Ex Parte Kilkki

Patent Trial and Appeal Board

Feb 21, 2013

10484829 (P.T.A.B. Feb. 21, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte KALEVI KILKKI
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Appeal 2010-002681
Application 10/484,829
Technology Center 2400
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Before JOSEPH F. RUGGIERO, DENISE M. POTHIER, and
BARBARA A. BENOIT, Administrative Patent Judges.

BENOIT, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1-12 and 14-17, which constitute all the claims pending in the
application. Claim 13 has been canceled. App. Br. 2. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm-in-part.

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STATEMENT OF THE CASE
Appellant’s invention relates to traffic control functions in
packet-switched networks. See generally Abstract; Spec. 1:12-17; Fig. 1.
Priority information for a packet being transmitted in a network is
determined depending on a nominal bit rate (NBR) allocated to a service
connection and a momentary bit rate (MBR) of the service connection.
Abstract. The MBR used in the calculation of the priority, in turn, depends
on an importance marking indicating the important level of the data packet
and contained in the data packet. Id. Claims 1 and 14 are illustrative and
read as follows, with key disputed limitations emphasized:
1. A method for marking data packets to be transmitted in a packet
switched network with a priority information for treating said packets in said
packet switched network according to said priority information, comprising:
determining an importance marking contained in a received data
packet indicating an importance level of said data packet;
determining a nominal bit rate (NBR) allocated to a certain service
connection;
calculating a momentary bit rate (MBR) of said connection;
modifying said momentary bit rate (MBR) in accordance with the
importance marking to produce a modified momentary bit rate (MBR); and
determining said priority information depending on said nominal bit
rate (NBR) and said modified momentary bit rate (MBR).
14. A terminal device for generating data packets to be transmitted in
a packet switched network, said packets being treated in said packet
switched network according to a priority information being attached to said
packets by a network element, said terminal device comprising:
a packet generating unit configured to generate data packets; and
an importance marking generation unit configured to generate an
importance marking attached to or inserted in said data packets indicating an
importance level of said data packets,
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wherein the importance marking is configured to be used to modify a
monetary [sic: momentary] bit rate (MBR) to produce a modified
momentary bit rate (MBR) that is configured to be used in conjunction with
a nominal bit rate (NBR) to determine the priority information.
The Examiner relies on the following as evidence of unpatentability:
Kalevi1 WO 00/18073 Mar. 30, 2000
Kilkki US 6,047,326 Apr. 4, 2000
Elloumi US 2002/0031089 A1 Mar. 14, 2002
(filed Aug. 10, 2001)
The Rejection
The Examiner rejected claims 1-12 and 14-17 under 35 U.S.C.
§ 103(a) as unpatentable over Kilkki, Elloumi, and Kalevi. Ans. 3-14.

CONTENTIONS
The Examiner finds that Kilkki substantially teaches or suggests all of
the limitations of illustrative claim 1. Ans. 3-4 (citing col. 1, ll. 42-49; col.
7:21-27; col. 15, ll. 1-5). The Examiner further relies on Elloumi for
explicitly teaching a method for marking data packets to be transmitted in a
packet-switched network. Ans. 4 (citing Abstract; ¶ 0001). The Examiner
further relies on Kalevi for explicitly teaching calculating a MBR of the
connection; modifying the MBR in accordance with the importance marking
to produce a modified MBR; and determining the priority information
depending on said NBR and said modified MBR. Ans. 4-5 (citing Kalevi,
p. 2, l. 19 – p. 3. l. 2; pp. 7-12; p. 13, ll. 1-23). The Examiner concludes that
it would have been obvious to an ordinarily skilled artisan to combine the

1 The name of the inventor of this reference is Kalevi Kilkki. We have
adopted the Examiner’s practice of referring to WO 00/18073 as “Kalevi,”
which is the first name of the inventor, to differentiate references made to
US 6,047,326.
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teachings of Kilkki, Elloumi, and Kalevi for marking data packets to solve
undisciplined network expansion and uncoordinated management of network
traffic. Ans. 5.
Appellant asserts, among other things, that none of Kilkki, Elloumi, or
Kalevi teaches or suggests modifying the MBR in accordance with the
importance marking to produce a modified MBR and determining priority
information depending on an NBR and the modified MBR, as recited in
claim 1. App. Br. 7-12.

