinite claim.
REJECTIONS UNDER 35 U.S.C. § 103(a)
Claims 110 and 12
Claims 1—10 and 12 are rejected as being indefinite under the new
ground of rejection under 35 U.S.C. § 112, second paragraph, discussed
supra. In view of the indefmiteness of claims 1—10 and 12, we find that it is
not possible to ascertain the scope of claims 1—10 and 12. Accordingly, we
find the Examiner’s rejections of claims 1—10 and 12 are necessarily based
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Application 13/339,956
on speculation and assumptions. See In re Steele, 305 F.2d 859, 862 (CCPA
1962) (“We do not think a rejection under 35 U.S.C. § 103 should be based
on . . . speculations and assumptions. . . . [I]t is essential to know what the
claims do in fact cover.”). Therefore, we summarily decline to sustain the
rejections of claims 1—10 and 12.
It should be understood, however, that our decision in this regard is
based solely on the indefiniteness of the claimed subject matter and does not
reflect the adequacy of the prior art evidence applied in support of the
rejection before us. Once definite claims are presented, the Examiner is free
to apply the same, different, or additional prior art as the Examiner so
chooses.
Claims 13—15 and 17—22
We have reviewed the Examiner’s rejection of claims 13—15 and 17—
22 in light of Appellants’ arguments, and we disagree with Appellants that
the Examiner erred. To the extent consistent with the analysis below, we
adopt the Examiner’s findings, reasoning, and conclusions for these claims,
as set forth in the Final Rejection and Answer. Appellants have waived
arguments Appellants failed to timely raise or properly develop. See 37
C.F.R. §§ 41.37(c)(l)(iv), 41.41(b)(2); In reLovin, 652 F.3d 1349 (Fed. Cir.
2011).
Regarding claim 13, Appellants contend neither Kim nor Spindola
teaches or suggests “a notification from the source device to a destination
device to increase a jitter buffer delay on the destination device for an
interval from a handover to the second channel.” See Br. 17—19. Appellants
assert “Kim simply discusses control information generated at the opponent
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Application 13/339,956
terminal, and that the user terminal expands the size of the jitter buffer
thereof according to the control information.” Id. at 18 (quotations omitted).
Accordingly, Appellants argue “Kim, however, makes no mention that the
control information indicates an type of interval, much less a notification . . .
to increase a jitter buffer delay . . .for an interval from a handover to the
second channelId. Appellants further assert that the cited disclosures of
Spindola merely teach events occurring within a subscriber substation, such
as providing handoff scheduling information to a de-jitter buffer, which can
then be adapted in advance of a handoff. See id. at 19. Accordingly,
Appellants argue the cited disclosures of Spindola do not concern “a
notification from a source device to a destination device . . . for an interval
from a handover to the second channelSee Br. 19.
We find Appellants’ arguments unpersuasive. The Examiner found a
combination of Kim’s and Spindola’s disclosures, not Kim’s or Spindola’s
disclosure alone, teaches or suggests “a notification from the source device
to a destination device to increase a jitter buffer delay on the destination
device for an interval from a handover to the second channel.” See Final
Act. 11—12; Ans. 6—7. In particular, the Examiner found Kim teaches a user
terminal that receives, from an opponent terminal, control information and a
notification that a handover is to be performed. See Ans. 3 (citing Kim
| 59); Final Act. 4—5. According to the control information, the user
terminal expands the size of its jitter buffer for when the handover is started.
Ans. 3 (citing Kim | 59); Final Act. 4—5. The Examiner further found that
expanding the size of a jitter buffer “to increase a jitter buffer delay” is well
known in the art, as evidenced by Spindola’s teaching that “the de-jitter
buffer may increase in size to add more delay time” (Spindola 146). See
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Final Act. 12; Ans. 6. The Examiner concluded that it would have been
obvious to modify Sachs’s invention to include the combined teachings of
Kim and Spindola “to allow time to adjust the buffer (Spindola []f 56]) and
to prevent packet loss (Kim [| 59])” (Final Act. 5). See Ans. 6. We find
Appellants’ arguments that Kim and Spindola alone do not teach or suggest
the disputed limitation unpersuasive, as “one cannot show non-obviousness
by attacking references individually where, as here, the rejections are based
on combinations of references,” In re Keller, 642 F.2d 413, 426 (CCPA
1981). See Ans. 6-7.
