Ex Parte Effros et al

Patent Trial and Appeal Board

Mar 26, 2018

14211566 (P.T.A.B. Mar. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/211,566 03/14/2014
110442 7590
Anderson Gorecki LLP
2 Dundee Park
Andover, MA 01810
03/28/2018
FIRST NAMED INVENTOR
Michelle Effros
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.
COD14-0l 6797
EXAMINER
GHAFOERKHAN, FAIY AZKHAN
ART UNIT PAPER NUMBER
2476
NOTIFICATION DATE DELIVERY MODE
03/28/2018 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):
jgorecki@smmalaw.com
handerson@andersongorecki.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHELLE EFFROS and TRACEY HO
Appeal2017-008162
Application 14/211,566
Technology Center 2400
Before DENISE M. POTHIER, CATHERINE SHIANG, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
POTHIER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1' 2 appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-25. App. Br. 2. We have jurisdiction under 35 U.S.C.
§ 6(b ). We affirm.
1 Throughout this opinion, we refer to (1) the Specification (Spec.) filed
March 14, 2014, (2) the Final Action (Final Act.) mailed June 15, 2016,
(3) the Appeal Brief (App. Br.) filed November 14, 2016, (4) the Examiner's
Appeal2017-008162
Application 14/211,566
Invention
Appellants' invention relates to "[a ]method, apparatus and computer
program product providing improved communication performance through
network coding." Spec., Abstract. This arrangement provides "a coding
approach for a flexible network communication protocol that increases
throughput and robustness and decreases delay with a tunable level of
reliability" and makes it "possible to eliminate the need to track packet
identities, and ... to reduce or even eliminate coordination overhead
associated with many conventional congestion protocols." Id. i-f 14.
Claim 1 is reproduced below with emphasis:
1. A computer-implemented method in which a computer
system performs operations comprising:
farming network coded packets by at least one source
node, said network coded packets comprising a combination of
original packets at said at least one source node;
transmitting said network coded packets to at least one
destination node using an unreliable protocol; and
forming a reconstruction based on received network
coded packets at said destination node, wherein when a number
of received network coded packets are equal to the number of
transmitted network coded packets[,] said forming a
reconstruction comprises forming a complete reconstruction
and wherein when the number of received network coded
packets is less than the number of transmitted network coded
packets[,] said reconstruction comprises forming a best attempt
at reconstruction.
Answer (Ans.) mailed March 9, 2017, and (5) the Reply Brief (Reply Br.)
filed May 9, 2017.
2 The real party in interest is listed as Code On Network Coding, LLC.
App. Br. 2.
2
Appeal2017-008162
Application 14/211,566
The Examiner relies on the following as evidence of unpatentability:
Xue
Park
US 2009/0144597 Al
US 2012/0054583 Al
The Rejections
June 4, 2009
Mar. 1, 2012
Claims 1-25 are rejected under 35 U.S.C. § 103(a) (pre-AIA) or§ 103
as unpatentable over Park and Xue. Final Act. 3-15.
THE CONTENTIONS
Regarding independent claim 1, Appellants argue (1) Park fails to
teach transmitting network coded packets "using an unreliable protocol,"
because a lossy network is not defined as a protocol (App. Br. 12-13);
(2) Park does not teach forming network coded packets as "a combination of
original packets" because Park's described "random linear coding" is really
erasure coding, which is not equivalent to linear network coding (id. at
13-14); and (3) Park and Xue fail to teach or suggest "forming a
reconstruction" involves "forming a best attempt at reconstruction" because
Park and Xue both teach retransmitting lost packets if a lost packet cannot be
recovered (id. at 14--15).
As for claim 2, Appellants assert Park teaches away from the recited
"unreliable network" and Xue teaches encoding with fixed coding
parameters. Id. at 15.
Concerning claim 4, Appellants contend Park does not teach encoding
network coded packets at an intermediate node and repeats that Xue' s
teaching of erasure coding is different from linear network coding. Id. at 16.
Appellants also assert for claim 5 that Park's linear coding is erasure coding.
Id.
3
Appeal2017-008162
Application 14/211,566
When addressing claims 7 and 12, Appellants argue TCP is a reliable
protocol, not an unreliable protocol as recited. Id.
MAIN ISSUES
Under§ 103, has the Examiner erred by finding Park and Xue
collectively would have taught or suggested:
(I) (A) "forming network coded packets ... , said network coded
packets comprising a combination of original packets,"
(B) "transmitting said network coded packets ... using an unreliable
protocol," and
(C) "forming a reconstruction ... [,] wherein when the number of
received network coded packets is less than the number of transmitted
network coded packets[,] said reconstruction comprises forming a best
attempt at reconstruction" as recited in claim 1?
