Ex Parte Sinha et al

Patent Trial and Appeal Board

Jul 18, 2016

13333474 (P.T.A.B. Jul. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/333,474
92689 7590
HONEYWELL/SLW
Patent Services
115 Tabor Road
P.O. Box 377
12/21/2011
07/20/2016
MORRIS PLAINS, NJ 07950
FIRST NAMED INVENTOR
Koushik Sinha
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
H002827 l.220528 2701
EXAMINER
DIVITO, WALTERJ
ART UNIT PAPER NUMBER
2465
NOTIFICATION DATE DELIVERY MODE
07/20/2016 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):
patentservices-us@honeywell.com
uspto@slwip.com
SLW@blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KOUSHIK SINHA, ARUN V. MAHASENAN, and
PATRICK S. GONIA
Appeal2015-000956
Application 13/333,474
Technology Center 2400
Before JEFFREYS. SMITH, HUNG H. BUI, and AMBER L. HAGY,
Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2015-000956
Application 13/333,474
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Representative Claims
1. A method comprising:
obtaining link quality to neighbor nodes for each node in
a wireless multi-hop network;
iteratively removing network elements and determining
alternative routes for each such removed network element; and
identifying critical network elements where inadequate
alternative routes exist after network elements are removed.
10. A computer system having computer executable code
stored on a storage device to cause the computer system to
execute a method, the method comprising:
evaluating for each network element in a wireless multi-
hop network whether the network element is critical to adequate
communications required by one or more nodes in the network;
and
assigning a network element criticality value to each
network element as a function of the number of nodes having
inadequate communications should the network element fail.
Examiner's Rejections
Claim 10 stand rejected under 35 U.S.C. § 102(b) as anticipated by St.
Pierre (US 2009/0168653 Al; pub. July 2, 2009).
Claims 1-9 and 11-20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over St. Pierre and Robinson (US 2010/0278072 Al; pub. Nov.
4, 2010).
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Application 13/333,474
ANALYSIS
We adopt the findings of fact made by the Examiner in the Final
Action and Examiner's Answer as our own. We agree with the Examiner's
responses to Appellants' arguments raised in the Appeal Brief for the
reasons given in the Examiner's Answer. We highlight the following issues
presented by Appellants in the Reply Brief to complete the record.
Section 102 rejection of claim 10
Claim 10 recites "assigning a network criticality value to each
network element as a function of the number of nodes having inadequate
communications should the network element fail."
Claim construction is an issue of law that we review de novo. Cordis
Corp. v. Boston Scientific Corp., 561F.3d1319 (Fed. Cir. 2009). Our
reviewing court has held that nonfunctional descriptive material cannot lend
patentability to an invention that would have otherwise been anticipated by
the prior art. In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004). Cf In re
Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983) (noting that when descriptive
material is not functionally related to the substrate, the descriptive material
will not distinguish the invention from the prior art in terms of patentability);
King Pharm., Inc. v. Eon Labs, Inc., 616 F.3d 1267, 1279 (Fed. Cir. 2010)
(noting that the relevant inquiry is whether the descriptive material has a
new and unobvious functional relationship with the known method)
(citations omitted).
Appellants contend the novel limitation of claim 10 is assigning a
"network element criticality value to each network element as a function of
the number of nodes having inadequate communications should a particular
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Application 13/333,474
network element fail." Reply Br. 1-2. The content of the assigned value is
a number. What the number represents, or is "a function of," is a description
of the number that does not affect any steps of the recited method.
Therefore, the descriptive material does not have a new and unobvious
functional relationship to the claimed method. The "network element
criticality value" does not lend patentability to claim 10 that is otherwise
anticipated by the prior art.
Further, even if we accord patentable weight to the "network element
criticality value," paragraph 4 7 of St. Pierre discloses selecting a route from
route replies as a function of, inter alia, the number of hops (or nodes) on
each potential route. If one node on the route fails, then the route fails (see
St. Pierre i-fi-15 and 23), causing the other nodes to have "inadequate
communications" along the route containing the failed node within the
meaning of claim 10. Therefore, the number of hops in the route of St.