ANALYSIS
Claims 1-12, 16, and 17
It is undisputed that Kilkki discloses a network service that computes
a priority level based on a measured bit rate and a NBR. See, e.g., Kilkki
Abstract; col. 13, ll. 5-7; Figs. 2, 3; see also App. Br. 7. The central issue
concerning claim 1 is whether Kilkki, Elloumi, and Kalevi collectively teach
or suggest producing the modified MBR and using it in conjunction with an
NBR to determine priority information for transmitting a data packet. Based
on the record before us, we are not persuaded the references do so.
In response to Appellant’s arguments that none of the applied
references teach or suggest modifying the MBR in accordance with the
importance marking to produce a modified MBR, the Examiner clarified that
“MBR1” in Kilkki’s Equation 5 equates to a modified MBR as recited in
claim 1 and that the MBRs in Table 1 are “modified/different MBRs.” Ans.
15 (citing Kilkki, col. 13, ll. 5-61). Presumably, the Examiner’s reference to
“MBR1” in Kilkki’s Equation 5 refers to “MBRi” which, according to
Kilkki, is the measured bit rate when the i:th cell is transmitted to the
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network. Kilkki, col. 13, ll. 7-10. Kilkki’s MBRi then is a MBR and is not a
MBR modified by anything, much less a MBR modified in accordance with
an importance marking as required by claim 1.
We agree with the Examiner (Ans. 15) that the MBRs listed in
Kilkki’s Table 1 are different from one another and the NBR is constant.
The MBR difference occurs, however, because Table 1 presents sample data
and associated priority levels calculated based on an MBR and an NBR
using Equation 5 discussed above. See Kilkki, col. 13, ll. 38-40. The
difference among the MBRs listed in Table 1 is not due to the MBRs being
modified in the manner required by claim 1 – namely, modifying the MBR
in accordance with the importance marking to produce a modified MBR.
The Examiner also finds that Kalevi explicitly teaches modifying the
MBR as recited in claim 1. Ans. 4 (citing Kalevi, p. 2, l. 19 – p. 3, l. 2; pp.
7-12; p. 13, ll. 1-23). We agree with Appellant (App. Br. 8, 11-12) that the
cited portions of Kalevi do not teach or suggest the recited modifying an
MBR. Kalevi discloses a formula for giving each packet a priority based on
the MBR to NBR ratio that calculates x using the same formula as Kilkki’s
Equation 5, albeit with a different priority level determination. Compare
Kalevi, p. 2, ll. 19-27 with Kilkki, col. 13, ll. 5-20. For the reasons
discussed above with respect to Kilkki’s Equation 5, we are not persuaded
that this portion of Kalevi discloses modifying an MBR in the manner
recited by claim 1.
Kalevi also discloses determining two priority levels for a NBR
“using an MBR (actual bit rate) to NBR ratio added by” two relative
priorities defined by a customer. See Kalevi, p. 13, ll. 2-19 (claims 1 and 4).
This disclosure, too, is unavailing because it does not teach that the MBR is
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modified in the manner required by claim 1 – namely, modifying the MBR
in accordance with the importance marking to produce a modified MBR.
Finally, we are not persuaded that the six-page section of Kalevi cited
by the Examiner teaches the MBR modifying step recited in claim 1. Ans.
4-5 (citing Kalevi, pp. 7-12). As recognized by Appellant (App. Br. 8, 11-
12), although Kalevi generally discloses the use of priorities defined by a
customer in a Simple Integrated Media Access (SIMA) network, Kalevi does
not teach the MBR is modified in accordance with an importance marking to
produce a modified MBR. See generally Kalevi, pp. 7-12.
Thus, on this record, we are unable to sustain the rejection of
independent claim 1 or claims 2-10, each of which depend directly or
indirectly from claim 1.
Nor are we able to sustain the rejection of independent claim 11,
which recites a calculation unit configured to modify the MBR in
accordance with the importance marking to produce a modified MBR, or
claim 12, which depends from claim 11, for the reasons discussed above
with respect to claim 1.
We likewise, for the reasons discussed above with respect to claim 1,
will not sustain the rejection of independent claim 16 which recites
“calculation means” configured to modify the MBR in accordance with the
importance marking to produce a modified MBR.
Nor will we sustain the rejection of independent claim 17, which
recites a network element configured to, among other functions, modify the
