Ex Parte Cohen et al

Patent Trial and Appeal Board

Oct 13, 2016

13301586 (P.T.A.B. Oct. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/301,586 11/21/2011
15683 7590
Qualcomm Inc (DL)
c/o DeLizio Law, PLLC
15201 Mason Road
Suite 1000-312
Cypress, TX 77433
10/17/2016
FIRST NAMED INVENTOR
Etan Gur Cohen
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.
120026 6282
EXAMINER
KHAN, AFTAB N
ART UNIT PAPER NUMBER
2454
NOTIFICATION DATE DELIVERY MODE
10/17/2016 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):
OCPAT_USPTO@QUALCOMM.COM
uspto@deliziolaw.com
uspto2@deliziolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ETAN GUR COHEN
and MICHAEL BERNARD SMITH
Appeal2015-002264
Application 13/301,586
Technology Center 2400
Before ST. JOHN COURTENAY III, CATHERINE SHIANG, and
JOHN P. PINKERTON, Administrative Patent Judges.
SHIANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-28, which are all the claims pending and rejected in the
application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-
part.
Appeal2015-002264
Application 13/301,586
STATEMENT OF THE CASE
Introduction
The present invention relates to communication systems. See
generally Spec. 1. Claim 1 is exemplary:
1. A method comprising:
transmitting a first plurality of packets of a first stream from a first
device to a second device on a first transmission medium;
determining that a current medium utilization of the first transmission
medium exceeds a first threshold;
selecting the first stream for transmission on both of the first
transmission medium and a second transmission medium based, at least in
part, on determining that the current medium utilization of the first
transmission medium exceeds the first threshold; and
determining a ratio for transmitting a first portion of the second
plurality of packets on the first transmission medium and a second portion of
the second plurality of packets on the second transmission medium based, at
least in part, on the current medium utilization of the first transmission
medium.
References and Rejections
Claims 1-19 and 28 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Soumiya (US 2001/0037401 Al, pub. Nov. 1, 2001) and
Qiu (US 2012/0008503 Al, pub. Jan. 12, 2012).
Claim 20 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Soumiya and Khasnabish (US 2010/0265826 Al, pub. Oct. 21, 2010).
Claim 21 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Soumiya, Khasnabish, and Schneider (US 2006/0239286 Al, pub. Oct.
26, 2006).
2
Appeal2015-002264
Application 13/301,586
Claims 22-24 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Krzanowski (US 2012/0195326 Al, pub. Aug. 2, 2012)
and Tatar (US 2007/0195777 Al, pub. Aug. 23, 2007).
Claim 25 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Soumiya, Qiu, and Enomoto (US 2009/0059928 Al, pub. Mar. 5,
2009).
Claims 26 and 27 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Soumiya, Khasnabish, and Qiu.
ANALYSIS
Claims 1--8 and 10--19
On this record, we find the Examiner did not err in rejecting claim 1.
We disagree with Appellants' arguments, and agree with and adopt
the Examiner's findings and conclusions in (i) the action from which this
appeal is taken and (ii) the Answer to the extent they are consistent with our
analysis below. 1
Appellants contend Soumiya and Qiu do not collectively teach
"determining a ratio for transmitting a first portion of the second plurality of
packets2 on the first transmission medium and a second portion of the
1 To the extent Appellants advance new arguments in the Reply Brief
without showing good cause, Appellants have waived such arguments. See
37 C.F.R. § 41.4l(b)(2).
2 Claim 1 fails to provide the required antecedent basis for "the second
plurality of packets." Claim 1 (emphasis added); see Nautilus, Inc. v. Biosig
Instruments, Inc, 134 S.Ct. 2120, 2129 (2014); Ex parte Miyazaki, 89
USPQ2d 1207, 1211 (BP AI 2008) (precedential) ("[I]f a claim is amenable
to two or more plausible claim constructions, the USPTO is justified in
requiring the applicant to more precisely define the metes and bounds of the
3
Appeal2015-002264
Application 13/301,586
second plurality ofpackets on the second transmission medium based, at
least in part, on the current medium utilization of the first transmission
medium," as recited in claim 1 (emphasis added). See App. Br. 8-11; Reply
Br. 8-9. In particular, Appellants assert Qiu's comparators do not determine
the claimed ratio, as "Neither Qiu's bandwidth utilization rate nor link
balanced weight can be equated to the claimed 'ratio for transmitting a first
portion of the second plurality of packets on the first transmission medium
and a second portion of the second plurality of packets on the second
transmission medium"' and "Qiu is concerned with selecting a single
bearing path." App. Br. 10. Appellants argue "the cited portions of
Soumiya relate to balancing a load by splitting it among different paths,
without indicating any relation between the portions of the load being split."