(II) "said at least one of said at least one source node modifies at least
one coding parameter" as recited in claim 2?
(III) "said at least one intermediate node ... codes said network coded
packets" as recited in claim 4?
ANALYSIS
I. Claims 1, 3, 8-11, 13, 20-23, and 25
Appellants present arguments for independent claim 1. App. Br.
12-15. Independent claims 13 and 25 are not separately argued (id.) but
include similar limitations to claim 1. Dependent claims 3, 8-11, 13, and
20-23 are not separately argued. See generally App. Br. We select claim 1
as representative. See 37 C.F.R. § 41.37(c)(l)(iv).
4
Appeal2017-008162
Application 14/211,566
A.
Regarding the limitation "forming network coded packets ... , said
network packets comprising a combination of original packets" in claim 1,
the Examiner determines Park teaches this limitation. Final Act. 3 (citing
Park i-fi-130, 41--43); Ans. 2 (citing Park i-fi-16, 10-12). Appellants disagree by
asserting Park's use of the phrase "random linear coding" actually means
erasure coding, which is "not considered to be equivalent by those of
ordinary skill in the art." App. Br. 14 (citing Atsushi Fujimura et al.,
Network Coding vs. Erasure Coding: Reliable Multicast in Ad Hoc
Networks). 3
The Specification does not define the recited phrase "network coded."
See generally Spec. On the other hand, the Specification discusses forming
"random linear" combinations of packets in the context of "coded packets."
Id. i179. Similarly, Park teaches encoding sub-packets 220 as vector
combinations using random linear coding. Park i-fi-16, 41--42, Fig. 2.
Moreover, Park shows in Figure 1 that the formed encoding occurs over a
network (e.g., wired network 102A and wireless network 105). Consistent
with the Specification, Park at least suggests "forming network coded
packets" as recited.
Appellants assert that erasure coding differs or is not equivalent to
linear network coding, citing to Fujimura. App. Br. 14. Yet, Appellants
point to no passage within Fujimura to support their position. Id. We
recognize, as does the Examiner (Ans. 2), Park further teaches its random
linear coding (RLC) process uses erasure codes. Park i-fi-16, 11, 43. We also
3 We refer to this reference as "Fujimura" in this Opinion and refer to the
pages of Fujimura sequentially starting with page 1.
5
Appeal2017-008162
Application 14/211,566
recognize Fujimura distinguishes network coding from erasure coding.
Fujimura 2, § II.A---C. On the other hand, Fujimura addresses random linear
coding, which is discussed in Park (Park i-f 41 ), in the context of network
coding. See Fujimura 2-3, § III.A. Based on the record and the
Specification discussing random linear combinations as an example of
network coding, Park suggests "forming network coded packets" as broadly
recited.
In the Reply Brief for the first time, Appellants assert Park encodes
sub-packets or a single packet, which "is not equivalent to encoding a
combination of original packets, and transmitting the encoded original
packets." Reply Br. 13 (emphasis omitted); see id. at 12. Although we
agree Park is encoding a single packet or a sub-packet, claim 1 recites
"forming network coded packets ... [,]said network coded packets
comprising a combination of original packets." App. Br. 18 (Claims App'x)
(italics added). As broadly recited, the coded packets collectively comprise a
combination of original packets, and claim 1 does not require each coded
packet to be a combination of original packets. Id. As shown and discussed,
Park teaches coded packets as a combination of original packets. See Park
i-fi-f 41--42, Fig. 2.
B.
Appellants next argue Park does not teach transmitting the packets
"using an unreliable protocol." App. Br. 12-13. Specifically, Appellants
contend Park's lossy network does not define a protocol and thus does not
use "an unreliable protocol." Id. at 13. We are not persuaded.
Park teaches transmitting packets over lossy wireless network 105.
Park i-f 30, cited in Final Act. 3. Park provides more details, explaining the
6
Appeal2017-008162
Application 14/211,566
encoded packets are transmitted using User Datagram Protocol (UDP). Park
i-fi-17, 35; see also Ans. 2 (discussing UDP). Because the disclosure states
UDP is an unreliable protocol (Spec. i1 5), Park teaches transmitting packets
"using an unreliable protocol" as recited in claim 1.
c.