Moreover, we are unpersuaded by Appellants’ argument that Kim
makes no mention that the control information indicates a type of interval
much less “an interval from a handover to the second channel,” as recited in
claim 13. See Br. 18. The Examiner found, and we agree, Kim’s control
information causes Kim’s user terminal to expand its jitter buffer for the
start of the handover. See Final Act. 11—12 (citing Kim | 59); Ans. 3^4
(citing Kim | 55), 6. Contrary to Appellants’ argument, the act of expanding
the jitter buffer for a handover start implies or at least suggests that the
expansion would span some interval of time including the start of the
handover. See Kim || 55, 59; see also MPEP § 2112 (“The express,
implicit, and inherent disclosures of a prior art reference may be relied upon
in the rejection of claims under 35 U.S.C. 102 or 103”); KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418, 421 (2007) (explaining that an obviousness
rejection may take into account the knowledge of one of ordinary skill in the
art).
Regarding claim 17, Appellants contend Spindola does not teach or
suggest “introducing jitter via the application into the data stream to cause a
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Application 13/339,956
receiving device to adapt its jitter buffer for the handover,” as recited in
claim 17. See Br. 21. Appellants argue that Spindola makes no mention of
jitter being introduced by an application, but instead discloses simply that
jitter may occur as a result of a particular action such as increasing or
decreasing transmissions. See id.
We find Appellants’ argument unpersuasive. The Examiner found
that Spindola teaches or suggests the disputed limitation by adjusting the
data transmission rate (in response to signal quality changes, for example),
which results in packet jitter. See Ans. 7—8; Final Act. 15; Spindola H 41,
44,48. We agree. Given the cited disclosures of Spindola, one of ordinary
skill in the art would understand that the data transmission rate can be
adjusted in order to introduce jitter into the data stream. See Spindola H 41,
44, 48; see also KSR, 550 U.S. at 418 (explaining that an obviousness
analysis “can take account of the inferences and creative steps that a person
of ordinary skill in the art would employ”). Similarly, Appellants’ written
description describes introducing jitter by varying the transmission rate of
packets in a device’s outgoing data stream. See Spec. 13:22—24 (“[A] device
can gradually introduce jitter, i.e. variations in the transmission rate of
packets in its outgoing data stream; this will make an adaptive jitter buffer
sitting at the far side increase its delay automatically.”). Further, even if
Appellants are correct that “Spindola makes no mention of jitter being
introduced by an application,” Br. 21, one of ordinary skill in the art would
understand that Spindola’s disclosure of adjusting the data transmission rate
of a subscriber station to introduce jitter is performed by executing a
software application. See KSR, 550 U.S. at 418; DyStar Textilfarben GmbH
& Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir.
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2006) (stating that “the prior art” includes basic principles unlikely to be
restated in cited references); see also Spindola 1 61 (discussing
implementation of functionality and embodiments of Spindola’s invention
using software applications).
For the reasons stated above, Appellants’ arguments have not
persuaded us the Examiner erred in the obviousness rejections of claims 13
and 17. Accordingly, we sustain the Examiner’s rejections of independent
claims 13 and 17 and the rejections of dependent claims 14, 15, and 18—22,
which were not argued separately with particularity beyond the arguments
advanced for claims 13 and 17. See Br. 23.
DECISION
We affirm the Examiner’s rejections of claims 13—15 and 17—22 under
35 U.S.C. § 103(a).
We summarily reverse the Examiner’s rejections of claims 1—10 and
12 under 35 U.S.C. § 103(a).
We enter a new ground of rejection for claims 1—10 and 12 under
35 U.S.C. § 112, second paragraph.
Regarding the affirmed rejection(s), 37 C.F.R. § 41.52(a)(1) provides
“Appellant may file a single request for rehearing within two months from
the date of the original decision of the Board.”
In addition to affirming the Examiner’s rejection(s) of one or more
claims, this decision contains new grounds of rejection pursuant to 37
C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
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Section 41.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the proceeding will be remanded
to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record.
Should Appellants elect to prosecute further before the Examiner
pursuant to 37 C.F.R. § 41.50(b)(1), in order to preserve the right to
seek review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed
rejection, the effective date of the affirmance is deferred until
conclusion of the prosecution before the Examiner unless, as a mere
incident to the limited prosecution, the affirmed rejection is overcome.
If Appellants elect prosecution before the Examiner and this does not
result in allowance of the application, abandonment or a second appeal, this
case should be returned to the Patent Trial and Appeal Board for final action
on the affirmed rejection, including any timely request for rehearing thereof.
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)(l)(iv), 41.50(f), 41.52(b).
AFFIRMED-IN-PART
37 C.F.R, §41.500?)
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