OLogN Technologies AG

Patent Trials and Appeals Board

Apr 30, 2021

2020006273 (P.T.A.B. Apr. 30, 2021)

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.
15/809,896 11/10/2017 Sergey IGNATCHENKO P34466US01/0026677.00151 9943
28381 7590 04/30/2021
Arnold & Porter Kaye Scholer LLP
601 Massachusetts Ave., NW
Washington, DC 20001-3743
EXAMINER
JANGBAHADUR, LAKERAM
ART UNIT PAPER NUMBER
2469
NOTIFICATION DATE DELIVERY MODE
04/30/2021 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):
ipdocketing@apks.com
ipdocketing@arnoldporter.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SERGEY IGNATCHENKO
Appeal 2020-006273
Application 15/809,896
Technology Center 2400
Before CAROLYN D. THOMAS, MICHAEL J. STRAUSS, and
PHILLIP A. BENNETT, Administrative Patent Judges.
STRAUSS, 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 1–28. See Non-Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b). We heard oral arguments on April 14,
2021.
We reverse and enter a new ground of rejection.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as OLOGN
TECHNOLOGIES AG. Appeal Br. 1.
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Application 15/809,896
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CLAIMED SUBJECT MATTER
The claims are directed to cooperating routers. Spec., Title. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method of managing packets, the method comprising:
receiving, by a first routing device comprising a plurality
of interfaces, a plurality of packets from a source device via a
first interface;
determining, by the first routing device, that the plurality
of packets comprises at least one latency-critical packet;
generating, by the first routing device, at least a first copy-
packet of the at least one latency-critical packet;
transmitting, by the first routing device, the at least one
latency-critical packet to a target device via a second interface;
and
transmitting, by the first routing device, the at least first
copy-packet to a second routing device via a third interface.
Appeal Br. 23 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Kompella US 2007/0177594 Al Aug. 2, 2007
Gopalakrishnan et al. WO 2009/005162 Jan. 8, 2009
Menon et al. US 2017/0346709 Al Nov. 30, 2017

REJECTIONS
Claims 1–3 and 15–17 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Gopalakrishnan and Kompella.2 Non-Final Act. 2–5.

2 Although quoting the language of 35 U.S.C. § 103, as recognized by
Appellant (Appeal Br. 4 fn. 1), the Examiner mistakenly indicates the
rejection of claims 1–3 and 15–17 over the combination of Gopalakrishnan
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Claims 4–14 and 18–28 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Gopalakrishnan, Kompella, and Menon. Non-Final Act.
5.
OPINION
The Examiner finds the combined functionalities provided by
Gopalakrishnan’s video streaming system’s (i) video server and (ii) receiver
teach all but a final portion of the last limitation of claim 1, i.e., that a first
copy packet is transmitted to a second routing device via a third interface.
Non-Final Act. 3–4. The Examiner finds the noted deficiency is remedied
by Kompella’s multipath, multicast distribution system in which network
routers replicate packets, forwarding copies of the packets to other multicast-
enabled routers that repeat the replicating and forwarding process until the
replicated packets are delivered to designated receivers. Id. at 4. The
Examiner supports the combination of references as follows:
[I]t would have been obvious . . . to provide the functionality of
transmitting, by a first routing device, at least first copy-packet
to a second routing device via a third interface, as taught by
Kompella, in the system of Gopalakrishnan, so as to provide
techniques for improving efficiency of multicast transmission in
the network, by allowing devices to set up multiple multicast
distribution structures for a given multicast group and source, by
transmitting copied packets to a second routing device.
Id.

