Ex Parte Rossler et alDownload PDFPatent Trial and Appeal BoardApr 4, 201411913316 (P.T.A.B. Apr. 4, 2014) 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. 11/913,316 11/01/2007 Horst Rossler LUTZ 200685US01 3673 48116 7590 04/04/2014 FAY SHARPE/LUCENT 1228 Euclid Avenue, 5th Floor The Halle Building Cleveland, OH 44115-1843 EXAMINER CROMPTON, CHRISTOPHER R ART UNIT PAPER NUMBER 2463 MAIL DATE DELIVERY MODE 04/04/2014 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 PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte HORST ROSSLER and DIETER KOPP ____________________ Appeal 2011-012220 Application 11/913,316 Technology Center 2400 ____________________ Before ST. JOHN COURTENAY III, THU A. DANG, and LARRY J. HUME, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-012220 Application 11/913,316 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-7, 9, and 10. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. INVENTION The invention is directed to a method for fault-tolerant, reliable stream processing. (Spec. 1). Independent claim 1, reproduced below, is representative of the subject matter on appeal: A method of handling a group communication in a communications network, the method being executed by a plurality of client devices in the communication network, comprising the steps of agreeing and arranging participating clients of a group; establishing a communication session for directed exchanging of streamed media between the participating clients, coordinating communication resources, especially the direction of exchanging of streamed media, by re-assigning a communication resource to a client having requested this communication resource, characterized in that the clients are symmetrically organized as peers in the communication network, where a peer to peer network among the participating clients is established for coordinating the direction of exchanging of streamed media by electing at least one participating peer (P1, P2, P3) of said group of participating peers (P1, P2, P3) as a source peer for guaranteeing exclusive access to the communication resources for use in sending via a distributed mutual exclusion algorithm means that is free from deadlocks and free from starvation; and using a pipe for sending the streamed media originated by the at least one participating peer to the participating peers via the peer to peer network. Appeal 2011-012220 Application 11/913,316 3 REJECTIONS 1 A. Claims 1-3, 5, 7, and 9 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combined teachings and suggestions of Metais (US 2003/0050083 A1) and Joydeep Ganguly and Michael D. Lemmon, Theory of clock Synchronization and Mutual Exclusion in Networked Control System, 1-21 (August 1, 1999) (hereinafter “Ganguly”). B. Claim 4 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over the combined teachings and suggestions of Metais, Ganguly, and Beverly A. Sanders, The Information Structure of Distributed Mutual Exclusive Algorithms, ACM Transactions on Computer System, Vol. 5, No. 3, 284-299 (August 1, 1987) (hereinafter “Sanders”). C. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over the combined teachings and suggestions of Metais, Ganguly, and Maurice R. Baker, Speech Transport for packet telephony and Voice over IP, Proceedings of the SPIE Conference on Internet II: Quality of Service and Future Directions, 242-251 (September 1999) (hereinafter “Baker”). D. Claim 10 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over the combined teachings and suggestions of Metais, Ganguly, and Mukesh Singhai and D. Manivannan, A Distributed Mutual exclusion Algorithm for Mobile Computing 1 The Examiner withdrew the § 101 rejection of claims 1-7, 9, and 10 in the Answer (3). Therefore, the §101 rejection is not before us on appeal. Appeal 2011-012220 Application 11/913,316 4 Environments, Intelligent Information Systems, IEEE 1997, 557-561 (December 8-10, 1997) (hereinafter “Singhai”). GROUPING OF CLAIMS Based on Appellants’ arguments, we decide the appeal of § 103 rejection A of claims 1-3, 5, 7, and 9 on the basis of claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2004). 