Ex Parte Rode et al

Patent Trial and Appeal Board

Jan 23, 2013

11044119 (P.T.A.B. Jan. 23, 2013)

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.
11/044,119 01/26/2005 Detlef Rode 10191/4000 1109
11747 7590 01/24/2013
Robert Bosch GmbH
Kenyon & Kenyon LLP
One Broadway ( Attention: Gerard A. Messsina)
New York, NY 10004
EXAMINER
NGUYEN, MINH CHAU
ART UNIT PAPER NUMBER
2442
MAIL DATE DELIVERY MODE
01/24/2013 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 PATENT TRIAL AND APPEAL BOARD
________________

Ex parte DETLEF RODE and UWE ZURMUEHL

________________

Appeal 2010-007930
Application 11/044,119
Technology Center 2400
________________

Before, JEAN R. HOMERE, BRYAN F. MOORE, 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 13-54. Specifically, the Examiner
rejected claims 13, 15-24, 26-31, 33-49, and 51-54 as unpatentable under 35
U.S.C. § 103(a) as being obvious over the combination of Meyer et al. (US
2002/0145976 A1, October 10, 2002) (“Meyer”) and Chiu et al. (US
6,505,253 B1, Jan. 7, 2003) (“Chiu”). The Examiner rejected claims 14,
25, 32, and 50 as unpatentable under 35 U.S.C. § 103(a) as being obvious
over the combination of Meyer, Chiu, and Petr Cach and Petr Fedler, IP
over CAN, September 2001, http://ietfreport.isoc.org/idrefl draft-cafi-can-
ipl (“Cach”).
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART and enter NEW GROUNDS of rejection
pursuant to 37 CFR § 41.50(b).

STATEMENT OF THE CASE
Appellants’ invention is directed to a method for monitoring a data
transmission between at least two network users. Abstract.

GROUPING OF CLAIMS

Because Appellants argue that the Examiner erred for substantially
the same reasons with respect to independent claims 13, 23, and 24 and
dependent claims 14-22, 26, 28, 31, 39, 40, 43-49, and 50-53, we select
claim 13 as representative of this group. App. Br. 14. Claim 13 recites:
13. A method for monitoring a data transmission between at
least two network users, comprising
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transmitting, by at least one sender data in a form of data
telegrams to at least one receiver, a data transmission taking
place via at least one data telegram;

transmitting, by the receiver, at least one flow control
telegram to the sender when the data of a data transmission is
transmitted in a segmented manner in a first data telegram and
at least one subsequent data telegram; and

transmitting an additional flow control telegram from the
receiver to the sender after a last data telegram of a data
transmission.

Claims App’x 1.

Appellants argue that the Examiner erred for substantially the same
reasons with respect to claims 16 and 25 and we therefore select claim 16
as representative of this group. Claim 16 recites:
16. The method as recited in claim 13, further comprising:

checking, by the sender, whether a flow control telegram
is received within a predefinable first time period after sending
at least one message; and

in case of an error, repeating by the sender, at least one of
a last sent data telegram or all last sent data telegrams of a data
transmission.

Id.
Appellants argue that the Examiner also erred for substantially the
same reasons with respect to claims 17, 26, 32, and 38 and we select claim
17 as representative of this group. Claim 17 recites:
17. The method as recited in claim 13, further comprising:

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checking, by the sender, whether the receiver can be
operated in a confirmed transmission mode with sending of the
flow control telegram at the end of the data transmission in that
the sender sends one or more test or configuration messages
and checks receipt of a corresponding flow control telegram as
a confirmation.

Id.
Appellants argue that the Examiner also erred for substantially the
same reasons with respect to claims 20, 29, 41, and 47 and we select claim
20 as representative of this group.
20. The method as recited in claim 18, wherein an identified
configuration message allows a switchover into a confirmed
operating mode at any arbitrary time, to the extent that the
operating mode is supported.

Claims App’x 2.

Appellants argue that the Examiner erred for substantially the same
reasons with respect to claims 21, 30, 37, and 42, and we therefore select
claim 21 as representative of this group. Claim 21 recites:
21. The method as recited in claim 17, further comprising:

checking to determine whether the sender receives the
flow control telegram after the test or configuration message
within a predefinable second time period.