Pierre discloses a value that is a function of the number of nodes having
inadequate communications along the route should one of the nodes in the
route fail within the meaning of claim 10. The scope of "assigning a
network element criticality value to each network element as a function of
the number of nodes having inadequate communications should the network
element fail" encompasses including a number of hops in each of the route
replies received by a source node as disclosed in paragraph 4 7 of St. Pierre.
For the reasons set forth, we sustain the rejection of claim 10 under 35
U.S.C. § 1021 as anticipated by St. Pierre.2' 3
1 In the event of further prosecution, the Examiner should consider whether
claims 1-20 recite anything more than a mathematical algorithm, which is
an unpatentable abstract idea under 35 U.S.C. § 101. For example, the
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Application 13/333,474
Section 103 rejection of claims 1-9 and 11-20
Claim 1 recites "iteratively removing network elements and
determining alternative routes for each such removed network element."
Appellants contend that paragraph 4 7 of St. Pierre does not disclose
iteratively removing network elements and determining alternative routes for
each such removed network element. Reply Br. 2-3. Appellants'
contention is inconsistent with paragraph 4 7 of St. Pierre, which discloses
selecting a best route, and storing one or more other routes that may be used
as alternate routes if the selected route goes down, or if the quality on the
Examiner should consider whether the steps of "evaluating" and "assigning"
recited in claim 10, when read in light of Figure 6 and the corresponding
detailed description of Appellants' Specification, encompass anything more
than mathematical steps for calculating and outputting values.
2 In the event of further prosecution, the Examiner should consider whether
claims 1-20 are unpatentable over WO 2010036885 (Carlson, April 1, 2010,
cited by 1A1ppellants in an information disclosure statement), either alone or
in combination with St. Pierre. For example, the Examiner should consider
whether performing a pinch point analysis for each device as shown in
Figure 2 discloses "evaluating ... whether the network element is critical,"
and the Examiner should also consider whether labeling a device as a pinch
point discloses "assigning a network element criticality value to each
network element as a function of a number of nodes having inadequate
communications should the network element fail" (where the pinch point
label, or "criticality value," is a function of at least one node being unable to
reach the gateway when the device fails, as shown in Fig. 2 block 82).
3 The Examiner should also consider whether claim 10 is unpatentable over
US 8,842,520 B2 (Kolavennu, Sept. 23, 2014). For example, the Examiner
should consider whether the Title, Abstract, and step 704 of Figure 7
discloses "evaluating ... whether the network element is critical," and the
Examiner should consider whether the Abstract and step 720 of Figure 7
(disclosing a list, or "number," of orphan nodes for a critical node when the
critical node fails), discloses "assigning a network element critical value."
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Application 13/333,474
selected route becomes unacceptable. Further, Appellants have not
persuasively shown that "iteratively" determining an alternate route when a
selected route goes down was "uniquely challenging or difficult for one of
ordinary skill in the art" who can determine alternate routes as taught by St.
Pierre. See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157,
1162 (Fed. Cir. 2007) (citing KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398,
418 (2007)).
Claim 1 also recites "identifying critical network elements where
inadequate alternate routes exist after network elements are removed."
Appellants have not provided persuasive evidence or argument to distinguish
this limitation from a specific case of the routing protocol of St. Pierre
disclosed in paragraph 4 7 and Figure 4, when the source node receives only
one route reply. In this case, no alternate routes are available, which
suggests that "inadequate alternate routes exist" after the selected route
(containing nodes, or "network elements") goes down, or is "removed"
within the meaning of claim 1.
For the reasons set forth, we sustain the rejection of claim 1 under 35
U.S.C. § 103. Appellants do not provide arguments for separate
patentability of claims 2-9 and 11-20, which fall with claim 1.
DECISION
The rejections of claims 1-20 are 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). See 37 C.F.R.
§ 41.50(±).
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Application 13/333,474
AFFIRMED
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