Ex Parte Babiarz et alDownload PDFBoard of Patent Appeals and InterferencesJul 30, 201210799704 (B.P.A.I. Jul. 30, 2012) Copy Citation 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 Appeal 2009-011300 Application 10/799,704 2 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; Appeal 2009-011300 Application 10/799,704 3 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. Appeal 2009-011300 Application 10/799,704 4 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 Appeal 2009-011300 Application 10/799,704 5 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). Appeal 2009-011300 Application 10/799,704 6 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). Appeal 2009-011300 Application 10/799,704 7 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. Appeal 2009-011300 Application 10/799,704 8 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 rwk Copy with citationCopy as parenthetical citation