Ex Parte Cochran

Patent Trial and Appeal Board

Aug 29, 2016

13246504 (P.T.A.B. Aug. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/246,504 09/27/2011 Robert A. Cochran
56436 7590 08/31/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82852259 4641
EXAMINER
GREY, CHRISTOPHER P
ART UNIT PAPER NUMBER
2413
NOTIFICATION DATE DELIVERY MODE
08/31/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT A. COCHRAN
Appeal2014-008586
Application 13/246,504
Technology Center 2400
Before CAROLYN D. THOMAS, BETH Z. SHAW, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
SHAW, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 7-12 and 21-32, which are all the
claims pending in this application. App. Br. 2. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
INVENTION
The invention is for an apparatus and method of increasing
information throughput on a private data link. See Spec. i-f 6.
Appeal2014-008586
Application 13/246,504
Claim 7 is representative and is reproduced below:
7. An apparatus comprising:
a communication controller adapted to communicate
information on a communication link using a
communication technique selected from among multiple-
tiered, progressively higher throughput communication
techniques, monitor error rate on the communication link,
and select the communication technique and information
throughput based on the monitored error rate
REJECTIONS
The Examiner rejected claims 7-9, 21-23, and 27-29 under 35 U.S.C.
§ 103(a) as being unpatentable over de Seze (US 5,822,315; iss. Oct. 13,
1998) and Lusky (US 2003/0179768 Al; publ. Sept. 25, 2003). Ans. 2--4.
The Examiner rejected claims 10-12, 24--26, and 30-32 under 35
U.S.C. § 103(a) as being unpatentable over de Seze, Lusky, and Campana
(US 5,446,759; Aug. 29, 1995). Ans. 5-8.
ISSUES
The dispositive issues presented by Appellant's contentions are as
follows:
l . Did the Examiner err in finding one skilled in the art would
have recognized the combination of de Seze and Lusky teaches
or suggests the disputed limitations of "a communication
controller adapted to communicate information on a
communication link using a communication technique selected
from among multiple-tiered, progressively higher throughput
communication techniques, monitor error rate on the
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Application 13/246,504
communication link, and select the communication technique
and information throughput based on the monitored error rate,"
as recited in claim 7?
ANALYSIS
We conclude the Examiner did not err in finding one skilled in the art
would have recognized the combination of references teaches or suggests the
disputed limitations of claims 7-12 and 21-32. We refer to, rely on, and
adopt the Examiner's findings and conclusions set forth in the Final Office
Action and Answer (Final Act. 2-11; Ans. 2-12). Our discussions here will
be limited to the following points of emphasis.
Claim 7
Appellant argues that de Seze does not disclose multiple-tiered
communication techniques so as to provide the user with a choice from
amongst several techniques to select from, but rather, de Seze merely
provides a single technique. App. Br. 7. In particular, Appellant argues that
de Seze uses only a single Time Division Multiple Access (TDMA)
technique.
We are not persuaded by Appellant's argument. The Examiner finds
that de Seze describes a first mode and a second mode as each being a
different communication technique. Ans. 8-9 (citing de Seze 2:38---64). We
agree with the Examiner's finding that de Seze teaches two separate
communication modes, which are encompassed by claim 7 's recitation of
"communication techniques." See de Seze 2:62---64 ("The principle of the
invention is therefore to use selectively either a first or a second mode of
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Application 13/246,504
transmission"). In fact, de Seze refers to the second mode and the first mode
as different techniques. de Seze 2:66-3:5 ("second mode uses the burst by
burst ARQ (Automatic Repeat Request) transmission technique . .. more
efficient than the encoding-interleaving technique (first mode of
transmission.)") (Emphases added).
Appellant argues that de Seze' s modes are not the same as the claimed
techniques, because de Seze does not allow a user to select from among
several communication techniques to enhance throughput and monitor error
rate. App. Br. 7. However, many of these alleged features (e.g., "allow a
user to select" and "enhance throughput") are not recited in claim 7. As the
Examiner points out, and we agree, although the claims are interpreted in
light of the Specification, limitations from the Specification are not read into
the claims. Ans. 2.
