Ex Parte Pelletier et al

Patent Trial and Appeal Board

Aug 1, 2016

13577457 (P.T.A.B. Aug. 1, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/577,457 08/07/2012
26096 7590 08/03/2016
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
FIRST NAMED INVENTOR
James Pelletier
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.
67183-024 PUSl;
13525-US
CONFIRMATION NO.
1098
EXAMINER
VALLECILLO, KYLE
ART UNIT PAPER NUMBER
2112
NOTIFICATION DATE DELIVERY MODE
08/03/2016 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):
ptodocket@cgolaw.com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES PELLETIER and MUHIDIN A. LELIC
Appeal2015-003678
Application 13/577,457
Technology Center 2100
Before NATHAN A. ENGELS, SCOTT B. HOWARD, and
SCOTT E. BAIN, Administrative Patent Judges.
BAIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claims 1-25, which constitute all claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
Appellants' invention relates to secure communication with a safety
device, such as a flame detector that monitors output of a burner. Spec. 1.
Claim 1, which is illustrative of the invention, reads as follows:
1 Appellants identify UTC Fire & Security Corporation and United
Technologies Corporation as the real parties in interest. App. Br. 1.
Appeal2015-003678
Application 13/577,457
1. A method of communicating with a safety device,
comprising the steps of:
obtaining a key from the safety device that is useable for
only a single communication session with the safety device;
sending a plurality of messages to the safety device during
the single communication session, each of the plurality of
messages including
the obtained key,
an identifier of the source of the message,
an identifier of the safety device,
a sequence number indicating how many of the plurality
of messages preceded the message during the communication
session,
a command for the safety device, and
at least one cyclic redundancy code ( CRC) based on
content of the message; and
sending a next one of the plurality of messages only after
confirming that the safety device has accepted a most recently
sent one of the plurality of messages.
App. Br. 9 (emphasis and formatting added).
THE REJECTIONS ON APPEAL
Claims 1, 4-14, 17-20, and 22-25 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Walker et al. (US 2007/0097934 Al; pub.
May 3, 2007) ("Walker") and Jon Postel (Transmission Control Protocol,
IETF RFC 793, Sept. 1981) ("Postel"). Final Act. 6-21.
Claims 2, 3, 15, 16, and 21 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Walker, Postel, and Modbus Messaging on TCP/IP:
Implementation Guide, Modbus.org, May 8, 2002 ("Guide"). Final Act. 21-
24.
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Application 13/577,457
ANALYSIS
We have reviewed the Examiner's rejections in light of the arguments
raised in the Briefs, on the record before us. For the reasons set forth below,
we do not sustain the Examiner's rejections.
Claim 1
Appellants argue the Examiner erred in at least three respects in
finding the cited prior art teaches the elements of claim 1. App. Br. 4---6;
Reply 1--4. Specifically, Appellants argue the Examiner erred in finding
Walker teaches "each of the plurality of messages including the obtained
key;" in finding Postel teaches "a sequence number indicating how many of
the plurality of messages preceded the message during the communication
session;" and in finding Postel teaches "sending a next one of the plurality of
messages only after confirming that the safety device has accepted a most
recently sent one of the plurality of messages." App. Br. 4---6; Ans. 2-15.
Appellants contend the Examiner's findings rely on uncited (albeit detailed)
technical explanations not in the references of record, and that the portions
of the references that are cited by the Examiner do not include the alleged
teachings. App. Br. 4---6; Reply Br. 1--4. Appellants also argue the
Examiner lacked sufficient rationale to combine the references. App. Br. 6-
7.
Appellants have persuaded us the Examiner erred, on the record
before us, in finding Postel teaches "a sequence number indicating how
many of the plurality of messages preceded the message during the
communication session." App. Br. 5. The Examiner finds this limitation in