Claim 1 recites "forming a reconstruction ... [,] wherein when the
number of received network coded packets is less than the number of
transmitted network coded packets[,] said reconstruction comprises forming
a best attempt at reconstruction." App. Br. 18 (Claims App'x) (italics
added). Our emphasis underscores that the term "when" in the clause
renders this limitation conditional-a condition that need not be satisfied to
meet the claim. See Ex parte Schulhauser, No. 2013-007847 (PTAB
Apr. 28, 2016) (precedential)4 ; see also MANUAL OF PATENT EXAMINING
PROCEDURE (MPEP) § 21l1.04(II) (9th ed. Rev. 08.2017, Jan. 2018).
Although the limitations at issue in Schulhauser were rendered conditional
by the recitation of "if' (see Schulhauser, No. 2013-007847, slip op. at
6-10), we nevertheless discern no meaningful distinction between the
recitations of "if' and "when."
Because the recited "when" condition need not be satisfied to meet
claim 1, the disputed "forming" step need not be present in Park.
Appellants' arguments regarding the alleged shortcomings in this regard for
claim 1 (App. Br. 14--15) are therefore unavailing and not commensurate
with the scope of the claim.
4 Available at https://www.uspto.gov/sites/default/files/documents/
Ex%20parte%20Schulhauser%202016_04_28.pdf.
7
Appeal2017-008162
Application 14/211,566
On the other hand, independent claims 13 (i.e., a medium) and 25
(i.e., a computer system) recite a different statutory class than claim 1. App.
Br. 20, 22 (Claims App'x). The broadest reasonable interpretation of these
claims having structure that performs a function, which only needs to occur
if a condition precedent is met (e.g., when the number of received, coded
packets is less than the number of transmitted packets), still requires
structure for performing the function should the condition occur. See
Schulhauser, No. 2013-007847, slip op. at 14--15. The rejection relies on
Park and Xue for the "forming a reconstruction" step. Final Act. 3--4 (citing
Park i-fi-151-52 and Xue i-fi-135-36). Specifically, for the disputed "when the
number of received network coded packets is less than the number of
transmitted network coded packets[,] said reconstruction comprises forming
a best attempt at reconstruction," the Examiner turns to Xue. Id. at 4; Ans.
2-3 (citing Xue i-fi-1 3 5--41, Fig. 5). We find this position reasonable.
First, the Specification does not define "a best attempt." See
generally Spec.; see also id. i-f 122 (stating "reconstruction comprises
forming a best attempt at reconstruction"). Second, claims 13 and 25 (or
claim 1 for that matter) do not exclude an additional step of retransmitting
packets in contrast with Appellants' arguments. See App. Br. 14--15.
Nonetheless, Xue teaches some packets are lost in transmission (e.g.,
received packets are less than the transmitted packets) and reconstructing
the lost packets using certain algorithms. Xue i-fi-135-37, Fig. 5; see also
Ans. 3. We also disagree that Xue' s teaching of reporting missing packets
at Figure 3 's step 320 teaches retransmitting lost packets as argued. App.
Br. 14. Given the Specification and the record attribute no special meaning
for the phrase "a best attempt," we disagree with Appellants that Xue's cited
8
Appeal2017-008162
Application 14/211,566
paragraphs "describe complete reconstruction of the source packet, not a
best attempt." App. Br. 14; see also Ans. 3 (discussing reconstruction
versus partial reconstruction).
When Xue's teaching is combined with Park (Final Act. 4), the
combination teaches and suggests "said reconstruction comprises forming a
best attempt at reconstruction" in claims 1, 13, and 25.
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of independent claim 1 and claims 3, 8-11, 13, 20-23, and
25 not separately argued.
2. Claims 2, 6, 14, 15, and 18
Claim 2 depends from claim 1. Claim 14 depends from claim 13 and
includes limitations similar to claim 2. Claims 6, 15, and 18 depend from
either claim 2 or 14 and are not separately argued. We select claim 2 as
representative. See 37 C.F.R. § 41.37(c)(l)(iv).
Appellants present a similar argument to claim 1, asserting Park
teaches Transmission Control Protocol (TCP) and not an unreliable protocol.
App. Br. 15. We disagree for reasons already stated and refer above for
details.
Appellants also contend "TCP throughput throttling" does not modify
a coding parameter as recited, because "TCP is not a network coding
technique." Id. Appellants provide no citation for this assertion;
nonetheless, we presume Appellants are referring to Park's Paragraph 51.
Id. Notably, the Examiner relies on Park to teach the recited "feedback"
feature and Xue to teach modifying "at least one coding parameter" as
recited in claim 2. Final Act. 4--5 (citing Park i-f 52 and Xue i-fi-130-33, 35).
