Ex Parte Roskind et al

Patent Trial and Appeal Board

Mar 3, 2017

13829469 (P.T.A.B. Mar. 3, 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.
13/829,469 03/14/2013 James A. Roskind 090364-0548 6560
10996 7590 03/07/2017
McDermott Will & Emery LLP (Google)
The McDermott Building
500 North Capitol St., N.W.
Washington, DC 20001
EXAMINER
WANG, YAOTANG
ART UNIT PAPER NUMBER
2474
NOTIFICATION DATE DELIVERY MODE
03/07/2017 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):
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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 A. ROSKIND and RAMAN TENNETI
Appeal 2016-006254
Application 13/829,469
Technology Center 2400
Before ERIC S. FRAHM, JOHNNY A. KUMAR, and
JOHN P. PINKERTON, Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-006254
Application 13/829,469
STATEMENT OF CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1, 2, 4—9, 11—15, and 17—20. Claims 3,10, and 16 have been
canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellants ’ Disclosure
Network delays are caused by retransmission latency, which is in turn
caused by packet loss (Spec. 12). Appellants’ invention reduces
retransmission latency for data packets transmitted over a network by using
a combination of two methods: packet pacing and forward error correction
(Spec. H1, 2). Retransmission latency is reduced by setting packet
transmission intervals and redundant error correction information for data
packets, and then pacing the transmission of the data packets (independent
claims 1, 8, and 14; Abs.).
Exemplary Claim
Exemplary independent claim 1, with emphases added, reads as
follows:
1. A method for reducing retransmission latency,
comprising:
determining a packet transmission interval needed to de­
correlate two or more of a plurality of data packets;
determining redundant error correction information for
the plurality of packets;
pacing a transmission of the plurality of packets to a
recipient, wherein each of the plurality of packets is separated
in time based on the packet transmission interval; and
transmitting the redundant error correction information
to the recipient once each of the plurality of packets has been
transmitted,
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Application 13/829,469
wherein the de-correlation of the two or more of the
plurality of packets is configured for an increased likelihood
that a threshold amount of original data is received to perform
data recovery for dropped packets from the plurality of data
packets and for a reduced probability that the redundant error
correction information gets dropped.
The Examiner’s Rejection
The Examiner rejected claims 1, 2, 4—9, 11—15, and 17—20 as being
unpatentable under 35 U.S.C. § 103(a) over the combination of Mohanty
(US 2003/0206524 Al; Aug. 3, 2004) and Schuster (US 6,771,674 Bl; Nov.
6, 2003). Final Act. 3—9; Ans. 2—5.
Principal Issues on Appeal
Based on Appellants’ arguments (App. Br. 10-14; Reply Br. 2—5), the
following principal issues are presented:1
Did the Examiner err in rejecting claims 1, 2, 4—9, 11—15, and 17—20
as being obvious because (a) Mohanty and Schuster are not properly
combinable, (b) the combination of Mohanty and Schuster fails to teach or
suggest the pacing and error correction limitations of representative claim 1,
and (c) Schuster teaches away from Appellants’ invention?
1 Appellants provide specific arguments as to the merits of claim 1 (App. Br.
10—12), and rely on those arguments for the patentability of remaining
independent claims 8 and 14 (see App. Br. 12—13). Appellants do not argue
separate patentability for claims 2, 4—7, 9, 11—13, 15, and 17—20 (see App.
Br. 13). Claims 1, 8, and 14 all contain similar subject matter, and
specifically pertain to a method, system, and storage medium having
instructions to reduce retransmission latency using pacing and error
correction. We select claim 1 as representative of the group of claims
rejected for obviousness, and our decision will only further address
representative claim 1.
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Application 13/829,469
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions in the Appeal Brief (App. Br. 10—14) and the Reply Brief (Reply
Br. 2—5) that the Examiner has erred. We disagree with Appellants’
conclusions. With regard to claim 1, we adopt as our own (1) the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken (Final Act. 4—5), as well as the Advisory Action mailed July 23, 2015
(pp. 2-4), and (2) the reasons set forth by the Examiner in the Examiner’s
Answer in response to Appellants’ Appeal Brief (see Ans. 2—5). We concur
with the conclusions reached by the Examiner, and we highlight and
emphasize certain teachings of the references and Appellants’ disclosure.
The Examiner relies on Mohanty’s disclosure of reducing
retransmission latency by determining packet transmission intervals and
pacing transmission of the packets (Final Act. 4—5 citing Mohanty || 23, 36,
116, 126; Adv. Act. 3 citing Mohanty Background), and Schuster’s
disclosure of determining and transmitting redundant error correction
information for data packets (Final Act. 5 citing Schuster Fig. 5, col. 13,11.
10-35, 14,11. 15—30; Adv. Act. 3 citing Schuster col. 5,11. 15—20). The
Examiner determines it would have been obvious to combine the teachings
