Ex Parte Tierney et alDownload PDFPatent Trial and Appeal BoardDec 30, 201310744769 (P.T.A.B. Dec. 30, 2013) 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. 10/744,769 12/22/2003 James Tierney 7000-408 1295 27820 7590 12/30/2013 WITHROW & TERRANOVA, P.L.L.C. 100 REGENCY FOREST DRIVE SUITE 160 CARY, NC 27518 EXAMINER IBRAHIM, MOHAMED ART UNIT PAPER NUMBER 2444 MAIL DATE DELIVERY MODE 12/30/2013 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 JAMES TIERNEY, DAVID STUART, and BRADLEY VENABLES ____________ Appeal 2011-005461 Application 10/744,769 Technology Center 2400 ____________ Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-27. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appeal 2011-005461 Application 10/744,769 2 STATEMENT OF THE CASE Appellants’ claimed invention relates to managing a flow control buffer where a count of data segments is maintained. The count includes data segments in a queue and data segments in transit between a data source and the queue. A flow of data segments from the data source is controlled, based on a value of the count. (Abstract) Independent claim 1, reproduced below, is representative of the subject matter on appeal. 1. A method comprising: maintaining a count of data segments, the count including data segments in a queue and data segments in transit between a data source and the queue; and controlling a flow of data segments from the data source, based on a value of the count. REFERENCES and REJECTION The Examiner rejected claims 1-27 under 35 U.S.C. § 103(a) based upon the teachings of Wynne (U.S. Patent No. 6,959,002 B2, Oct. 25, 2005) and Wehage (U.S. Patent Application Publication No. 2003/0066016 A1, Apr. 3, 2003). ANALYSIS Appellants contend that neither the Wynne nor Wehage references include data segments in a queue and data segments in transit between a data source and the queue. (App. Br. 5-6). Appellants maintain that independent claims 12, 19, and 24 contain similar limitations as independent claim 1 and the Examiner has not shown that the references teach or fairly suggest the Appeal 2011-005461 Application 10/744,769 3 claimed invention. The Examiner admits that the Wynne reference does not count data segments in transit between a data source and the queue and relies upon the Wehage reference in paragraphs [0012] and [0003]. (Ans. 3-4). The Examine opines as to how the counters of the Wehage reference would operate regarding the transmitting and the receiving to detect packet loss, but the Examiner’s line of reasoning does not teach or suggest data segments in transit between a data source and the queue. (Ans. 10). The Examiner maintains, Thus since the counter of sender keeps a count of the packets sent to the receiving queue and similarly the receiving end, keeps a count of the received data, clearly the data in transit from the sender to the receiver is tracked and kept a count off to detect any packet loss as this is the main objective of Wehage reference. Therefore the combinations of references indeed teach the required scope of claimed limitations as currently presented. (Ans. 10-11). Appellants contend, Wehage only discloses a counter at the sender that is incremented when a packet is sent from the sender and a counter at the receiver that is incremented when the packet is received. However, the count in these two counters in Wehage are never combined and used to control the flow of data segments from the data source. (App. Br. 6, 14). We agree with Appellants. At best, the difference in count of the two counters may indicate the loss of data (data not received), but may have been received elsewhere and is not in transit anymore. Here, the Examiner speculates and invites the Board to speculate. The question of obviousness is “based on underlying factual determinations including . . . what th[e] prior art teaches explicitly and inherently.” In re Appeal 2011-005461 Application 10/744,769 4 Zurko, 258 F.3d 1379, 1383 (Fed. Cir. 2001) (citations omitted). “The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not . . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). Additionally, Appellants contend that the Wynne reference “does not teach or suggest controlling a flow of the cells from a data source based on a count that includes both data segments in a queue and data segments in transit between a data source and the queue.” (App. Br. 6). We agree with Appellants that the Wynne reference controls based upon a count that includes data segments in a queue and does not teach or suggest controlling a flow based upon both of the claimed counts. The Examiner maintains that the Wynne reference discloses controlling a flow of data segments from a data source based upon a value of a count. (Ans. 11). While we agree with the Examiner that the Wynne reference discloses controlling a flow of data segments based upon a value of a count, the Examiner does not address the difference in the count, where the count includes both data segments in a queue and data segments in transit. Appellants contend that the Wehage reference does not remedy the deficiency in the Wynne reference to control flow based upon both of the claimed counts. (App. Br. 6). We agree with the Appellants that the Wehage reference does not teach or suggest controlling a flow based upon both of the claimed counts. Therefore, Appellants have shown error in the Examiner’s proffered conclusion of obviousness, and we cannot sustain the rejection of independent claim 1 and its respective dependent claims 2-11. Appeal 2011-005461 Application 10/744,769 5 Independent claims 12, 19, and 24 contain similar limitations as discussed above. Therefore, we cannot sustain the rejection of claims 12, 19, and 24 and their respective dependent claims. CONCLUSION The Examiner erred in rejecting claims 1-27 under 35 U.S.C. § 103(a). DECISION The Examiner’s decision rejecting claims 1-27 is reversed. REVERSED msc Copy with citationCopy as parenthetical citation