As such, the argument related to Park's "TCP throughput throttling" does
9
Appeal2017-008162
Application 14/211,566
not address the rejection's reliance on Xue's teaching related to modifying a
coding parameter.
Appellants also argue Xue's paragraphs 30 through 33 do not teach
modifying a coding parameter but rather encoding with fixed parameters.
App. Br. 15. The recited phrase "coding parameter" is not defined or
explained in the disclosure, such that a coding parameter is limited to a
particular parameter type. See Spec. i-fi-f 15, 119, 123. We therefore construe
the phrase "coding parameter" broadly but reasonably to include any
parameter related to coding.
As the Examiner explains, Xue teaches "the results of a previous
operation is used in the coding of a next packet." Ans. 3 (citing Xue
i-fi-130-33). Specifically, Xue teaches a repeated encoding process on
packets, involving steps (1) performing an XOR operation on bits of two
packets (Xue i131) and (2) an XOR operation on bits of the next packet with
the results of the last XOR operation (Xue i132). See also id. i-fi-130-33.
Thus, at step (2), the XOR operation (e.g., a parameter involved in encoding)
changes or is modified as the result of last XOR operation (e.g., another
parameter involved in encoding), which also changes based on the result of
the last XOR operation. See id. As such, Xue teaches or suggests modifying
"at least one coding parameter" as recited.
In the Reply Brief, Appellants for the first time assert paragraphs 30
through 33 do not suggest the recited "feedback" feature. Reply Br. 14--15.
This argument attacks Xue individually. The rejection (Final Act. 4--5)
relies on Park to teach feedback as recited in claim 2-a finding which is
uncontested by Appellants. See id.; see also App. Br. 15.
10
Appeal2017-008162
Application 14/211,566
Accordingly, Appellants have not persuaded us of error in the
rejection of claim 2 and dependent claims 6, 14, 15, and 18, which are not
separately argued.
3. Claims 4 and 16
Claim 4 depends indirectly from claim 1. Claim 16 depends indirectly
from claim 13 and recites a limitation similar to claim 4. We select claim 4
as representative. See 37 C.F.R. § 41.37(c)(l)(iv).
Concerning claim 4, Appellants contend Park does not teach
"encoding network coded packets at an intermediate node" in cited
paragraphs 26 and 27. App. Br. 16. In response to this argument, the
Examiner explains Park teaches an intermediate node (e.g., a server)
receives packets from a source node and encodes for transmitting over a
network. Ans. 4 (citing Park i-fi-126-27, Figs. 1, 3). We agree with the
Examiner that Park teaches encoding at first proxy server 130. See Park
i-f 25, Fig. 1.
In the Reply Brief, Appellants argue the Examiner has not provided
reference numbers related to the citations to Park. Reply Br. 15. We agree.
Yet, regarding 35 U.S.C. § 132,
all that is required of the office to meet its prima facie burden of
production is to set forth the statutory basis of the rejection and
the reference or references relied upon in a sufficiently
articulate and informative manner as to meet the notice
requirement of [35 U.S.C.] § 132.
In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011). As noted above, the
citations to Park are sufficiently informative to meet this requirement.
Appellants also repeat the arguments attempting to distinguish erasure
coding from linear network coding. App. Br. 16 (citing Fujimura); Reply
Br. 15. This argument is unavailing for reasons previously stated.
11
Appeal2017-008162
Application 14/211,566
Based on their arguments, Appellants have not persuaded us of error
in the rejection of claims 4 or 16.
4. Claims 5 and 17
Claim 5 depends from claim 1; claim 1 7 depends from claim 13 and
recites limitations similar to claim 5. Appellants assert for claims 5 and 1 7
Park's linear coding is contrary to its ordinary understanding and is erasure
coding. App. Br. 16. This argument is similar to that presented for claim 1.
We are not persuaded and refer above for more details. Accordingly, we
sustain the rejection of claims 5 and 17.
5. Claims 7, 12, 19, and 24
Claims 7 and 12 depend from claim 1. Claim 19 depends from claim
13 and includes a limitation similar to claim 7; claim 24 depends from claim
13 and includes a limitation similar to claim 12. We select claims 7 and 12
as representative. See 37 C.F.R. § 41.37(c)(l)(iv).
Regarding claims 7 and 12, Appellants repeat the argument made for
claim 1 related to TCP being a reliable protocol and Park failing to teach "an
unreliable protocol." App. Br. 16. We are not persuaded and refer above for
more details. For the above reasons, we sustain the rejection of claims 7, 12,
19, and 24.
DECISION
We affirm the Examiner's rejection of claims 1-25 under§ 103.
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
12