Ex Parte Kwan

Board of Patent Appeals and Interferences

Sep 29, 2010

10287287 (B.P.A.I. Sep. 29, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/287,287 11/04/2002 Kenny C. Kwan BU1288C 6335
7590 09/29/2010
Brake Hughes PLC
C/O Intellevate
P.O. Box 52050
Minneapolis, MN 55402
EXAMINER
CHOU, ALBERT T
ART UNIT PAPER NUMBER
2471
MAIL DATE DELIVERY MODE
09/29/2010 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KENNY C. KWAN
_____________

Appeal 2009-006744
Application 10/287,287
Technology Center 2400
____________

Before MARC S. HOFF, CAROLYN D. THOMAS,
and ELENI MANTIS MERCADER, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-006744
Application 10/287,287

2
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1, 2, 10-20, and 22-25. We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.
INVENTION
Appellant’s claimed invention is directed to activating spoofing (i.e.,
adding extra HDLC flags between transmitted frames) when the number of
packets stored in a jitter buffer 410 drops to a predetermined threshold level.
See Spec. 87:4-23; Fig. 21.
Claim 1, reproduced below, is representative of the subject matter on
appeal:
1. A method comprising:
determining a network delay associated with a network based on a
level of incoming data in a buffer dropping below a threshold level, the
incoming data being received from the network;
generating spoof data based on the incoming data; and
transmitting the spoof data to a first telephony device responsive to
the network delay.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Huang US 5,548,781 Aug. 20, 1996
Chan US 5,790,641 Aug. 4, 1998
Chen US 6,859,460 B1 Feb. 22, 2005
Appeal 2009-006744
Application 10/287,287

3
The following rejections are before us for review:
1. The Examiner rejected claims 1, 2, 10, and 13-17 under 35 U.S.C.
§ 103(a) as being unpatentable over Chan.
2. The Examiner rejected claims 11 and 12 under 35 U.S.C. § 103(a)
as being unpatentable over Chan in view of Huang.
3. The Examiner rejected claims 18-20 and 22-25 under 35 U.S.C. §
103(a) as being unpatentable over Chen in view of Chan.

ISSUES
The pivotal issue is whether Chan teaches or suggests the limitation
of: “determining a network delay . . . based on a level of incoming data in a
buffer dropping below a threshold level” as recited in claim 1 (emphasis
added).

PRINCIPLES OF LAW
To establish prima facie obviousness of a claimed invention, all the
claim limitations must be taught or suggested by the prior art. See In re
Royka, 490 F.2d 981, 985 (CCPA 1974).

ANALYSIS
Analysis Regarding the Obviousness Rejections of claims 1, 2, 10, and 13-17
Appellant argues, inter alia, that Chan uses the exclusive use of a
timer to determine network delay, whereas Appellant’s claimed invention
Appeal 2009-006744
Application 10/287,287

4
determines whether the level of incoming data in a buffer drops below a
threshold level to determine network delay (App. Br. 7-8).
We are persuaded by Appellant’s argument. At best, Chan teaches
that a network delay is determined when a response signal is not received
within a delay frame waiting period (col. 9, l. 59–col. 10, l. 1). Chan does
not teach “determining a network delay . . . based on a level of incoming
data in a buffer dropping below a threshold level” as recited in claim 1
(emphasis added). While arguably Chan teaches determining a network
delay based on a time threshold, this is substantially different from a
threshold based on the level of incoming data in a buffer as recited in claim
1 (i.e., an amount threshold).
For the above reason, we will reverse the Examiner’s rejection of
claim 1 and for similar reasons the rejections of claims 2, 10, and 13-17.
Analysis Regarding the Obviousness Rejections of claims 11, 12, 18-20, and
22-25
Appellant advances similar arguments with respect to claims 11, 12,
18-20, and 22-25 (App. Br. 9-11) as the argument presented with respect to
claim 1 (App. Br. 7-8). Accordingly, we will also reverse the Examiner’s
rejections of claims 11, 12, 18-20, and 22-25, because the additional
references of Huang and Chen either alone or in combination do not cure the
above cited deficiency.

ORDER
The decision of the Examiner to reject claims 1, 2, 10-20, and 22-25 is
reversed.
Appeal 2009-006744
Application 10/287,287

5

REVERSED

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Brake Hughes PLC
C/O Intellevate
P.O. Box 52050
Minneapolis, MN 55402