Ex Parte Garg et al

Patent Trial and Appeal Board

Aug 1, 2016

10662724 (P.T.A.B. Aug. 1, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
10/662,724 09/15/2003
136582 7590 08/03/2016
STEVENS & SHOWALTER, LLP
Box AVAYA Inc.
7019 Corporate Way
Dayton, OH 45459-4238
FIRST NAMED INVENTOR
Sachin Garg
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.
503027-A-US-NP/AVA014PA 1503
EXAMINER
MURRAY, DANIEL C
ART UNIT PAPER NUMBER
2443
NOTIFICATION DATE DELIVERY MODE
08/03/2016 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):
pto@sspatlaw.com
pair_avaya@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SA CHIN GARG and MAR TIN KAPPES
Appeal2015-002562
Application 10/662,724
Technology Center 2400
Before JOHN A. JEFFERY, JAMES R. HUGHES, and
DENISE M. POTHIER, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
r-T""I.. . .. . ' . ' ' "' ' .. .. " ' .. . ~ .. 1
l ms appucauon returns to us aner anomer panel or tms tioara,
reversed the Examiner's rejection of then-pending claims 1-12. Ex parte
Garg, No. 2009-007754 (BPAI Dec. 16, 2010) ("Bd. Dec."). Prosecution
reopened after that decision, and Appellants now appeal under 35 U.S.C.
§ 134(a) from the Examiner's subsequent rejection of claims 1-12. Claim
13 was cancelled in an amendment filed May 12, 2014 that the Examiner
entered as noted in the Advisory Action mailed May 21, 2014. Accord App.
1 The panel for this appeal is the same as the earlier appeal except that Judge
Pothier replaces then-Judge Lucas.
Appeal2015-002562
Application 10/662,724
Br. 4; Reply Br. 3 (noting this cancellation).2 We have jurisdiction under 35
U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Appellants' invention reduces congestion in a telecommunications
network by selectively dropping protocol data units (PDU s) routed to
congestible nodes. See generally Abstract. Claim 1 is illustrative:
1. A method comprising:
receiving a first plurality of protocol data units at a first
input of a protocol-data-unit excisor, wherein all the protocol
data units received at said first input are en route to a first
congestible node;
receiving at said protocol-data-unit excisor a metric of a
queue in said first congestible node; and
selectively dropping, at said protocol-data-unit excisor,
one or more of said first plurality of protocol data units based
on said queue in said first congestible node,
wherein the protocol-data-unit excisor is configured as a
proxy queue management node having relatively greater
processing throughput than the first congestible node.
THE REJECTION3
The Examiner rejected claims 1-12 under 35 U.S.C. § 103(a) as
unpatentable over Enomoto (US 2003/0076781 Al, published Apr. 24,
2003) and Kikuchi (US 2002/0159388 Al, published Oct. 31, 2002). Ans.
4--13.
2 Throughout this opinion, we refer to (1) the Appeal Brief filed July 14,
2014 ("App. Br."); (2) the Examiner's Answer mailed October 21, 2014
("Ans."); and (3) the Reply Brief filed December 22, 2014 ("Reply Br.").
3 Because the Examiner entered the amendment cancelling claim 13 as noted
previously and by Appellants (Reply Br. 3), the Examiner's indefiniteness
and obviousness rejections of claim 13 (Ans. 2-3, 14--15) are not before us.
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Appeal2015-002562
Application 10/662,724
CONTENTIONS
The Examiner finds that Enomoto's congestion control node (e.g., Al
in Figure 1) that is mapped to the recited PDU excisor receives PDUs routed
to a first congestible node, namely the other congestion control nodes A2-
A4. See Ans. 4, 16. According to the Examiner, Enomoto's congestion
control node is configured as a proxy queue management node having
relatively greater processing throughput than the other congestion control
nodes. This greater throughput is said to result from ( 1) the excisor
congestion control node's ability to restrict transmissions to other nodes to
avoid congestion, and (2) the similarity of the congestion control nodes,
which, by definition, are not identical to each other and, as such, their
processors may operate at different speeds and process packets at different
rates. Ans. 18-20.
Appellants argue that because Enomoto's congestion control nodes
are each similar in structure and operation, they necessarily have the same
processing throughput. App. Br. 11-14; Reply Br. 3-5. As such, Appellants
contend, the congestion control node mapped to the PDU excisor does not
have a greater throughput than the first congestible node as claimed. Id.
ISSUE
Under§ 103, has the Examiner erred in rejecting claim 1 by finding
that Enomoto and Kikuchi collectively would have taught or suggested PDU
excisor configured as a proxy queue management node having relatively
greater processing throughput than the first congestible node?
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Appeal2015-002562
Application 10/662,724
ANALYSIS
We begin by noting that the Board's earlier decision in this
application reversed the Examiner's anticipation rejection of then-pending
claim 1 over a different prior art reference. Bd. Dec. 4--7. After prosecution
reopened following that decision, the last clause was added to claim 1, and
the Examiner then rejected the claim as obvious over two different
references, namely Enomoto and Kikuchi.
As noted above, the Examiner's reliance on Enomoto for teaching or
suggesting claim 1 's last clause forms the sole basis for this dispute, for the
Examiner's findings regarding Kikuchi and its combinability with Enomoto
are undisputed. Accordingly, we confine our discussion to Enomoto.
Turning to claim 1, the last clause recites, in pertinent part, that the
PDU excisor has a relatively greater processing throughput than the first
congestible node. Notably, the claim recites no further details regarding this
throughput difference apart from the term "relatively greater," nor does the
claim specify the particular extent of this relative difference.
Given this breadth, the Examiner's position that Enomoto at least
suggests in paragraph 116 that one congestion control node (e.g., Al in
Figure 1) can have a relatively greater processing throughput than another
(e.g., A2-A4) due to their similarity in processor speed and packet
processing capabilities (Ans. 19-20) has merit. Ans. 19-20. Simply put,
similarity is not necessarily identity: a fact evidenced by the Examiner's
undisputed definition of the term "similar" which means "resembling
without being identical." Ans. 19 (emphasis in original).
In at least some scenarios, then, a congestion control node that is
similar to another could have a relatively greater throughput than the other
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Appeal2015-002562
Application 10/662,724
node due to differences in packet processing capabilities as the Examiner
indicates. Id. Therefore, Appellants' contention that because Enomoto's
congestion control nodes are similar in structure and operation, they
necessarily have the same processing throughput (App. Br. 13) is unavailing.
Not only is this assertion unsubstantiated on this record, it conflates the
meaning of the terms "same" and "similar."
To be sure, Enomoto does not disclose explicitly that the congestion
control nodes are different structurally or operationally apart from their
similarity in paragraph 116. Nevertheless, given the breadth of the
"relatively greater" throughput limitation in claim 1, nothing in the claim
precludes the Examiner's interpretation at least to the extent that the recited
difference is at least suggested by the similar-yet different-throughputs of
Enomoto' s congestion control nodes.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 2-12 not argued separately with particularity.
CONCLUSION
The Examiner did not err in rejecting claims 1-12 under§ 103.
DECISION
The Examiner's decision rejecting claims 1-12 is affirmed.
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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