Ex Parte PEETERS et al

Patent Trials and Appeals Board

Sep 24, 2018

12463935 - (D) (P.T.A.B. Sep. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/463,935 05/11/2009 Miguel PEETERS
49579 7590 09/26/2018
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK A VENUE, N.W.
WASHINGTON, DC 20005
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.
1875.5700002 1580
EXAMINER
LEVITAN, DMITRY
ART UNIT PAPER NUMBER
2461
NOTIFICATION DATE DELIVERY MODE
09/26/2018 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):
e-office@stemekessler.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MIGUEL PEETERS and JEAN-PHILIPPE CORNIL
Appeal2017-001615
Application 12/463,935
Technology Center 2400
Before ELENI MANTIS MERCADER, CARL W. WHITEHEAD JR
and JOHN P. PINKERTON Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Appellants are appealing the final rejection of claims 1-16, 25, 26,
and 28-342 under 35 U.S.C. § 134(a). Appeal Brief 9. We have jurisdiction
under 35 U.S.C. § 6(b) (2012).
We affirm-in-part.
1 Appellants waived the oral hearing. July 11, 2018.
2 Both the Examiner and Appellants indicate that claims 2, 6, 9, 11-14 and
31-34 are pending in the instant application however, there is no rejection
on the record addressing the merits of the claims. See Appeal Brief 14;
PTOL-326, mailed October 7, 2015.
Appeal2017-001615
Application 12/463,935
Introduction
"The present invention relates to a method for transmitting data
packets of at least two different priority levels via one or more bearer
channels, and to a packet transport layer adapted for transmitting data
packets via one or more bearer channels." Specification, paragraph 2.
Illustrative Claim
1. A method for transmitting frames of at least two
different
priority levels via one or more bearer channels,
compnsmg:
fragmenting a low priority frame into a plurality of low
priority code words, each low priority code word in the plurality
of low priority code words comprising a sync code from among
a plurality of sync codes, the sync code being configured to
indicate a priority level of the low priority frame;
mapping a priority bit of the low priority frame to at least
one of the plurality of sync codes; and
transmitting the plurality of low priority code words via
the one or more bearer channels after the fragmenting and prior
to transmitting a high priority code word,
wherein in case the high priority code word corresponding
to a high priority frame arrives during transmission of the
plurality of low priority code words, the following is performed:
interrupting the transmission of the plurality of low
priority code words,
transmitting the high priority code word corresponding to
the high priority frame,
and resuming the transmission of the plurality of low
priority code words via the one or more bearer channels after the
transmission of the high priority code word.
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Application 12/463,935
Rejections on Appea/3
Claim 1 stands rejected on the ground of nonstatutory double
patenting as being unpatentable over claim 1 of US Patent 8,027,344 B2;
issued September 27, 2011. Answer 2-3.
Claims 1, 3-5, 7, 8, 10, 28 and 30 stand rejected under pre-AIA 35
U.S.C. § 102(e) as being anticipated by Shalom (US Patent 6,876,669 B2;
issued April 5, 2005). Answer 4---6.
Claims 25 and 29 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Shalom. Answer 6-7.
Claims 15 and 16 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Shalom. Answer 7.
ANALYSIS
Rather than reiterate the arguments of Appellants and the Examiner,
we refer to the Appeal Brief (filed April 5, 2016), the Reply Brief
(November 7, 2016), the Answer (mailed September 6, 2016) and the Final
Action ( mailed October 7, 2015) for the respective details.
3 Appellants do not address the merits of the nonstatutory double patenting
rejection of claim 1. See Answer 2-3. We summarily affirm the rejection.
See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) ("If
an appellant fails to present arguments on a particular issue - or, more
broadly, on a particular rejection - the Board will not, as a general matter,
unilaterally review those uncontested aspects of the rejection. See, e.g.,
Hyatt v. Dudas, 551 F.3d 1307, 1313-14 (Fed. Cir. 2008) (the Board may
treat arguments appellant failed to make for a given ground of rejection as
waived)").
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Appeal2017-001615
Application 12/463,935
35 U.S.C. § 102 Rejection
We first note that Appellants define sync code as "compris[ing] at
least one priority bit indicating a respective priority level of a corresponding
data packet." Specification, paragraph 10.
Appellants contend Shalom fails to teach "mapping a priority bit of
the low priority frame to at least one of the plurality of sync codes" as
recited in claim 1 and similarly recited in independent claim 28. Appeal
Brief 9. Appellants further contend, "The Final Office Action alleges that
this 'Interruption level (I)' of Shalom discloses Appellants' 'priority bit of
the low priority frame' as recited by independent claims 1 and 28. (Final
Office Action, p. 4 ('the Interruption level (I) indicating the fragment
priority is mapped/included in the each fragment').)" Appeal Brief 10. We
agree the Examiner initially indicated that the mapping of the priority bit of
the low priority frame was taught by Shalom's Interruption level (I) as
described in column 5, lines 40-65. See Final Action 4. However, the
Examiner's findings were modified on page 4 of the Answer:
Fragmenter 58 adds/maps/assigns priority levels to the each of
the fragments/ code words, as described on 5 :40-65, inherently
using corresponding bits for the priority assignment/mapping to
the fragments headers/sync codes, because the disclosed system
is digital and all information is expressed in bits.
The Examiner further finds, "Appellant's arguments directed to
'mapping' of the priority level into the sync codes are incorrect, because the
claim limitations, directed to performing priority mapping, are interpreted as
performing the priority assignment or scheduling priority levels or adding
priority levels to the words/fragments headers as described on 5:39--51."
Answer 8.
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Appeal2017-001615
Application 12/463,935