of Schuster and Mohanty (i) “to further reduce packet retransmission
occurrence by using a well-known forward error correction mechanism”
(Final Act. 5); (ii) “to reduce the chance of packet losses during the
retransmission” by “reducing the need for further retransmissions” and
“preventing the same packet transmission” (Ans. 3); (iii) “to arrive at a
single system that utilizes the benefits of both the retransmission mechanism
and FEC to prevent the need for further packet retransmissions and
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Application 13/829,469
increase^ the recovery rate of transmitted packets” (Ans. 3); and (iv) to
reduce overall packet transmission delay in two different ways (Mohanty’s
ARQ/pacing and Schuster’s FEC), thereby providing the predictable result
that combining these two methods “further reduces the occurrence of packet
retransmission” (Ans. 4—5). Thus, the Examiner finds that Schuster’s
forward error correction (FEC) mechanism teaches an alternative, and not an
opposite, way of reducing latency as compared to Mohanty’s automatic
request for retransmission (ARQ) mechanism (Ans. 4), and thus combining
the two methods provides more benefits than either one applied singly.
With regard to claim 1, the Examiner has provided a factual basis and
articulated reasoning with a rational underpinning to support the conclusion
of obviousness (see Final Act. 4—5; Ans. 2—5). See KSR Int’l Co. v. Teleflex,
Inc., 550 U.S. 398, 418 (2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006)). We agree with the Examiner’s motivation statement found at
page 5 of the Final Rejection and as further explained at pages 4—5 of the
Examiner’s Answer. Appellants’ arguments (App. Br. 11—12; Reply Br. 2—
3) that Schuster teaches away from and disavows ARQ retransmission are
unpersuasive.
“[A] reference will teach away if it suggests that the line of
development flowing from the reference’s disclosure is unlikely to be
productive of the result sought by the applicant.” In re Gurley, 27 F.3d 551,
553 (Fed. Cir. 1994); see also W.L. Gore & Assoc, v. Garlock, Inc., Ill F.2d
1540, 1550-51 (Fed. Cir. 1983). Further, “[a] reference may be said to teach
away when a person of ordinary skill, upon reading the reference, would be
discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant.” In re
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Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994); Para-Ordinance Mfg., Inc. v.
SGSImporters Inti., Inc., 73 F.3d 1085, 1090 (Fed. Cir. 1995).
That Schuster and Mohanty may primarily address different types of
mechanisms does not discourage the path that was taken by Appellants. In
re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994); Para-Ordinance Mfg., Inc. v.
SGS Importers Inti., Inc., 73 F.3d 1085, 1090 (Fed. Cir. 1995). And,
although Schuster states a preference for FEC over ARQ retransmission for
reducing delays, that stated preference is insufficient to teach away from
the claimed invention or the combination of the two mechanisms. See id.;
In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Column 4, line 59 to column 5, line 16 of Schuster acknowledges, and
does not discourage, the use of ARQ for retransmission to correct for packet
loss, although the ARQ mechanism can unfortunately cause delay in the
complete transmission of a data stream. And, the fact that Schuster discloses
“less delay in packet loss correction can be achieved by transmitting a
correction code” (col. 5,11. 18—19), “[rjather than employing (or invoking)
an acknowledgement and retransmission system” (col. 5,11. 17—18), does not
discourage or disavow the use of both ARQ/pacing and FEC/code correction
to provide more benefits as would be predictable.
In this light, we disagree with Appellants’ arguments (App. Br. 11—
12; Reply Br. 2—3) that Schuster teaches away from Mohanty’s ARQ
retransmission. In fact, Appellants’ Specification (Spec. 136) recognizes
the increased benefits of combining error correction or FEC with ARQ
retransmission. Appellants have provided no evidence or citation to the
record to support the assertion that Schuster teaches away from Appellants’
invention, or from Mohanty’s ARQ retransmission mechanism. Instead,
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only attorney argument was presented regarding the incompatibility of
Schuster’s FEC mechanism with a retransmission or pacing mechanism as
described by Mohanty or in claim 1. Mere attorney arguments and
conclusory statements that are unsupported by factual evidence are entitled
to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
In view of the foregoing, we sustain the obviousness rejection over the
combination of Mohanty and Schuster of claim 1, as well as claims 2, 4—9,
11—15, and 17—20 argued on the same basis as claim 1.
CONCLUSION
The Examiner has not erred in rejecting claims 1, 2, 4—9, 11—15, and
17—20 as being obvious because (a) Mohanty and Schuster are properly
combinable, (b) the combination of Mohanty and Schuster teaches or
suggests the pacing (i.e., ARQ) and error correction (i.e., FEC) limitations of
claim 1, and (c) Schuster does not teach away from Appellants’ invention.
DECISION
The Examiner’s rejection of claims 1, 2, 4—9, 11—15, and 17—20 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)(l)(iv).
AFFIRMED
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