Ex Parte Lida et al

Patent Trial and Appeal Board

Aug 16, 2016

12689359 (P.T.A.B. Aug. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/689,359 01119/2010
16759 7590 08/18/2016
Active Knowledge Ltd,
P.O. Box294
Kiryat Tivon, 36011
ISRAEL
FIRST NAMED INVENTOR
EyranLida
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.
Va_Retransmission 5701
EXAMINER
TABONE JR, JOHN J
ART UNIT PAPER NUMBER
2117
NOTIFICATION DATE DELIVERY MODE
08/18/2016 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):
ari@activekn.com
gil@activekn.com
taltiber@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BYRAN LIDA
and
NADAVBANET
Appeal2014-008320
Application 12/689,359
Technology Center 2100
Before ROBERT E. NAPPI, CARLA M. KRIVAK, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
NAPPI, 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--45. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
INVENTION
The invention is directed to a communication system for transmitting
a first set of packets with a first error resistance level and in response to a
request and retransmitting the requested data with a second, higher error
resistance level. See Abstract of Appellants' Specification.
Claim 1 is illustrative of the invention and is reproduced below.
Appeal2014-008320
Application 12/689,359
1. A communication link comprising:
a transceiver configured to:
transmit a set of packets with a first error
resistance level, wherein the set of packets comprise
payloads comprising time-sensitive data;
store the payloads in a buffer;
receive a retransmission request for at least one of
the payloads; and
retransmit the at least one of the payloads using
one or more retransmission packets encoded with a
second error resistance level that is higher than the first
error resistance level to enable the communication link to
transport the time-sensitive data with a fixed delay within
tolerance of the time-sensitive data.
REJECTIONS AT ISSUE 1
The Examiner has rejected claims 1--45 under 35 U.S.C. § 112, first
paragraph as failing to comply with the enablement requirement. Final Act.
4--5.2
The Examiner has rejected claims 1--45 under 35 U.S.C. § 103(a) as
being unpatentable over Takagi (EP 2001257 Al; published Dec. 10, 2008).
Final Act. 6-14.
1 Claims 37 and 44 are objected to because of informalities. See Final
Act. 4. Claim objections are generally petitionable, not appealable, matters
and are not within the jurisdiction of the Board. See MPEP § § 1002 and
1201.
2 Throughout this opinion we refer to the Appeal Brief dated April 24, 2014,
the Reply Brief dated July 30, 2014, the Final Action mailed October 18,
2013, and the Examiner's Answer mailed July 3, 2014.
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Application 12/689,359
ISSUES
Rejection under 35 U.S.C. § 112, first paragraph
Appellants' arguments on page 8 of the Appeal Brief and page 2 of
the Reply Brief, directed to the Examiner's rejection of independent claims
1, 18, 30, and 37 under 35 U.S.C. § 112, first paragraph, present us with the
following issue:
a) Did the Examiner err in not considering Appellants' originally
filed Specification as providing sufficient disclosure to enable the
skilled artisan to make and use the limitations directed to a fixed
delay within tolerance of time-sensitive data for transporting the
time-sensitive data (as recited in claim 1) and supporting
communication of the time-sensitive data (as recited in claims 18,
30, and 37)?
The rejections of dependent claims 2-17, 19-29, 31-36, and 38--45
provide us with the same issue as claims 1, 18, 30, and 37, as Appellants
have not provided separate arguments for these claims. App. Br. 8.
Rejection under 35 U.S.C. § 103
Appellants present several arguments on pages 9-15 of the Appeal
Brief and pages 2-3 of the Reply Brief, directed to the Examiner's rejection
of independent claims 1, 18, 30, and 37. These arguments present us with
the following two issues:
b) With respect to claims 1, 18, 3 0, and 3 7, did the Examiner err in
finding Takagi teaches or suggests retransmitting at least one of the
payloads as recited in claim 1, a packet as recited in claims 18 and
30, or an erroneous part of a payload as recited in claim 37, using
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Application 12/689,359
one or more retransmission packets with a second error resistance
level higher than a first error resistance level, to transport or
support communication of time-sensitive data with a fixed delay
within tolerance of the time-sensitive data?
c) With respect to claims 18, 30, and 37, did the Examiner err in
finding Takagi teaches or suggests maintaining the original order
of: received packets by replacing an erroneous packet with a
retransmitted packet (as recited in claim 18); a set of packets (as
recited in claim 30); and payloads of a stream by inserting a
retransmitted erroneous part of a payload into a proper location in
a buffer (as recited in claim 37)?