Reply Br. 8.
Appellants have not persuaded us of error. The Examiner finds-and
Appellants do not dispute-Soumiya teaches "a first plurality of packets"
and "selecting the first stream for transmission on both of the first
transmission medium and a second transmission medium based, at least in
part, on determining that the current medium utilization of the first
transmission medium exceeds the first threshold." See Ans. 6. Therefore,
Soumiya teaches "transmitting ... plurality of packets on the first
transmission medium and ... plurality of packets on the second transmission
medium." See Ans. 6.
claimed invention by holding the claim unpatentable under 35 U.S.C. § 112,
second paragraph, as indefinite."). If prosecution reopens, we recommend
the Examiner consider whether to reject claim 1 under 35 U.S.C. § 112,
second paragraph, for indefiniteness. We note Appellants do not contend
"the second plurality of packets" are not taught by the cited references.
4
Appeal2015-002264
Application 13/301,586
The Examiner correctly finds "determining a ratio for transmitting a
first portion of [a traffic load on path 1] and a second portion of the [traffic
load on path 2]" is taught by or would have been suggested in light of
Soumiya's teachings. See Ans. 27-28; Soumiya i-fi-1260-261. Appellants'
assertion that "the cited portions of Soumiya relate to balancing a load by
splitting it among different paths, without indicating any relation between
the portions of the load being split" (Reply Br. 8) contradicts the teaching of
Soumiya, which states: "Adjustment of the traffic share ... for the paths 1,
2 ... the traffic share should be changed at the ratio of 3.6xGr: 2.88xGr[.]"
Soumiya i-fi-1 260-261. In short, Soumiya teaches determining the ratio for
transmitting traffic at path 1 and path 2, which is 3.6:2.88.3
Therefore, on this record, the Examiner correctly concludes
"determining a ratio for transmitting a first portion of the second plurality of
packets on the first transmission medium and a second portion of the second
plurality of packets on the second transmission medium" would have been
obvious in light of Soumiya's teachings. Combining the teachings of
Soumiya would have predictably used prior art elements according to their
established functions-an obvious improvement. See KSR Int 'l Co. v.
Teleflex, Inc., 550 U.S. 398, 417 (2007).
Because Appellants have not persuaded us the Examiner erred, we
sustain the Examiner's rejection of claim 1, and dependent claims that
Appellants do not separately argue with substantive contentions (claims 2-
8).
3 Cumulatively, the Examiner cites Qiu's comparator for teaching
"determining a ratio." See Ans. 6, 28-29; Qiu i-fi-177-80.
5
Appeal2015-002264
Application 13/301,586
For similar reasons, we sustain the Examiner's rejection of
independent claims 10 and 19, and dependent claims that Appellants do not
separately argue with substantive contentions (claims 11-18).
Dependent Claims 9 and 25
We have reviewed the Examiner's rejections in light of Appellants'
contentions and the evidence of record. We concur with Appellants'
contention that the Examiner erred in finding Soumiya teaches "providing an
indication to the second device that the first stream has been selected for
transmission on both the first transmission medium and the second
transmission," as recited in claim 9. See App. Br. 11-13; Reply Br. 2.4
Specifically, we agree with Appellants that the cited portions of
Soumiya teach notifying of traffic characteristics that have been collected by
the characteristic collection section. See App. Br. 11-13; Reply Br. 2.
Therefore, Soumiya teaches providing an indication of characteristics of past
traffic, not "providing an indication to the second device that the first stream
has been selected for transmission on both the first transmission medium and
the second transmission," as required by the claim. See App. Br. 13; Reply
Br. 2. In fact, the Examiner finds "Soumiya discloses traffic characteristic
notification unit for notifying the other communication apparatus ... of the
traffic characteristics collected by the traffic characteristic collection unit. "
Ans. 30 (emphasis added) (original emphases omitted).
4 Appellants raise additional arguments with respect to claim 25. Because
the identified issue is dispositive of the appeal with respect to claim 25, we
do not reach the additional arguments.
6
Appeal2015-002264
Application 13/301,586
Because the Examiner fails to provide sutlicient evidence or
explanation to support the rejection, we are constrained by the record to
reverse the Examiner's rejection of dependent claim 9, and claim 25, which
depends from claim 9.
Dependent Claim 28
We have reviewed the Examiner's rejections in light of Appellants'
contentions and the evidence of record. We concur with Appellants'
contention that the Examiner erred in finding Soumiya and Qiu collectively
teach "selecting the ratio to reduce the current medium utilization of the first
transmission medium below the first threshold and to avoid increasing a
medium utilization of the second transmission medium above a second
threshold," as recited in claim 28. See App. Br. 16-17; Reply Br. 4--5.
