Ex Parte KolzeDownload PDFPatent Trial and Appeal BoardJun 14, 201713346071 (P.T.A.B. Jun. 14, 2017) Copy Citation 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. 13/346,071 01/09/2012 Thomas J. Kolze 2875.0900005 3517 49579 7590 06/16/2017 STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C. 1100 NEW YORK AVENUE, N.W. WASHINGTON, DC 20005 EXAMINER DUONG, FRANK ART UNIT PAPER NUMBER 2474 NOTIFICATION DATE DELIVERY MODE 06/16/2017 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): e-office @ skgf.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THOMAS J. KOLZE Appeal 2015-007869 Application 13/346,071 Technology Center 2400 Before ROBERT E. NAPPI, CARL W. WHITEHEAD JR and SHARON FENICK, Administrative Patent Judges. WHITEHEAD JR., Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant is appealing the Final Rejection of claims 1—4, 6—10 and 21 under 35 U.S.C. § 134(a). Appeal Brief 15. Claim 5 is cancelled. Appeal Brief 17. Claims 11—20 have been indicated as allowed. Final Rejection 11. We have jurisdiction under 35 U.S.C. § 6(b) (2012). We affirm-in-part. Introduction The invention is directed to “a cable modem system wherein information is communicated between a plurality of cable modems and a cable modem termination system.” Specification, paragraph 2. Illustrative Claim (disputed limitations emphasized) Appeal 2015-007869 Application 13/346,071 1. A method, comprising: initializing a modem to transmit to a cable modem termination system (CMTS) on a first communications channel having a first transmission parameter and on a second communications channel having a second transmission parameter, wherein the first communications channel is a wideband channel and the second communications channel is a narrowband channel; receiving, at the modem, a data packet for transmission, wherein the data packet is characterized by a packet length; selecting one of the first communications channel and the second communications channel for transmission of the data packet based on the packet length and the first and second transmission parameters; and transmitting the data packet on the selected communications channel from the modem to the CMTS. Rejections on Appeal Claims 1-4, 6-10 and 21 are rejected on the ground of nonstatutory obviousness type double patenting as being unpatentable over claims 1—17 of Kolze (US 8,094,676 B2; issued Jan. 10, 2012).1 Final Rejection 3—6. 1 “Appellant respectfully requests that the currently asserted double patenting rejection be held in abeyance until the claimed subject matter is otherwise deemed allowable.” Appeal Brief 14. Appellant does not present arguments on the accuracy of the double patenting rejection. We sustain the Examiner’s obviousness type double patenting rejection of claims 1—4, 6—10 and 21. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI2010) (precedential) (“If an appellant fails to present arguments on a particular issue — or, more broadly, on a particular rejection — the Board will not, as a general matter, unilaterally review those uncontested aspects of the 2 Appeal 2015-007869 Application 13/346,071 Claims 1—4, 6—10 and 21 stand rejected under pre-AIA 35 U.S.C. § 102(e) as being anticipated by or, in the alternative, under pre-AIA 35 U.S.C. § 103(a) as obvious over Lee et al. (US 7,017,176 Bl; issued Mar, 21, 2006). Final Rejection 6—11. ANALYSIS Rather than reiterate the arguments of Appellant and the Examiner, we refer to the Appeal Brief (filed March 09, 2015), the Reply Brief (filed August 26, 2015), the Answer (mailed June 26, 2015) and the Final Rejection (mailed October 7, 2014) for the respective details. We have considered in this decision only those arguments Appellant actually raised in the Brief. Anticipation Rejection Appellant contends, “Lee discloses the initialization of a modem based on two channels that are available and different, but not that the initialized modem has a wideband channel and a narrowband channel.” Appeal Brief 9. We find Appellant’s argument persuasive because Lee does not teach employing wideband and narrowband channels. See Final Rejection 7; Answer 3. We also agree with Appellant’s arguments that using UCD (upstream channel descriptors) parameters to define or determine the characteristics of Lee’s channels is a possibility but is not one that is readily available or taught by Lee. See Appeal Brief 10. We do not sustain the Examiner’s anticipation rejection of claims 1—4, 6—10 and 21. rejection. See, e.g., Hyatt v. Dudas, 551 F.3d 1307, 1313—14 (Fed. Cir. 2008) (the Board may treat arguments appellant failed to make for a given ground of rejection as waived)”). 