Ex Parte WUDownload PDFPatent Trial and Appeal BoardJun 30, 201612895312 (P.T.A.B. Jun. 30, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/895,312 09/30/2010 23446 7590 07/05/2016 MCANDREWS HELD & MALLOY, LTD 500 WEST MADISON STREET SUITE 3400 CHICAGO, IL 60661 FIRST NAMED INVENTOR Zong Liang WU 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. E090031USU1 7569 EXAMINER LANGHNOJA, KUNAL N ART UNIT PAPER NUMBER 2427 NOTIFICATION DATE DELIVERY MODE 07/05/2016 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): mhmpto@mcandrews-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ZONG LIANG WU Appeal2014-007299 Application 12/895,312 Technology Center 2400 Before JOSEPH P. LENTIVECH, JOHN R. KENNY, and MICHAEL J. ENGLE, Administrative Patent Judges. LENTIVECH, Administrative Patent Judge. DECISION ON APPEAL .6. .... ,1 .. • .. ,....,-TTr'1.r-"\ l\-1,....AI/'\. £',"1 Appeuant' seeKs our review unaer j) u.~.L. s U4~aJ or me Examiner's final rejection of claims 1-34, the only claims pending in the application on appeal. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We REVERSE and enter a new ground of rejection within the provisions of 37 C.F.R. § 41.50(b). 1 According to Appellant, the real party in interest is Entropic Communications, Inc. App. Br. 1. Appeal2014-007299 Application 12/895,312 STATEMENT OF THE CASE Appellant's Invention Appellant's invention generally relates to scheduling mechanisms to improve bandwidth utilization and Quality of Service (QoS) management for a communication network. Spec. i-f 2. Claim 1, which is illustrative, reads as follows: 1. A method for establishing a PQoS flow comprising: a) discovering at least one network node; b) classifying the at least one discovered network node as a network node that either supports PQoS flows or does not support PQoS flows, based on a node type; c) determining from the classification: which of the at least one network nodes is a source node for PQoS flows; and which of the at least one network nodes are designated for supporting PQoS flows; and d) invoking a request to create PQoS flows between each of the nodes determined to be a source node and each of the nodes determined to be designated tor supporting PQoS flows; wherein the bandwidth designated for the individual PQoS flows is computed such that the actual aggregate bandwidth for the PQoS flows does not exceed the network bandwidth available for PQoS flows. Rejections Claims 19-34 stand provisionally rejected on the ground of non- statutory obviousness-type double patenting as being unpatentable over claims 5, 12, 13, and 18 of co-pending U.S. Application No. 12/822,676. 2 Appeal2014-007299 Application 12/895,312 Final Act. 3---6. Appellant does not appeal the double-patenting rejection. 2 Claims 1-34 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Hyslop et al. (US 2008/0192752 Al, published Aug. 14, 2008). Final Act. 6-15. ANALYSIS Issue: Did the Examiner err by finding Hyslop discloses "classifying the at least one discovered network node as a network node that either supports PQoS flows or does not support PQoS flows, based on a node type," as recited in claim 1? Appellant contends the cited portions of Hyslop fail to disclose the disputed limitation. App. Br. 6-8; Reply Br. 3-6. In particular, Appellant contends Hyslop's disclosure of classifying nodes into three categories before initiating a Wave Cycle does not disclose classifying a node as a network node that either supports PQoS flows or does not support PQoS flows, as required by claim 1. App. Br. 6 (citing Hyslop i-f 29). Appellant contends Hyslop' s classification, instead, relates to whether a node has been specified and whether a response has been received from the node. Id. Appellant further contends "opting out of future Waves due to the inability to support a 'new' pQoS flow [as disclosed by Hyslop] is in no way indicative of whether or not that node supports pQoS flows at all" and "Hyslop assumes that all nodes are pQoS nodes." Reply Br. 6. 2 Appellant indicates a terminal disclaimer was filed (Amendment 9 (Nov. 29, 2012)), but neither the Examiner nor we see any terminal disclaimer in the file history. Final Act. 2. We also note the '676 application has now issued, but the claims were amended prior to issuance and we have not analyzed whether those amendments affect the Examiner's rejection. 3 Appeal2014-007299 Application 12/895,312 We agree with Appellant that the categories cited by the Examiner fail to disclose the disputed limitation. Nevertheless, in a new ground of rejection under 37 C.F.R. § 41.50(b), we find that other portions of Hyslop do disclose the claimed "classifying" step. Hyslop discloses "[i]n some embodiments, pQoS will be disabled if any one of the network nodes does not support pQoS." Hyslop i-f 64. Hyslop further discloses "if a non-pQoS- capable node joins a pQoS-enabled network, the network will cease supporting pQoS, and will also stop creating new pQoS flows until all network nodes are pQoS capable." Id. Hyslop, therefore, discloses classifying the non-pQoS-capable node as a network node that does not support pQoS flows based on a node type (e.g., a non-pQoS-capable node). As such, Hyslop discloses the disputed limitation. See also id. i-f 65. We adopt as our own the remainder of the Examiner's findings and reasoning in concluding that claims 1-34 are anticipated by Hyslop. For the foregoing reasons, we are constrained to reverse the Examiner's rejection of claims 1-34, and instead reject claims 1-34 in a new ground of rejection so as to provide Appellant with a full and fair opportunity to respond to the thrust of the rejection. See In re Kronig, 539 F.2d 1300, 1302 (C.C.P.A. 1976) ("the ultimate criterion of whether a rejection is considered 'new' in a decision by the board is whether appellants have had [a] fair opportunity to react to the thrust of the rejection"). DECISION The Examiner's decision to reject claims 1-34 is reversed. In a new ground, we reject claims 1-34 under 35 U.S.C. § 102(b) as being anticipated by Hyslop. 4 Appeal2014-007299 Application 12/895,312 This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides "[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review." Section 41.50(b) also provides: When the Board enters such a non-final decision, the 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 prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure§ 1214.01. 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). REVERSED 37 C.F.R. § 41.50(b) 5 Copy with citationCopy as parenthetical citation