Ex Parte Moore et al

Patent Trial and Appeal Board

Feb 27, 2013

10703186 (P.T.A.B. Feb. 27, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SEAN S. B. MOORE, HOWARD C. REITH,
and PAUL SPRAGUE
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Appeal 2010-008032
Application 10/703,186
Technology Center 2400
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Before ROBERT E. NAPPI, DEBRA K. STEPHENS, and
LYNNE E. PETTIGREW, Administrative Patent Judges.

PETTIGREW, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 3-6, 8, 9, and 11-16.1 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 Claims 2, 7, and 10 have been cancelled.
Appeal 2010-008032
Application 10/703,186

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STATEMENT OF THE CASE
Introduction
According to Appellants, the invention relates to a scheduled data
packet switching network having a guaranteed specified bandwidth for TCP
or TCP-friendly packet flows and having zero packet drops. Spec. ¶¶ 0023-
0026; Abstract.
Claim 1 is illustrative of the invention:
1. A scheduled data packet switching network
comprising:
a data packet switching network providing a data packet
flow path having a guaranteed specified bandwidth at the
granularity of a single data packet flow, wherein said data
packet switching network transports packet flows using TCP or
a TCP-friendly protocol; and
a schedulable buffer, disposed between a data packet
source and a first downstream device in the data packet flow
path, and wherein said packet switching network provides a
data packet switching network having zero packet drops.
Rejections on Appeal
The Examiner rejected claims 1, 3-6, 8, 9, and 11-13 under 35 U.S.C.
§ 103(a) as being unpatentable over Rogers (US 2001/0036181 A1; Nov. 1,
2001), Kawarai (US 2001/0033581 A1; Oct. 25, 2001), and Carter (US
6,538,989 B1; Mar. 25, 2003). Ans. 4-11.2

2 We refer throughout this opinion to the Appellants’ corrected Appeal Brief,
dated Jan. 14, 2010, and the Examiner’s Answer, dated Feb. 23, 2010.
Appeal 2010-008032
Application 10/703,186

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The Examiner rejected claims 14-16 under 35 U.S.C. § 103(a) as
being unpatentable over Rogers, Kawarai, Carter, and Rusu (US 6,141,323;
Oct. 31, 2000). Ans. 12-14.3
Issues on Appeal
1. Has the Examiner provided sufficient reasoning for combining
Carter with Rogers and Kawarai in rejecting claim 1 (App. Br. 9-11)?
2. Does Carter teach away from the claimed invention (App. Br.
12)?
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We disagree with Appellants’
conclusions. We adopt as our own the findings and reasoning set forth in the
Examiner’s Answer. We highlight and address specific findings and
arguments for emphasis.
The Examiner finds that the combination of Rogers and Kawarai
teaches a data packet switching network meeting all of the limitations of
claim 1 except “the data packet switching network having zero packet
drops.” Ans. 4-5. The Examiner finds that limitation was well-known in the
art, as evidenced by Carter, which teaches a data packet switching network
having zero packet drops. Ans. 5; Carter, col. 11, ll. 51-55. The Examiner
concludes it would have been obvious to a person having ordinary skill in

3 Appellants mistakenly state the grounds of rejection to be reviewed on
appeal as whether all pending claims are unpatentable over Rogers, Kawarai,
and Carter. App. Br. 8. Both the Examiner’s Final Rejection (July 7, 2010)
and the Examiner’s Answer state that claims 14-16 were rejected under
§ 103(a) as being unpatentable over Rogers, Kawarai, Carter, and Rusu.
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Application 10/703,186

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the art at the time of the invention to modify the network of Rogers and
Kawarai using the well-established teaching of Carter. Ans. 6.
Appellants contend that “[t]he Examiner cannot simply combine the
teachings of Carter with Rogers and Kawarai to come [up] with a TCP or
TCP friendly network which utilizes a schedulable buffer to provide a TCP
or TCP friendly network which has zero packets [sic] drops.” App. Br. 10.
We find this argument unpersuasive. The Examiner has provided sufficient
reasoning for combining the references. Ans. 5-6. Moreover, Appellants’
Specification indicates that for a network using TCP or a TCP-friendly
protocol and having a schedulable buffer (e.g., as taught by the combination
of Rogers and Kawarai), it was known in the art that packet drops can be
avoided by properly sizing the schedulable buffer. Spec. ¶¶ 0045, 0051,
0068. Thus, Appellants’ own Specification confirms that it would have been
obvious to an ordinarily skilled artisan to modify the network taught by the
combination of Rogers and Kawarai to have zero packet drops.
Appellants also contend that Carter teaches away from a TCP network
having zero packet drops, as recited in claim 1, because the network
disclosed in Carter is “in contrast to the present day TCP/IP protocol suite.”
App. Br. 12; Carter, col. 2, ll. 9-10. We are not persuaded by Appellants’
teaching away argument. The language quoted by Appellants merely
describes the network disclosed in Carter as an improvement over TCP,
without criticizing, discrediting, or otherwise discouraging the claimed
invention. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Furthermore, as noted by the Examiner, claim 1 recites a network using TCP
or a TCP-friendly protocol, and Carter appears to teach a packet switching
network that uses a TCP-friendly protocol, as that term is defined in
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Appellants’ Specification. Ans. 16-17; Spec. ¶ 0007. Thus, Carter does not
teach away from the claimed invention.
For the foregoing reasons, we sustain the rejection of claim 1 under 35
U.S.C. § 103(a) over Rogers, Kawarai, and Carter. Because Appellants have
not presented separate arguments for the remaining claims, we also sustain
the § 103(a) rejection of claims 3-6, 8, 9, and 11-13 over Rogers, Kawarai,
and Carter, as well as the § 103(a) rejection of claims 14-16 over Rogers,
Kawarai, Carter, and Rusu.
CONCLUSION
On the record before us, we conclude the Examiner did not err in
rejecting claims 1, 3-6, 8, 9, and 11-16 as being unpatentable under 35
U.S.C. § 103(a).
DECISION
The Examiner’s rejection of claims 1, 3-6, 8, 9, and 11-16 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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