Appellants contend the Examiner's findings on page 8 of the Answer
are incorrect because:
This mapping of the "priority bit of the low priority frame"
cannot be reasonably interpreted "as performing the priority
assignment or scheduling priority levels" in light of the
Specification. As described in the Specification, this mapping
relates to replacing respective portions of the "at least one of the
plurality of sync codes" with the "priority bit of the low priority
frame."
Reply Brief 5.
Appellants provide a non-limiting example4 from paragraph 80 of the
Specification; however, we are not persuaded of Examiner error because the
claims merely require "mapping a priority bit of the low priority frame to at
least one of the plurality of sync codes." See Reply Brief 5-6.
Appellants argue:
Table I of Shalom clearly illustrates that Packet B has a priority
of "I" and packet F has a priority of "VI" which is greater than
4
"[ A ]lthough the specification often describes very specific embodiments of
the invention, we have repeatedly warned against confining the claims to
those embodiments. See, e.g., Nazomi Communications. Inc. v. ARM
Holdings. PLC. 403 F.3d 1364, 1369 (Fed.Cir.2005) (claims may embrace
"different subject matter than is illustrated in the specific embodiments in the
specification"); Liebel-Flarsheim. 358 F.3d at 906-08; Teleflex. 299 F.3d at
1327; SRI Int'! v. Matsushita Elec. Corp. of Am .• 775 F.2d 1107, 1121
(Fed.Cir.1985). In particular, we have expressly rejected the contention that if
a patent describes only a single embodiment, the claims of the patent must be
construed as being limited to that embodiment. Gemstar-TV Guide. 3 83 F .3d
at 1366. That is not just because section 112 of the Patent Act requires that
the claims themselves set forth the limits of the patent grant, but also because
persons of ordinary skill in the art rarely would confine their definitions of
terms to the exact representations depicted in the embodiments." Phillips v.
AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005).
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Appeal2017-001615
Application 12/463,935
the priority of "I". Table I of Shalom also illustrates that Packet
B has a "Interruption level (I)" of 1 and Packet F has a
"Interruption level (I)" of 0. If the "Interruption level (I)" of
Shalom discloses "priority levels" as alleged in the Examiner's
Answer, then the Packet B having an "Interruption level (I)" of
1 would be higher priority than Packet F having an "Interruption
level (I)" of 0. This is not the case. Table I clearly illustrates that
the priority of Packet B, namely priority I, is lower than the
priority of Packet F, namely priority VI.
Reply Brief 8.
As we noted above "the Examiner initially indicated that the mapping
of the priority bit of the low priority frame was taught by Shalom's
Interruption level (I)," but the Examiner modified the findings to rely upon
Shalom's "Fragmenter 58 adds/maps/assigns priority levels to the each of
the fragments/code words, as described on 5:40-65." See Final Action 4;
Answer 4. Accordingly we do not find Appellants' argument persuasive
because Shalom discloses assigning priority levels to different data
fragments or bits. Accordingly, we sustain the Examiner's anticipation
rejection of both independent claims 1 and 28 argued together, as well as
dependent claims 4, 5, 7, 8, 10, 15, 16, 28 and 30 not separately argued. 5
See Appeal Brief 12; Reply Brief 6-7.
Appellants argue that Shalom fails to teach "wherein the sync code
comprises: at least one priority bit indicating the priority level" as required
by claim 3. Appeal Brief 12. Appellants argue, "At most Shalom discloses
adding header having an 'Interruption level (I)'. (Shalom, 5:47---65.) But, as
discussed above, the Interruption level (I)' is not a 'priority bit'." Appeal
5 Claims 15 and 16, dependent upon claim 1, were rejected under 35 U.S.C.
§ 103(a) however the claims fall with claim 1 because merits of the rejection
was not argued separately by Appellants. See Appeal Brief 14.
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Application 12/463,935
Brief 12. Shalom's headers are employed to assist in reassembling the
fragments in proper order and to detect lost fragments after the transmission.
Shalom column 5, lines 48-51. We do not find Appellants' argument
persuasive because as noted above, the Examiner adjusted the findings in the
Answer and no longer relies upon Shalom's "Interruption level" to teach the
claimed priority bit. See Answer 5. Shalom discloses, "Fragmenter 58
generates fragments of packets with different transmission priority levels."
Shalom column 5, lines 40-41. Accordingly, we sustain the Examiner's
anticipation rejection of dependent claim 3.
35 U.S.C. § 103 Rejection
The Examiner finds, "Shalom does not teach routing the received
packets with different priorities to the corresponding queues with different
priority levels. Official notice is taken that using different queues for high
priority voice and low priority data/ email packets is well known in the art."
Answer 6. Appellants contend the obviousness rejection of claim 25 is
improper because the Examiner failed to articulate reasoning for establishing
a prima facie case of obviousness by employing Official Notice. Appeal
Brief 13-14 (citations omitted). We find Appellants' arguments persuasive.
The Examiner failed to provide evidentiary support for the Official Notice
because it has not been demonstrated that the missing subject matter of
claim 25 is capable of such instant and unquestionable demonstration as to
defy dispute. See In re Ahlert, 424 F.2d 1088, 1091 (CCPA 1970).
Accordingly, we reverse the Examiner's obviousness rejection of
independent claim 25 and dependent claim 29.
DECISION
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Appeal2017-001615
Application 12/463,935
The Examiner's double patenting rejection of claim 1 is sustained.
The Examiner's anticipation rejection of claims 1, 3-5, 7, 8, 10, 28
and 30 is sustained.
The Examiner's obviousness rejection of claims 25 and 29 is reversed.
The Examiner's obviousness rejection of claims 15 and 16 is
sustained.
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 ). See 37 C.F.R.
§ 1.136(a)(l)(v).
AFFIRMED-IN-PART
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