Ex Parte Lesartre et al

Board of Patent Appeals and Interferences

Jun 15, 2009

10756530 (B.P.A.I. Jun. 15, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte GREGG BERNARD LESARTRE, DAVID PAUL HANNUM,
and RYAN AKKERMAN
____________________

Appeal 2008-004529
Application 10/756,5301
Technology Center 2100
____________________

Decided2: June 15, 2009
____________________

Before JAY P. LUCAS, THU A. DANG, and CAROLYN D. THOMAS,
Administrative Patent Judges.

LUCAS, Administrative Patent Judge.

DECISION ON APPEAL

1 Application filed January 12, 2004. The real party in interest is Hewlett-
Packard Development Company L.P.

2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail date (paper delivery) or Notification Date (electronic Delivery).
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STATEMENT OF THE CASE
Appellants appeal from a final rejection of claims 1-10, 12-17, and 21
under authority of 35 U.S.C. § 134(a). The Board of Patent Appeals and
Interferences (BPAI) has jurisdiction under 35 U.S.C. § 6(b). Claims 11 and
18-20 were cancelled.
Appellants’ invention relates to a data communications architecture
that uses serializers and deserializers to reduce data latency (thereby
increasing speed) when data is transferred between computer system
components. In the words of the Appellants:
The claims are directed to a data communications architecture
employing serializers and deserializers (forming SERDES
communication links) for use in communicating data between
components of a computing system, for example, data
processing components having wide data [buses]. Data
transmission is monitored, and corrupted transmissions are
marked as corrupt so that they can continue to traverse the
computer system fabric without causing delays to other data. In
an embodiment, partial data small packets are completed with
filler data and marked as corrupt. The claimed invention can
prevent a corrupted small packet from causing a communication
link to go down, and can minimize delays caused by corrupted
data to the transfer of uncorrupted data.
(App. Br. 3, top.)
Claim 1 is exemplary:
1. In a computer system having a data
communications architecture employing a
serializer and a deserializer, a method to handle
corrupted data comprising:
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establishing a communications link between
the serializer and deserializer for the
communication of data packets;

monitoring the transmission of data across
the communications link by the serializer and the
deserializer according to a selected
communications protocol;

identifying data that is not successfully
transmitted after a first transmission attempt;

attempting to retransmit the unsuccessfully
transmitted data over the communications link
until the data is successfully transmitted or a select
number of times;

in the case the data is not successfully
transmitted after the select number of
retransmission attempts, marking the
unsuccessfully transmitted data as corrupt; and

propagating the data marked as corrupt to at
least one further destination of the computer
system,

wherein the further destination of the
computer system processes the data marked as
corrupt as corrupt data.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:

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Driessen US 6,850,559 B1 Feb. 1, 2005
(filed Jun. 28, 2000)
Li US 2005/0073586 A1 Apr. 7, 2005
(filed Oct. 6, 2003)
Martini US 7,039,837 B2 May 2, 2006
(filed Jul. 23, 2002)

REJECTION
The Examiner rejects the claims as follows:

Claims 1-10, 12-17, and 21 stand rejected under 35 U.S.C. § 103(a)
for being obvious over Driessen, Li, and, Martini.

Claim 1 is exemplary. See 37 CFR § 1.41.37 (c) (vii). See also In re
McDaniel, 293 F.3d 1379, 1383 (Fed. Cir. 2002) (“If the brief fails to meet
either requirement [of 37 CFR § 1.192(c)(7)], the Board is free to select a
single claim from each group of claims subject to a common ground of
rejection as representative of all claims in that group and to decide the
appeal of that rejection based solely on the selected representative claim.”)

Appellants contend that the claimed subject matter is not rendered
obvious by the combination of Driessen, Li, and Martini because all of the
claim limitations are not disclosed or suggested and the justification for
combining the references is not legally sufficient. The Examiner contends
that each claim is properly rejected.
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Rather than repeat the arguments of Appellants or the Examiner, we
make reference to the Briefs and the Answer for their respective details.
Only those arguments actually made by Appellants have been considered in
this opinion. Arguments that Appellants could have made but chose not to
make in the Briefs have not been considered and are deemed to be waived.

We affirm the rejection.
ISSUE
The issue is whether Appellants have shown that the Examiner erred
in rejecting the claims under 35 U.S.C. § 103(a). The issue turns on whether
“marking the unsuccessfully transmitted data as corrupt” as recited in claim
1 and other elements are disclosed or suggested in the references and
whether there is a legally sufficient justification for combining the
disclosures of Driessen, Li, and Martini.

