Ex Parte Hou

Board of Patent Appeals and Interferences

May 30, 2012

10748223 (B.P.A.I. May. 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.
10/748,223 12/31/2003 Cheng-Liang Hou 58268.00351 7148
49579 7590 05/31/2012
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005
EXAMINER
JUNTIMA, NITTAYA
ART UNIT PAPER NUMBER
2462
MAIL DATE DELIVERY MODE
05/31/2012 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 CHENG-LIANG HOU
____________________

Appeal 2009-010935
Application 10/748,223
Technology Center 2400
____________________

Before THOMAS S. HAHN, BRADLEY W. BAUMEISTER, and
JENNIFER S. BISK, Administrative Patent Judges.

HAHN, Administrative Patent Judge.

DECISION ON APPEAL
Appellant invokes our review under 35 U.S.C. § 134(a) from final
rejections of claims 1-19 (Final Action 2-11). We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.

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STATEMENT OF CASE
Introduction
Appellant claims systems and a method for transmitting information
packets over a network based on packet type (Abstract). The below
reproduced claim 1 is exemplary of the claims on appeal:
1. A method, comprising:
setting a plurality of packet type filters so that each of said
packet type filters performs filtering for a different packet type;
incrementing a plurality of buckets, each bucket
communicatively coupled to a packet type filter of the plurality of
filters;
receiving a packet having a packet type;
measuring the bucket that is coupled to the packet type filter
that filters for the received packet type; and
transmitting the packet if its measured bucket is above a
threshold value.
Rejections
The Examiner relies upon the following prior art:1
Weberhofer US 6,014,384 Jan. 11, 2000
Buskirk US 2006/0159019 A1 July 20, 2006
Zhang US 7,130,917 B2 Oct. 31, 2006

1 Effective filing dates for cited prior art precede Appellants’ earliest
effective filing date and are not at issue.
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The Examiner, under 35 U.S.C. § 102(e), rejected claims 1-6, 9-16,
and 19 as being anticipated by Buskirk (Ans. 3-5).
The Examiner, under 35 U.S.C. § 103(a), rejected:
1. Claims 7, 8, 17, and 18 as being obvious over Buskirk (Ans. 5-
6);
2. Claims 1-3, 6-13, and 16-19 as being obvious over Weberhofer
and Admitted Prior Art (Spec. ¶ 0003) (hereafter APA) (Ans. 7-
11); and
3. Claims 4, 5, 14, and 15 as being obvious over Weberhofer,
APA, and Zhang (Ans. 11-12).
Issues
1. Has the Examiner erred under 35 U.S.C. § 102(e) because Buskirk
fails to explicitly or inherently teach “a plurality of packet type filters
so that each of said packet type filters performs filtering for a different
packet type” as recited in independent claims 1, 10, and 11? See App.
Br. 10-12.
2. Has the Examiner erred under 35 U.S.C. § 103(a) because Weberhofer
and APA fail alone or in combination to teach or suggest a plurality
of packet type filters that perform filtering for different packet types
as recited in independent claims 1, 10, and 11? See App. Br. 23-25
and 28-30.
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ANALYSIS
Anticipation over Buskirk
The Examiner’s anticipation rejection has been reviewed in light of
Appellant’s pivotal contention that Buskirk fails to teach a plurality of
packet type filters as recited in independent claims 1, 10, and 11 (App. Br.
10-12). Appellant’s arguments are persuasive because we do not find that
Buskirk explicitly or inherently teaches the described classifier 402
performing any filtering function, despite the Examiner so finding this
structure performing filtering functions (Ans. 13). We, instead, find Buskirk
teaches that classifier 402 monitors individual packet headers to classify
packets making up a data traffic stream (Buskirk ¶ 0058; Figs. 4, 7), but
does not separate packets into different streams as would a filter.
For the foregoing reason, we do not sustain the anticipation rejection
of independent claims 1, 10, and 11. We also do not sustain the anticipation
rejection of the respective dependent claims 2-6, 9, 12-16, and 19.
Obviousness Rejection over Buskirk
Appellant contends dependent rejected claims 7, 8, 17, and 18 are
patentable because their independent base claims 1 and 11 are patentable
over Buskirk, which is argued as not teaching filters (App. Br. 20-22). As
addressed supra, Buskirk fails to teach the claimed filters as an anticipation
reference, and based on our review of the record we find no persuasive
evidence or argument that Buskirk teaches or suggests the claimed filters as
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an obviousness reference. Accordingly, we will not sustain this rejection of
claims 7, 8, 17, and 18.
Obviousness Rejection over Weberhofer and APA
The Examiner’s obviousness rejection over Weberhofer and APA
(Ans. 7-9) has been reviewed in light of Appellant’s contention that alone or
in combination the references fail to teach or suggest a plurality of packet
type filters so that each of the packet type filters performs filtering for a
different packet type as recited in independent claims 1, 10, and 11 (App. Br.
23-25 and 28-30). Appellant particularly asserts that the Examiner
“incorrectly concluded that the [Weberhofer] mapper 18 and queues 19.1,
19.2, 19.3 and 19.[4] are the same as a plurality of packet type filters. [And]
Appellant[] submit[s] that the mapper 18 and the queues 19.1, 19.2, 19.3[,]
and 19.4 do not teach a plurality of filters . . .” (App. Br. 23). We find
Appellant’s arguments unavailing.
The Examiner finds Weberhofer teaches a packet type filter
performing filtering for different type packets, because the reference
describes a mapper 18 that determines which QoS [Quality of Service] class
an ATM [Asynchronous Transfer Mode] cell/packet belongs to, and directs
different classes to proper queues 19.1 through 19.4 (Ans. 14; see
Weberhofer col. 4, ll. 45-50). We agree. Appellant’s argument that the
Weberhofer mapper merely identifies packet classes and is not a filter
(Reply Br. 15-16) is unavailing because we find Weberhofer’s mapper 18
performs filtering functions by both determining which QoS class an ATM
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cell/packet belongs to and directing the so determined cell/packet to a proper
queue (col. 4, ll. 45-50). The Examiner also reasons that the claimed
plurality of filters reads on the described mapper 18.
[S]ince different ATM cells are classified into different QoS classes
by the mapper 18 and input into corresponding QoS queues (col. 4,
lines 11-33 and col. 5, lines 3-10), the mapper must have a number of
different means/elements that classify/identify different QoS classes
and that each means/element, whether it is hardware or software, must
be dedicated to identifying one of the QoS classes and assigning it to
an ATM cell.