The rejections of dependent claims 2-17, 19-29, 31-36, and 38--45
provide us with the same issues as claims 1, 18, 30, and 37, as Appellants
have not provided separate arguments for these claims. App. Br. 9-16.
ANALYSIS
We have reviewed Appellants' arguments in the Briefs, the
Examiner's rejections, and the Examiner's response to Appellants'
arguments. We disagree with Appellants' conclusion that the Examiner
erred in rejecting claims 1--45 under 35 U.S.C. § 112, first paragraph and
under 35 U.S.C. § 103(a).
Rejection under 35 U.S.C. § 112, first paragraph
Regarding issue (a), the Examiner finds the subject matter of claim 1
is not described sufficiently in the Specification to enable a person of
ordinary skill in the art to make and/or use the claimed invention. Final Act.
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Application 12/689,359
5. Specifically, the Examiner finds that the originally filed Specification
fails to disclose the limitation directed to a "tolerance of the time-sensitive
data" recited in claim 1. Final Act. 5; Ans. 11-12.
Appellants contend that "time sensitive is well known in the art and
always has a corresponding tolerance," and "data without tolerance cannot
be regarded as time-sensitive data." App. Br. 8 (citing Cambridge
Dictionaries and Collins English Dictionary); see also Reply Br. 2.
Appellants' argument that claim 1 is enabled is unpersuasive.
Appellants have failed to identify any portion of the original Specification
that enables a person of ordinary skill in the art to make and/or use the
limitation directed to transporting time-sensitive data with a fixed delay
within tolerance of the time-sensitive data, as claimed. Although the
Specification describes time-sensitive data and a fixed delay, and may
enable one skilled in the art to transport time-sensitive data with a fixed
delay, as argued by Appellants, the Specification does not enable one skilled
in the art to transport time-sensitive data with a fixed delay within tolerance
of the time-sensitive data because the Specification does not sufficiently
describe the claimed tolerance. Thus, one of ordinary skill in the art would
not know if "the [claimed] tolerance [is] speed, timing, number of errors, or
a number of packets." Ans. 12.
Therefore, as Appellants' Specification does not describe the claimed
language within tolerance of the time-sensitive data, we sustain the
Examiner's rejection of independent claim 1under35 U.S.C. § 112, first
paragraph, as non-enabling. For the same reasons as claim 1, we sustain the
Examiner's enablement rejection of independent claims 18, 30, and 37 also
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Application 12/689,359
reciting data communication with a fixed delay within tolerance of the time-
sensitive data.
Rejections under 35 U.S.C. § 103
Regarding issue (b ), the Examiner finds Takagi' s base station
transmits packets to a mobile station with a first error resistance level, and in
response to a retransmission request, retransmits requested packets with a
second error resistance level higher than the first error resistance level as
required by claim 1. Final Act. 6-7 (citing Takagi Figs. 1 and 2, i-fi-f 12, 19,
26). The Examiner further finds Takagi's sequential data output based on
scheduling that determines a priority order of transmission of data in
buffered data queues 10-1 to 10-N suggests transporting the data with a
fixed delay as required by claim 1. Final Act. 7 (citing Takagi i122); Ans.
13-15 (citing Takagi i1 26). The Examiner reasons that the skilled artisan
would employ a fixed delay for Takagi's data transport "because there is
nothing in TAKAGI' s disclosure that teaches data queues 10-1 to 10-N of
the buffer 10 have a variable delay, so it would be reasonable to interpret the
data queues 10-1 to 10-N of the buffer 10 to have fixed delays." Final Act.
7. We agree. Data retransmission with a fixed delay is not beyond the
abilities of the skilled artisan in view of Takagi's predetermined period that
sets a fixed delay before discarding data that is being retransmitted. See
Takagi i-f 19 ("base station apparatus ... selects the data whose
retransmission is requested by the mobile station terminal ... from the data
queue 10-i ... and retransmits the selected data. While this retransmission
control is performed, the data stored in the data queue 10-i is not discarded
for a predetermined period'' (emphasis added)).
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Further, we are not persuaded by Appellants' argument that Takagi,
by teaching retransmission with higher error resistance only when the data
storage amount in queue exceeds a threshold, cannot retransmit with a fixed
delay at the higher error resistance. App. Br. 9-10, 12; Reply Br. 3.
Appellants' argument is premised upon the assertion that Takagi "operates
based on detecting the amount of errors in data queue" and "is free to use as
many retransmission cycles he wants, as long as the [detected] storage
amount is below the threshold." Reply Br. 3; App. Br. 10 (citing Takagi Fig.
