Ethernity Networks Ltd.

Patent Trials and Appeals Board

Aug 24, 2020

14166906 - (D) (P.T.A.B. Aug. 24, 2020)

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.
14/166,906 01/29/2014 David Levi 8385-US 7852
69054 7590 08/24/2020
RECHES PATENTS
HaArba''a Towers
North Tower
TEL AVIV, 6473925
ISRAEL
EXAMINER
REYES ORTIZ, HECTOR E
ART UNIT PAPER NUMBER
2472
NOTIFICATION DATE DELIVERY MODE
08/24/2020 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):
MAIL@I-P.CO.IL
OREN@I-P.CO.IL
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID LEVI and SHAVIT BARUCH
____________

Appeal 2019-003642
Application 14/166,906
Technology Center 2400
____________

Before JOHN A. JEFFERY, CARL L. SILVERMAN, and
JAMES W. DEJMEK, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Under 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s
decision to reject claims 1–32. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42 (2017). Appellant identifies the real party in interest as
Ethernity Networks Ltd. Appeal Br. 3.
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Application 14/166,906

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STATEMENT OF THE CASE
Appellant’s invention distributes high data traffic over multiple
wireless links to form a high-bandwidth wireless backbone. To this end, a
source router receives multiple data streams and transmits them wirelessly to
destination routers that, in turn, send stream fragments to a gateway that
reconstructs and outputs the streams. See generally Spec. 13–16, 78. Claim
1 is illustrative:
1. A data distribution system, comprising:
a source router;
destination routers; and
a gateway;
wherein the source router is arranged to receive multiple
data streams and wirelessly transmit the multiple data streams
over multiple source router output wireless communication links
towards the destination routers; wherein the destination routers
are arranged to wirelessly receive the multiple data streams over
destination routers input wireless links and to transmit the
multiple data streams to the gateway;
wherein each destination router is configured to receive at
least a fragment of a data stream and to send the at least fragment
of the data stream, directly or via one or more other destination
routers, to the gateway; and
wherein the gateway is arranged to reconstruct the
multiple data streams and output from the data distribution
system the multiple data streams over one or more gateway
output links.

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THE REJECTIONS
The Examiner rejected claims 1 and 17 under 35 U.S.C. § 103 as
unpatentable over Satapathy (US 7,865,185 B1; issued Jan. 4, 2011).
Ans. 3–4.2
The Examiner rejected claims 2, 3, 7, 9, 11, 16, 18, 19, 23, 25, 27, and
32 under 35 U.S.C. § 103 as unpatentable over Satapathy and Krishnaswamy
(US 2013/0064198 A1; published Mar. 14, 2013). Ans. 4–6.
The Examiner rejected claims 4 and 20 under 35 U.S.C. § 103 as
unpatentable over Satapathy, Krishnaswamy, and Lee (US 2014/0064249
A1; published Mar. 6, 2014). Ans. 6–7.
The Examiner rejected claims 5, 6, 8, 21, 22, and 24 under 35 U.S.C.
§ 103 as unpatentable over Satapathy, Krishnaswamy, and Pasotti (US
2014/0050087 A1; published Feb. 20, 2014). Ans. 7–8.
The Examiner rejected claims 10 and 26 under 35 U.S.C. § 103 as
unpatentable over Satapathy, Krishnaswamy, and Antoniou (US
2003/0216141 A1; published Nov. 20, 2003). Ans. 8.
The Examiner rejected claims 12, 13, 28, and 29 under 35 U.S.C.
§ 103 as unpatentable over Satapathy, Krishnaswamy, Antoniou, and
Hampel (US 2013/0195004 A1; published Aug. 1, 2013). Ans. 8–9.
The Examiner rejected claims 14 and 30 under 35 U.S.C. § 103 as
unpatentable over Satapathy, Krishnaswamy, and Chandra (US
2009/0088089 A1; published Apr. 2, 2009). Ans. 10.

2 Throughout this opinion, we refer to (1) the Appeal Brief filed July 15,
2018 (“Appeal Br.”); (2) the Examiner’s Answer mailed February 5, 2019
(“Ans.”); and (3) the Reply Brief filed April 4, 2019 (“Reply Br.”).
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Application 14/166,906

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The Examiner rejected claims 15 and 31 under 35 U.S.C. § 103 as
unpatentable over Satapathy, Krishnaswamy, and Kovvali (US
2015/0124622 A1; published May 7, 2015). Ans. 10.

THE OBVIOUSNESS REJECTION OVER SATAPATHY
The Examiner finds that Satapathy discloses every recited element of
independent claim 1, but does not transmit or receive multiple data streams
wirelessly. Ans. 3–4, 11. The Examiner, however, concludes that it would
have been obvious to substitute Satapathy’s wireline interface with a
wireless interface—a simple substitution of one known element for another
to produce a predictable result. Ans. 4, 11–12.
Appellant argues that because Satapathy uses both wired and wireless
communication—a dual communication capability that improves earlier
approaches that were limited to just one communication type—Satapathy
teaches away from using only wireless interfaces as the Examiner proposes.
Appeal Br. 13–16; Reply Br. 2–3.

