Ex Parte Minami et al

Patent Trial and Appeal Board

Mar 27, 2013

10741978 (P.T.A.B. Mar. 27, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOHN SHIGETO MINAMI,
MICHAEL WARD JOHNSON,
ANDREW CURRID, and MRUDULA KANURI
____________

Appeal 2010-008645
Application 10/741,978
Technology Center 2400
____________

Before JOHN A. JEFFERY, DENISE M. POTHIER, and
DAVID C. MCKONE, Administrative Patent Judges.

POTHIER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 2, and 4-29. Claim 3 has been canceled. App. Br. 5.1
We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.

1 Throughout this opinion, we refer to the Appeal Brief (App. Br.) filed
November 30, 2009; (2) the Examiner’s Answer (Ans.) mailed March 5,
2010; and (3) the Reply Brief (Reply Br.) filed May 5, 2010.
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Invention
Appellants’ invention relates to data retransmission using an offload
engine. See Abstract. Claim 1 is reproduced below with the key disputed
limitations emphasized:
1. An offload engine system for performing the retransmission of
data in a network, comprising:
an offload engine in communication with system memory and a
network,
wherein the offload engine manages the retransmission of data
transmitted in the network;
wherein the offload engine transmits a status message to a
processor to initiate retrieval of the data to be retransmitted, and the
status message is transmitted based on a receipt of at least one
acknowledgement or lack thereof.

The Examiner relies on the following as evidence of unpatentability:
Boyd US 2004/0049601 A1 Mar. 11, 2004
(filed Sept. 5, 2002)
Sharp US 2004/0062245 A1 Apr. 1, 2004
(filed Apr. 22, 2003)
Elzur US 2008/0095182 A1 Apr. 24, 2008
(effectively filed Aug.
29, 2003)

The Rejection
Claims 1, 2, and 4-29 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Boyd, Elzur, and Sharp. Ans. 3-15.

THE CONTENTIONS
Regarding representative claim 1, the Examiner finds that Boyd
teaches many of the recited elements and additionally teaches retransmitting
data when a threshold of acknowledgements has been received. Ans. 3. The
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Examiner finds Boyd does not disclose the offload engine transmits a status
message to a processor to initiate retrieval of the data to be transmitted and
turns to Elzur and Sharp in combination with Boyd to cure this missing
limitation. Ans. 4, 16-19.
Appellants state Elzur teaches a Network Interface Card (NIC) may
update TCP state information (e.g., TCP segment numbers and
acknowledgement number) and pass the information back to a host
processor. App. Br. 11. Appellants argue that this information does not
support that the system must have a processor that receives a status message
in order to start retransmission due to the lack of acknowledgment. App.
Br. 11-12. Additionally, Appellants contend that a TCP offload that updates
segment-variant TCP connection variables in Elzur does not specifically
teach the offload engine transmits a status message to a processor to initiate
retrieval of data to be retransmitted. App. Br. 11-14. Appellants further
assert Sharp does not cure this alleged deficiency. App. Br. 14. Appellants
even further contend that Boyd discloses retransmitting lost packets based
on a last acknowledged sequence number but fails to teach the status
message is transmitted based on receipt of the acknowledgement or lack
thereof. App. Br. 15.

ISSUE
Under § 103, has the Examiner erred in rejecting claim 1 by finding
that Boyd, Elzur, and Sharp collectively would have taught or suggested an
offload engine that transmits a status message to a processor to initiate
retrieval of data to be retransmitted and the message is transmitted based on
a receipt of at least one acknowledgement or lack thereof?
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Application 10/741,978