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. Appellants have invented a method and system for error handling that
uses serializers and deserializers to reduce data latency (thereby
increasing speed) between computer system components. (See Spec.,
¶¶ [0006], [0007], and [0027].) Data are transferred between the
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components at high speeds via communications channels. (See Spec.,
¶ [0027].) When repeated transmission attempts fail, data are marked as
corrupt data. (See Spec., ¶ [0076].)
2. The Driessen reference discloses a method and system for error handling
that involves identifying and marking data packets as corrupted packets.
(Col. 2, ll. 38-45; col. 7, ll. 32-33; col. 10, l. 6.) Driessen further
discloses transmission and retransmission of data from a transmitter to a
receiver that are linked via a communications channel. (See Fig. 4, col.
8, ll. 15-21; col. 10, ll. 21-25.)
3. The Li reference discloses a serializer and a deserializer for encoding and
decoding data with minimal data loss during data transfer. (See ¶ [0005]
and [0027].)
4. The Martini reference discloses an error handling method that includes
marking data as corrupt data and substituting only the header data in the
corrupted data packet. (See Ans. 13; Martini, col. 7, ll. 15-25, 42-45, and
51-55.) The corrupt data packet is sent on to a further destination, a
source decoder. (See Martini, col. 4, ll. 46-48.)

PRINCIPLES OF LAW
Appellants have the burden on appeal to the Board to demonstrate
error in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86
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(Fed. Cir. 2006) (“On appeal to the Board, an applicant can overcome a
rejection [under § 103] by showing insufficient evidence of prima facie
obviousness or by rebutting the prima facie case with evidence of secondary
indicia of nonobviousness.”) (quoting In re Rouffet, 149 F.3d 1350, 1355
(Fed. Cir. 1998)).
“What matters is the objective reach of the claim. If the claim extends
to what is obvious, it is invalid under § 103.” KSR Int’l Co. v. Teleflex, Inc.,
550 U.S. 398, 419 (2007).
“Such a combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 401 (2007).
“A court must ask whether the improvement is more than the
predictable use of prior-art elements according to their established
functions.” Id.
“It is common sense that familiar items may have obvious uses
beyond their primary purposes, and a person of ordinary skill often will be
able to fit the teachings of multiple patents together like pieces of a puzzle.”
KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 402 (2007).
Regarding the claimed “retraining” our reviewing court has
determined that “[w]here an inventor chooses to be his own lexicographer
and to give terms uncommon meanings, he must set out his uncommon
definition in some manner within the patent disclosure” so as to give one of
ordinary skill in the art notice of the change. In re Paulsen, 30 F.3d 1475,
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1480 (Fed. Cir. 1994), quoting Intellicall, Inc., v. Phonometrics, Inc., 952
F.2d 1384, 1387-88 (Fed. Cir. 1992).