3 Appeal 2015-007869 Application 13/346,071 Obviousness Rejection Appellant contends, “Lee’s modem initialization protocol results in two channels that are available and different, but does not result in an initialized modem that has a wideband channel and a narrowband channel” and “Lee shows a complete disinterest in channel initialization that would result in different bandwidths.” Appeal Brief 11. Appellant further contend, “Even Lee’s description of load balancing does not implicate initialization, but is directed to post-initialization concerns of real-time traffic management, whereby traffic is managed based on actual traffic and available capacity.” Appeal Brief 12 (citing Lee, column 3, lines 36—61). We agree with Appellant’s contentions that Lee is silent in regard to discloses two channels differentiated by the wideband or narrowband nomenclature. However, as Appellant acknowledges, Lee discloses initializing a modem that “results in two channels that are available and different.” Appeal Brief 11. We disagree with Appellant’s conclusory argument on page 11 of the Appeal Brief that Lee is “disinterested] in channel initialization that would result in different bandwidths” because Lee’s different channels would inherently have different bandwidths. Appellant’s Specification discloses in paragraph 17, “according to the present invention, a CM [cable modem] can be ranged on at least two carrier frequencies, or channels, at least one channel is narrowband and at least one channel is wideband.” Appellant fails to disclose any criticality associated with the narrowband or wideband nomenclature and therefore we agree with the Examiner’s finding that modifying Lee to include channels that are differentiated by either a wideband or narrowband designation would be 4 Appeal 2015-007869 Application 13/346,071 obvious to one of ordinary skill in the art.2 See Final Rejection 8. Accordingly, we sustain the Examiner’s obviousness rejection of claims 1—4, 6-9 and 21. Appellant argues that both the anticipation rejection and the obviousness rejection of claim 10 are erroneous because Lee only mentions a descriptor ring and it is not “inherent that data are fragmented as it is referenced in the descriptor ring.” Appeal Brief 13 (citing Final Rejection 13). Appellant contends “Lee’s descriptor ring is no different than any other descriptor ring - a descriptor ring is merely a circular chain of descriptor elements, where each descriptor element points to a memory segment, which holds the data” and “[pjointing is not fragmenting.” Appeal Brief 14. The Examiner finds Lee’s descriptor ring renders the claimed fragmenting step obvious because “It is well known to those skilled in the art that the data are fragmented as it is referenced in the descriptor ring because in descriptor ring, a packet or data is broken up into small pieces prior to being stored into a memory or buffer.” Answer 9. We disagree with the Examiner’s finding. Lee is silent in regard to the functionality of the descriptor ring and in view of Appellant’s arguments, we find the Examiner has failed to establish a prima facie case of obviousness. Accordingly, we reverse the Examiner’s obviousness rejection of claim 10. We also reverse the Examiner’s anticipation rejection of claim 10 because Lee does not teach the claimed fragmenting. 2 “As our precedents make clear, however, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l v. Teleflex Inc., 550 U.S. 398,418 (2007). 5 Appeal 2015-007869 Application 13/346,071 DECISION The Examiner’s obviousness type double patenting rejection of claims 1—4, 6—10 and 21 is affirmed. The Examiner’s anticipation rejection of claims 1—4, 6—9 and 21 is reversed. The Examiner’s anticipation rejection of claim 10 is reversed. The Examiner’s obviousness rejection of claims 1—4, 6—9 and 21 is affirmed. The Examiner’s obviousness rejection of claim 10 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)(l)(v). AFFIRMED 6 Copy with citationCopy as parenthetical citation