Ex Parte Kumar et al

Patent Trial and Appeal Board

Oct 23, 2014

10914545 (P.T.A.B. Oct. 23, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte GOPAL N. KUMAR, APARAJITA MISRA,
and GANAPATHY SUBRAMANIAN SUNDARAM
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Appeal 2012-005498
Application 10/914,5451
Technology Center 2400
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Before CARL W. WHITEHEAD JR., JEFFREY S. SMITH, and
JASON J. CHUNG, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1–25. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

INVENTION
The invention is directed to wireless communication systems. Spec. ¶
1. Claim 1 is illustrative of the invention and is reproduced below:
1. A method of handling message overload,
comprising:

1 According to Appellants, the real party in interest is Lucent Technologies
Inc. App. Br. 1.
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throttling a number of unopened messages based upon an
arrival rate of the messages at a processor configured to receive
arriving communication messages.

REFERENCES
Gao US 5,548,533 Aug. 20, 1996
Sneha Kasera et al., Fast and Robust Signaling Overload Control 323–
331, (IEEE 2001)

REJECTIONS AT ISSUE
Claims 10–12 and 22 are rejected under a provisional non-statutory
obviousness-type double patenting rejection over Application 10/917,988.2
Ans. 4–8.
Claims 1, 2, and 4–25 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Kasera. Ans. 9–20.
Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Kasera and Gao. Ans. 20–22.

ISSUES
Did the Examiner err in finding Kasera discloses throttling unopened
messages as recited in claim 1 (and similarly recited in claims 10 and 15)?
Did the Examiner err in finding Kasera discloses throttling based on
arrival rate as recited in claim 1 (and similarly recited in claims 10 and 15)?

2 The claims in Application No. 10/917,988 have been further amended and
allowed after the Examiner applied the double patenting rejection. Thus, we
do not reach the merits of the Examiner’s double patenting rejections
because this issue is not ripe for decision by the Board. Panels have the
flexibility to reach or not reach provisional double-patenting rejections. See
Ex parte Moncla, 95 USPQ2d 1884 (BPAI 2010) (precedential).
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ANALYSIS
Rejection of Claims 1–25 under 35 U.S.C. §§ 102(b) and 103(a)

A. The claimed limitation “throttling a number of unopened
messages” as recited in claim 1.

The Examiner finds Kasera discloses unprocessed messages in a
queue waiting for processing by the CPU. Ans. 9. Appellants contend
“processed” does not necessarily imply “opened.” App. Br. 4. Appellants
also contend Kasera discloses the request messages are pre-processed at
lower layers before it arrives at the queue; thus, by the time the request
messages arrive at the queue, they were already opened in the pre-processing
stage. Id. at 5–7. We agree with the Examiner’s findings.
Kasera discloses a CPU processes the request messages (see Kasera,
p. 325 col. 2). From the perspective of the CPU, the CPU is
processing/accessing the request for the first time, which is equivalent to
opening the call request. (Emphasis added). Therefore, it follows that
Kasera discloses as the call requests are waiting in the queue to be processed
by the CPU, they are unopened. Moreover, Kasera discloses if there is an
overload, some calls are throttled in the next assessment period (see Kasera,
p. 327, col. 1), which discloses the claimed limitation “throttling a number
of unopened messages.”
Accordingly, for the reasons stated supra, we agree with the
Examiner’s findings that Kasera discloses “throttling a number of unopened
messages.”

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B. The claimed limitation “based upon an arrival rate” as
recited in claim 1.

The Examiner finds Kasera discloses a call acceptance rate is a
measure of call arrival rate. Ans. 22 (citing p. 324, col. 1). Moreover, the
Examiner finds Kasera discloses throttling a large fraction of calls in the
next assessment period based on call acceptance rate. Ans. 22 (citing
Kasera, p. 327, col. 1). Appellants contend Kasera’s acceptance rate is not
an equivalent to an arrival rate because an acceptance rate is “the number of
calls accepted by the system in a given time interval.” App. Br. 9. We do
not find Appellants’ contentions to be persuasive.
The cited portions of Kasera relied upon by the Examiner disclose the
acceptance rate is a measure of call arrival rate (see Kasera, p. 324, col. 1,
lines 7-9), and therefore disclosing claim 1’s limitation “an arrival rate.”
Moreover, the cited portions of Kasera relied upon by the Examiner
discloses throttling a large fraction of calls in the next assessment period
based on call acceptance rate (see Kasera, p. 327, col. 1), therefore
disclosing the claim 1’s limitation “throttling … based upon an arrival rate.”
Accordingly, for the reasons stated supra, we sustain the Examiner’s
rejection of claim 1. Because Appellants have not provided separate
arguments against the rejections of claims 2–25, these claims fall with claim
1 for same reasons as set forth above. See 37 C.F.R. § 41.37(c)(1)(iv).

DECISION
The Examiner’s decision to reject claims 1–25 under 35 U.S.C.
§§ 102(b) and 103(a) is affirmed.
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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

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