Id.
Appellants argue that the Examiner also erred for substantially the
same reasons with respect to claims 33-36, 49 and 54, and we select claim
33 as representative of this group.
33. The device as recited in claim 32, wherein two
transmission modes are differentiated, a first transmission mode
allowing the transmission of the additional flow control
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telegram from the receiver to the sender after a last data
telegram of a data transmission, and a second transmission
mode not allowing the transmission, the sender operating in the
first transmission mode upon receipt of the flow control
telegram after one of the test and the configuration message at
the sender, and otherwise switching over to the second
transmission mode.

Claims App’x 4.
Appellants argue that the Examiner also erred in rejecting claim 37
Claim 37 recites:
37. The storage device as recited in claim 23, wherein the
data transmission is executed according to ISO protocol 15765-
2, and wherein a first flow control telegram type is used as a
positive confirmation and a second flow control telegram type
is used as a negative confirmation, and wherein the sender
checks whether a flow control telegram is received within a
predefinable first time period after sending at least one
message, wherein for an error, the sender repeats at least one of
a last sent data telegram and all last sent data telegrams of a
data transmission.

Claims App’x 5.

ISSUES AND ANALYSES

Claim 13
Issue 1
Appellants argue that the Examiner erred in rejecting claim 13 as
unpatentable under 35 U.S.C. § 103(a) as being obvious over the
combination of Meyer and Chiu. App. Br. 10. Specifically, Appellants
contend that the Examiner erred in finding that an artisan of ordinary skill
would not have been motivated to combine the teachings of Meyer with
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those of Chiu. Id. We therefore address the issue of whether the Examiner
properly combined the Meyer and Chiu references.

Analysis
According to Appellants, Meyer teaches a “method of controlling the
flow of an amount of data from a sending peer to a receiving peer.” Id.
(quoting Meyer, Abstract). Appellants point out that Chiu, on the other
hand, teaches a “multicast repair tree” is established having one sender
station and a plurality of repair head stations [wherein] a repair head station
retransmits a lost message to its affiliated group of member stations upon
receipt from a member station of a NACK message indicating that the
selected message was not received.” App. Br. 10 (quoting Chiu, col. 2, ll.
58-64). The purpose of Chiu, argue the Appellants, is to address situations
“where there are hundreds of receiving stations, or thousands or millions of
receiving stations, the large number of ACK or NACK messages
overwhelm the transmitting station.” App. Br. 10 (quoting Chiu, col. 2, ll.
44-51).
Appellants argue that since Meyer concerns a sending peer and a
receiving peer, it would not benefit from Chiu, because the issue of
congestion is not identified in Meyer. App. Br. 10. Furthermore, argue
Appellants, the Chiu system is not compatible with the Meyer system
because Meyer does not use the “multicast repair tree” structure taught by
Chiu. Id.
The Examiner responds finding that although Meyer discloses a
sending peer and a receiving peer of a communication, the Examiner
interprets that “peer to peer” is an instant of a plurality of peers instead of
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unicast or multicast communication (i.e., “It may be noted that the
embodiment of FIG.1 is only one example, and this example can be
varied in a number of ways. The skilled person will understand that the
steps can also be arranged differently”). Ans. 12 (quoting Meyer, ¶ [0047]).
Moreover, the Examiner finds that Meyer also teaches the difficulties posed
by congestion to networks. Ans. 12 (citing Meyer, ¶¶ [0023], [0057]). The
Examiner finds therefore, that the invention taught by Meyer would benefit
from the invention taught by Chiu with regard to this identified issue of
congestion. Ans. 12.
The Examiner also finds that the feature upon which Appellants rely
(i.e., the “multicast repair tree” structure taught by Chiu) is not recited in
claim 13 and notes that although the claims are interpreted in light of the
specification, limitations from the specification may not be read into the
claims. Ans. 12-13 (citing In re Van Geuns, 988 F.2d 1181, 1185 (Fed. Cir.
1993)). The Examiner further finds that Appellants’ argument that the
alleged incompatibilities posed by Chiu’s “multicast repair tree” to Meyer’s
method of controlling the “flow of an amount of data from a sending peer to
a receiving peer” teach away from the combination of the two references
represents an improper attacking of a single reference when the rejections
are based on combinations of references. Ans. 13 (citing In re Keller, 642
F.2d 413, 426 (C.C.P.A. 1981)).
We agree with the Examiner. Appellants do not dispute that both
Meyer and Chiu are references from the same field of endeavor and are,
consequently, analogous art. See K-TEC, Inc. v. Vita-Mix Corp., 696 F.3d
1364, 1375 (Fed. Cir. 2012). We agree with the Examiner that Meyer
teaches or suggests a plurality of peers. Ans. 12; see also Meyer, ¶ [0016]
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(“It may be noted that the present invention can be implemented in
connection with any type of flow control”). Moreover, we agree with the
Examiner’s finding that an artisan of ordinary skill would be motivated to
combine Meyer with Chiu as a means of addressing the problem of
congestion identified in Meyer. Ans. 12. We consequently adopt the
Examiner’s conclusion that it would have been obvious to one of ordinary
skill in the contemporaneous art to have combined Chiu’s teaching of
transmitting an additional flow control telegram from the receiver to the
sender after a last data telegram of a data transmission, with Meyer’s
teaching of a data flow control method, for the purpose of establishing
reliable communication which does not cause congestion in the network by
ACK or NACK messages transmitted by the receiver. Ans. 4.

