11624958 (P.T.A.B. May. 20, 2016)

Ex Parte Ysebaert et al

Patent Trial and Appeal BoardMay 20, 2016

11624958 (P.T.A.B. May. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111624,958 01119/2007 30594 7590 05/24/2016 HARNESS, DICKEY & PIERCE, PLC P.O. BOX 8910 RESTON, VA 20195 FIRST NAMED INVENTOR Geert Bert Maarten YSEBAERT 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. 29250A-000014/US 7607 EXAMINER TORRES, JOSEPH D ART UNIT PAPER NUMBER 2112 NOTIFICATION DATE DELIVERY MODE 05/24/2016 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): dcmailroom@hdp.com pshaddin@hdp.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GEERT BERT MAARTEN YSEBAERT, KATLEEN PEGGIE FLORIMOND VAN ACKER, and PIET MICHEL ALBERT VANDAELE Appeal2014-009135 Application 11/624,958 Technology Center 2100 Before JOSEPH L. DIXON, ERIC S. FRAHM, and JOHN P. PINKERTON, Administrative Patent Judges. FRAHM, Administrative Patent Judge. DECISION ON APPEAL Appeal 2014-009135 Application 11/624,958 STATEMENT OF THE CASE This is a decision on appeal under 35 U.S.C. Â§ 134(a) of the final rejection of claims 15, 17, 18, and 20. Claims 1, 2, and 6-14 have been allowed (Final Act. 9). Claims 3-5 have been canceled. Claims 16 and 19 have been objected to as allowable if rewritten in independent form to include all of the features of the base and any intervening claims (Final Act. 9). We have jurisdiction under 35 U.S.C. Â§ 6(b ). We reverse. We have reviewed Appellants' arguments in the Appeal Brief filed June 13, 2014 (Br. 5-11) that the Examiner's rejections of (i) claims 15, 17, and 20 under 35 U.S.C. Â§ 103(a) as being unpatentable over the base combination of Zhang (US 6,999,432 B2; issued Feb. 14, 2006), Ahmed (US 6,631,127 Bl; issued Oct. 7, 2003), and Delesalle (US 6,711,180 Bl; issued Mar. 23, 2004) (Final Act. 3-8); and (ii) claim 18 under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of Zhang, Ahmed, Delesalle, and Klayman (US 2007/0011618 Al; published Jan. 11, 2007, and filed July 5, 2005) (Final Act. 8-9; Ans. 2) are in error, and the Examiner's response to Appellants' arguments in the Appeal Brief (Ans. 2--4). We agree with Appellants' contentions that the base combination of references, and specifically Zhang, fails to disclose, teach, or suggest retransmitting a number of data packets in response to a retransmission request, where "said number of data packets being dependent on at least one of a physical layer interleaving delay ID of said communication line and a physical layer data rate of said communication line, the physical layer interleaving delay ID and the physical layer data rate being determined based on a configuration of the physical layer," as recited in independent claim 15, and as similarly recited in dependent claims 17, 18, and 20. 2 Appeal 2014-009135 Application 11/624,958 Zhang's disclosure (Fig. 3; col. 9, 11. 55-59; col. 45, 11. 29-32; col. 46, 11. 4-- 11) fails to teach or suggest determining a number of data packets for retransmission as asserted by the Examiner at pages 3--4 of the Answer. Specifically, Zhang's (i) column 9, lines 55-59 describes determining "retransmission times; and (ii) column 46, lines 4--7 describes determining a "retransmission count," in a Radio Link Control layer based on latency. And, Zhang's column 46, lines 8-11 describes selecting a "transport protocol" in the Transport Layer "as a function of different media in the requested service." However, neither the Examiner's Final Rejection (see Final Act. 3--4) nor the Examiner's response to Appellants' arguments in the Appeal Brief (see Ans. 3--4) fully or adequately articulate how or why Zhang's determinations of (i) a "retransmission count" and/or "retransmission times" in the Radio Link Control sublayer; and/or (ii) a transport protocol, constitute determining a number of data packets, "said number of data packets being dependent on at least one of a physical layer interleaving delay ID of said communication line and a physical layer data rate of said communication line, the physical layer interleaving delay ID and the physical layer data rate being determined based on a configuration of the physical layer," as recited in independent claim 15. The Examiner has not adequately shown that determining a retransmission count is the same thing as determining the number of data packets for retransmission based on a physical layer configuration. Finally, we note that Zhang discloses, upon receiving a retransmission request, "the source side will only transmit the necessary part of higher protection for the packet" (col. 21, 11. 54--56), and that a "protection rate" is 3 Appeal 2014-009135 Application 11/624,958 calculated (col. 21, 11. 65---67). Although the protection rate is calculated using "the number of source packets needed to be transmitted," a "bit rate," and various packet failure probabilities (see col. 22, 11. 1-26), Zhang fails to teach or suggest how or why one would determine the number of data packets to be retransmitted, or making such a determination based "on at least one of a physical layer interleaving delay ID of said communication line and a physical layer data rate of said communication line, the physical layer interleaving delay ID and the physical layer data rate being determined based on a configuration of the physical layer," as recited in independent claim 15. For the foregoing reasons, we concur with Appellants' contentions (see generally Br. 5-11) that the Examiner erred in finding that the combinations of (i) Zhang, Ahmed, and Delesalle; and (ii) Zhang, Ahmed, Delesalle, and Klayman teach or suggest the retransmission device recited in (i) independent claim 15 and dependent claims 17 and 20 and (ii) dependent claim 18. Accordingly, we do not sustain the Examiner's rejections of independent claim 15, as well as dependent claims 17, 18, and 20 ultimately depending therefrom. CONCLUSION OF LAW The Examiner erred in rejecting claims 15, 17, 18, and 20 under 35 U.S.C. Â§ 103(a). 4 Appeal 2014-009135 Application 11/624,958 DECISION The Examiner's rejections of claims 15, 17, 18, and 20 are reversed. REVERSED 5