Ex Parte Kotecha et al

Patent Trial and Appeal Board

Jun 27, 2016

13179241 (P.T.A.B. Jun. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/179,241 07/08/2011
25537 7590 06/29/2016
VERIZON
PA TENT MANAGEMENT GROUP
1320 North Court House Road
9th Floor
ARLINGTON, VA 22201-2909
FIRST NAMED INVENTOR
Lalit R. KOTECHA
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.
20110127 9994
EXAMINER
NGUYEN, QUANG N
ART UNIT PAPER NUMBER
2441
NOTIFICATION DATE DELIVERY MODE
06/29/2016 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):
patents@verizon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LALIT R. KOTECHA and JIN Y ANG 1
Appeal2014-006531
Application 13/179,241
Technology Center 2400
Before JOHN P. PINKERTON, JAMES W. DEJMEK, and
JOHN D. HAMANN, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-5 and 12-16. Claims 6 and 17 are objected to as being dependent
upon a rejected base claim, but would be allowable if rewritten in
independent form. Final Act. 7. Claims 7-11and18-22 have been
withdrawn. Br. 17-22. We have jurisdiction over the remaining pending
claims under 35 U.S.C. § 6(b ).
We reverse.
1 Appellants identify Verizon Communications Inc. as the real party in
interest. Br. 3.
Appeal2014-006531
Application 13/179,241
STATEMENT OF THE CASE
Introduction
Appellants' invention is directed to "provid[ing] TCP [(transmission
control protocol)] throughput optimization in mobile wireless networks."
Spec. i-f 12. In a disclosed embodiment, a wireless user device may connect
to a server device via a TCP proxy device. Spec. i-f 13. In this same
disclosed embodiment, the TCP proxy device may establish a TCP
connection with the user device and provide a TCP window size via the TCP
connection. Id. Similarly, the TCP proxy device may establish a TCP
connection with the server device and provide a TCP window size via the
TCP connection. Id. The TCP window sizes (i.e., user device-TCP proxy
device and TCP proxy device-server device) may be different. Id.
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below with the disputed limitation emphasized in italics:
1. A method, comprising:
establishing, by a device, a first transm1ss10n control
protocol (TCP) connection with a client device associated with a
wireless network;
establishing, by the device, a second TCP connection with
a server device associated with the wireless network;
providing, by the device, a first TCP window size to the
client device via the first TCP connection; and
providing, by the device, a second TCP window size to the
server device via the second TCP connection, where the first
TCP window size is different than the second TCP window size,
wherein the first TCP window size controls a flow of
traffic between the client device and the device, and the second
TCP window size controls a flow of traffic between the server
device and the device.
2
Appeal2014-006531
Application 13/179,241
The Examiner ;s Rejections
1. Claims 1, 2, 12, and 13 stand rejected under 35 U.S.C. § 102(a)
as being anticipated by Altshuler et al. (US 2010/0205 310 A 1; Aug. 12,
2010) ("Altshuler"). Final Act. 2--4, 7.
2. Claims 3, 4, 14, and 15 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Altshuler and Dillon et al. (US 2002/0046264
Al; Apr. 18, 2002) ("Dillon"). Final Act. 4--7.
3. Claims 5 and 16 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Altshuler, Dillon, and Mukerji (US 8,379,515 Bl;
Feb. 19, 2013). Final Act. 6-7.
Issue on Appeal2
Did the Examiner err in finding Altshuler discloses a first and second
TCP window size "where the first TCP window size is different than the
second TCP window size," as recited in claim 1?
ANALYSIS 3
Altshuler is generally directed to dynamically optimizing TCP
window size according to one or more specific session parameters.
Altshuler i-f 1. Altshuler discloses that TCP window size "controls the flow
of data in the connection process and reflects the size of the received buffer
2 We only address this issue, which is dispositive. We do not address
additional issues raised by Appellants' arguments.
3 Throughout this Decision, we have considered the Appeal Brief filed
January 23, 2014 ("Br."); the Examiner's Answer mailed on March 10, 2014
("Ans."); and the Final Office Action ("Final Act.") mailed on September 6,