[T]he [US]PTO applies to the verbiage of the proposed claims
the broadest reasonable meaning of the words in their ordinary
usage as they \vould be understood by one of ordinaP; skill in the
art, taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant's specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). "Though understanding
the claim language may be aided by the explanations contained in the
written description, it is important not to import into a claim limitations that
are not a part of the claim." SuperGuide Corp. v. DirecTV Enters., Inc., 358
F.3d 870, 875 (Fed. Cir. 2004).
Additionally, Appellant argues that Lusky merely teaches a single
analysis mode, channel monitoring, and not a plurality of communication
techniques as recited by claim 7. App. Br. 8; Reply Br. 2. Appellant argues
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Application 13/246,504
that the channel monitoring technique of Lusky is therefore not a multi-
tiered communication technique and that Lusky does not provide a plurality
of progressively higher throughput communication techniques. Id. The
Examiner finds that Lusky shows that current parameters may be used and
adapted to achieve a higher throughput. Ans. 9. The Examiner interprets
the current parameters as a first communication technique with a current
throughput and the adapted parameters as a second communication
technique with a higher throughput. Id. at 9-10. We find the Examiner's
interpretation of Lusky's use of parameters is reasonable and is
encompassed by the claimed "progressively higher throughput
communication techniques" of claim 7. See id.; Lusky i-fi-1 7 5-87.
Appellant argues that de Seze does not disclose a communication
controller to monitor error rate on a communication link, as recited in claim
7. App. Br. 9. In particular, Appellant argues that nothing in de Seze states
that the bit error rate is monitored so as "to generate an error rate indication
to enable constant line quality monitoring," as stated in the Specification.
Id. As the Examiner points out, and we agree, the features upon which
Appellant relies are not recited in the claim. Ans. 10.
Appellant argues de Seze and Lusky do not teach a controller to
"monitor error rate" or to "select the communication technique and
information throughput based on the monitored error rate." App. Br. 10-11.
The Examiner finds that de Seze teaches that at regular intervals, the quality
is analyzed. Ans. 11 (citing de Seze 10:20-43). The Examiner further finds
that de Seze explains that estimated quality is equivalent to the number of
packets detected to have been received incorrectly, as a number of bursts
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received, and that an estimated "bit error rate" may also be used as a
parameter to analyze the quality. Id. (citing de Seze 10:46-67). Moreover,
the Examiner finds that Lusky also explicitly teaches monitoring error rate.
Ans. 11-12; Lusky i-f 92. We find the Examiner's interpretation of de Seze's
analysis of quality using various methods is reasonable and is encompassed
by the claimed "monitored error rate" of claim 7. We also find the
Examiner's interpretation of de Seze's selection of a communication mode
based on the quality (see de Seze 10:22-32) is reasonable and is
encompassed by the claimed "select the communication technique and
information throughput based on the monitored error rate." Although
Appellant argues that de Seze' s communication modes are not equivalent to
the claimed communication techniques of claim 7 (App. Br. 10-11 ), as
discussed above, we are not persuaded by that argument because we decline
to read those limitations into the claims.
Accordingly, we sustain the Examiner's rejection of claim 7, and of
claims 8, 9, 21-23, and 27-29, which were argued together with claim 7.
See App. Br. 1-11; 37 C.F.R. § 41.37(c)(l)(iv).
Claims 10-12, 24-26, and 30-32
With respect to claims 10-12, 24-26, and 30-32, Appellant does not
present a separate argument to distinguish over the cited references, but
merely argues that Campana does not remedy the deficiencies of de Seze
and Lusky, which were discussed above with respect to claim 7. See App.
Br. 12. Because Appellant has not presented separate patentability
arguments or has reiterated substantially the same patentability arguments as
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those previously discussed for the above claims, we also sustain the rejection
of claims 10-12, 24--26, and 30-32. See 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
We affirm the rejections of claims 7-12 and 21-32.
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
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