10640847 (B.P.A.I. Mar. 26, 2012)

Ex Parte Banerjee et al

Board of Patent Appeals and InterferencesMar 26, 2012

10640847 (B.P.A.I. Mar. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte DWIP N. BANERJEE, KAVITHA VITTAL MURTHY BARATAKKE, KETAN PRIYAKANT PANCHOLI, and VENKAT VENKATSUBRA ____________ Appeal 2010-002852 Application 10/640,847 Technology Center 2400 ____________ Before SCOTT R. BOALICK, THOMAS S. HAHN, and JENNIFER S. BISK, Administrative Patent Judges. BISK, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-002852 Application 10/640,847 2 This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 15, 16, 18, and 20, which are all of the claims remaining in this application. Claims 1-14, 17, 19, and 21-25 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. STATEMENT OF THE CASE Appellants’ invention relates to improving the performance of data transfer over a network (such as the Internet) for applications that do not require the strict reliable data delivery of the underlying data transfer protocol (such as TCP/IP). To improve bandwidth, the invention on appeal overcomes the underlying protocol’s strict limits on errors by creating a second, higher, loss tolerance value and sending false acknowledgements indicating that a lost data packet has been received until the higher loss tolerance value is reached. This allows applications, such as video or audio streaming, that can tolerate a certain amount of missing data to increase data transmission. See generally Spec. ¶¶ [0001-0008, 0045-0047]. Independent claim 15 is representative of the claims on appeal and is reproduced below with key disputed limitations emphasized: 15. An article of manufacture comprising machine- readable medium including program logic embedded therein that causes control circuitry in a data processing system for managing transport of a data stream over a communication link from a sender to a receiver application, wherein said sender implements a transport control protocol having a first loss tolerance value, said program logic adapted to perform the steps of: specifying a second loss tolerance value for a said receiver application that specifies loss tolerance as a maximum percent of a plurality of data packets that is permitted to be lost during said transport of said data stream from said sender to Appeal 2010-002852 Application 10/640,847 3 said receiver application over the communication link, wherein said second loss tolerance value is higher than said first loss tolerance value; while said receiver application is receiving said data stream from said sender, receiving an indication of a lost data packet that was not received by said receiver application over the communication link; responsive to said indication of a lost data packet, determining whether said second loss tolerance value has been exceeded; and responsive to determining that said second loss tolerance value has not been exceeded, sending a first acknowledgement signal to said sender indicating that the lost data packet has been received by said receiving application. ANALYSIS The Examiner rejected claims 15, 16, 18, and 20 under 35 U.S.C. § 102(e) as being anticipated by Sivakumar (US 2003/0067877 A1). Specifically, the Examiner found that Sivakumar discloses an article of manufacture with every recited feature of independent claim 15. Ans. 3-9. Appellants argue that Sivakumar does not disclose the claimed element “specifying a second loss tolerance value.” App. Br. 4-5. ISSUE Have Appellants shown the Examiner erred in determining that Sivakumar discloses the claimed element “specifying a second loss tolerance value . . . that specifies loss tolerance as a maximum percent of a plurality of data packets that is permitted to be lost” (hereinafter, “the specifying element”)? Appeal 2010-002852 Application 10/640,847 4 FINDINGS OF FACT 1. Sivakumar discloses optimizing network data transmission for time sensitive applications that do not require full reliability by providing data loss detection feedback to the sender only if error concealment cannot compensate for the lost data. Sivakumar ¶¶ [0005, 0047, 0049]. 2. The Examiner interpreted the second loss tolerance value in Sivakumar to be “the point at which the errors can no longer be effectively concealed, thus requiring a negative acknowledgment feedback signal.” Ans. 7. ANALYSIS “Anticipation cannot be found, as a matter of law, if any claimed element or limitation is not present in the reference.” In re Skvorecz, 580 F.3d 1262, 1268 (Fed. Cir. 2009). Based on the record before us, we find error in the Examiner’s anticipation rejection of independent claim 15, which recites, in pertinent part, specifying a second loss tolerance value. The Examiner has not shown that Sivakumar discloses specifying such a value. Sivakumar discloses providing “[d]ata loss detection feedback . . . to the sender only if error concealment 121 cannot compensate for information lost.” Sivakumar ¶ [0047]. We agree with the Examiner that this mechanism inherently requires that a second loss tolerance value exist and that its value will either be equal to or higher than the first loss tolerance value because the value will equal the level at which error concealment cannot compensate for the information loss. Final Rej. 4. This value will inherently also be a percent of a plurality of data packets that is permitted to be lost. Appeal 2010-002852 Application 10/640,847 5 However, we fail to see how Sivakumar specifies this second loss tolerance value. The Examiner addresses this issue by stating that claim 15 does not indicate how the specifying occurs. While the Examiner does not elaborate on this argument, the Examiner apparently concludes that because it is not defined in the record, the term “specifying” is read as being reasonably broad enough to include simply existing. Final Rej. 4. Even under the broadest reasonable construction, however, the term “specifying” encompasses common and plain meanings more particular than simply existing.1 Thus, the Examiner’s explanation fails to indicate any disclosure in Sivakumar that can be interpreted as specifying the second loss tolerance value. We are therefore persuaded that the Examiner erred in rejecting as anticipated independent claim 15 and claims 16, 18, and 20, which depend from claim 15. ORDER The Examiner’s decision rejecting claims 15, 16, 18, and 20 is reversed. REVERSED babc 1 Specify; vt –fied; -fying: “1. To name or state explicitly or in detail 2: to include as an item in a specification.” WEBSTER’S NEW COLLEGIATE DICTIONARY (1116 © 1974).