Ex Parte Yoakum et alDownload PDFPatent Trial and Appeal BoardAug 27, 201310742196 (P.T.A.B. Aug. 27, 2013) Copy Citation 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. 10/742,196 12/19/2003 John H. Yoakum 7000-303 7480 27820 7590 08/28/2013 WITHROW & TERRANOVA, P.L.L.C. 100 REGENCY FOREST DRIVE SUITE 160 CARY, NC 27518 EXAMINER LEVITAN, DMITRY ART UNIT PAPER NUMBER 2461 MAIL DATE DELIVERY MODE 08/28/2013 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 JOHN H. YOAKUM, PHILIP EDHOLM, and FRANCOIS AUDET ____________ Appeal 2011-002441 Application 10/742,196 Technology Center 2400 ____________ Before BRUCE R. WINSOR, JOHN A. EVANS, and IRVIN E. BRANCH, Administrative Patent Judges. WINSOR, Administrative Patent Judge. DECISION ON APPEAL Appellants1 appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1, 2, 4-7, 9, 10, 12-16, 18, 19, 21-24, 26, 27, 29-33, 35, 36 and 38, which constitute all the claims pending in this application. Claims 3, 8, 11, 17, 20, 25, 28, 34, and 37 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 The real party in interest is Nortel Networks Limited. App. Br. 1. Appeal 2011-002441 Application 10/742,196 2 STATEMENT OF THE CASE The Invention Appellants’ invention relates to “packet-based communications, and in particular to selectively forwarding and processing packets that are damaged, based on the type of content carried in the packet.” Spec. 1:4-6. Claim 1, which is illustrative of the invention, reads as follows: 1. A method for selectively processing damaged packets comprising: a) receiving a damaged packet forwarded from a device, which determined the damaged packet was damaged; b) determining if the damaged packet has a first type of content, wherein the first type of content is content, which is time sensitive; and c) if the damaged packet has the first type of content, processing the damaged packet to repair damage associated with the damaged packet. The Rejections Claims 1, 2, 4-7, 9, 10, 12-16, 18, 19, 21-24, 26, 27, 29-33, 35, 36, and 38, stand provisionally rejected on the grounds of nonstatutory obviousness-type double patenting over the claims of copending Application No. 10/676,398, (now Patent No. US 7,573,872 B2; issued Aug. 11, 2009). Ans. 4-5. Claims 1, 2, 4-7, 9, and 12 stand rejected under 35 U.S.C. § 102(b) as anticipated by Haartsen (US 2002/0003812 Al; published Jan. 10, 2002). Ans. 5-6. Appeal 2011-002441 Application 10/742,196 3 Claims 13-15, 18, 19, 21-24, 26, 292-32, 35, 36, and 38 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Haartsen. Ans. 6-7. Claims 16 and 33 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Haartsen and Brandt (US 6,801,530 B1; issued Oct. 5, 2004). Ans. 7-8. The Examiner has withdrawn the following grounds of rejection, which are, therefore, not before us on appeal (Ans. 3): a rejection of claims 17 and 343 under 35 U.S.C. § 112, first paragraph (see Final Rej. 3); a rejection of claims 17 and 34 under 35 U.S.C. § 112, second paragraph (see Final Rej. 3-4); a rejection of claims 1, 2, 4-7, 9, 10, 12-15, 18, 19, 21-24, 26, 27, 29- 32, 35, 36, and 38 under 35 U.S.C. § 103(a) over Larzon (Larzon, Efficient use of wireless bandwidth for multimedia applications, GLOBECOM '00, 27 Nov to Dec 2000, pages 187-193) (see Final Rej. 7-10); and a rejection of claims 16, 17, 33, and 34 under 35 U.S.C. § 103(a) over Larzon and Brandt (see Final Rej. 10). The Record on Appeal Rather than repeat the arguments here, we refer to the Briefs (“App. Br.” filed Mar. 29, 2010; “Reply Br.” filed Jul. 23, 2010) and the Answer (“Ans.” mailed May 25, 2010) for the respective positions of Appellants and the Examiner. Only those arguments actually made by Appellants have been considered in this decision. Arguments that Appellants did not make in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). 2 The Examiner’s statement of the grounds for rejections erroneously include cancelled claim 28. Ans. 6; see also App. Br. 12. 3 Claims 17 and 34 are now cancelled. Ans. 3. Appeal 2011-002441 Application 10/742,196 4 OBVIOUSNESS-TYPE DOUBLE PATENTING REJECTION Appellants do not contest the provisional obviousness type double patenting rejection. See App. Br. 9. Accordingly, Appellants have waived appeal of the provisional obviousness-type double patenting rejection of claims 1, 2, 4-7, 9, 10, 12-16, 18, 19, 21-24, 26, 27, 29-33, 35, 36, and 38, and we summarily sustain the rejection. We note that the only rejection currently standing for claims 10 and 27 is the provisional obviousness-type double patenting rejection. REJECTION UNDER 35 U.S.C. § 102(b) OVER HAARTSEN Issue The issue raised by Appellants’ contentions is as follows: Does Haartsen disclose “if the damaged packet has the first type of content, processing the damaged packet to repair