Nimal K. K. Gamage et al.

Patent Trials and Appeals Board

Oct 10, 2019

15012801 - (D) (P.T.A.B. Oct. 10, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/012,801 02/01/2016 Nimal K. K. Gamage 1424/17/2 CON 4354
148415 7590 10/10/2019
Keysight Technologies, Inc.
In care of: CPA Global
900 Second Avenue South
Suite 600
Minneapolis, MN 55402
EXAMINER
LAM, YEE F
ART UNIT PAPER NUMBER
2465
NOTIFICATION DATE DELIVERY MODE
10/10/2019 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):
keysightdocketing@cpaglobal.com
notice.legal@keysight.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte NIMAL K. K. GAMAGE, RICHARD B. WHITNER and
THOMAS G. BRATZ
____________________

Appeal 2018-006246
Application 15/012,801
Technology Center 2400
____________________

Before ALLEN R. MacDONALD, JASON V. MORGAN, and
JOHN R. KENNY, Administrative Patent Judges.

MacDONALD, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–19. We have jurisdiction under
35 U.S.C. § 6(b).

1 Appellant indicates the real parties in interest are Ixia, the assignee of
record of the present application, and Keysight Technologies, Inc., the
owner of Ixia. Appeal Br. 2.
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Application 15/012,801

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We AFFIRM-IN-PART.
CLAIMED SUBJECT MATTER
Claims 1 and 8 are illustrative of the claimed subject matter
(emphasis, formatting, and bracketed material added):
1. A packet capture apparatus, comprising:
[A.] a data packet receiving interface;
[B.] a data packet forwarding interface;
[C.] a configuration interface; and
[D.] circuitry that implements a plurality of data packet
forwarding paths between the data packet receiving
interface and the data packet forwarding interface,
[a.] the circuitry configuring at least one of the plurality
of data packet forwarding paths in response to
input received via the configuration interface, and
[b.] the circuitry adaptively reconfiguring at least one of
the plurality of data packet forwarding paths
i) in response to the input received via the
configuration interface, and
ii) while data packets are being captured by the
packet capture apparatus.
8. The packet capture apparatus of claim 1, wherein:
[E.] the circuitry implements a filtered data packet forwarding
path, the filtered data packet forwarding path including a
data packet filter; and
[F.] the circuitry is configured to receive input via the
configuration interface and adaptively reconfigure at
least one parameter of the data packet filter while data
packets are being captured by the packet capture
apparatus.
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REFERENCES2
The prior art relied upon by the Examiner is:
Name Reference Date
Winchester US 2006/0174032 Al Aug 3, 2006
Rakshani US 2008/0153541 A1 June 26, 2008

REJECTION
The Examiner rejects claims 1–19 under 35 U.S.C. § 103 as being
unpatentable over the combination of Rakshani and Winchester. Final Act.
2–7.
Appellant separately argues claims 1, 4, 8, 12, and 17. To the extent
that Appellant discusses claims 2, 3, 4–7, 9–11, 13–16, 18, and 19,
Appellant merely repeats or references (directly or indirectly) the arguments
directed to claim 1. Such a repeated argument (or referenced argument) is
not an argument for “separate patentability.” Thus, Appellant does not
present separate arguments for claims 2, 3, 4–7, 9–11, 13–16, 18, and 19.
Thus, the rejections of these claims turn on our decisions as to claims 1, 4, 8,
12, and 17. Except for our ultimate decision, we do not discuss the § 103
rejections of claims 2, 3, 4–7, 9–11, 13–16, 18, and 19 further herein.