ISSUE
Under § 103, has the Examiner erred in rejecting claim 1 by finding
that Satapathy would have taught or suggested transmitting and receiving
multiple data streams wirelessly? This issue turns on whether Satapathy
teaches away from substituting the disclosed wired interfaces with wireless
interfaces as the Examiner proposes.

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ANALYSIS
On this record, we agree with Appellant that the Examiner’s proposal
to substitute a wireless interface for Satapathy’s wired interface is
problematic, for this proposed substitution runs counter to the very teachings
of the reference and, therefore, teaches away from that approach.
Satapathy explains in the Background section that service providers
used wireless or wireline means to communicate with an access device, such
as a telephone or computer. Satapathy col. 1, ll. 25–33. Our emphasis on
the term “or” underscores that wireless and wireline approaches were used
alternatively in the prior art. See id. Consequently, associated systems
employing those alternatives were limited by each alternatives’ respective
protocols, equipment, software, and distances between access and switching
devices. Satapathy col. 1, ll. 33–38.
Satapathy’s invention, however, overcomes these drawbacks by
combining wireless and wireline access technologies to improve capacity,
throughput, accessibility, and effectiveness. Satapathy col. 1, ll. 40–43; col.
2, ll. 52–60; Abstract. As Satapathy explains, this combination of wireless
and wireline technologies improves systems that use only a single access
technology by enabling more effective and efficient communications,
especially in areas where a single access technology has limited capacity or
lacks ideal connectivity. Satapathy col. 2, ll. 52–60; col. 3, ll. 4–6.
Given this improvement, to suggest that it would have somehow been
obvious to substitute Satapathy’s disclosed wireline interface with a wireless
interface to yield a single wireless access technology as the Examiner
proposes (Final Act. 4; Ans. 11–12) is diametrically opposite to what
Satapathy teaches and, therefore, is untenable on this record. It is well
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settled that a reference teaches away from the claimed invention when the
reference criticizes, discredits, or otherwise discourages investigation into
the claimed invention. See Norgren Inc. v. Int’l Trade Comm’n, 699 F.3d
1317, 1326 (Fed. Cir. 2012); see also In re Kahn, 441 F.3d 977, 990 (Fed.
Cir. 2006).
That is the case here, at least regarding using solely wireless access
technology in Satapathy with the Examiner’s proposed substitution. In other
words, the Examiner’s proposed substitution negates the very benefits
achieved by Satapathy’s invention, namely the improved capacity,
throughput, accessibility, and effectiveness that is realized by using both
wireless and wired technologies together. See Satapathy col. 1, ll. 40–43;
col. 2, ll. 52–60; Abstract.
Although substituting wireless communication technology in lieu of
wired technology is not a leap of inventiveness, such a substitution is
nevertheless unjustified where, as here, the cited prior art teaches away from
that substitution.
The Examiner’s statement that Appellant does not explain how
Salkintzis or Katz criticizes, discredits, or discourages investigation into the
claimed invention (Ans. 12) is puzzling, for these references were not cited,
nor has the Examiner explained their relevance here. In any event, even if
this inartful statement was intended to refer to Satapathy, it is unavailing
given Satapathy’s teaching away from the Examiner’s proposed substitution
as noted above.
Therefore, we are persuaded that the Examiner erred in rejecting
claims 1 and 17.

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THE OTHER OBVIOUSNESS REJECTIONS
Because the Examiner has not shown that the cited prior art cures the
deficiencies noted above regarding the rejection of the independent claims,
we do not sustain the obviousness rejections of the dependent claims
(Ans. 4–10) for similar reasons.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 17 103 Satapathy 1, 17
2, 3, 7, 9, 11,
16, 18, 19,
23, 25, 27,
32
103 Satapathy,
Krishnaswamy
2, 3, 7, 9,
11, 16, 18,
19, 23, 25,
27, 32
4, 20 103 Satapathy,
Krishnaswamy,
Lee
4, 20
5, 6, 8, 21,
22, 24
103 Satapathy,
Krishnaswamy,
Pasotti
5, 6, 8, 21,
22, 24
10, 26 103 Satapathy,
Krishnaswamy,
Antoniou
10, 26
12, 13, 28,
29
103 Satapathy,
Krishnaswamy,
Antoniou, Hampel
12, 13, 28,
29
14, 30 103 Satapathy,
Krishnaswamy,
Chandra
14, 30
15, 31 103 Satapathy,
Krishnaswamy,
Kovvali
15, 31
Overall
Outcome
1–32
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Application 14/166,906

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REVERSED