Ex Parte Waheed

Patent Trial and Appeal Board

Sep 29, 2016

13382038 (P.T.A.B. Sep. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/382,038 01/03/2012 Iftikhar Waheed
24112 7590 09/29/2016
COATS & BENNETT, PLLC
1400 Crescent Green, Suite 300
Cary, NC 27518
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.
4015-7943 I P27878-US1 1436
EXAMINER
ALAM,UZMA
ART UNIT PAPER NUMBER
2457
MAILDATE DELIVERY MODE
09/29/2016 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 IFTIKHAR W AHEED
Appeal2015-006318
Application 13/382,038
Technology Center 2400
Before ERIC S. FRAHM, CARLL. SILVERMAN, and
SCOTT B. HOWARD, Administrative Patent Judges.
HOW ARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 23--43, which constitute all of the claims pending in this application.
Claims 1-22 have been cancelled. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm-in-part.
1 Appellant identifies Telefonaktiebolaget L M Ericsson (publ) as the real
party in interest. App. Br. 2.
Appeal2015-006318
Application 13/382,038
THE INVENTION
The disclosed and claimed invention is directed to a session switching
using the same protocol during ongoing data delivery in a network.
Abstract.
Claim 23, reproduced below, is illustrative of the claimed subject
matter:
23. A client device for use in a network, the client device
compnsmg:
a receiver configured to receive data packets with a first
source address in a first session from a server in the network;
a processor operatively connected to the receiver and
configured to recover content data from the received data
packets; and
a transmitter operatively connected to the processor and
configured to send data into the network;
wherein the receiver is further configured to receive a
session switch information message from the server, the session
switch information message including a second source address;
wherein, in response to the receipt of the session switch
information message, the processor is further configured to:
instruct the transmitter to contact the server to set
up delivery of data packets with the second source address
in a second session, and
terminate the first session; and
wherein the client device is adapted so that the data
packets are received using the same transport protocol in the first
and second sessions.
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Li
Jiang
US 2006/0005101 Al Jan. 5, 2006
US 2007 /0168523 Al July 19, 2007
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REJECTION
Claims 23--43 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jiang and Li. Final Act. 2-9; Adv. Act. 2.
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellant's
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellant. We
are not persuaded by Appellant's arguments regarding claims 23-34 and 37-
43. However, we are persuaded by Appellant's argument that the Examiner
erred in rejecting claims 35 and 36.
Claims 23-34 and 37--43
Appellant argues neither Jiang nor Li, whether taken alone or in
combination, teach or suggest using the same transport protocol for both a
first and second session as recited in claim 23. App. Br. 7-8; Reply Br. 2-3.
Specifically, Appellant argues the Examiner concedes Jiang does not
disclose the claim limitation. Appellant further argues although Li discloses
that the R TP protocol can be used during both unicast and multicast
sessions, "Li does not disclose actually using the same transport protocol for
unicast and multicast sessions, much less the claimed reception (or
transmission) of data packets using the same transport protocol in first and
second sessions (e.g., unicast and multicast sessions)." App. Br. 8.
The Examiner finds Jiang teaches switching between multicast
sessions and unicast sessions. Ans. 9 (citing Jiang Fig. 17, i-fi-f 171-172).
The Examiner further finds "Jiang teaches establishing sessions with
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transport protocols." Id. (citing Jiang iii! 20, 65). Additionally, the
Examiner finds Li teaches using an R TP protocol for both multicast and
unicast sessions. Id. (citing Li iii! 12, 18). Finally, the Examiner finds "one
of ordinary skill in the art would be motivated to combine the teachings of
Jiang of switching sessions from a unicast session to a multicast session with
the teaching of Li of using R TP for a unicast session as well as for a
multicast session" to have "the same transport protocol in both sessions to
provide the capability of multicast data traffic to flow with a unicast
mechanism. Ans. 10.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
The test for obviousness is not whether the claimed invention is expressly
suggested in any one or all of the references, but whether the claimed subject
matter would have been obvious to those of ordinary skill in the art in light
of the combined teachings of those references. In re Keller, 642 F.2d 413,
425 (CCP A 1981 ). Because the Appellant focuses on the references
individually and not the combined teachings of the references, we are not
persuaded by Appellant's argument that the Examiner erred. Instead, we
agree with and adopt the Examiner's findings and reasoning.
Specifically, Jiang teaches switching between two different sessions,
from a multicast session to a unicast session and vice-a-versa. Jiang iii! 171-
172. Jiang also teaches using various protocols "[to] provide[] the capability
for multicast data traffic to flow with a unicast mechanism." Jiang if 65.
More specifically, Jiang teaches using RTP as an appropriate protocol. Id.
Although Jiang is silent on whether R TP can be used for both multicast and
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unicast sessions, Li explicitly teaches that "R TP can be used in a unicast or
multicast context." Li i-f 18. Accordingly we agree with the Examiner that
the combination of teaching of using R TP and switching between multicast
and unicast sessions (as taught in Jiang) with the use of R TP for both
multicast and unicast sessions (as taught by Li) renders the claimed
invention obvious.
Appellant also argues the Examiner erred in finding a motivation to
combine the references. Specifically, Appellant argues:
First, Li does not teach that R TP can be used by both unicast and
multicast, as previously noted. Second, the proffered motivation
has nothing to do with using the same protocol, or why one
skilled in the art would be motivated to modify the teachings of
Jiang so that the different sessions could or would use the same
protocol.
Reply Br. 3.
The Examiner finds "Jiang teaches establishing sessions with
transport protocols." Ans. 11 (citing Jiang i-fi-120; 65). The Examiner :farther