damage associated with the damaged packet,” as recited in claim 1? Analysis We have considered Appellants’ contentions and arguments (App. Br. 10-12; Reply Br. 2-4) in light of the Examiner’s findings (Ans. 5) and explanations in response to Appellants’ arguments (Ans. 8-10). We agree with the Examiner’s findings and explanations (Ans. 5, 8-10) and adopt them as our own. The following findings, conclusions, and explanations are provided for emphasis. Appellants contend that that the Examiner erred in finding that Haartsen’s disclosed method of processing a voice type packet with a damaged header by discarding the damaged header and assuming the destination address/slot for the damaged packet, meets the limitation of Appeal 2011-002441 Application 10/742,196 5 “processing the damaged packet to repair damage associated with the damaged packet,” as recited in claim 1. See generally App. Br. 10-12; Reply Br. 2-4. More particularly, Appellants contend “Haartsen discloses discarding the header; Haartsen does not disclose repairing the header if the packet has a first type of content.” App. Br. 11. “[D]iscarding a packet cannot be equivalent to repairing a packet.” App. Br. 12. We are unpersuaded of error. Appellants’ arguments are not commensurate with the scope of the claim. Claim 1 does not recite that the packet is repaired, rather it recites “repair[ing] damage associated with the packet” (emphasis added), which does not necessarily require repair of the packet itself. See Ans. 9 (“Current claims are directed to ‘repair a [sic] damage associated with the damaged packet’, broad limitations, comprising any action mitigating the damage, including Haartsen[’s] teaching of processing the packets [sic, packet’s] payload despite the damaged headers of the packets.”). We do not find persuasive Appellants’ contention that the Examiner has redefined “repair” as “mitigate.” Reply Br. 3. Accepting, arguendo, the definitions of “repair” and “mitigate” cited by Appellants (see id.), as a matter of common English usage, the effects of damage are mitigated when repairs are made. Furthermore, the Examiner does not equate “discarding” a packet with repairing a packet, as the discarding of a damaged header is only a portion of Haartsen repair operation, which comprise [sic] three major steps of [(1)] assuming the destination address, which should be provided by the packet damaged header, [(2)] dropping the damaged header and [(3)] consuming the packet payload. Contrary to appellant's arguments, Haartsen does not drop the damaged packet, but use the packet payload without the damaged header. Appeal 2011-002441 Application 10/742,196 6 Ans. 8-9. We agree with the Examiner (Ans. 9) that the examples of repair processes described in Appellants’ Specification (see App. Br. 11-12 (citing Spec. ¶ [0025]); see also Reply Br. 3) are not limitations recited in claim 1. However, we note that the repair method described by Haartsen, in which a destination address is assumed (see Haartsen, ¶ [0023]) is encompassed within “replacing the damaged packet [(i.e., the damaged packet header)] with nominal data [(i.e., the assumed destination address)]” (App. Br. 12). Accordingly, we sustain the rejection of claim 1, and claims 2, 4-7, 9, and 12, which depend from claim 1 and were not separately argued with particularity. REJECTION UNDER 35 U.S.C. § 103(a) OVER HAARTSEN Appellants argue that independent claims 18 and 35 are patentable by relying on the arguments made for the patentability of claim 1. See App. Br. 13-14. These arguments are unpersuasive regarding claims 18 and 35 for substantially the same reasons as set forth supra regarding 1. Accordingly, we sustain the rejection of (1) claims 18 and 35; (2) claims 13-15, which depend from claim 1 and were not separately argued with particularity; (3) claims 19, 21-24, 26, and 29-32, which depend from claim 18 and were not separately argued with particularity; and (4) claims 36 and 38, which depend from claim 35 and were not separately argued with particularity. REJECTION UNDER 35 U.S.C. § 103(a) OVER HAARTSEN AND BRANDT Appellants rely on the arguments made for claims 1 and 18 to argue the patentability of claims 16 and 33. See App. Br. 14. Appellants Appeal 2011-002441 Application 10/742,196 7 additionally contend that Brandt does not overcome the alleged deficiencies of Haartsen. See id. These arguments are unpersuasive regarding claims 16 and 33 for substantially the same reasons as set forth supra regarding claim 1. Accordingly, we sustain the rejection of claims 16 and 33. ORDER The decision of the Examiner to reject claims 1, 2, 4-7, 9, 10, 12-16, 18, 19, 21-24, 26, 27, 29-33, 35, 36 and 38 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED rwk Copy with citationCopy as parenthetical citation