ANALYSIS
From our review of the administrative record, we find that the
Examiner has presented a prima facie case for the rejection of Appellants’
claims under 35 U.S.C. § 103(a). The prima facie case is presented on pages
3 to 9 of the Examiner’s Answer. In opposition, Appellants present a
number of arguments.
Appellants contend that “Driessen does not disclose anything having
to do with a computer system data communications architecture.” (App. Br.
6, middle.)
The Examiner points out in the Answer that a person of ordinary skill
in the art would have considered Driessen’s transmitter, receiver, and
communications channels collectively to be a computer system. (Ans. 10,
middle.) Reading the claims broadly but fairly, we find that Driessen’s
components do indeed disclose as a whole a “computer system” as recited in
claim 1.
Next, Appellants argue that Driessen fails to disclose the claimed
“further destination” of the computer system.
Specifically, Appellants argue: “Driessen cannot disclose
propagating data marked as corrupt to at least one further destination of the
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computer system after being received. Furthermore … the mitigator 444 …
is not a ‘further destination.’” (App. Br. 7, bottom to 8, top.)
The Examiner points out in the Answer that Driessen’s mitigator 444
is a “further destination” of the computer system compared with the error
correction 443 unit since Driessen’s Fig. 4 shows that the cited elements are
separate entities. (Ans. 10, bottom to 11, top.) Appellants contend that
because Driessen’s mitigator is part of the receiver, and data does not leave
the receiver until data corruption has been corrected, it follows that Driessen
fails to disclose “marking unsuccessfully transmitted data as corrupt, and
propagating the data marked as corrupt to at least one further destination.”
(Reply Br. 7, middle.)
In Driessen, error correction circuit 443 analyzes a signal to detect
transmission errors. (Col. 9, ll. 12-13.) Driessen further discloses that the
error correction circuit 443 transmits the data packet to the mitigation circuit
444 for error correction. (Col. 9, ll. 28-30.) We read Driessen’s error
mitigation circuit 444 as being a “further destination” of the error correction
circuit 443. Appellants’ claim limitation does not require that the claimed
“further destination” be contained in a separate module as Appellants have
argued above. Therefore, Appellants’ argument that Driessen’s error
mitigation circuit 444 is not a further destination of error correction circuit
443 is unpersuasive.
Appellants further argue that “Driessen’s mitigator does not ‘process
data marked as corrupt as corrupt data.’” (App. Br. 8, bottom.)
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According to the Examiner, Driessen’s mitigator 444 processes
corrupt data. (Ans. 11.) The Examiner reasons that Driessen implicitly
discloses recognizing and marking corrupt data. (Id.) As we stated above,
Driessen discloses error correction circuit 443, which analyzes a signal to
detect transmission errors. (Col. 9, ll. 12-13.) Driessen’s error correction
circuit 443 transmits the data packet to the mitigation circuit 444 for error
correction. (Col. 9, ll. 28-30.) We read Driessen’s error mitigation
technique at column 9, lines 32 to 36, as processing the error data marked as
corrupt “as corrupt data,” as recited in the claim. Therefore, we find no error
with the Examiner’s analysis.
Regarding claims 12 and 21, Appellants argue that Driessen fails to
disclose Appellants’ claimed “retraining the communications link.”
Specifically, Appellants argue: “[L]inks are ‘trained’ by sending
appropriate known data sequences which the receiving end of the link can
use to properly align the links. … No similar link training or retraining
procedure is disclosed in Driessen.” (App. Br. 17, middle to bottom.)
According to the Examiner, Driessen discloses “retransmission.” (See
Ans. 15, middle to bottom; Driessen col. 9, l. 53 to col. 10, l. 34.) The
Examiner says that Appellants’ claimed “retraining the communications
link” reads on Driessen’s “retransmission” of data. (Id.) Although
Appellants are entitled to be their own lexicographers, see In Re Paulsen,
cited above, neither the claim nor Appellants’ Specification defines
“retraining.” By Appellants’ own admission above, retraining merely
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involves re-sending data. In view of Appellants’ failure to define retraining
more narrowly than the retransmitting of data, the Examiner applied the
broadest reasonable interpretation of the claimed “retraining” to mean re-
sending data or retransmitting data. Read broadly but fairly, we find that
Appellants’ “retraining the communications link” does read on Driessen’s
retransmission. Accordingly, we find no error in the rejection on this point.
Appellants further argue that “[a] computer search of Driessen reveals
that Driessen does not even contain the words ‘training’ or ‘retraining.’”
Appellants make an ipsissimis verbis (i.e., “word for word”) argument. It
does not follow that since the words “training” or “retraining” are not in
Driessen that Driessen fails to render the claim obvious. As we mentioned
above, the Examiner established that “retraining” would have been obvious
to a person of ordinary skill in the art where the Examiner’s Answer points
out that Driessen discloses retransmission. Thus, by arguing the exact claim
language is absent from Driessen, Appellants failed to meet their burden of
proving error in the Examiner’s analysis.
Turning to the Martini reference, Appellants contend that the
Examiner has failed to show “propagating the data marked as corrupt to at
least one further destination of the computer system” as recited in claim 1.
(See App. Br. 11, top.)
In their own words, Appellants’ argue that the Martini reference
“sends the data packets with mitigated errors to the next destination of its
respective system to be treated by subsequent devices as though the data
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were not corrupt, essentially the opposite of what the claimed invention
does.” (Id.)
As the Examiner points out in the Examiner’s Answer, Martini
discloses replacing only the header data of a macroblock containing corrupt
data, and not replacing the corrupt data itself. (Ans. 13.) Appellants counter
that Martini actually discloses replacing the entire packet, including the
replacement of both the header data and the corrupt data. (See App. Br. 11,
top.) In other words, Appellants interpret Martini as disclosing the
wholesale substitution of the packet, whereby the packet that is subsequently
propagated does not contain corrupt data, which Appellants believe not only
differs from the claimed “propagating the data marked as corrupt to at least
one further destination of the computer system” but also is contrary to
Appellants’ disclosure. (Id.)
Contrary to Appellants’ reading of Martini, we find that only part (the
header) of the data packet is substituted. (FF#4.) From Martini, it is clear
that the other portion (corrupted information) of the data packet remains the
same and that is sent on to a further destination, a source decoder. (Id.)
Accordingly, we find no error in the Examiner’s analysis.
With respect to claim 23, Appellants contend that the claimed “partial
small data packets” are not disclosed in Martini.