Issue 2
Appellants argue that the Examiner erred in finding that Chiu teaches
or suggests the limitation of claim 13 reciting “transmitting an additional
flow control telegram from the receiver to the sender after a last data
telegram of a data transmission.” App. Br. 13. Specifically, Appellants
argue that Chiu fails to teach or suggest a “last data telegram of a data
transmission.” We therefore next address the issue of whether the
Examiner so erred.

Analysis
Appellants argue that even if, as the Examiner finds, Chiu teaches
“immediately [sending] an ACK message to its repair head indicating
whether it has received all the packets transmitted” (Chiu, col. 24, ll. 5-8),
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Chiu does not thereby disclose or even suggest the disputed limitation.
Appellants submit that “a last data telegram” is wholly different from “all
the packets transmitted.” App. Br. 13.
The Examiner finds that Chiu teaches “[w]hen a member (i.e., the
receiver) receives the beacon packet with the TXDONE flag set (i.e., a last
data telegram of the data transmission), it immediately sends an ACK
message (i.e., an additional flow control telegram) to its repair head
indicating whether it has received all the packets transmitted.” Ans. 14
(quoting Chiu, col. 24, ll. 5-8). The Examiner interprets the quoted passage
to mean that the ACK message is sent immediately after receiving all of the
packets. Id. The Examiner therefore finds that a last data telegram packet
is necessarily included among all the packets transmitted, and that therefore
the ACK message is sent right after receiving all the packets, including the
last packet. Id.
We agree with the Examiner’s findings cited above, and we adopt
them as our own. Chiu teaches that the beacon packet with the TXDONE
flag set triggers the transmission of the ACK message, indicating that all
packets have been received. Ans. 14. We find that Chiu teaches that the
“beacon packet with the TXDONE flag set” is necessarily sent after
transmission of a “last data telegram” and that the subsequent transmission
of the “ACK message” by the receiver corresponds to the “additional flow
control telegram” sent upon receipt of the beacon packet with the TXDONE
flag set.” Id. We consequently find that the Examiner did not err in finding
that the combination of Chiu and Meyer discloses the limitation of claim 13
reciting “transmitting an additional flow control telegram from the receiver
to the sender after a last data telegram of a data transmission.” Issue 3
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Appellants argue that the Examiner erred further with respect to the
same limitation of claim 13 by finding that Chiu teaches or suggests
“transmitting an additional flow control telegram from the receiver to the
sender.” App. Br. 14 (emphasis in App. Br.). We therefore address the
issue of whether the Examiner erred in so finding.