and Kompella is pursuant to 35 U.S.C. § 102(a)(2) rather than of 35 U.S.C.
§ 103. Non-Final Act. 3. We find this clerical mistake constitutes harmless
error and, for purposes of this appeal, we treat the rejection as based on the
Examiner’s determination that the combination of Gopalakrishnan and
Kompella renders the claims obvious under U.S.C. § 103.
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Appellant contends, inter alia, “Gopalakrishnan does not teach or
suggest a routing device configured to receive a plurality of packets from a
source device via a first interface and transmit at least one latency-critical
packet from the plurality of packets to a target device via a second
interface.” Appeal Br. 9 (emphasis omitted). Appellant argues, because
Gopalakrishnan’s sender machine sends packets to the receiver machine,
both of which are applied by the Examiner as structural elements of the first
routing device of claim 1, there is no disclosure of receiving packets from a
source machine, i.e., a device apart from sender and receiver machines. Id.
In particular, “Gopalakrishnan describes generating packets at the sender
machine,” not receiving packets from a separate source device. Id.
Appellant further argues that “Gopalakrishnan similarly does not describe
the receiver machine . . . receiving a plurality of packets from [a] device
[other than from the sender machine].” Id. at 10. Appellant further contends
Gopalakrishnan’s sender and receiver machines are disclosed to transmit
packets to each other, not to a separate target machine as required by claim
1. Id.
The Examiner responds, finding Gopalakrishnan’s retransmission of
multiple copies of urgent packets through multiple interfaces with a “critical
packet . . . transmitted to the video player via a second interface” teaches the
first routing device transmitting a latency-critical packet to a target device
via a second interface. Ans. 17 (citing Gopalakrishnan p. 11, ll. 17–21;
p. 22, ll. 15–24; p. 28, ll. 5–19).
Appellant replies, as follows:
The Answer again fails to engage with Appellant’s arguments,
much less rebut them. The Appeal Brief demonstrated that
Gopalakrishnan’s sender machine fails to teach or suggest these
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Application 15/809,896
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features, at a minimum, because the sender machine does not
receiv[e] packets from a source device. Appeal Brief, at 9–10.
The newly cited page 15, lines 6–12 [of Gopalakrishnan] fails to
rebut this argument as it is directed to features of the receiver
machine, not the sender machine.
Reply Br. 3.
Appellant’s argument is persuasive of reversible Examiner error.
Putting aside the propriety of rearranging Gopalakrishnan’s sender and
receiver machine so as to operate as a router device as per claim 1, making
such an arrangement nonetheless leaves a gap concerning what is considered
to a source device and what a target device. In particular, if
Gopalakrishnan’s sender device is to receive packets from a source, no
source distinct from the sender device itself has been identified. Likewise,
Gopalakrishnan’s receiver device is disclosed to receive packets from the
sender, not from a separate source device. Thus, we agree with Appellant
that the Examiner’s application of the Gopalakrishnan reference fails to
teach or suggest a routing device configured to receive a plurality of packets
from a source device via a first interface and transmit at least one latency-
critical packet from the plurality of packets to a target device via a second
interface.
Because we agree with at least one of the arguments advanced by
Appellant, we do not reach the merits of Appellant’s other arguments.
Accordingly, we do not sustain the rejection of independent claim 1 or the
rejection of independent claim 15 which includes similar limitations and is
rejected on the same basis as claim 1 (Non-Final Act. 10). Furthermore, we
do not sustain the rejection of dependent claims 2–14 and 16–28 which stand
with their respective base claims.
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New Ground of Rejection Under 35 U.S.C. § 103
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject
independent claims 1 and 15 under 35 U.S.C. § 103 as being obvious over
Kampella in view of Gopalakrishnan, as follows.
As to Claim 1, Kompella teaches: A method of managing packets
(Kompella: par. 0025, a system including routers, source devices and
receivers in which data packets are provided), the method comprising:
receiving, by a first routing device comprising a plurality of
interfaces, a plurality of packets from a source device via a first interface
(Kompella: Fig. 1A, par. 0025, a source device [12] transmits data packets
to receivers [14] via routers [16]; pars. 0061-62, a router [80] operates
substantially similarly to routers [16], and includes multiple interfaces
[82]);
generating, by the first routing device, at least a first copy-packet of
one of the plurality of packets (Kompella: par. 0025, copies of the multicast
data packets are transmitted; par. 0038, duplication of streams (i.e. copy
packets of the source packets) are generated at the router 16[D] in an
instance of new devices wishing to join the multicast session);
transmitting, by the first routing device, the one of the plurality of
packets to a target device via a second interface (Kompella: par. 0025, the
multicast data packets are transmitted via the routers; par. 0062, the
outbound links [86] send outbound data to other devices); and
transmitting, by the first routing device, the at least first copy-packet
to a second routing device via a third interface (par. 0038, duplication of
streams (i.e. copy packets of the source packets) are generated for instance
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at the router [16D] in an instance of new devices wishing to join the
multicast session).

