Ex Parte Trossell et al

Patent Trial and Appeal Board

Feb 22, 2016

12263773 (P.T.A.B. Feb. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/263,773 11103/2008 David Trossell
22907 7590 02/24/2016
BANNER & WITCOFF, LTD.
1100 13th STREET, N.W.
SUITE 1200
WASHINGTON, DC 20005-4051
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.
016559.00042 8863
EXAMINER
BAIG,ADNAN
ART UNIT PAPER NUMBER
2461
NOTIFICATION DATE DELIVERY MODE
02/24/2016 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):
eofficeaction@bannerwitcoff.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID TROSSELL and LEWIS HIBELL1
Appeal2014-002766
Application 12/263,773
Technology Center 2400
Before ALLEN R. MacDONALD, AMBER L. HAGY, and
AARON W. MOORE, Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Non-Final
Rejection, mailed January 31, 2013 (hereinafter "Non-Final Act."), of claims
1--4, 6, 10-13, 15, 16, 30, and 34. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
1 Appellants identify Bridgeworks Limited as the real party in interest.
(App. Br. 2.)
Appeal2014-002766
Application 12/263,773
Introduction
According to Appellants, "[ t ]he invention relates to a method and
apparatus for transferring data." (Spec. 1.)
Exemplary Claim
Claim 1, reproduced below with the disputed limitation italicized, is
exemplary of the claimed subject matter:
1. A method, comprising:
a) at a first node, receiving a packet;
b) at said first node, caching said packet;
c) at said first node, obtaining initial values for one or more
parameters pertaining to data transfer between said first node and
a second node, wherein the initial values include a number of two
or more connections used in transferring data between said first
node and said second node;
d) transferring said packet from said first node to said
second node via a number of connections between the first node
and the second node, wherein said number of connections is
equal to said number of two or more connections.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Ono
Mizrachi
Marcondes
Matze
Haigh
US 2006/0039335 Al Feb. 23, 2006
US 2008/0091868 Al Apr. 17, 2008
US 2008/0144504 Al June 19, 2008
US 2008/0288772 Al Nov. 20, 2008
US 2009/0092137 Al Apr. 9, 2009
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Application 12/263,773
REJECTIONS2
Claims 1-3, 10-12, 15, and 34 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over Marcondes and Haigh. (Non-Final Act.
3-9.)
Claims 4 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Marcondes, Haigh, and Ono. (Non-Final Act. 10-12.)
Claims 6 and 16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Marcondes, Haigh, and Mizrachi. (Non-Final Act. 12-
14.)
Claim 30 stands rejected under 35 U.S.C. §103(a) as being
unpatentable over Marcondes, Haigh, and Matze. (Non-Final Act. 14--15.)
ISSUE
Whether the Examiner erred in finding the combination of Marcondes
and Haigh teaches or suggests "transferring said packet from said first node
to said second node via a number of connections between the first node and
the second node, wherein said number of connections is equal to said
number of two or more connections," as recited in independent claim 1 and
commensurately recited in independent claim 1 O?
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner has erred. We disagree with Appellants'
conclusions and we adopt as our own: (1) the findings and reasons set forth
2 Claims 5 and 14 are objected to, but would be allowable if rewritten in
independent form. (Non-Final Act. 16.)
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by the Examiner in the action from which this appeal is taken (Non-Final
Act. 3-15); and (2) the reasons set forth by the Examiner in the Examiner's
Answer in response to Appellants' Appeal Brief (Ans. 2-5). We concur with
the conclusions reached by the Examiner, and we highlight the following for
emphasis. 3
A. Claims 1-3, 10--12, 15, and 34
1. Claims 1-3, 10--12, and 344
The Examiner relies on Marcondes as teaching or suggesting the
disputed limitation of claim 1. (Non-Final Act. 4.) In particular, the
Examiner finds Marcondes teaches transmitting packets "simultaneously
across multiple paths ... to increase bandwidth usage." (Non-Final Act.
4 (citing Marcondes i-fi-f 15, 30 and Fig. 1).) We agree this finding is
supported by the teachings of Marcondes.
Appellants do not dispute Marcondes "describes that some packets are
sent over one path and other packets are sent over another path." (App. Br.
6.) Appellants assert, however, Marcondes does not teach or suggest the
disputed limitation because the disputed limitation requires sending a single
packet over multiple paths:
Put simply, what is missing from Marcondes is any teaching or
suggestion that transferring a packet requires or actually uses
multiple paths such as, for example, an embodiment where a
3 Only those arguments made by Appellants have been considered in this
Decision. Arguments Appellants did not make in the Briefs have not been
considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv).
4 Appellants argue claims 2, 3, 10-12, and 34 collectively with claim 1.
Except for our ultimate decision, these claims are not discussed further
herein. See 37 C.F.R. § 41.37(c)(l)(iv).
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Application 12/263,773
packet is duplicated and the copies of the packet are transmitted