2 We address rejections B, C, and D separately, infra. CONTENTIONS Appellants contend, inter alia: Metais does not mention peer-to-peer communication. Moreover, the "mobile stations" of Metais are not peers in a communication network as set forth in claim 1. Rather, they are hardware devices as described with regard to Figure 4 of Metais. In contrast, for clarity, the claimed peers are defined in the specification as follows: In the following this view comprising virtual entities P1, P2, P3 is called peer to peer network and the entities are called peers. A peer to peer infrastructure is commonly known as P2P. This is a class of applications that takes advantage of resources (storage, cycles, content, human presence) available at the edges of the network. In P2P architecture, peers communicate directly among themselves and can act as both clients and servers, assuming whatever role is most efficient 2 Appellants filed a Notice of Appeal on August 10, 2010. The date of filing the Notice of Appeal determines which set of rules applies to an ex parte appeal. If a Notice of Appeal is filed prior to January 23, 2012, then the 2004 version of the Board Rules last published in the 2011 edition of Title 37 of the Code of Federal Regulations (37 C.F.R. § 41.1 et seq.) applies to the appeal. See also MPEP (Rev. 8, July 2010). Appeal 2011-012220 Application 11/913,316 5 for the network. Peer systems leverage a service oriented architecture (SOA). But the determination of who is a provider, a consumer or a registrar is very loose. Peer-to-peer technologies are used to facilitate real-time communication and collaboration across distributed networks. In the peer to peer model, without using servers, each client called peer can exchange data, share resources, locate other peers or users, communicate, or collaborate directly in real time. By using peer to peer technologies, applications that coordinate the use of computer CPU cycles and storage can share resources among small or large groups of computers connected to a network like the Internet." (Paragraphs 0029-0030, emphasis added.) (App. Br. 9-10). Appellants further contend: Metais does not teach or suggest symmetrically organizing a plurality of clients as peers in a communication network (i.e., a peer-to-peer network) as set forth in independent claim 1. Ganguly, on which the Examiner does not rely to teach this aspect, fails to overcome the deficiencies of Metais with respect to this aspect of claim 1. (App. Br.10). Appellants additionally contend the recited limitations of “coordinating the direction of exchanging of streamed media” and “using a pipe for sending the streamed media” are not taught or suggested by the cited combination of Metais and Ganguly. (App. Br. 10-11; claim 1). Appeal 2011-012220 Application 11/913,316 6 ANALYSIS Issue: Under § 103, did the Examiner err in finding the cited combination of Metais and Ganguly would have taught or suggested the contested limitations of: characterized in that the clients are symmetrically organized as peers in the communication network, where a peer to peer network among the participating clients is established for coordinating the direction of exchanging of streamed media by electing at least one participating peer (P1, P2, P3) of said group of participating peers (P1, P2, P3) as a source peer for guaranteeing exclusive access to the communication resources for use in sending via a distributed mutual exclusion algorithm means that is free from deadlocks and free from starvation; and using a pipe for sending the streamed media originated by the at least one participating peer to the participating peers via the peer to peer network, within the meaning of representative claim 1 (emphasis added)? We observe that Metais teaches a type of point-to-point communications where “a transmitting/ receiving station different from the master station [i.e., server] can determine whether it has the right to transmit on the radio resource:” The signaling information, transmitted at least between the speech alternations, can comprise data identifying a set of stations permitted to participate in the communication, and/or data indicating a level of priority of the communication, and/or a reference for identifying the communication. On receiving this information, a transmitting/receiving station different from the master station can determine whether it has the right to transmit on the radio resource, that is to say whether it is participating in the communication (of point-to-point or group call type) or whether it has a right of channel override. The Appeal 2011-012220 Application 11/913,316 7 station which starts transmitting then becomes the new master station, and the previous master station becomes a slave station (unless it is this station which has resumed speaking). Id. (emphasis added) (Metais, ¶ [0008], emphasis added) We find the teachings and suggestions of Metais at paragraph [0008] are consistent with Appellants’ description in