MBR in accordance with the importance level to produce a modified MBR
for the reasons discussed above with respect to claim 1.
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Claims 14 and 15
Independent claim 14 is an apparatus claim directed to a terminal
device comprising two structural elements – a packet generating unit and an
importance marking generation unit. The recited importance marking
generation unit is configured to:
generate an importance marking attached to or inserted in said
data packets indicating an importance level of said data packets,
wherein the importance marking is configured to be used
to modify a monetary [sic: momentary] bit rate (MBR) to
produce a modified momentary bit rate (MBR) that is
configured to be used in conjunction with a nominal bit rate
(NBR) to determine the priority information.
In reciting “the importance marking is configured to be used to modify a
[MBR] to produce a modified [MBR] that is configured to be used in
conjunction with a [NBR] to determine the priority information,” the claim
merely indicates an intended use of the importance marking and, as such, the
importance marking in the cited prior art need only be capable of this
intended use to meet the limitation. In re Schreiber, 128 F.3d 1473, 1477-78
(Fed. Cir. 1997). In contrast to claim 11, which recites a structural element
(i.e., a priority information determining unit) configured to determine a
modified MBR, claim 14 merely recites the importance marking is
configured to be of capable of being used to modify a MBR.
Thus, as broadly as recited, claim 14 recites an importance generation
unit configure to generate an importance marking which is capable of being
used to modify a MBR. Furthermore, Appellant’s importance marking, ĨU,
is described as a value or parameter used in Equation (7). Spec. 13:25-26,
14:28. Thus, the recited, “importance marking,” is no more than a value,
and the prior art needs to teach no more than an importance generation unit
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configure to generate a value which is capable of being used to modify a
MBR.
The Examiner, in responding to Appellant’s arguments, clarifies that
Elloumi teaches the recited importance marking. Ans. 14-15 (citing Elloumi
Abstract; ¶¶ 0001-02 (indicating, among other things, this clarification also
applies to independent claim 14)). The cited portion of Elloumi describes a
color marker device that marks packets of a traffic stream to be one of three
color marking values, each of which represents a corresponding priority.
Elloumi, ¶ 0002. The priorities are based on three traffic parameters which
correspond to service quality parameters of the traffic stream. Id.
Because Elloumi’s importance marking color values represent a
priority based on a service quality parameter for the traffic and Appellant’s
Specification describes using an importance marking (e.g, a value) to modify
the MBR based on more or less important data packets within a given traffic
class, Elloumi’s importance marking color values are also capable of used in
a similar manner to how Appellant’s importance marking is used. Thus,
Elloumi’s disclosure would at least suggest to an ordinarily skilled artisan
that Elloumi’s importance marking is capable of the intended use recited in
claim 14.
We therefore sustain the rejection of independent claim 14.
Regarding claim 15, which depends from claim 14, Appellant relies
on the arguments made with regard to claim 14. App. Br. 23. For the
reasons discussed above, we are not persuaded of error in the rejection of
claim 15. Appellant also summarily asserts that claim 15 is patentable
because of additional limitations not recited by claim 14. App. Br. 23.
Merely asserting that a claim recites additional limitations does not
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persuasively show error in the Examiner’s position. Cf. In re Lovin, 652
F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted Rule
41.37 to require more substantive arguments in an appeal brief than a mere
recitation of the claim elements and a naked assertion that the corresponding
elements were not found in the prior art.”).
We likewise sustain the rejection of claim 15.

CONCLUSION
Under § 103, the Examiner erred in rejecting claims 1-12, 16, and 17
but did not err in rejecting claims 14 and 15.

ORDER
The Examiner’s decision rejecting claims 1-12 and 14-17 is affirmed-
in-part.
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-IN-PART

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