over the multiple paths of Marcondes or an embodiment where
portions of the packet are transmitted over the multiple paths of
Marcondes.
(App. Br. 6-7 (emphases added).)
Appellants' argument is not commensurate with the scope of the
claims, and is thus unpersuasive. See In re Self, 671 F.2d 1344, 1348
(CCPA 1982). It is well settled that the terms of a claim must be given the
broadest reasonable interpretation, consistent with Appellants' Specification,
as it would be interpreted by one of ordinary skill in this art. In re Morris,
127 F.3d 1048, 1054--55 (Fed. Cir. 1997); In re Zletz, 893 F.2d 319, 321-22
(Fed. Cir. 1989). We find Appellants' overly narrow reading of claim 1-as
requiring transferring a single packet via two or more connections-is not
the broadest reasonable interpretation consistent with Appellants'
Specification.
The disputed limitation of claim 1 recites "transferring said packet
from said first node to said second node via a number of connections
between the first node and the second node .... " (App. Br. 5 (emphases
added).) Contrary to Appellants' contention, "transferring said packet ...
via a number of connections" is not limited to actually transferring the same
packet via multiple connections. Rather, a reasonable interpretation of the
disputed limitation of claim 1 is that it defines the transferring environment
as having "two or more connections," wherein "said packet" may be
transferred via any of the "number of connections." This reading is
consistent with the Specification. (E.g., Spec. 2: "Data can then be
transferred from the first node to the second node via one or more
connections between the first node and the second node .... ") Indeed, in
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describing the transfer of packets between nodes, the Specification
consistently describes transferring multiple packets (e.g., "batches of
packets" or even the more general term "data") over multiple paths. (E.g.,
Spec. 2--4, 6, and 7, and Figs. 1 and 4.) On the other hand, the Specification
does not disclose any embodiment in which a single packet is transferred
over multiple paths (such as by duplication of the packet or by splitting the
packet). Thus, reading claim 1 as encompassing "transferring a packet ...
over the multiple paths," or transmitting "portions of the packet ... over the
multiple paths," as Appellants argue (App. Br. 6-7), is not the broadest
reasonable interpretation of claim 1 in light of the Specification.
In short, we agree with the Examiner's finding Marcondes teaches or
suggests the disputed limitation of independent claim 1, afforded its broadest
reasonable interpretation in light of the Specification. We, therefore, sustain
the Examiner's 35 U.S.C. § 103(a) rejection of claim 1 and also claims 2, 3,
10, 11, 12, and 34, which Appellants do not argue separately from claim 1.
(App. Br. 3, 7-8.)
2. Claim 15
Claim 15 depends from claim 13, which in tum depends from claim
10, and adds the limitation "wherein said database includes values obtained
from simulated data transfers between the node and a plurality of destination
nodes." (App. Br. 8.) The Examiner finds this limitation is taught or
suggested by the combination of Marcondes and Haigh. (Non-Final Act. 9
(citing Marcondes i-fi-124--25; Haigh Fig. 2 and i-fi-142--44, 54).)
Other than a terse recitation of what Marcondes allegedly teaches
("congestion control algorithms") followed by the conclusory assertion
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"[ s ]electing congestion control algorithms for a path fails to teach or
suggest" the limitation of claim 15 (App. Br. 8), Appellants do not address
the Examiner's findings, e.g., explain why Marcondes' teachings, as cited by
the Examiner, fail to teach or suggest the claimed limitation. Appellants
have, therefore, not rebutted the Examiner's findings. See In re Lovin, 652
F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art.").
Moreover, Appellants assert the Examiner relies only on Marcondes
as teaching or suggesting the limitation of claim 15 (App. Br. 8), ignoring
the Examiner's combination of Marcondes with Haigh. (Non-Final Act. 9.)
Appellants thus fail to address the Examiner's rejection as given, and hence
have not persuaded us of error in the Examiner's findings.
We, therefore, sustain the Examiner's 35 U.S.C. § 103(a) rejection of
claim 15.
B. Claims 4, 6, 13, 16, and 30
Appellants have not argued the Examiner's rejections of claims 4, 6,
16, and 30, which each stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Marcondes and Haigh and an additional reference (Ono
for claims 4 and 13; Mizrachi for claims 6 and 16; Matze for claim 30).
(Non-Final Act. 10-15.) Accordingly, we summarily sustain those
rejections. See 37 C.F.R. § 41.37(c)(l)(iv) (2012); Manual of Patent
Examining Procedure (MPEP) § 1205.02, 8th ed., Rev. 8, July 2010 ("If a
ground of rejection stated by the examiner is not addressed in the appellant's
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briet: that ground of rejection will be summarily sustained by the Board.");
see also In re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002).
DECISION
For the above reasons, the Examiner's 35 U.S.C. § 103(a) rejections
of claims 1--4, 6, 10-13, 15, 16, 30, and 34 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)(l )(iv).
AFFIRMED
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