(Ans. 15). Appellant disagrees and, for example, argues that “[t]he
Examiner’s position is clearly erroneous at least because the Examiner has
provided no extrinsic evidence or additional argument as to why the mapper
could not perform its disclosed classifying function without the alleged
plurality” (Reply Br. 14). Appellant’s Reply Brief argument is found
unavailing because Appellant does not dispute that the cited prior art
possesses a single filter that filters different packet types. Appellant merely
argues that a single filter that filters different packet types is not the same as
what claim 1 recites: “a plurality of packet type filters so that each of said
packet type filters performs filtering for a different packet type.”
Our review of the record fails to identify persuasive evidence or
argument that any new or unexpected results accrue from a plurality of
filters, wherein each filter of the plurality filters functions for one distinct
packet type, vis-à-vis a single filter that filters for all of the different packet
types. Indeed, Appellant by implication merely asserts that a single filter
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might perform the same function, but not that any unexpected result would
be realized by a plurality of filters. Accordingly, we are not persuaded the
Examiner erred in rejecting independent claims 1, 10, and 11 as being
obvious over Weberhofer and APA.
We will sustain the obviousness rejection of independent claims 1, 10,
and 11 and also their respective dependent rejected claims 2, 3, 6-9, 12, 13,
and 16-19 that are not separately argued beyond reliance on independent
base claim premised arguments (App. Br. 25-34). See 37 C.F.R. § 41.37
(c)(1)(vii).
Obviousness Rejection over Weberhofer, APA, and Zhang
Appellant contends dependent rejected claims 4, 5, 14, and 15 are
patentable because their independent base claims 1 and 11 are patentable
over Weberhofer, APA, and Zhang, which are argued as failing to teach or
suggest claimed filters (App. Br. 34-38). As addressed supra, we conclude
Weberhofer teaches or fairly suggests the claimed filters. Accordingly, we
will sustain this rejection of claims 4, 5, 14, and 15.

CONCLUSIONS
1. The Examiner erred under 35 U.S.C. § 102(e) in rejecting claims 1-6,
9-16, and 19 as being anticipated by Buskirk.
2. The Examiner erred under 35 U.S.C. § 103(a) in rejecting claims 7, 8,
17, and 18 as being obvious over Buskirk.
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3. The Examiner did not err under 35 U.S.C. § 103(a) in rejecting claims
1-3, 6-13, and 16-19 as being obvious over Weberhofer and APA.
4. The Examiner did not err under 35 U.S.C. § 103(a) in rejecting claims
4, 5, 14, and 15 as being obvious over Weberhofer, APA, and Zhang.

ORDER
The Examiner’s decision rejecting claims 1-19 is affirmed.
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)(iv).

AFFIRMED
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