Figure 1A of Kompella depicting a block diagram of a system in which
receiver devices and intermediate routers exchange multicast data
Kompella does not explicitly teach: determining, by the first routing
device, that the plurality of packets comprises at least one latency-critical
packet;
generating, by the first routing device, at least a first copy-packet of
the at least one latency-critical packet;
transmitting, by the first routing device, the at least one latency-
critical packet to a target device via a second interface.
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Gopalakrishnan teaches producing high quality video streaming by
utilizing re-transmission of packets across multiple interfaces
(Gopalakrishnan: Abstract). Specifically, Gopalakrishnan teaches that
packets may be designated as “urgent” (i.e. latency-critical packet) and in
need of re-transmission from a source device in certain instances
(Gopalakrishnan: page 24, lines 15-24, page 25, line 8, a way to indicate
the urgency of each retransmission request is present, the message format
have two fields indicating the number of requests belonging to each level,
followed by the list of URGENT packets.). The source device will then re-
transmit the designated packets, thereby copying the original packet
(Gopalakrishnan: page 28, lines 5 - 19, re-transmit multiple copies of
packets with URGENT level through all available interfaces or interfaces
that are determined to be of good quality/ a second interface).
It would have been obvious to a person having ordinary skill in the art
at a time before the effective filing of the application to have modified the
Kompella device by including Gopalakrishnan’s computer instructions onto
the routers to evaluate the latency effect of certain packets and to re-transmit
those designated packets. Such a person would have done so with a
reasonable expectation of success because of the need to maintain the quality
of video streaming in the face of bandwidth demands and other challenges
that would result in packet loss and degradation in network quality
(Gopalakrishnan: page 9, lines 17 to page 10 line 14).
As to claim 15, claim 15 is rejected as per claim 1. Kompella further
discloses a routing device (Kompella; Fig.5, router [80]) comprising: a
plurality of interfaces (Kompella Fig.5, interface cards [82A-82N]), wherein
the routing device is configured to receive a plurality of packets from a
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source device (Kompella Fig.1A, source device [12]) via a first interface
(Kompella par. 61, interface cards [82A-82N] receive packets on inbound
links [84A-84N]); and a processor (Kompella Fig.5, par. 69, control unit 94
may include one or more processors).
Remaining claims
Although we have rejected the independent claims under 37 C.F.R.
§ 41.50(b), we have not reviewed the remaining claims to the extent
necessary to determine whether these claims are unpatentable under
35 U.S.C. § 103. We leave it to the Examiner to determine the
appropriateness of any further rejections based thereon.
Rule 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides:
When the Board enters such a non-final decision, Appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new
ground[s] 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[s] of
rejection [are] 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[s] of
rejection designated in [this] 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
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Application 15/809,896
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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.
CONCLUSION
We reverse the Examiner’s rejection of claims 1–3 and 15–17 under
35 U.S.C. § 103 over Gopalakrishnan and Kompella.
We reverse the Examiner’s rejection of claims 4–14 and 18–28 under
35 U.S.C. § 103 over Gopalakrishnan, Kompella, and Menon.
Pursuant to our discretionary authority under 37 C.F.R. § 41.50(b), we
newly reject claims 1 and 15 under 35 U.S.C. § 103 as being unpatentable
over Kompella and Gopalakrishnan.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed New
Grounds
1–3, 15–
17
103 Gopalakrishnan,
Kompella
1–3, 15–
17
1, 15
4–14, 18–
28
103 Gopalakrishnan,
Kompella, Menon
4–14, 18–
28

Overall
Outcome
1–28 1, 15

REVERSED
NEW GROUND 37 C.F.R. § 41.50(b)