11583201 (P.T.A.B. Apr. 8, 2013)

Ex Parte Kesselman et al

Patent Trial and Appeal BoardApr 8, 2013

11583201 (P.T.A.B. Apr. 8, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ALEX KESSELMAN and BORIS GINZBURG ____________ Appeal 2010-011486 Application 11/583,201 Technology Center 2600 ____________ Before JOHN A. JEFFERY, BRUCE R. WINSOR, and GREGG I. ANDERSON, Administrative Patent Judges. ANDERSON, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1, 2, 6, 7, 11, 15, and 18. Claims 3-5, 8-10, 12-14, 16, and 17 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellants’ invention is a method for acceleration of Transmission Control Protocol/Internet Protocol (TCP/IP) over wireless local area networks based on filtering of redundant TCP ACK-s (Appellants use Appeal 2010-011486 Application 11/583,201 2 ACK-s as the plural of ACK) on the L2 (i.e., wireless) level, in the transmit buffer of a transmitter of TCP ACK-s. See generally Spec. ¶ [0013], Fig. 2. Claim 1 is illustrative: 1. An apparatus, comprising: a transmitter operable in a wireless network and adapted to filter out redundant TCP ACK-s; wherein filtering of said redundant TCP ACK-s comprises removing said redundant TCP ACK-s from a TX buffer associated with a wireless driver/embedded firmware at the L2 level and when a TCP ACK with a given sequence number arrives to a wireless link sending queue, a comparison is made to other TCP ACK-s of a same connection and sequence numbers less than said given sequence numbers are dropped from this queue; and wherein said comparison takes into account wrap-around of sequence numbers. THE REJECTIONS The Examiner rejects claims 1, 2, 6, 7, 11, 15, and 18 under 35 U.S.C. § 103(a) as unpatentable over Pazos (US 2005/0068896 A1; published Mar. 31, 2005) ("Pazos"), Olsen (US 2004/0255008 A1; published Dec. 16, 2004) ("Olsen"), and Gross (US 2004/0120255 A1; published June 24, 2004)("Gross"). Ans. 3-11.1 ISSUE Under 35 U.S.C. § 103, has the Examiner erred in rejecting claim 1 by finding that Pazos, Olsen, and Gross collectively would have taught or 1 Throughout this opinion, we refer to (1) the Appeal Brief filed Feb. 12, 2010 (“Br.”); and (2) the Examiner’s Answer mailed May 14, 2010 (“Ans.”). Appeal 2010-011486 Application 11/583,201 3 suggested filtering the redundant TCP ACK-s comprises removing said redundant TCP ACK-s from a TX buffer associated with a wireless driver/embedded firmware at the L2 level? ANALYSIS Claims 1, 6, and 11 Claims 1, 6, 11, and 15 are all independent claims. Though they are drafted as apparatus, method, medium and system claims respectively, they all include the same key limitation at issue. Appellants argue claims 1, 6, and 11 together. Br. 17-20. Claim 15 is argued separately, and will be addressed separately, but the argument made largely focuses on the same issue. Br. 20-23. Claim 1 as illustrative and we will focus our attention on the filtering recitation found in claim 1: “filtering of said redundant TCP ACK-s comprises removing said redundant TCP ACK-s from a TX buffer associated with a wireless driver/embedded firmware at the L2 level.” The Examiner finds Pazos discloses a transmitter operable to filter out redundant ACK packets in a TCP session. Ans. 4. (citing Pazos, Fig. 3, ¶¶ [0025-0031]). The Examiner finds all the elements of claim 1 are present in Pazos save for TCP in a wireless network and the last limitation of claim 1 relating to consideration of wrap-around sequence numbers. Ans. 4-5. For these two requirements of the claim, the Examiner cites Olsen and Gross respectively. Id. Appellants contend Pazos fails to teach the key limitation here, i.e., “filtering the redundant TCP ACK-s comprises removing said redundant TCP ACK-s from a TX buffer associated with a wireless driver/embedded firmware at the L2 level.” Br. 18-19. Appeal 2010-011486 Application 11/583,201 4 We agree with the Examiner that the combination of Pazos and Olsen teaches the limitation at issue. Appellants contend Pazos “merely” teaches determining that the ACK packet currently inspected is potentially replaceable. Br. 18-19 (citing Pazos, ¶ [0030]). However, Appellants do not argue that the Pazos functionality is in any way different from “filtering of said redundant TCP ACK-s” by “removing said redundant TCP ACK-s” as claimed. Id. Instead, Appellants restate that Pazos does not teach filtering “from a TX buffer associated with a driver/embedded firmware at the L2 level.” Ans. 18. Appellants’ position is the “L2 level” requires wireless communication, as opposed to the “physical channel” or hard-wired line or cable connection taught by Pazos. Br. 18. This interpretation of the L2 level is supported in the Specification, which equates a “wireless driver/embedded firmware” to the L2 level. Spec., 6:17-18, ¶ [0015]. Consistent with the foregoing, Appellants’ argument is that “Pazos does not teach a wireless device.” Br. 19. Olsen is cited by the Examiner as teaching a TCP session occurring within a wireless network. Ans. 4 (citing Olsen, ¶ [0037]). Appellants agree with the Examiner’s finding of what Olsen teaches. Br. 19. Regardless, Appellants’ insist Olsen “does not teach a filtering redundant TCP ACK-s.” Id. Appellants’ argument fails to overcome the Examiner’s prima facie showing for two intimately related reasons. First, it ignores Pazos, which does teach filtering redundant TCP ACK-s. Secondly, the Appellants’ argument attacks the references individually where the rejection is based on a combination of references. See In re Keller, 642 F.2d 413, 426 (CCPA 1981) (“[O]ne cannot show non-obviousness by attacking references Appeal 2010-011486 Application 11/583,201 5 individually where, as here, the rejections are based on combinations of references.”); see also id. at 425 (“The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” (citations omitted)) The Examiner found Pazos and Olsen would be combined by one of ordinary skill to filter out redundant TCP ACK-s in a wireless network. Appellants have not persuaded us that the combination would not be suggested to one of ordinary skill in the art. No other argument that the combination is not reasonable or appropriate is made. Appellants also argue the third reference, Gross, does not teach the same key limitation at issue. Br. 19-20. Gross was cited by the Examiner to show the last element of claim 1, “wherein said comparison takes into account wrap-around of sequence numbers.” Ans. 5. Appellants, however, do not argue that element, so their argument regarding Gross is therefore unpersuasive for reasons already discussed. The Examiner’s finding has not been rebutted and the rejection of claim 1, and claims 6 and 11, which were argued together with claim 1, Br. 20, is sustained. Claims 15 and 18 Claim 15 is an independent claim. Claim 18 depends on cancelled claim 4, which depends on claim 1. Appellants’ argument with respect to claim 15 is that Pazos does not teach filtering, already analyzed above, but with the additional limitation that filtering occurs “prior to transmissions to said receiver.” Br. 21. With Appeal 2010-011486 Application 11/583,201 6 respect to the “prior to transmissions” language, the Examiner found the entire filtering element present. Ans. 9. (Pazos, Fig. 3, ¶¶ [0025-0031]). There is no argument made that would overcome the Examiner’s finding. Indeed, that the filtering occurs prior to transmission is taught, or at least suggested, by Pazo’s queuing ACK-s for the same TCP session. Pazos, ¶¶ [0029-0030]). The only argument for patentability of claim 18 is its alleged dependency from claim 152. Br. 23. Assuming dependency on claim 15, we sustain the rejection of claims 15 and 18. Claims 2 and 7 Claims 2 and 7 depend from claims 1 and 6 respectively. No separate argument to their patentability is made and, for reasons already stated in connection with claims 1 and 6, we sustain the Examiner’s rejection. ORDER The Examiner’s decision rejecting claims 1, 2, 6, 7, 11, 15, and 18 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)(1)(iv). AFFIRMED rwk 2 We leave to the Examiner’s and Appellants’ further consideration how to proceed given the fact that claim 18 depends from cancelled claim 4 and not claim 15 as erroneously stated by Appellants, Br. 23.