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ANALYSIS
As a preliminary matter, Appellants argue that claim 26 was not
specifically addressed by the Examiner. Reply Br. 5. We disagree. See
Ans. 15 (referring to claims 1-25 when addressing claims 26-28).
Additionally, to the extent Appellants are asserting that the Examiner has not
discussed claim 26 in the Response to Argument section, claims 2 and 4-28
have not been argued separately from claim 1. App. Br. 10-15. Pursuant to
37 C.F.R. § 41.37(c)(1)(vii), we select claim 1as representative of this group.
The heart of this appeal involves determining whether the cited art
collectively teaches or suggests an offload engine transmits a status message
to a processor to initiate retrieval of the data to be retransmitted. The phrase,
“status message” has not been defined by Appellants. For example,
Appellants state the status message “may include a handle for a control
block for a socket, a sequence number, and/or a retransmit data size
associated with the retransmit request.” Spec. 4:17-19; see also
Spec. 10:1-13. Yet, Appellants also state the status message can be “other
desired information” (Spec. 10:13) and “may take any form capable of
requesting the retransmission of data stored in system memory.” Spec. 9:28-
29. Thus, a status message can broadly be construed to include many types
of formats and information even in light of the disclosure.
As the Examiner explains (Ans. 3, 16-17), Boyd teaches offloading
Transmission Control Protocol/Internet Protocol (TCP/IP) retransmission
support for data (e.g., lost packets) to an Internet Protocol Suite Offload
Engine (IPSOE). See ¶¶ 0112, 0127; Abstract. Such retransmission support
is invoked (e.g., initiated) based on a TCP/IP ACK (e.g., at least one
acknowledgement) arriving. See Ans. 3 (citing ¶ 0127). Boyd therefore
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teaches using an offload engine (e.g., IPSOE) to initiate retransmission
support. See id. Boyd further explains such initiated support includes the
engine updating information (e.g., Last Data Segment, Last Segment Offset,
last Send Word Queue Entity (SWQE) Index), which are fields that support
retransmission. See Ans. 16-17 (citing ¶ 0112); see also ¶ 0128; Figs. 11,
18. As broadly as construed, these types of information (e.g., last data
segment and SWQE behave like pointers) can be “status” messages. See
¶ 0128. The updating steps in Figure 18 are repeated until a given criteria is
met and then the IPSOE knows from where retransmission should start and
will enter retransmit mode. ¶ 0129. Contrary to Appellants’ assertion (App.
Br. 14-15; Reply Br. 7), these passages in Boyd at minimum suggest various
information are updated, at an initial step prior to obtaining and
retransmitting data, based on receipt of an acknowledgement.
However, Appellants assert that Boyd does not teach the status
message is transmitted. App. Br. 14-15; Reply Br. 6-9. Whether or not the
updating process in Boyd can be considered “transmitting,” the Examiner
admits Boyd does not explicitly disclose transmitting a status message to a
processor and relies on two additional references, in combination with Boyd,
to teach this recitation. Ans. 3-4. Attacking Boyd, Elzur, or Sharp therefore
individually (App. Br. 10-15) does not show nonobviousness. See In re
Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Specifically, the Examiner refers to Elzur to teach transmitting a
status message to a processor as part of the offload functions of the TCP/IP
Offload Engine (TOE) and to manage a TCP connection. Ans. 4, 17-19.
The Examiner explains that Elzur teaches the NIC includes the TOE’s
offloading functions, which passes updated information (e.g., TCP segment-
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variant variables) to a host processor. See Ans. 17-18 (citing to ¶¶ 0015,
0017, 0031, 0041); see also Abstract; ¶ 0026, 0028. Additionally, Figure 1
in Elzur shows offload communications are achieved between the host and
TOE and a host coupled to the TOE, not a NIC. See ¶¶ 0022, 0030-31;
Fig. 1. As such, Appellants’ emphasis on the NIC rather than an offload
engine transmitting updated information is unpersuasive. App. Br. 10-11;
Reply Br. 2-3.
Also, Appellants’ contention that Elzur’s updated information passed
to the processor is only generally used and the Examiner’s purported taking
of Official Notice is misplaced. See App. Br. 11-14; Reply
Br. 2-5, 8. The Examiner’s rejection of claim 1 is based on the collective
teachings of Boyd, Elzur, and Sharp. See Ans. 3-4. Elzur teaches
segment-variant variables updated during an offload function are sent to the
host for further processing. ¶¶ 0032, 0041-42. These segment-variant
variables include many examples, such as a sequence number. ¶¶ 0032,
0035. However, given that the described variables are non-limited in Elzur
(see id.), we find that Appellants have not sufficiently explained (see App.
Br. 10-15) why Boyd’s fields (e.g., Last Data Segment, Last Segment Offset,
last SWQE Index), which relate to segments and vary, could not equally be
considered segment-variant variables that, based on Elzur’s teaching, are
updated and transmitted to the host processor as a “status message” as part
of the offload engine’s functions for further processing. Moreover, Sharp
provides a similar teaching of transmitting information to a processor (¶
0017) and is considered cumulative.
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For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of independent claim 1 and claims 2 and 4-28 not separately
argued with particularity.

Claim 29
Claim 29 indirectly depends from claim 1 and further recites the
offload engine transmits the status message to the processor using a host
driver associated with the processor and the host driver takes an oldest
buffer from a buffer list to include in the retransmit instruction message.
The Examiner relies on Elzur’s paragraph 35 to teach this limitation and the
NIC is mapped to the host driver that takes the oldest buffer, which is further
mapped to the buffer list that contains a first “un-acked” data sequence, and
sends it to the host. Ans. 15, 20. Among other things, Appellants contend
that Elzur fails to teach the recited host driver that is used to take an oldest
buffer from a buffer list to include in the retransmit instruction message.
App. Br. 16.

ISSUE
Under § 103, has the Examiner erred in rejecting claim 29 by finding
that Boyd, Elzur, and Sharp collectively would have taught or suggested the
host driver takes an oldest buffer from a buffer list to include in the
retransmit instruction message?

ANALYSIS
Based on the evidence of record, we find error in the Examiner’s
rejection. Elzur teaches a segment-variant variable may include a sequence
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number for first un-acked data (SND-UNA). ¶ 0035. The Examiner finds
this sequence number is an oldest buffer from a buffer list. While this
information may represent data (see id.), we fail to see how this data is a
buffer (i.e., a portion of memory where data is held).
Even assuming that some segment-variant variable discussed in Elzur
could be considered “an oldest buffer” (see id.), we find Elzur further fails to
teach the host driver takes the oldest buffer to include in the retransmit
instruction message. Claim 8, from which claim 29 depends, recites the
processor transmits a retransmit instruction message to the offload engine,
and claim 29 further requires that the host driver takes the oldest buffer to
include in the retransmit instruction message. Elzur teaches that the updated
segment-variant variable information, such as a sequence number for first
un-acked data, is sent to the host processor. See ¶¶ 0026, 0028, 0035, 0041-
42. Elzur thus at best teaches the mapped old buffer information is within
the status message, as explained above, that the offload engine transmits to
the processor and not in the retransmit instruction message from the
processor to the offline engine as required by claim 29.
For the foregoing reasons, Appellants have persuaded us of error in
the rejection of claim 29.2

CONCLUSION
The Examiner did not err in rejecting claims 1, 2, and 4-28 under
§ 103, but erred in rejecting claim 29.

2 If prosecution should continue, the Examiner should consider whether
dependent claim 29 and the other claims (e.g., claim 2), from which claim 29
depend, are definite. See IPXL Holdings, LLC v. Amazon.com, Inc., 430
F.3d 1377, 1383-84 (Fed. Cir. 2005).
Appeal 2010-008645
Application 10/741,978

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DECISION
The Examiner’s decision rejecting claims 1, 2, and 4-29 is
affirmed-in-part.
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-IN-PART

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