Ex Parte Babiarz et al

Board of Patent Appeals and Interferences

Jul 30, 2012

10799704 (B.P.A.I. Jul. 30, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/799,704 03/15/2004 Jozef Babiarz 57983.000171 8973
21967 7590 07/30/2012
HUNTON &WILLIAMS LLP
INTELLECTUAL PROPERTY DEPARTMENT
2200 Pennsylvania Avenue, N.W.
WASHINGTON, DC 20037
EXAMINER
JAIN, RAJ K
ART UNIT PAPER NUMBER
2472
MAIL DATE DELIVERY MODE
07/30/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte JOZEF BABIARZ and KWOK HO CHAN
________________

Appeal 2009-011300
Application 10/799,704
Technology Center 2400
________________

Before THOMAS S. HAHN, BRADLEY W. BAUMEISTER, and
STANLEY M. WEINBERG, Administrative Patent Judges.

BAUMEISTER, Administrative Patent Judge.

DECISION ON APPEAL

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SUMMARY
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-16, 18-20, 22, and 23. These claims all stand rejected
under 35 U.S.C. § 103(a) as obvious over Kelly (Tom Kelly, An ECN Probe-
Based Connection Acceptance Control, Laboratory for Communication
Engineering, Cambridge University Engineering Department;
ctk21@cam.ac.uk (2001)), in view of Jacobs (US 2003/0107994 A1;
published June 12, 2003).
We have jurisdiction under 35 U.S.C. § 6(b). We review the appealed
rejections for error based upon the issues identified by Appellants, and in
light of the arguments and evidence produced thereon. Cf. Ex Parte Frye, 94
USPQ2d 1072, 1075 (BPAI 2010) (citing In re Oetiker, 977 F.2d 1443,
1445). Designated precedential at
http://www.uspto.gov/ip/boards/bpai/decisions/prec/index.jsp.
We affirm-in-part.

STATEMENT OF CASE
Independent claim 1 is illustrative of the claimed subject matter on
appeal:
1. A method for end-to-end admission control of real-time
packet flows in a network having a plurality of network
elements, the method comprising:
transmitting at least one probe packet from a first
network element to a second network element via a network
path;
determining, at at least one intermediate network element
on the network path, at least one flow rate associated with a
plurality of packets;
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encoding at least two predetermined bits in the at least
one probe packet based at least in part upon a level of
congestion associated with the at least one flow rate; and
controlling an admission of additional packets into the
network based at least in part on the encoding of the at least two
predetermined bits in the at least one probe packet.

CLAIM 1
Arguments1
The Examiner finds that Kelly discloses all of the limitations except
for (1) encoding at least two predetermined bits in the at least one probe
packet based at least in part upon a level of congestion associated with the at
least one flow rate; and (2) controlling an admission of additional packets
into the network. (Ans. 3). The Examiner further finds that Jacobs discloses
such an encoding with two bits and that motivation existed to combine
Jacobs’s teaching with Kelly’s packet control scheme (Ans. 4 (citing Jacobs,
¶ 0026)).
Appellants present multiple arguments in relation to the teachings of
Kelly, the teachings of Jacobs, and the Examiner’s identified motivation to
combine these references (App. Br. 7-13; Reply Br. 4-10). For example,
Appellants argue that the routers within Kelly’s network path do not
constitute “intermediate network elements” (App. Br. 7-8). Appellants
argue that these routers of Kelly do not “determine ‘at least one flow rate
associated with a plurality of packets’” (App. Br. 8). Appellants contend

1 Rather than repeat the Examiner’s positions and Appellants’ arguments in
their entirety, we refer to the following documents for their respective
details: the revised Appeal Brief (App. Br.) filed November 5, 2008; the
Examiner’s Answer (Ans.) mailed January 22, 2009; and the Reply Brief
(Reply Br.) filed February 26, 2009.
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Application 10/799,704