Analysis
Appellants contend that the repair head taught by Chiu is not a sender
but merely part of the repair tree structure. App. Br. 14. Appellants argue
further that the only communication from a repair head to the sender
involves the receipt of information from the sender, which is completely
unrelated to transmitting information from the receiver to the sender. Id. In
this regard, according to Appellants, Chiu states that the “sender transmits
this packet periodically until all of its immediate members acknowledge the
receipt of all packets sent. The sender can then exit.” Id. (quoting Chiu,
col. 24, ll. 2-4). Appellants contend that the “immediate members” are
earliest members of the repair tree, viz., repair heads, and not the receiver.
App. Br. 14.
Appellants also argue that the arrow depicted in FIG. 1 extending
from the repair head to the sender does not provide any meaningful
explanation as to how a flow control telegram from the receiver is sent to
the sender or even that a repair head station necessarily is sending an
acknowledgment from the receiver to the sender. Id. Appellants argue that
it is therefore apparent that a repair head is not a sender but merely part of
the repair tree structure and that, accordingly, an additional flow control
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telegram from the receiver to the sender (as provided in the disputed
limitation) is neither taught nor suggested by Chiu. Id.
The Examiner responds that Chiu teaches or suggests that the
member (i.e., the receiver) sends the ACK message to its repair head and, in
FIG. 1, the arrows from repair heads to the sender are construed as
representing the repair heads sending the message to the sender. Ans. 14
(citing Chiu, FIG. 1; Cols. 23-24, ll. 60-31). The Examiner concedes that
the repair head is not a sender, finds that it is an intermediate unit for
forwarding the communications between the receiver and the sender. Ans.
14.
We agree with the Examiner and adopt the findings as our own.
Nothing in the plain language of the claim precludes the possibility of an
intermediate transmission unit between receiver and sender, the limitation
only requires that the flow control telegram be transmitted from receiver to
sender. Ans. 14. Chiu teaches that “[t]he sender notifies all members
[including receivers and repair heads] of session completion with a beacon
packet that has the TXDONE flag set.” Chiu, col. 23, ll. 65-67; see also
Ans. 14. Further, “[w]hen a member (i.e., a receiver) receives the beacon
packet with the TXDONE flag set, it immediately sends an ACK message
to its repair head indicating whether it has received all the packets
transmitted or requires more retransmissions.” Chiu, col. 24, ll. 5-8; see
also Ans. 14. Finally, teaches Chiu, “[t]he sender transmits this packet [the
beacon packet] periodically until all of its immediate members [i.e., repair
heads] acknowledge the receipt of all packets sent.” Chiu, col. 24, ll. 2-4;
see also Ans. 14.
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In other words, the beacon packet is sent to all members of the
network, indicating transmission completion. The receivers send an ACK
message to the repair head, which, in turn (when it has received an ACK
message from all of its receivers), transmits a flow control telegram to the
sender that all units have acknowledged receipt of the beacon. Ans. 14; see
also Chiu, FIG. 1; Cols. 23-24, ll. 60-31. Moreover, we find that it is this
latter transmission that is depicted by the arrow from repair head to sender
in FIG. 1 of Chiu. Ans. 14.
We agree with the Examiner that Chiu teaches or suggests the
limitation of claim 13 reciting “transmitting an additional flow control
telegram from the receiver to the sender.” We therefore conclude that claim
13 would have been obvious to a person of ordinary skill in the
contemporaneous art over the combination of Meyer and Chiu.

Claim 16
Issue
Appellants argue that the Examiner erred by finding that the
combination of Meyer and Chiu teaches the limitation of claim 16 reciting
“checking, by the sender, whether a flow control telegram is received
within a predefinable first time period after sending at least one message,
and in case of an error repeating by the sender, at least one of a last sent
data telegram or all last sent data telegrams of a data transmission.” App.
Br. 15. According to Appellants neither reference discloses or suggests this
limitation. Id. We therefore address the question of whether the Examiner
erred in so finding.

