11270319 (P.T.A.B. Aug. 25, 2016)

Ex Parte Fenart et al

Patent Trial and Appeal BoardAug 25, 2016

11270319 (P.T.A.B. Aug. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 111270,319 11109/2005 Jean-Marc Fenart 23644 7590 08/29/2016 Barnes & Thornburg LLP (CH) P.O. Box 2786 Chicago, IL 60690-2786 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. 920522-114368 6186 EXAMINER PERSAUD, AMARNAUTH G ART UNIT PAPER NUMBER 2477 NOTIFICATION DATE DELIVERY MODE 08/29/2016 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): Patent-ch@btlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JEAN-MARC FENART and PATRICK LAGRANGE Appeal2013-000006 Application 11/270,319 Technology Center 2400 Before JOHN A. EVANS, LINZY T. McCARTNEY, and JOHN D. HAMANN, Administrative Patent Judges. EV ANS, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 seek our review under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of Claims 1-11, 18-20, and 23-32. App. Br. 6, 14. We have jurisdiction under 35 U.S.C. Â§ 6(b). We REVERSE.2 1 The Appeal Brief identifies Rockstar Bidco LP, as the real party in interest. App. Br. 1. 2 Rather than reiterate the arguments of Appellants and the Examiner, we refer to the Appeal Brief (filed June 6, 2012, "App. Br."), the Reply Brief filed September 19, 2012 ("Reply Br."), the Examiner's Answer (mailed July 19, 2012, "Ans."), the Final Action (mailed July 28, 2011, "Final Act."), and the Specification (filed November 9, 2005, "Spec.") for their respective details. Appeal2013-000006 Application 11/270,319 STATEMENT OF THE CASE3 The claims relate to a virtual circuit method and apparatus for encapsulating data from a cell and packet based network. See Abstract. Invention Claims 1, 11, and 20 are independent. The claims have not been argued separately and, therefore, stand or fall together. 37 C.F.R. Â§ 41.37(c)(l)(iv). An understanding of the invention can be derived from a reading of exemplary Claim 1, which is reproduced below with some formatting added: 1. A method for encapsulating data units from a packet based virtual circuit type network in a frame of a frame based protocol, the method comprising: providing at a scheduler, the scheduler being a hardware scheduler or comprising a processing engine, at least two different policies for scheduling encapsulation of the data units from the packet based virtual circuit type network, wherein each of the at least two policies specifies a number and type of the data units to encapsulate in the frame, wherein the at least two policies differ in either or both of the number specified or the type specified, and selecting at the scheduler one of the at least two policies for encapsulating the data units in the frame of the frame based protocol. 3 Because we write for the Real Party, familiarity with the background of this case is assumed and presented herein only to the extent necessary to provide context for the analysis that follows. See U.S. Ethernet Innovations, LLC v. Acer, Inc., Nos. 2015-1640, 2015-1641, 2016 WL 1622309, at *1 n.1 (Fed. Cir. April 25, 2016). 2 Appeal2013-000006 Application 11/270,319 References and Rejections The Examiner relies upon the prior art as follows: 0 'Neil et al. Heink et al. Sasson et al. Rajkotia US 2003/0031182 Al US 2003/0174729 Al US 6, 728,261 B 1 US 2004/0095906 Al The claims stand rejected as follows: Feb. 13,2003 Sept. 18, 2003 Apr. 27, 2004 May 20, 2004 1. Claims 1-11, 18, 20, 23-27, and 29-31 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Heink and O'Neil. Final Act. 2- 9. 2. Claim 19 stands rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Heink, O'Neil, and Rajkotia. Final Act. 9-10. 3. Claims 28 and 32 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Heink, O'Neil, and Sasson. Final Act. 10. ANALYSIS We have reviewed the rejections of Claims 1-11, 18-20, and 23-32 in light of Appellants' arguments that the Examiner erred. We are persuaded that Appellants identify reversible error. We provide the following explanation to highlight and address specific arguments and findings primarily for emphasis. We consider Appellants' arguments seriatim, as they are presented in the Appeal Brief, pages 6-15. 3 Appeal2013-000006 Application 11/270,319 CLAIMS 1-11, 18, 20, 23-27, AND 29-31: OBVIOUSNESS OVER HEINKAND O'NEIL Appellants argue these claims as a group and contend they are each patentable in view of the limitations of Claim 1. App. Br. 13, 14. At least two different policies for scheduling encapsulation of the data units. The Examiner finds the "two examples shown in Fig. 8 of Heink indicate two different policies associated with the different burst size (different number of data units in the encapsulation)." Final Act. 11-12; Ans. 15. Appellants contend the Examiner's finding misreads Heink. Appellants argue that Heink teaches: Fig. 8 shows an example for the encapsulation process performed by the Ethernet encapsulating unit 8. Two enlarged ATM-cells having the same port-address Pl are packed into the first Ethernet packet A. A following enlarged ATM-cell having a different destination port-address P2 is packed into the next Ethernet- packet. App. Br. 12 (emphasis omitted) (citing Heink i-f 75). Appellants maintain that the cited passage does not teach the skilled person anything about burst sizes or about policies respecting different burst sizes. Id. The Examiner finds that Heink teaches A TM-cells are encapsulated into an Ethernet packet according to an indication flag and a policy specifying the number of ATM cells to encapsulate. Ans. 15 (citing Heink ,-r,-r 15, 39, 65, 101). Appellants reply that Figure 8 teaches enlarged ATM-cells are packaged into Ethernet packets according to their port-address. Reply Br. 5 (citing Heink, Fig. 8, i-f 7 5). We agree with Appellants. The cited passage does not explicitly relate to a policy, "wherein each of the at least two 4 Appeal2013-000006 Application 11/270,319 policies specifies a number and type of the data units to encapsulate in the frame," as claimed. The cited passage merely demonstrates that ATM-cells having the same port-address are packaged together. See Heink i-f 75. Moreover, Appellants contend that assuming arguendo that a policy is disclosed, that only a single policy is disclosed (i.e., pack enlarged ATM- cells having the same port-address into the same Ethernet packet), not two policies, as claimed. App. Br. 12. We agree. 4 Appellants contend the foregoing arguments apply to independent Claims 11 and 20 and to dependent Claims 2-10, 23-2 7, and 29-31. Id. at 13-14. CLAIM 19: OBVIOUSNESS OVERHEINKAND RAJKOTIA Appellants contend Claim 19 is allowable for at least the arguments advanced in support of Claim 11. Id. at 14. The Examiner maintains this rejection in view of the findings discussed above. Ans. 16. CLAIMS 28 AND 32: OBVIOUSNESS OVER HEINK AND SASSON Appellants contend Claims 28 and 32 are allowable for at least the arguments advanced in support of Claims 11 and 20, respectively. Id. The Examiner maintains this rejection in view of the findings discussed above. Ans. 17. 4 Because we are persuaded of error with regard to the identified issue, which is dispositive of the rejection over Heink and O'Neil, we do not reach the additional issues raised by Appellants' arguments. 5 Appeal2013-000006 Application 11/270,319 DECISION The rejection of Claims 1-11, 18-20, and 23-32 under 35 U.S.C. Â§ 103 is REVERSED. REVERSED 6