the Specification that in “P2P architecture, peers communicate directly among themselves and can act as both clients and servers, assuming whatever role is most efficient for the network.” (Spec. 5, ll. 27-28; App. Br. 10). Thus, we find paragraph [0008] of Metais at least suggests the claimed peer to peer (P2P) service, by “re-assigning a communication resource to a client having requested this communication resource, characterized in that the clients are symmetrically organized as peers in the communication network . . . ,” within the meaning of Appellants’ claim 1. Because “applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citation omitted). Regarding the contested “coordinating the direction” feature of claim 1, we agree with the Examiner’s findings: Metais discloses a peer-to-peer network (Figure 1), where a station will communicate in peer-to- peer communication with another station (paragraphs 0008 and 0020), and which coordinates a direction for the exchange (paragraphs 10-13 and paragraphs 19-20 master station to send traffic signal information to slave station, i.e. direction is from master to slave stations) of streamed media (paragraphs 0007 and 0008 traffic signal information is speech). Appeal 2011-012220 Application 11/913,316 8 (Ans. 13). We note the Examiner relies on the secondary Ganguly reference for teaching or suggesting “a distributed mutual exclusion algorithm that is free from deadlocks and free from starvation,” as claimed. (Ans. 6; claim 1). Appellants further contend the cited combination of Metais and Ganguly does not teach or suggest “using a pipe for sending the streamed media originated by the at least one participating peer to the participating peers via the peer to peer network.” (claim 1; App. Br. 11, emphasis added). Given that pipes are broadly described in Appellants’ Specification as asynchronous “communication channels for sending and receiving messages” (Spec. 8, ll. 1-2), we are not persuaded the Examiner’s interpretation is overly broad or unreasonable: “Metais discloses using a pipe to send streaming media (paragraph 0007 transmitting speech where speech is broadly considered as streamed media). Ganguly et al. also teaches a ‘pipe as a channel (see e.g., bottom of p. 1).)’” (Ans. 14-15, emphasis added). The Examiner’s ultimate legal conclusion of obviousness is based on the combined teachings and suggestions of the cited references. Regarding Appellants’ further statement that “Metais is silent with regard to using a pipe” (App. Br. 11), our reviewing court guides that an ipsissimis verbis test is not required. In re Bond, 910 F.2d 831, 832-33 (Fed. Cir. 1990) (citing Akzo N.V. v. U.S. Int'l Trade Comm'n, 808 F.2d 1471, 1479 n. 11 (Fed. Cir. 1986)). We note the Examiner also relies on Ganguly’s “one-way communication channel” for message passing (p. 1) as teaching or suggesting the claimed pipe, as discussed above. (See Ans. 15). See Ganguly p. 1, last paragraph, first sentence: “Message Passing involves the setting up of a one-way communication channel between the processes, Appeal 2011-012220 Application 11/913,316 9 over which the processes send and receive messages.” (emphasis added); cf. with Appellants’ Spec. 8, ll. 1-3: “Pipes are communication channels for sending and receiving messages, and they are asynchronous. They are also unidirectional, so there are input pipes and output pipes.”)(emphasis added). We further observe Appellants’ broad, non-limiting, description in the Specification: The pipes could serve the intercommunication channel, i.e. a communication resource, between the aforementioned exemplary push to talk peers, while the synchronization of a channel request needs to assure mutual exclusion of transmitting. This means there is only one sender and multiple receivers at any lifetime of a system. (Spec. 8, ll. 8-14). Cf. with Metais’ discussion of its push- to-talk (PTT) system: [0052] Terminals according to FIG. 4 can communicate with one another in walkie-talkie mode. When the user of a terminal according to FIG. 4 wishes to access the channel so as to transmit voice signals, he actuates the PTT button 30 with which the terminal is provided. His terminal, which is not master of the channel at this moment, then examines whether the carrier is busy, by listening to the channel for long enough to pick up at least one time interval of the CS/FS logical channel. If the busy state is not detected, the terminal determines that no other station is master of the channel, and it becomes master itself so as to transmit the signals of the