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Analysis
Appellants argue that Meyer teaches that “if no acknowledgement or
a nonacknowledgement message is received, the data unit that was not
correctly received by the receiving peer can be retransmitted by the sending
peer.” App. Br. 15 (quoting Meyer, ¶ [0007]). Thus, contend Appellants,
only the very last data unit (or telegram) is retransmitted. App. Br. 15.
According to Appellants, a “last sent data telegram or all last sent data
telegrams of a data transmission,” as recited in the context of the claimed
subject matter is not even discussed in any way. Id.
The Examiner responds that Meyer teaches that “[i]n order to ensure
the reliable transmission of data, many protocols provide the feature of data
unit retransmission, which means that segments from the sequence can be
retransmitted if necessary …, or if no acknowledgement or a
nonacknowledgement message is received, the data unit that was not
correctly received by the receiving peer can be retransmitted by the sending
peer.” Ans. 15 (quoting Meyer, ¶ [0007]). The Examiner finds further that
Meyer teaches that “the loss of a data unit or segment has occurred, such
that an appropriate retransmission can take place. One such known feature
is retransmission time-out, which means that after sending a data unit, a
timer is monitored … then it is assumed that the data unit has been lost and
it is accordingly retransmitted.” Ans. 15 (quoting Meyer, ¶ [0008]).
Therefore, finds the Examiner, Meyer teaches or suggests that in case of an
error (i.e., data unit or segments from the sequence have been lost),
retransmitting by the sender, after a predetermined time-out, of at least one
of the segments from the sequence or the data unit. Ans. 15. Consequently,
finds the Examiner, the combination of Meyer and Chiu teaches or suggests
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the limitation of claim 16 reciting “checking, by the sender, whether a flow
control telegram is received within a predefinable first time period after
sending at least one message, and in case of an error repeating by the
sender, at least one of a last sent data telegram or all last sent data telegrams
of a data transmission.” Ans. 15.
We agree with the Examiner’s reasoning and adopt it as our own.
Meyer explicitly discloses that “the feature of data unit retransmission,
which means that segments from the sequence can be retransmitted if
necessary.” Meyer, ¶ [0007]. Furthermore, Meyer teaches “retransmission
time-out, which means that after sending a data unit, a timer is monitored,
and if a predetermined amount of time passes without having received an
acknowledgement for the given data unit, then it is assumed that the data
unit has been lost and it is accordingly retransmitted.” Meyer, ¶ [0008].
We find, therefore, that the cited teachings of Meyer disclose or suggest the
disputed limitation of claim 16 and conclude that the Examiner did not err
in so finding.

Claim 17
Issue
Appellants next argue that the Examiner erred in finding that the
combination of Meyer and Chiu discloses or suggests the limitation of
claim 17 reciting “checking, by the sender, whether the receiver can be
operated in a confirmed transmission mode with sending of the flow control
telegram at the end of the data transmission in that the sender sends one or
more test or configuration messages and checks receipt of a corresponding
flow control telegram as a confirmation.” App. Br. 15-16. According to
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Appellants neither reference discloses or suggests this limitation. Id. We
therefore address the issue of whether the Examiner erred in so finding.

Analysis
Appellants cite the Specification, which discloses that the “present
invention … results in a very efficient improvement in network security,
since the network may be operated in a confirmed transmission mode, and a
conventional, highly compatible transmission protocol.” App. Br. 15-16
(quoting Specification, page 4, lines 15 to 17). Therefore, Appellants
contend, before communicating in the more advanced mode, the sender
checks whether such operation is feasible. App. Br. 16. Appellants argue
that Chiu neither discloses nor suggests sending one or more test or
configuration messages to determine whether the receiver can be operated
in a confirmed transmission mode, as provided for in the context of the
claimed subject matter. Id. Appellants maintain, rather, that Chiu merely
sends regular messages and includes repair head stations to retransmit
messages if they are not received. Id.
The Examiner responds by finding that Chiu discloses that the
[r]eceiver[s] must be able to determine when the session has
completed to ensure they have received all of the data before
exiting…. The sender notifies all members of session
completion with a beacon packet that has the TXDONE flag
set. This packet also includes the sequence number of the last
data packet sent. The sender transmits this packet periodically
unit all of its immediate members acknowledge the receipt of
all packets sent…. When a member receives the beacon packet
with the TXDONE flag set, it immediately send an ACK
message to its repair head indicating whether it has received all
the packets transmitted or requires more retransmissions.
TRAM notifies the application when it receives all of the
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packets…. If the beacon from the sender with the TXDONE
flag set is received but one or more members have not
acknowledged all packets, a Hello message is sent to these
members with the same information contained in the beacon
packet. Members receiving this Hello message must respond in
the same way that they would if they received the beacon….