finds "Li teaches using the same protocol, R TP (Real-time Transport
Protocol), for a multicast session and a unicast session." Id. (citing Li i-fi-112,
18). Based on those teaching, the Examiner finds that a person of ordinary
skill in the art would have been motivated to combine Jiang and Li "to
provide the capability of multicast data traffic to flow with a unicast
mechanism." Id.
Rejections based on obviousness must be supported by "some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness." In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006),
cited with approval in KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). Although Appellant contends that the Examiner has engaged in
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hindsight reconstruction, Appellant does not persuasively address the
reasoning provided by the Examiner. 2 We determine that the Examiner's
reasoning supports a prima facie case of obviousness of claim 23. See In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). By not persuasively
addressing the Examiner's reasoning, Appellant has not shown error in the
relevant findings or the conclusion as to obviousness. See id.
We address Appellant's two arguments below. First, we disagree with
Appellant's argument that Li does not teach using R TP in a multicast or
unicast context. Instead, for the reasons discussed above, we find Li teaches
"RTP can be used in a unicast or multicast context." Li. i-f 18.
Second, it is not necessary for the prior art to serve the same purpose
as that disclosed in the Specification in order to support the conclusion that
the claimed subject matter would have been obvious. In re Linter, 458 F.2d
1013, 1016 (CCPA 1972); see also KSR, 550 U.S. at 419 ("[N]either the
particular motivation nor the avowed purpose of the [Appellant] controls" in
an obviousness analysis.). Furthermore, "the analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ." Id. at 418. In other
words, "if a technique has been used to improve one device, and a person of
ordinary skill in the art would recognize that it would improve similar
2 We note in the Final Office Action, the Examiner finds a different reason
to combine the references, "to allow for less errors during the delivery of
streaming content." Final Act. 4. Because we conclude the Examiner did
not err with regard to the motivation given in the Answer, we do not address
this alternate reason for combining the references and Appellant's arguments
concerning it (App. Br. 8-11; Reply Br. 4--5) are moot.
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devices in the same way, using the technique is obvious unless its actual
application is beyond his or her skill." Id. at 417. In this case, because, as
discussed above, both Jiang and Li discuss using R TP, we are not persuaded
by Appellant's argument that the Examiner engaged in a hindsight
reconstruction.
Accordingly, we sustain the Examiner's rejection of claim 23, along
with the rejection of independent claims 29, 38, 42, and 43, which are
argued on the same grounds, and dependent claims 24--28, 30-34, 37, and
39--41, which are not argued separately. See App. Br. 7, 11.
Claim 35
Claim 35 recites that "the session switch information message
includes a recommended completion threshold so that, if the at least one
client device is less than a predetermined distance from completion of the
first session, it can continue to receive the data packets with the first source
address in the first session." App. Br. 17 (Claims App'x). Appellant argues
although Jiang teaches "some details regarding making the unicast/multicast
decision," Jiang does not teach any type of threshold relating to the
completion of a session. App. Br. 11-12. Appellant also argues that Jiang
does not teach or suggest "the possibility of preventing any type of session
switch based on whether a client device is less than a predetermined distance
from the completion of the current session so that the client device can
continue to receive the data packets in the first session." App. Br. 12.
The Examiner finds Jiang teaches that "net resources [are] computed
to determine if [a] new session is needed" and maps that teaching to the
additional limitations of claim 35. Final Act. 8 (citing Jiang i-fi-f 190-192).
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The Examiner further finds that Jiang teaches that "[a] session is switched if
the threshold has been reached" and not switched "[i]f the threshold of
resources has not been reached." Ans. 14 (citing Jiang Fig. 24, i-f 194).
We have reviewed Jiang at paragraphs 190-192 and 194 and Figure
24. Although Jiang teaches the use of a threshold to determine whether or
not a switch should be made from one session to another, we agree with
Appellant that the cited sections of Jiang do not teach a "recommended
completion threshold" or determining an action based on whether "client
device is less than a predetermined distance from completion of the first
session," as recited in claim 35.
Accordingly, we are constrained on this record to reverse the
Examiner's rejection of claim 35.
Claim 36
Appellant argues the Examiner erred in finding Jiang teaches "the
session switch information message includes a timestamp indicating when
the first session will be terminated," as recited in claim 36. App. Br. 12-13;
Reply Br. 6. Appellant argues that although Jiang has timestamps, they are
used to synchronize data and not to decide whether to continue with the first
session. Id.
The Examiner finds Jiang teaches "session synchroniz[ ation] using
timestamp[ s] to merge sessions" and a "temporal switch to allow finer
grained control of media flow." Final Act. 8 (citing Jiang i-fi-1136-139). The
Examiner further finds that "[b ]ecause Jiang teaches using a timestamp to
determine when to switch a session between multicast and unicast in order to
avoid data loss, Jiang teaches the limitation of claim 36." Ans. 14--15.
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We have reviewed Jiang at paragraphs 136-139 and are persuaded by
Appellant's argument that the Examiner erred. Although the cited sections
of Jiang discuss timestamps, it does so in the context of synchronizing data
and not in the context of deciding whether to continue with the first session
as recited in claim 36.
Accordingly, we are constrained on this record to reverse the
Examiner's rejection of claim 36.
DECISION
For the above reasons, we affirm the Examiner's decisions rejecting
claims 23-34 and 37--43.
For the above reasons, we reverse the Examiner's decisions rejecting
claims 35 and 36.
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-IN-PART
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