2 All citations herein to these references are by reference to the first named
inventor only.
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Application 15/012,801

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OPINION
We have reviewed the Examiner’s rejections in light of Appellant’s
Appeal Brief arguments that the Examiner has erred.
A.
Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103.
[Examiner determines:]
Rakshani in at least paragraph 115 discloses the
following (emphasis added):
[0115] For an outgoing data communication (e.g.,
email, text message, web browsing, and/or non-real-
time data), the 2[nd] baseband processing module 415
receives outbound non-real-time data 424 from the
wireline interface 420 and/or the host interface
418. The 2[nd] baseband processing module 415
converts outbound non[-]real-time data 424 into
an outbound non-real-time data symbol stream
426 in accordance with one or more existing
wireless communication standards, new wireless
communication standards, modifications thereof,
and/or extensions thereof (e.g., EDGE, GPRS,
etc.) corresponding to a first frequency band
(fb[1]) and/or a second frequency band. The 2[nd]
baseband processing module 415 may perform one or
more of scrambling, encoding, constellation
mapping, modulation, frequency spreading,
frequency hopping, beam forming, space-time-block
encoding, space-frequency-block encoding, and/or
digital baseband to IF conversion to convert the
outbound non-real-time data 424 into the outbound
non-real-time data symbol stream 426. Depending on
the desired formatting of the outbound non-real-time
data symbol stream 426, the 2[nd] baseband
processing module 415 may generate the outbound
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non-real-time data symbol stream 426 as Cartesian
coordinates, as Polar coordinates, or as hybrid
coordinates.
In view of at least this passage, Rakshani indeed
discloses adaptively reconfiguring data forwarding
paths in a data packet capture apparatus while the
apparatus is capturing packets. Therefore, Rakshani,
rather alone or combined, indeed teaches or suggests
the subject matters of “ . . . adaptively reconfiguring
at least one of the plurality of data packet forwarding
paths i) in response to the input received via the
configuration interface, and ii) while data packets are
being captured by the packet capture apparatus”, as
newly recited in claim 1.
The Office Action mistakenly equates the highlighted portion
from Rakshani above, which discloses converting outbound text,
data, email, etc., into symbols for transmission of a wireless
interface, to the claimed adaptive reconfiguration of a data
forwarding path in a packet capture apparatus in response to
configuration input. The only input received in the passage
quoted above from Rakshani is the data being converted into
symbols, which is not the same as configuration input. In
addition, the conversion of such data into symbols is not
“adaptive reconfiguration of a data packet forwarding path”
because the above-quoted passage indicates that the encoding is
performed according to a wireless communications standard,
such as EDGE or GPRS.
Appeal Br. 9–10 (further emphasis added).
We are unpersuaded by Appellant’s argument. First, we disagree with
Appellant’s assertion that “[t]he only input received in the passage quoted
above from Rakshani is the data being converted into symbols, which is not
the same as configuration input.” Emphasis added. Paragraph 115 of
Rakshani states that “[d]epending on the desired formatting of the outbound
non-real-time data symbol stream 426, the 2nd baseband processing module
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415 may generate the outbound non-real-time data symbol stream 426 as
Cartesian coordinates, as Polar coordinates, or as hybrid coordinates.”
Emphasis added. We determine that a particular formatting being “desired”
is suggestive of an input to specify that desired format.
Second, we disagree with Appellant’s assertion that “the conversion
of such data into symbols is not ‘adaptive reconfiguration of a data packet
forwarding path’ because the above-quoted passage indicates that the
encoding is performed according to a wireless communications standard,
such as EDGE or GPRS.” Emphasis added. Appellant’s argument that “a”
(singular) standard is used does not align with paragraph 115 of Rakshani
stating as to the formatting that “[t]he 2nd baseband processing module 415
converts outbound non-real-time data 424 into an outbound non-real-time
data symbol stream 426 in accordance with one or more existing wireless
communication standards, new wireless communication standards,
modifications thereof, and/or extensions thereof . . .” We determine that
Rakshani’s teaching that “one or more” standards are supported and that a
“desired” format is used, is suggestive of the format being changed from a
first desired standard to a second desired standard, i.e., being adaptive.
Third, Appellant’s Specification states:
In addition to (or instead of) using input received via the
configuration interface 306 to configure or reconfigure a data
packet forwarding path, input received via the configuration