Ans. 16-17 (quoting Chiu, col. 23-24, ll. 60-31). The Examiner therefore
finds that the sender sends at least one message, such as the beacon packet
with the TXDONE flag set or Hello message (i.e., these messages
are considered as tests or configuration messages), for checking whether the
member(s) (i.e., receiver(s)) receive the data unit or all packets at the end of
the data transmission. Ans. 17. Then if the member (i.e., receiver) receives
the packets, it sends an ACK message (i.e., a flow control telegram);
otherwise it does not send the ACK message. Id. Thus, the Examiner finds
that the member (i.e., receiver) can be operated in a confirmed transmission
mode such as: (1) sending an ACK message which indicates all the packets
have been received; and that (2) the ACK message sent is considered as a
positive confirmed mode, whereas no acknowledgement sent is considered
as a negative confirmed mode. Id.
We agree with the Examiner. Although the claim terms are
understood in light of the specification, a claim construction must not
import limitations from the specification into the claims. Phillips v. AWH
Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005). We agree with the
Examiner’s finding that the beacon packet with the TXDONE flag set and
the Hello message act as test or configuration messages and that the receipt
of the ACK message and confirmation of that receipt to the sender act to
“check[] receipt of a corresponding flow control telegram as a
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confirmation” as recited in claim 17. We therefore conclude that the
Examiner did not err in finding that the limitation of claim 17 reciting
“checking, by the sender, whether the receiver can be operated in a
confirmed transmission mode with sending of the flow control telegram at
the end of the data transmission in that the sender sends one or more test or
configuration messages and checks receipt of a corresponding flow control
telegram as a confirmation.”

Claim 20
Issue
Appellants argue that the Examiner erred in finding that the
combination of Chiu and Meyer discloses or suggests the limitation of
claim 20 reciting “an identified configuration message allows a switchover
into a confirmed operating mode at any arbitrary time, to the extent that the
operating mode is supported.” App. Br. 16. According to Appellants
neither reference discloses or suggests this limitation. App. Br. 17. We
therefore address whether the Examiner so erred.

Analysis
Appellants argue that there is no teaching or suggestion in either
Chiu or Meyer of a switchover into a confirmed operating mode, let alone
at any arbitrary time, as provided for in the context of the claimed subject
matter. App. Br. 17. According to Appellants, Chiu teaches a system that
either transmits or does not operate at all. Id. Appellants contend that
switching over from one operating mode to another is neither disclosed nor
suggested by Chiu. Id.
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The Examiner responds that Chiu teaches an identified configuration
message such as a beacon packet with the TXDONE flag set or Hello
message sent by the sender for checking whether the member(s) (i.e.,
receiver(s)) receive the data unit or all packets at the end of the data
transmission (Ans. 18 (citing Chiu, cols. 23-24, ll. 60-31)), which allows
the member (i.e., receiver) to be operated in a confirmed transmission mode
such as: (1) sending an ACK message which indicates all the packets have
been received; (2) the ACK message sent is considered as a positive
confirmed mode; and (3) no acknowledgement sent is considered as a
negative confirmed mode. App. Br. 18. The Examiner interprets that these
modes can be switched at any arbitrary time to notify the sender whether it
receives the packets. Id.
We agree with the Examiner’s reasoning. Chiu teaches a multicast
communication system with a confirmed operating mode, as the Examiner
finds. Chiu, col. 2, ll. 58-60. We find the Examiner’s interpretation that the
confirmed modes can be switched at an arbitrary time is reasonable in light
of the teachings and suggestions of Chiu. Ans. 18. We therefore find that
the Examiner did not err in finding that the combination of Chiu and Meyer
teach or suggest the limitations of claim 20.

Claim 21
Issue
Appellants contend that the Examiner erred in finding that the
combination of Meyer and Chiu teaches or suggests the limitation of claim
21 reciting “checking to determine whether the sender receives the flow
control telegram after the test or configuration message within a
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predefinable second time period.” App. Br. 17. According to Appellants
neither reference discloses or suggests this limitation. Id. We therefore
address the issue of whether the Examiner so erred.

