Ex Parte Traeber

Patent Trial and Appeal Board

Jul 27, 2018

12143084 (P.T.A.B. Jul. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/143,084 06/20/2008
18052 7590 07/31/2018
Eschweiler & Potashnik, LLC
Rosetta Center
629 Euclid Ave., Suite 1000
Cleveland, OH 44114
FIRST NAMED INVENTOR
Mario Traeber
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
KRAUP184US 8661
EXAMINER
CLAWSON, STEPHEN J
ART UNIT PAPER NUMBER
2461
NOTIFICATION DATE DELIVERY MODE
07/31/2018 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):
docketing@eschweilerlaw.com
inteldocs _ docketing@cpaglobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARIO TRAEBER
Appeal2017-004438
Application 12/143,084
Technology Center 2400
Before JEFFREY T. SMITH, MAHSHID D. SAADAT, and
ROBERT E. NAPPI, Administrative Patent Judges.
SAADAT, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 2--4, 6-12, 14--16, 18-23, 28, and 29. 2 We have jurisdiction under
35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellant identifies Lantiq Beteiligungs-GmbH & Co. KG as the real party
in interest. App. Br. 1.
2 Claims 1, 5, 13, 17, and 24--27 have been previously canceled. App. Br. 2.
Appeal2017-004438
Application 12/143,084
STATEMENT OF THE CASE
Introduction
Appellant's disclosure is directed to Ethernet communication using
twisted-pair links and improvements made to their capacity/bandwidth by
determining their transmission rate. See Spec. ,r,r 4, 5.
Claim 28, which is illustrative of the invention, reads as follows:
28. A method of transmitting data by an Ethernet
transceiver configured to be connected to one or more twisted-
pair links, comprising:
determining how many of the one or more twisted-pair
links are connected to the Ethernet transceiver;
transmitting data in a Gigabit Ethernet mode at 1000
Mbps or more when four twisted-pair links are connected to the
Ethernet transceiver, and
when less than four twisted pair links are connected to
the Ethernet transceiver:
transmitting data at a data transmission rate of greater
than 100 Mbps per available twisted-pair link when a far end
device supports transmitting data at a data rate of greater than
100 Mbps per twisted-pair link connected to the Ethernet
transceiver, or
transmitting data in one of a 1 OObaseT mode or a
1 ObaseT mode when the far end device does not supports
transmitting data at a data rate of greater than 100 Mbps per
twisted- pair link connected to the Ethernet transceiver.
The Examiner's Rejections
The Examiner rejected claims 2, 14, 28, and 29 under 35 U.S.C.
§ I03(a) as being unpatentable over Hatamian (US 2002/0051395 Al;
published May 2, 2002) and Lo (US 7,624,197 Bl; issued Nov. 24, 2009).
See Final Act. 7-12, 23-29.
2
Appeal2017-004438
Application 12/143,084
The Examiner further added Lida (US 2008/0187028 Al; published
Aug. 7, 2008) to reject claims 3, 15, and 16; Weller (US 2006/0109784 Al;
published May 25, 2006) to rejected claims 6, 9, 10, 18, 21, and 22; Weller
and Brocco (US 2003/0101302 Al; published May 29, 2003) to reject
claims 7, 8, 19, and 20; Chen (US 2002/0039354 Al; published Apr. 4,
2002) to reject claims 11 and 23; Chen and J. Balachandran, ( Online Guide
to Ethernet, pp. 1---6, (2005), available at
http:www.ethemetguide.netfirms.com/autoneg_lO.htm) to reject claim 12.
See Final Act. 13-23, 29-39.
ANALYSIS
Arguments and Reference teachings
In rejecting claim 28, the Examiner finds Hatamian discloses all the
recited steps of the claim except for "determining how many of the one or
more twisted-pair links are connected to the Ethernet transceiver" and
"transmitting data in one of a 1 OObaseT mode or a 1 ObaseT mode when the
far end device does not supports transmitting data at a data rate of greater
than 100 Mbps per twisted- pair link," for which the Examiner relies on Lo.
See Final Act. 7-9 ( citing Lo 4: 19-21, 4:43--4 7). The Examiner reasons that
the proposed combination allows "for a determination of the best
communication parameters ( as opposed to just guessing which wastes time,
resources (processing power, memory, electricity (battery)) and
bandwidth)." Final Act. 9. Alternatively, the Examiner finds combining
Hatamian and Lo is obvious to try or based on common sense such that one
of ordinary skill in the art "could have pursued the known potential solutions
with reasonable success." See Final Act. 9-11.
3
Appeal2017-004438
Application 12/143,084
Appellant contends the Examiner's rejection is in error because Lo
advertises the transmission speed based on "a determination of the number
of connected twisted-pair links" or whether "the number of connected
twisted-pair links is insufficient (e.g., less than 4)," but does not teach
"considering what the far end device supports with respect to data
transmission per twisted-pair link" or "differentiate data transmission
modes based on whether or not the far end device supports a data
transmission rate greater than 100 Mbps per twisted-pair link." App. Br. 6.
Appellant also argues the alternative "'obvious to try"' reasoning of the
Examiner lacks support in the teachings of Lo with respect to considering
"process variables, performance criteria, system parameters or
environmental conditions in setting a particular, reduced data transmission
rate." App. Br. 7.
In response, the Examiner explains:
[I]n order to transmit at a higher rate the device must support it.
In other words, the act of transmitting at a higher rate means the
device supports it. Therefore, Applicant's arguments are not
persuasive.
Second, Applicant's [S]pecification provides no details
or specifics as to how the determination of whether the far-end