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that Kelly merely discloses determining a level of congestion at a sending
end system, as opposed to determining congestion at at least one
intermediated network element (App. Br. 8-9).
Concerning Jacobs, Appellants contend that “Jacobs merely discloses
a single bit to indicate congestion along a given path or link in a path and
fails to disclose, or even suggest, ‘encoding at least two predetermined bits
in the at least one probe packet based at least in part upon a level of
congestion’” (App. Br. 9-10). Appellants contend that Jacobs discloses “at
the data source, in response to the congestion notification contained in the
said control packet, reducing the loading network resources by the said data
source” (App. Br. 11 (citing Jacobs, ¶ 0007)), but fails to disclose
“controlling an admission of additional packets” (App. Br. 11).
Appellants contend that the references teach away from their
combination because “[o]ne having ordinary skill in the art would not use
the bit in the [internet protocol] IP header of the real-time transport protocol
(RTP) data packet of Jacobs to determine whether the final marking
proportion exceeds the threshold level of user datagram protocol (UDP) data
packets of Kelly” (App. Br. 12).
Analysis
We disagree with Appellants’ contentions. We adopt as our own – at
least with respect to the teachings of Kelly, the teachings of Jacobs as set
forth in relation to congestion experience bit 7, and the motivation to
combine the references teachings – (1) the findings and reasons set forth by
the Examiner in the action from which the appeal is taken (Ans. 3-7), and (2)
the reasons set forth by the Examiner in the Examiner’s Answer in response
to Appellants’ Brief (Ans. 7-10). We also agree with the conclusions
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reached by the Examiner. For the sake of completeness, we further clarify
how the teachings of Jacobs correspond to the claim language.
Claim 1 requires that one or more unspecified elements of the network
(not necessarily the intermediate network element) “encod[es] at least two
predetermined bits in the at least one probe packet based at least in part upon
a level of congestion associated with the at least one flow rate.” The
Examiner relies on, inter alia, paragraph 0026 of Jacobs for this teaching,
noting that bits 6 and 7 of Jacobs correspond to these two bits (Ans. 4).
Appellants acknowledge that Jacobs’s congestion experience (CE) bit
7 indicates congestion (App. Br. 10). However, they argue that explicit
congestion notification capable transport (ECT) bit 6 of Jacobs merely
indicates that the sender and receiver are explicit congestion notification
(ECN) capable transports, but that ECT bit 6 does not actually indicate
congestion on the network (App. Br. 9-10).
We agree with Appellants’ characterization of Jacobs’s ECT bit 6, but
this is not dispositive of whether Jacobs, in fact, teaches two predetermined
bits that are encoded to indicate a level of congestion, as claimed. Jacobs
also teaches the provision of bit 4 which “is the ECN-echo flag, ie the flag
that is set by the data receiver when an ECN notification has been received”
(Jacobs, ¶ 0025). Paragraph 0026 of Jacobs, which was expressly cited by
the Examiner (Ans. 4), further clarifies that
The receiver receives the [real time transport protocol] RTP
packet, and, on reading the [congestion experience] CE bit [7],
knows that there is congestion along the data path. To signal
this fact to the data source, the receiver then generates an
ECN_RTCP message with the ECN-echo flag (bit 4) set, as
shown in FIG. 5c”
(Jacobs, ¶ 0026).
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For these reasons, Appellants have not demonstrated that the
Examiner erred in concluding that Jacobs teaches the encoding of two
predetermined bits to indicate a level of congestion, as claimed. Nor have
Appellants demonstrated, more generally, that the Examiner erred in finding
the combination of Kelly and Jacobs render claim 1 obvious.
Regarding the claimed “controlling an admission of additional packets
into the network,” the Examiner finds that this limitation is taught by Jacobs’
paragraphs 4-7 and 24. Ans. 4. Although Appellants contend that Jacobs
does not teach this limitation, they do not explain why the Examiner’s
reliance upon these paragraphs is unfounded. We conclude that there is a
reasonable basis for the Examiner’s reliance on these paragraphs , especially
in the absence of any contrary argument by Appellants.
Accordingly, we sustain the Examiner’s obviousness rejection of
claim 1.

CLAIMS 2-20 AND 22
Claims 2-20 and 22 depend from claim 1. Appellants contend that
each of these claims is separately patentable (App. Br. 13-18). However,
Appellants arguments for each of these claims consist of only restating the
claim’s language and asserting that the rejections are “improper because
Kelly in view of Jacobs fails to show, or reasonably suggest, each and every
limitation of [the claim]” (id.). These assertions do not constitute argument
on the merits, because “[a] statement which merely points out what a claim
recites will not be considered an argument for separate patentability of the
claim.” 37 C.F.R. § 41.37(c)(1)(vii).
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Accordingly, we sustain the rejection of claims 2-20 and 22 for the
reasons set forth in relation to independent claim 1.2

CLAIM 23
Independent claim 23 reads as follows:
23. A system for end-to-end admission control of real-time
packet flows in a network, the system comprising:
a first network element that transmits at least one probe
packet to a second network element via a network path;
at least one intermediate network element on the network
path that:
determines at least one flow rate associated with a
plurality of packets; and
encodes at least two predetermined bits in the at
least one probe packet based at least in part upon a level
of congestion associated with the at least one flow rate;
and
an admission control module that controls an
admission of additional packets into the network based at
least in part on an examination of the at least two
predetermined bits in the at least one probe packet.

2 Claim 22 reads as follows (emphasis added):
22. At least one computer readable medium for storing a
computer program of instructions configured to be readable by
at least one computer for instructing the at least one computer
to execute a computer process for performing the method as
recited in claim 1.
Should there be further prosecution of claim 22, we note for consideration
that the term “computer program of instructions” is set forth inferentially.
The claim, however, is directed to a computer readable medium per se, with
the further claim language “for storing” indicating that the language that
follows is a recitation of a type of computer program that the claimed
computer readable medium merely need be capable of storing, but not more.
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Unlike claim 1, which does not set forth any requirements as to what
network element encodes at least two predetermined bits in the at least one
probe packet, independent claim 23 expressly requires that it be an
intermediate network element that encodes probe packets with at least two
bits. Jacobs indicates that the router (or “intermediate network element”)
encodes one bit based at least in part upon a level of congestion: congestion
experience bit 7 (¶ 0026; Figs 5a, 5b). However, ECT bit 6 is set by the
sender (Figs 5a, 5b), and ECN echo flag bit 4 is set by the data receiver
(¶ 0025). The Examiner has not indicated any second bit that is set by the
router or any other intermediate element.
Accordingly, we do not sustain the obviousness rejection of claim 23.

DECISION
The Examiner’s decision rejecting claims 1-16, 18-20, and 22 is
affirmed.
The Examiner’s decision rejecting claim 23 is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2011).

AFFIRMED-IN-PART

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