interface 306 may indicate the data packet forwarding path(s) to
which a consumer or application would like to register or
subscribe. Or, input received via a configuration interface may
be used to instantiate or decommission one or more data packet
forwarding paths. For example, if a new or existing application
desires to receive a new or different type of data packet stream,
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the application can request the instantiation of a new data packet
forwarding path.
Spec. 56 (emphasis added). We understand Appellant’s paragraph 56 to
indicate that a new path is created by changing the type of data packet
stream. We determine that Appellant’s “desire[d] . . . new or different type
of data packet stream” is suggested by Rakshani’s “desired formatting of the
of the outbound non-real-time data symbol stream.” Rakshani ¶ 115.
B.
Appellant also raises the following arguments in contending that the
Examiner erred in rejecting claim 4 under 35 U.S.C. § 103.
Rakshani nowhere mentions a query interface that is able to
extract data received at a non-real-time interface.
Appeal Br. 12 (emphasis added).
We are unpersuaded by Appellant’s argument. The argument is not
commensurate with the scope of the claim language. We do not find an
“extract” function in claim 4 (or the claims from which it depends). Claim 4
is not explicitly so limited, nor does Appellant explain how claim 4 would
be inherently so limited, nor do we find alternative language that would
similarly mandate the argued limitation.
C.
Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 8 under 35 U.S.C. § 103.
[C]laim 8 recites that the circuity implements a filtered data
packet forwarding path including a data packet filter and that the
circuitry is configured to receive input via the configuration
interface and adaptively reconfigure at least one parameter of
the data packet filter while data packets are being captured by the
packet capture apparatus. On page 6, the Office Action indicates
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that paragraphs [0115] and [0148] Rakshani in combination with
paragraph [0057] of Winchester disclose the claimed adaptively
reconfigurable data packet filter. Paragraph [0115] of Rakshani
is set forth above and mentions nothing about data packets
filters or adaptively reconfigurable packet filters.
Appeal Br. 13 (emphasis added). While we disagree with Appellant’s broad
assertion that an “adaptively reconfigurable packet filter” is not suggested by
Rakshani, claim 8 is limited to “adaptively reconfigure[ing] at least one
parameter of the data packet filter” (emphasis added). We are persuaded
there is insufficient articulated reasoning to support the Examiner’s
determination that Rakshani and Winchester suggest “adaptively
reconfigure[ing] at least one parameter of the data packet filter.” Therefore,
we further conclude that there is insufficient articulated reasoning to support
the Examiner’s final conclusion that claim 8 would have been obvious to
one of ordinary skill in the art at the time of Appellant’s invention.
D.
Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 12 under 35 U.S.C. § 103.
In the above quoted passage, Rakshani indicates that
communication device 10 can be various types of consumer
electronic devices, none of which would be understood to be a
data packet capture probe.
Appeal Br. 16 (emphasis added).
We are unpersuaded by Appellant’s argument. We agree with the
Examiner’s determination:
[P]er broadest reasonable interpretation (BRI) and when it is not
clearly defined in the claim body, “a physical, network-
connectable, data capture probe” is being reasonably interpreted
by the examiner as “a data capture component that can be
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physically connected to the network”. With that being said, the
examiner indeed relies on at least fig. 3, which discloses a
wireline port 64 that is physically (e.g. wireline) connected to
wireline connection 28, which in turn physically connected to
non-real-time device 12, real-time device 14, and non-real-
time/or real-time device 16 (see also fig. 1 ). Therefore, Rakshani
indeed teaches or suggests the claimed features which recited in
claim 12.
Ans. 20–21.
E.
Appellant raises essentially the same argument set forth for claim 8 in
contending that the Examiner erred in rejecting claim 17 under 35 U.S.C.
§ 103.
We are persuaded by Appellant’s argument as discussed with claim 8
supra.

CONCLUSIONS
The Examiner has not erred in rejecting claims 1–7, 9–16, 18, and 19
as being unpatentable under 35 U.S.C. § 103.
Appellant has established that the Examiner erred in rejecting claims 8
and 17 as being unpatentable under 35 U.S.C. § 103.
The Examiner’s rejection of claims 1–7, 9–16, 18, and 19 and as
being unpatentable under 35 U.S.C. § 103 is affirmed.
The Examiner’s rejection of claims 8 and 17 as being unpatentable
under 35 U.S.C. § 103 is reversed.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1–19 103 Rakshani, Winchester 1–7, 9–16,
18, 19
8, 17

TIME PERIOD FOR RESPONSE
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.
§ 1.136(a)(1)(iv).

AFFIRMED-IN-PART