3, step S2, i-fi-f 12, 13, 22, 26, 29). Appellants' argument is not persuasive.
The Examiner proposes setting a fixed delay between Takagi's
retransmission request (step SI in Takagi's Figure 3) and Takagi's
retransmission with higher error resistance (step S3 in Figure 3). Final Act.
7. Thus, an intermediate step confirming data storage amounts above a
threshold (step S2 and its YES branch in Takagi's Figure 3) is irrelevant to
the Examiner's proposed modification of Takagi. Ans. 14. Appellants also
have not provided sufficient evidence to show the Examiner's proposed
modification of Takagi would render Takagi inoperable or change Takagi's
principle of operation. App. Br. 12.
We further note Appellants' argument that "Takagi does not always
use the higher error resistance for retransmission" in contrast to Appellants'
retransmission control-that "always retransmit[ s] with a higher error
resistance"-is not commensurate with the scope of claim 1. App. Br. 9-10
(emphasis added). Claim 1 does not recite always retransmitting with the
higher (second) error resistance. Claim 1 also does not preclude a
retransmission packet with the lower (first) error resistance, in addition to
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the claimed retransmission packets encoded with the higher (second) error
resistance level. Ans. 13.
Appellants' arguments regarding issue (b) have not persuaded us the
Examiner erred in finding Takagi teaches and suggests retransmitting using
one or more retransmission packets encoded with a second, higher error
resistance level to transport data with a fixed delay as required by claim 1.
Therefore, we sustain the Examiner's rejection of independent claim 1.
Appellants have not presented additional arguments with respect to
the rejection of dependent claims 2-17. App. Br. 12. Accordingly, we
similarly sustain the Examiner's rejection of these claims.
With respect to claim 18, Appellants' arguments are substantially the
same as those provided for independent claim 1 with respect to issue (b ).
App. Br. 9-11, 13.
With respect to claim 18, Appellants further argue, regarding issue
( c ), that "Takagi does not maintain the order of the received packets" as
required by the claim. App. Br. 9-10, 13. Appellants recognize Takagi
sequentially outputs data from a buffer and performs retransmissions, but
contend Takagi's "combination of 'sequentially outputs' and retransmissions
does not, on its own, result[] in maintaining the original order." App. Br. 10.
The Examiner finds Takagi stores data packets in buffer queues 10-1
to 10-N in the order in which the packets were received. Ans. 13 (citing
Takagi Fig. 2); Final Act. 10 (citing Takagi i-f 22). The Examiner further
finds Takagi's controller sequentially outputs data from the buffer in the
order in which data was stored, suggesting that the order of retransmitted
data packets is maintained because "[Takagi's] controller [that] determines
the priority order and sequentially outputs the data would lead one of
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Application 12/689,359
ordinary skill[] in the art to reasonably interpret this as maintaining original
order" as claimed. Final Act. 1 O; see also Ans. 13.
We agree with the Examiner, and are not persuaded by Appellants'
arguments that "Takagi cannot maintain the order of the packets" because
"Takagi does not operate with a fixed delay." App. Br. 13. Appellants have
not persuasively rebutted the Examiner's specific findings regarding Takagi.
Takagi teaches data queues 10-1to10-N "stor[e] packet data to be
transmitted to the mobile station terminals" and, upon a retransmission
request, "the base station apparatus ... selects the data whose
retransmission is requested by the mobile station terminal ... from the data
queue 10-i corresponding to the mobile station terminal ... and retransmits
the selected data." See Takagi i-fi-f 19 (emphasis added), 21. The skilled
artisan would recognize that when Takagi requests data retransmission for a
stack of multiple (or all) packets in the queue, Takagi retransmits the entire
data stack, thereby maintaining the original order for the retransmitted
packets as required by claim 18. Ans. 12-13, 16.
Appellants' arguments regarding issues (b) and ( c) have not persuaded
us of error in the Examiner's rejection of claim 18. Therefore, we sustain
the Examiner's rejection of independent claim 18 and independent claims 30
and 37, for which Appellants provide the same arguments. App. Br. 9-11,
14--15.
Appellants have not presented additional arguments with respect to
the rejection of dependent claims 19-29, 31-36, and 38--45. App. Br. 13-
15. Accordingly, we similarly sustain the Examiner's rejection of these
claims.
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DECISION
The decision of the Examiner rejecting claims 1--45 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)(l )(iv).
AFFIRMED
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