The Examiner initially cites Qiu's paragraph 5. See Ans. 17. In
response to Appellants' arguments, the Examiner cites Soumiya's Figure 15.
See Ans. 32-33. We have examined the cited reference portions, and they
do not offer sufficient details to teach "selecting the ratio to reduce the
current medium utilization of the first transmission medium below the first
threshold and to avoid increasing a medium utilization of the second
transmission medium above a second threshold," as required by claim 28.
Absent further explanation from the Examiner, we do not see how the cited
reference portions teach the disputed claim limitation.
Because the Examiner fails to provide sufficient evidence or
explanation to support the rejection, we are constrained by the record to
reverse the Examiner's rejection of dependent claim 28.
7
Appeal2015-002264
Application 13/301,586
Claims 20, 21, 26, and 27
We have reviewed the Examiner's rejections in light of Appellants'
contentions and the evidence of record. We concur with Appellants'
contention that the Examiner erred in finding Soumiya and Khasnabish
collectively teach "receiving an indication from the second device that the
first stream will be transmitted on both of the first transmission medium and
a second transmission medium," as recited in claim 20. See App. Br. 18-20;
5---6.
Similar to the discussion above with respect to claim 9, we agree with
Appellants that the cited portions of Soumiya teach notifying of traffic
characteristics that have been collected by the characteristic collection
section. See App. Br. 18-20; Reply Br. 5---6. Therefore, Soumiya teaches
receiving an indication of characteristics of past traffic, not "receiving an
indication from the second device that the first stream will be transmitted on
both of the first transmission medium and a second transmission medium,"
as required by the claim. See App. Br. 18-20; Reply Br. 5---6. In fact, the
Examiner finds "Soumiya discloses traffic characteristic notification unit for
notifying the other communication apparatus ... of the traffic
characteristics collected by the traffic characteristic collection unit. " Ans.
34--35 (emphasis added) (original emphases omitted). Further, the Examiner
cites Khasnabish for teaching monitoring QoS [quality of service]
parameters and using them to determine quality levels (Ans. 34), which do
not remedy the deficiency discussed above.
Because the Examiner fails to provide sufficient evidence or
explanation to support the rejection, we are constrained by the record to
8
Appeal2015-002264
Application 13/301,586
reverse the Examiner's rejection of claim 20, and claims 21, 26, and 27
which depend from claim 20.
Claims 22-24
We have reviewed the Examiner's rejections in light of Appellants'
contentions and the evidence of record. We concur with Appellants'
contention that the Examiner erred in finding Krzanowski and Tatar
collectively teach "receiving a second beginning-of-stream marker packet of
the first stream on a second transmission medium, wherein the second
beginning-of-stream marker packet comprises information indicating a
second burst size; receiving a second burst of packets of the first stream on
the second transmission medium, wherein the second burst of packets has
the second burst size," as recited in claim 22. See App. Br. 21-26; Reply Br.
6-8.
Specifically, we agree with Appellants that the cited portions of
Krzanowski teach receiving data, and then measuring the actual burst size
after receiving the data. See App. Br. 21-26; Reply Br. 6-8; see also
Krzanowski i-f 17 ("communication system 112 determines burst sizes Bs
and the rates Ts at which bits are received at channels 114-1 and 114-2"),
i-f 36 ("increase a CBS buffer space for one channel and decrease CBS buffer
space(s) for one or more other channels) based on measured burst sizes
Bs"), Abst. ("the device may measure over a particular time interval, a
burst size and an information arrival rate at the channel based on received
data") (emphases added). Therefore, Krzanowski teaches measuring the
actual burst size for traffic data that have already been received, not
"receiving a second beginning-of-stream marker packet of the first stream
9
Appeal2015-002264
Application 13/301,586
on a second transmission medium, wherein the second beginning-of-stream
marker packet comprises information indicating a second burst size;
receiving a second burst of packets of the first stream on the second
transmission medium, wherein the second burst of packets has the second
burst size," as required by claim 22 (emphases added). See App. Br. 21-26;
Reply Br. 6-8. The Examiner cites Tatar for teaching "streams" (Ans. 38),
and does not rely on Tatar in any manner that remedies the deficiency
discussed above.
Because the Examiner fails to provide sufficient evidence or
explanation to support the rejection, we are constrained by the record to
reverse the Examiner's rejection of claim 22, and claims 23 and 24, which
depend from claim 22.
DECISION
We affirm the Examiner's decision rejecting claims 1-8 and 10-19.
We reverse the Examiner's decision rejecting claims 9 and 20-28.
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
10