Analysis
The Appellants argue that the Examiner erred because neither the
“ACK” nor the “TXDONE” flags taught by Chiu disclose whether the
sender receives the flow control telegram. App. Br. 17. According to
Appellants, even if the “ACK” or “TXDONE” indicate whether some
receiver has received information, this is wholly different from checking to
determine whether the sender receives the flow control telegram. Id.
Therefore, argue Appellants, the feature of “checking to determine whether
the sender receives the flow control telegram after the test or configuration
message” is neither disclosed nor suggested by Chiu. App. Br. 17-18.
The Examiner responds that Chiu discloses a Hello message sent to
the receivers with the same information contained in the beacon TXDONE
packet to check whether the sender received the ACK message (i.e., the
flow control telegram) within a predefinable second time period. Ans. 19.
The Examiner finds that Chiu teaches that:
If the beacon from the sender with the TXDONE flag set is
received but one or more members have not acknowledged all
packets, a Hello message is sent to these members with the
same information contained in the beacon packet. Members
receiving this Hello message must respond in the same way that
they would if they received the beacon. If the repair head still
doesn't hear from its members after sending the Hello, it retries
several times. After a period of time it gives up on the member
and removes it from the member list.

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Ans. 19-20 (quoting Chiu, col. 24, ll. 17-26; see also FIG. 1). Therefore,
finds the Examiner, Chiu discloses or suggests “checking to determine
whether the sender receives the flow control telegram after the test or
configuration message within a predefinable second time period.” Ans. 21.
We are persuaded by the Examiner’s reasoning and adopt it as our
own. We find that Chiu teaches that the sender does not exit the session
until it has received the flow control telegram from the repair heads that all
receivers have either sent an ACK message signaling receipt of the
TXDONE beacon packet or have been removed from the member list for
repeatedly failing to respond to Hello messages over a predetermined
interval. Ans. 21; Chiu, cols. 23-24, ll. 64-27. Specifically, the sender may
not exit the session until it all of its members acknowledge the receipt of all
packets sent. Chiu, col. 24, ll. 2-4. We conclude that the Examiner did not
therefore err in concluding that Chiu discloses or suggests the limitation of
claim 21 reciting “checking to determine whether the sender receives the
flow control telegram after the test or configuration message within a
predefinable second time period.”

Claims 33-36
Issue
Appellants argue that the Examiner erred in rejecting claims 33-36.
App. Br. 20. According to Appellants, claims 33-36 depend from claim 32
which includes the feature of “executing according to ISO protocol 15765-
2” although claims 33-36 do not explicitly recite that limitation. Id. We
therefore address the issue of whether the Examiner so erred.

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Analysis
Appellants point to the Final Office Action’s assertion that Chiu and
Meyer disclose the limitation reciting “executing according to ISO protocol
15765-2”, however Appellants submit that the references are silent with
respect to this limitation.
The Examiner admits that Meyer and Chiu do not disclose the
disputed limitation, but notes that the Examiner cited Cach, which discloses
this limitation. Ans. 21. This reference was cited against claim 32, which
explicitly recites “executing according to ISO protocol 15765-2.” Id.
(citing Cach, 5-6, § 3.3).
We are persuaded by Appellants’ reasoning. Claims in dependent
form include all the limitations of the claim incorporated by reference into
the dependent claim. 35 U.S.C. § 112(d). Consequently, claims 33-36
incorporate by reference the disputed limitation. Although Cach was cited
as teaching or disclosing the limitation of claim 32 reciting “executing
according to ISO protocol 15765-2,” which Appellants do not dispute, Cach
was not cited in the rejection of claims 33-36. Ans. 9. The Examiner
admits that Meyer and Chiu are silent with respect to the disputed
incorporated limitation of claims 33-36. Ans. 20. Consequently, we
reverse the Examiner’s rejection of the limitation reciting “executing
according to ISO protocol 15765-2” as being obvious over the combination
of Meyer and Chiu.

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22
Claim 37
Issue
Appellants argue that the Examiner erred in finding that the
limitation of claim 37 reciting “the sender repeats at least one of a last sent
data telegram and all last sent data telegrams of a data transmission.” App.
Br. 21. According to Appellants neither reference discloses or suggests this
limitation. Id. We therefore address the issue of whether the Examiner so
erred.