device supports a data transmission rate greater than 1 OOMbps
per twisted-pair link occurs and Applicant has not claimed any
specifics other than the general notion which is common sense
as argued above.
Third, Lo discloses that transmitting at the greatest
supported speed possible is the most ideal. That is, Lo
explicitly discloses in the col. 4, lines 43-47 attempting to
transmit at the highest available speed ( Gigabit speeds) and
then attempting to transmit at lower speed when it is not
supported.
4
Appeal2017-004438
Application 12/143,084
Ans. 3. Relying on the disclosure of Lo in column 4, lines 43-50, the
Examiner finds the reference teaches that the highest transmission rate
should be attempted before a lower rate is selected and different speeds and
numbers of twisted pairs are available. Ans. 4. The Examiner further
explains the "obvious to try" rationale for modifying Lo as follows:
Therefore, the combinations are one twisted pair operating at
250Mbps; two twisted pairs each operating at 250Mbps; three
twisted pairs each operating at 250Mbps; and four twisted pairs
each operating at 250Mbps. In other words, unlike Leo, there
are finite, identified, and predictable solutions. One of ordinary
skill possessing ordinary creativity would have pursued these
known potential solutions with reasonable success and there are
no unexpected results of operating at the fastest speed possible
on each twisted pair that is available.
Ans. 6.
Based on a review of Lo, we are persuaded by Appellant's contention
that Lo does not consider what speed the far end device supports in selecting
the transmission rate when less than four twisted pair links are connected.
As further pointed out by Appellant, (Reply Br. 3), "Lo simply is silent
about taking the capabilities of the far end device into account in selecting a
data transmission rate in those circumstances in which less than 4 twisted
pair are provided as claimed." In other words, the Examiner has not
identified any teachings in Lo related to the far end device capabilities or
explained how the reference teachings suggest transmitting data at different
rates based on whether the far end device supports a specific transmission
rate. Additionally, we agree with Appellant that the Examiner has not
provided sufficient explanation based on the teachings of Lo in support of
"obvious to try" rationale because the Examiner's reasoning does not
address whether or how one of ordinary skill in the art would have found it
5
Appeal2017-004438
Application 12/143,084
obvious to consider the capabilities of the far end device in selecting a data
transmission rate. See Lo 4:43--49.
Claim Interpretation
Claim 28 recites limitations that are contingent on satisfying certain
criteria. For example, when four twisted-pair links are connected to the
Ethernet transceiver, the transmission rate is set at 1000 Mbps and the
method steps related to the situation in which the number of twisted-pair
links is less than four would not be performed. Based on the claim
limitations as written, the broadest reasonable interpretation of claim 28
encompasses an instance in which the method ends when the number of the
twisted-pair links connected to the Ethernet transceiver is determined to be
four. As such, the broadest reasonable interpretation of the claim is that the
claim is met if the contingent is not satisfied (i.e., when four twisted-pair
links are connected to the Ethernet transceiver). See In re Schulhauser,
Appeal 2013-007847, 2016 WL 6277792 (PTAB Apr. 28, 2016)
(precedential). Claim 29, on the other hand, recites a transceiver that is
configured to perform functionalities that are similar to the recited steps of
claim 28.
To the extent Appellant argues the failure of the Examiner to
demonstrate adequately how the remaining steps of claim 28 are rendered
obvious or whether the capabilities of the far end device are taken into
account in selecting a data transmission rate when there are less than 4
twisted pairs, those arguments are not commensurate with the broadest
reasonable interpretation of claim 28 and are, therefore, unpersuasive. For
the reasons provided supra, we agree with the Examiner's determination that
6
Appeal2017-004438
Application 12/143,084
Hatamian, as modified by Lo, renders obvious the "collecting,"
"comparing," and "triggering" steps of claim 1.
With respect to claim 29 we reach the opposite conclusion because the
claim requires the transceiver to be configured to perform the determination
step discussed above and taking into account the capabilities of the far end
device in selecting a data transmission rate in those circumstances in which
less than 4 twisted pairs are present.
CONCLUSION
For the reasons discussed supra we are unpersuaded of Examiner
error in rejecting independent claim 28. Accordingly, we sustain the
rejection of independent claim 28, as well as claims 2--4 and 6-12 dependent
therefrom, which are not argued separately.
However, Appellant's arguments have persuaded us of error in the
Examiner's position with respect to the rejection of independent claim 29.
The Examiner has not identified any teachings in the other applied prior art
that would make up for the above-mentioned deficiency. We, therefore, do
not sustain the rejection of claims 29, as well as claims 14--16 and 18-23
dependent therefrom.
DECISION
We affirm the Examiner's 35 U.S.C. § 103(a) rejection of claims 28,
2--4, and 6-12.
We reverse the Examiner's 35 U.S.C. § 103(a) rejection of claims 29,
14--16, and 18-23.
7
Appeal2017-004438
Application 12/143,084
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
8