3 Appellants are reminded to comply with the Board’s rule when arguing
claim limitations particular to dependent claims. Those arguments should be
presented separately. Otherwise such claims will stand or fall with the
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Concerning their argument, Appellants express their contention as
follows:
Martini does not teach any of communicating partial data small
packets, or marking data as corrupt. … Martini teaches
separating an MPEG-4 bitstream into packets, and information
contained in a packet may then be separated in different
partitions. This is not the same as partial data small packets as
that term is used in the claim.
(App. Br. 15, middle to bottom.)
The Examiner points out that Martini discloses a source coded packet
containing an error detection code, or “CRC.” (Ans. 7.) The Examiner
regards Martini’s source coded packet containing a CRC as obviously
similar to Appellants’ claimed “partial data small packets” as recited in
claim 2. (Id.)
We find that Appellants’ argument is ineffective, in that it addresses
how the claimed partial data small packets are created. Such an argument is
ineffective because the manner of making Appellants’ partial data small
packets is not a claim limitation. Claim 2 merely recites, in part, “wherein
the data marked as corrupt comprises partial data small packets,” and not a
manner of making partial data small packets. Thus, we decline Appellants’
invitation to import limitations, concerning ways of generating partial data
small packets, from the Specification into the claims. (See App. Br. 15,
middle.) We decline to find error with the Examiner’s determination that
representative independent claim. See In re Young, 927 F.2d 588, 590 (Fed.
Cir. 1991). However, in the interest of judicial economy, we respond.
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Appellants’ claimed partial data small packets read on Martini’s source
coded packet containing an error detection code (CRC). Accordingly, we
find no error in the Examiner’s logic.
Regarding dependent claim 34, Appellants contend that the Examiner
wrongly equates Martini’s “stuffing bits” (the adjective “stuffing” modifies
the noun “bits”) with the claimed “filler data.” (See App. Br. 16, top to
middle.) In their own words, Appellants argue “[t]here is no mention of
‘stuffing bits’ … the stuffing bits as disclosed in Martini and filler data as
disclosed in the present application are not the same thing.” (App. Br. 16,
top.)
The Examiner points out that Appellants’ claimed “filler data” are made
to complete corrupt data that is identified. (Ans. 14, middle to bottom.) We
note again that the Examiner need not identify the exact same wording in the
prior art to establish obviousness. Read broadly but fairly, Appellants’
claimed “filler data” as recited in claim 3 read on Martini’s “stuffing bits.”
Accordingly, Appellants’ argument is ineffective.
Regarding claim 16, Appellants then argue that “Martini does not
disclose generating filler data as that term is used in the claims, therefore
[Martini] cannot disclose generating filler data based on the size of the data
packets.” (App. Br. 18, middle.) We agree with the Examiner, in that
Martini’s “stuffing bits” render obvious the claimed “filler data” as argued
above. Thus, claim 16 is obvious for the reasons stated above.

4 See footnote 3.
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Appellants argue that there is no legally sufficient justification for the
Examiner’s combination of Driessen, Li, and Martini. (See App. Br. 11-12.)
To the contrary, we find that the Examiner has indeed set forth at least one
articulated reason for combining Driessen, Li, and Martini. (See Ans. 12.)
Thus, we find no error in the Examiner’s analysis.
Finally, Appellants contend that even if a person of ordinary skill in
the art would have combined the prior art elements, the combination would
not have resulted in the claimed invention. (See App. Br. 13, top.)
In the Examiner’s view, it would have been obvious to modify
Driessen’s transmitter and receiver by incorporating Li’s serializer and
deserializer. (See Ans. 6.) Moreover, it would have been obvious for a
person of ordinary skill in the art to use Martini’s method of marking of data
as corrupt data to make the claimed invention. (Id.) Each of the three
references, Driessen, Li, and Martini, cited by the Examiner in the rejection
is concerned with data transfer in general and error correction in particular.
(FF#2, FF#3, and FF#4.)
We find that all three references, Driessen, Li, and Martini, are
directed to solving the same problem in the art. (See id.) Second, the
claimed invention merely provides predictable results, that is, error
correction. Accordingly, it would have been obvious for a person of
ordinary skill in the art to arrange the prior art elements like pieces of a
puzzle to create the claimed invention. (See KSR, cited above.) In light of
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the findings stated above, the Examiner’s combination of Driessen, Li, and
Martini renders exemplary claim 1 obvious. Accordingly, we find no error.
Appellants contend that Examiner erred in rejecting claims 1-10, 12-
17, and 21 under 35 U.S.C. § 103(a). Upon reviewing the findings of facts
cited above, we decline to find fault with the Examiner’s analysis.

CONCLUSION OF LAW
Based on the findings of facts and analysis above, we conclude that
the Examiner did not err in rejecting claims 1-10, 12-17, and 21.

DECISION
The rejection of claims 1-10, 12-17, and 21 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

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