Analysis
Appellants argue that Meyer teaches that “if no acknowledgement or
a nonacknowledgement message is received, the data unit that was not
correctly received by the receiving peer can be retransmitted by the sending
peer.” App. Br. 21 (quoting Meyer, ¶ [0007]). According to Appellants,
Meyer therefore teaches that only the very last data unit (or telegram) is
retransmitted. Id. Furthermore, Appellants contend, neither Chiu nor Cach
cure this deficiency.
The Examiner responds that Meyer discloses that:
[i]n order to ensure the reliable transmission of data, many
protocols provide the feature of data unit retransmission, which
means that segments from the sequence can be retransmitted if
necessary …, or if no acknowledgement or a non-
acknowledgement message is received, the data unit that was
not correctly received by the receiving peer can be
retransmitted by the sending peer.

Ans. 21 (quoting Meyer, ¶ [0007]). The Examiner further finds that Meyer
teaches that:
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the loss of a data unit or segment has occurred, such that an
appropriate retransmission can take place. One such known
feature is retransmission time-out, which means that after
sending a data unit, a timer is monitored … then it is assumed
that the data unit has been lost and it is accordingly
retransmitted.

Ans. 21 (quoting Meyer, ¶ [0008]). The Examiner therefore finds that
Meyer teaches or suggests that, in a case of an error (i.e., the data unit or
segments from the sequence is lost), retransmitting by the sender of at least
one of the segments from the sequence or the data unit (i.e., the sequence or
the data unit is considered as all last sent data segments of the data
transmission). Ans. 21-22. Therefore, the Examiner finds, a last sent data
segment is included in the data unit or sequence. Ans. 22. Examiner
interprets that an appropriate retransmitting step is corresponds to the
claimed repeating step performed by the sender. Id.
We are persuaded by the Examiner’s reasoning and adopt it as our
own. We agree with the Examiner that the retransmission step taught or
suggested by Meyer and quoted supra discloses or suggests the limitation of
claim 37 reciting “repeats at least one of a last sent data telegram and all
last sent data telegrams of a data transmission.” We consequently find that
the Examiner did not err in finding that the combination of Meyer, Chiu and
Cach discloses or suggests the limitations of claim 37.

NEW GROUND OF REJECTION
We enter the following new grounds of rejection for dependent
claims 33-36 under the provisions of 37 C.F.R. § 41.50(b).
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Claim 33-36 are newly rejected as unpatentable under 35 U.S.C.
§ 103(a) as being obvious over the combination of Meyer, Chiu, and Cach.
Dependent claims 33-36 depend from independent claim 32 which recites:
32. The device as recited in claim 24, wherein the data
transmission is executed according to ISO protocol 15765-2,
wherein a first flow control telegram type is used as a positive
confirmation and a second flow control telegram type is used as
a negative confirmation, and wherein the sender checks whether
the receiver can be operated in a confirmed transmission
mode with sending of the flow control telegram at the end of
the data transmission in that the sender sends at least one test or
configuration messages and checks receipt of a corresponding
flow control telegram as a confirmation.

Claims App’x 4. Dependent claims 33-36 incorporate by reference all of
the limitations of claim 32. 35 U.S.C. § 112(d). Specifically, we find that
the limitation of claim 32 reciting “wherein the data transmission is
executed according to ISO protocol 15765-2” is anticipated by Cach. Cach,
5-6, § 3.3. We do not sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of claims 33-36. Claims 33-36 are newly rejected.

DECISION
The Examiner’s rejection of claims 13,15-24, 26-31, 37-49, and 51-
54 as unpatentable under 35 U.S.C. § 103(a) as being obvious over the
combination of Meyer and Chiu is affirmed.
The Examiner’s rejection of claims 33-36 as unpatentable under 35
U.S.C. § 103(a) as being obvious over the combination of Meyer and Chiu
is reversed.
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The Examiner’s rejection of claims 14, 25, 32, and 50 as
unpatentable under 35 U.S.C. § 103(a) as being obvious over the
combination of Meyer, Chiu, and Cach is affirmed.
We have also entered a new ground of rejection under 37 C.F.R.
§ 41.50(b) for dependent claims 33-36.
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides that “[a] new ground
of rejection . . . shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground 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….

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-IN-PART
37 C.F.R. § 41.50(b)

msc