2013, from which this Appeal is taken.
3
Appeal2014-006531
Application 13/179,241
on the receiving host." Altshuler il 4. Altshuler further discloses the "TCP
window size is calculated by preferably measuring the local properties like
connection speed, memory and the remote properties of the destination like
ping time." Altshuler i-f 11. Additionally, an optimal TCP window size may
be stored in a database. Altshuler i-f 11.
Figure 1 of Altshuler is illustrative and is reproduced below:
Figure 1
100
\
l 30 user computer
140 local application
150 storage
170
I
160 data
base
180
.1?.0 interm:-t ;;ervf.'r
L~
Figure 1 illustrates an exemplary diagram of Altshuler's system.
Altshuler i-f 17. As shown, user computer (130) communicates with
application server (110) via communication channel (170). Altshuler i-f 22.
Application server (110) communicates with internet server (120) via
communication channel (180). Altshuler i-f 21. For each communication
channel (170, 180), a TCP window size is either retrieved from a database or
determined. Altshuler i-fi-121-22.
4
Appeal2014-006531
Application 13/179,241
In finding Altshuler discloses the TCP window sizes associated with
each of the communications channels are different, the Examiner explains:
[S]ince the user computer 130 and the internet provider server
120 are different network entities whose local properties such as
the communication channels to the application server 110,
connection speeds, memories and ping times, etc., are also
different from each other, hence the calculated first and second
TCP window sizes to control a flow of traffic from the user
computer 130 and the internet server 120 to the application server
110 correspondingly would be also different.
Final Act. 3--4 (citing Altshuler i-fi-f 11, 21-24, Fig. 1) (emphasis omitted).
Appellants contend the Examiner erred because Altshuler neither
expressly nor inherently discloses providing different TCP window sizes for
the communication channel between the user computer (130) and application
server (110) and the communication channel between the application server
(110) and the internet server (120). Br. 9-11. Appellants assert "Altshuler
does not disclose or suggest that it is necessary to provide different TCP
window size[ s] for these communications channels.'' Br. 11.
We agree with Appellants that the Examiner appears to rely on a
purported inherent teaching of Altshuler that because the local properties of
the servers are different, the TCP window sizes would also be different. See
Ans. 10.
"Inherency, however, may not be established by probabilities or
possibilities. The mere fact that a certain thing may result from a given set
of circumstances is not sufficient." In re Oelrich, 666 F .2d 578, 581 (CCP A
1981) (citations omitted, emphasis added). "To establish inherency, the
extrinsic evidence 'must make clear that the missing descriptive matter is
necessarily present in the thing described in the reference."' In re
Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (quotation omitted).
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Appeal2014-006531
Application 13/179,241
We do not agree with the Examiner's findings that the local properties
of the servers are necessarily different, or that the resulting calculated (or the
optimum, default value) TCP window sizes are necessarily different for the
different communication channels in Altshuler. 4
Accordingly, for the reasons discussed supra, we are constrained by
the record to reverse the Examiner's rejection of claim 1 under 35 U.S.C.
§ 102(a). For similar reasons, we do not sustain the rejection of independent
claim 12, which recites a similar limitation, nor do we sustain the rejections
of dependent claims 2-5 and 13-16.
DECISION
We reverse the Examiner's decision to reject claims 1-5 and 12-16
under 35 U.S.C. § 102(a).
REVERSED
4 We note the Examiner appears to find that Altshuler suggests the TCP
window sizes would be different due to differences in the local properties of
the servers. However, a rejection of claim 1 under 35 U.S.C. § 103(a) is not
before us. While the Board is authorized to reject claims under 37 C.F.R.
§ 41.50(b), no inference should be drawn when the Board elects not to do so.
See Manual of Patent Examining Procedure (MPEP) § 1213.02.
6