user. It can also become master if the channel is busy with a communication over which the user has a right of override (which can be determined on the basis of the communication's priority level indicated in the CS information). (Metais ¶ [0052]). Appeal 2011-012220 Application 11/913,316 10 The Examiner finds Metais’ teaching of transmitting speech would have taught or suggested the claimed “streamed media.” (Ans. 14-15; Metais ¶[0007]; claim 1). We observe that Appellants’ Specification expressly describes streamed communications in terms of voice communications: “Once a communication community group is established a directed (logical) network for streamed communication (voice) has to be established.” (Spec. 6, ll. 22-25). Also, we note claim 6, which depends indirectly from claim 1, further limits the “streamed media” limitation of claim 1 as follows: “streamed media is speech.” Our reviewing court guides that “[w]hen different words or phrases are used in separate claims, a difference in meaning is presumed.” Nystrom v. TREX Co., Inc., 424 F.3d 1136, 1143 (Fed. Cir. 2005). Under the doctrine of claim differentiation, “the presence of a dependent claim that adds a particular limitation gives rise to a presumption that the limitation in question is not present in the independent claim.” Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005). Thus, we broadly but reasonably consider the “streamed media” limitation of claim 1 as not being limited to merely voice media (i.e., speech), but more broadly covering streamed media of any type (music, video, etc.). Moreover, Appellants’ statement in the Specification that “Peer-to- peer technologies are used to facilitate real-time communication and collaboration across distributed networks” (Spec. 5, ll. 31-32) appears to be an acknowledgement that peer-to-peer technologies were known in the art at the time of Appellants’ invention. See also Reply Br. 3: “However, as is known in the art, point-to-point communication is not the same as peer-to- Appeal 2011-012220 Application 11/913,316 11 peer communication.” (emphasis added). 3 Thus, Appellants appear to be urging the patentability of the claims on appeal based upon claimed features that were widely known to artisans at the time of Appellants’ invention, as evidenced by the cited prior art of record relied on by the Examiner. (Ans. 4-15). Therefore, for essentially the same reasons articulated by the Examiner in the Answer (11-15), as discussed above, we sustain the § 103 rejection A of representative independent claim 1. Claims 2, 3, 5, 7, and 9 (not argued separately) fall therewith. See 37 C.F.R. § 41.37(c)(1)(vii)(2004). 4 Rejections B, C, and D - dependent claims 4, 6, and 10 Regarding remaining § 103 rejections B, C, and D, Appellants contend the respective cited tertiary references fail to cure the alleged 3 A statement by an applicant in the Specification or made during prosecution identifying the work of another as “prior art” is an admission which can be relied upon for both anticipation and obviousness determinations, regardless of whether the admitted prior art would otherwise qualify as prior art under the statutory categories of 35 U.S.C. § 102. Riverwood Int’l Corp. v. R.A. Jones & Co., Inc., 324 F.3d 1346, 1354 (Fed. Cir. 2003); Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1570 (Fed. Cir. 1988). 4 System claim 9 relies on device claim 7. However, it is not apparent “communication system” claim 9 specifies a further limitation of the subject matter of claim 7 to which it refers (“A client device . . . .”), because it is completely outside the scope of claim 7. See Pfizer, Inc. v. Ranbaxy Labs. Ltd., 457 F.3d 1284, 1292 (Fed. Cir. 2006). In the event of further prosecution, we therefore leave it to the Examiner to determine whether dependent claim 9 meets the requirements of 35 U.S.C. § 112, fourth paragraph. Appeal 2011-012220 Application 11/913,316 12 deficiencies of the base combination of Metais and Ganguly (App. Br. 11-12) We find no deficiencies regarding the base combination of Metais and Ganguly, for the reasons discussed above regarding rejection A of claim 1. Therefore, we sustain the Examiner’s rejection B of dependent claim 4, rejection C of dependent claim 6, and rejection D of dependent claim 10, for the same reasons discussed above regarding claim 1. DECISION We affirm the Examiner’s decision rejecting claims 1-7, 9, and 10 under § 103. 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). See 37 C.F.R. § 41.50(f). AFFIRMED kis Copy with citationCopy as parenthetical citation