Postel, citing to page 15 (the discussion of which continues to page 16).
Ans. 1 O; Final Act. 7. Page 15 of Postel describes a "header format" for the
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Appeal2015-003678
Application 13/577,457
TCP protocol. Postel 15. The description includes Figure 3, which is
reproduced below.
-~ -- -:- ........ -:- -- -:-----:- -- ~-----~ -- -:- ... ..; ... -:- -- -:---.-:- -- ~-----~ ·- {-·---{ ... -:- -- -; ..... :- -- ~-----:- ·- {-·---{ ·--:-- -- -; ..... :- -- :-----:- -- {-·---~ ·- -:- ... ;.
~···-~---~ .. : .... ~--~·-··~--~····'··~···: .... ~ .. : .... ~ .. ~ .... ~ .. ~ ... : ... ~ .. : .... ~ .. ~ .... ~ .. ~ ... : ... ~ .. : .... ~ .. ~···-~·-~···'···~
~--+·---~----+--·3----+--~---~--+·---~----+--·3·---+--~---~--~----~----+--·~----+--~---+--~----~--+--·~----+--3----+--~----~--+·---~-
~-- -~ .. {· . ·} . ,. ···} . ~-- -~ . -: . ·} ···} . ~-- -t .. -:· ·--~ . {· ···} . , .. ·t . -: ·--~ . {· ·} . , .. ·t . ~ .. ~ .......
-~ ···,]. --: ··} -~ ··-~ . ..; ---.~ --:---;·-+·-~ ··-~ -~----+---: --~·-·+ -~ ···} -~ ---,~ ·{ --~·--+ -·-} -~-·-·-~ -~
Figure 3 illustrates the TCP header format. The format is shown as
including a "Sequence Number," which Postel describes is "32 bits" and is
the "sequence number of the first data octet in this segment (except when
SYN is present). If SYN is present the sequence number is the initial
sequence number (ISN) and the first data octet is ISN+ 1." Postel 16. Figure
3 also includes an "Acknowledgement Number," also 32 bits. Id. at 15.
Postel states, "[i]f the ACK control bit is set[,] this field contains the value
of the next sequence number the sender of the segment is expecting to
receive. Once a connection is established[,] this is always sent." Id. at 16.
The Examiner asserts, Ans. 10-11, that page 15 of Postel teaches a
"three-way handshake" between devices in which the "Sequence Number,"
shown in Figure 3, is "used to track the order of packets and to ensure that
no packets are lost in transmission." The Examiner explains, after an initial
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Appeal2015-003678
Application 13/577,457
sequence number is assigned, each successful transmission results "in an
ACK or acknowledgement being communicated back to the transmitter,
which results in incrementing the next sequence number being sent, by one
value." Ans. 11. The Examiner, however, does not indicate where in Postel
this teaching is found, and we do not find it in the record before us.
In the Answer, the Examiner suggests the "three-way handshake" and
sequencing details thereof are a known part of the TCP protocol, and cites an
entry in Wikipedia in support thereof. Ans. 11. The rejection on appeal,
however, does not include the Wikipedia entry. Final Act. 6; In re Hoch,
428 F.2d 1341, 1342 n.3 (CCPA 1970) (reference relied upon to support a
rejection should be "positively include[d] ... in the statement of the
rejection."). Moreover, it is not clear from the record and the Examiner's
explanation, Ans. 11, how the Wikipedia entry teaches a sequence number
"indicating how many of the plurality of messages preceded the message
during the cornrnunication session," as the claim requires. App. Br. 9
(emphasis added); see also Reply Br. 3 (arguing that sequentially
transmitting packets, as argued by the Examiner, Ans. 11, is not the same as
indicating the number of messages that preceded a current message, as
claimed).
For the foregoing reasons, we cannot sustain the Examiner's rejection
of claim 1 under 35 U.S.C. § 103(a) as unpatentable over Walker and
Postel.2
2 We, therefore, do not reach Appellants' remaining arguments with respect
to claim 1. In the event of further prosecution, however, we note the record
is unclear how the Examiner is applying the teachings of the prior art (of
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Application 13/577,457
Remaining Claims
Independent claims 11 and 19 recite limitations commensurate in
scope to the disputed limitations discussed above, are subject to the same
rejection, and are argued together with claim 1. See 37 C.F.R.
§ 41.37(c)(iv). For the reasons set forth above, we do not sustain the
rejection of claims 11 and 19 under 35 U.S.C. § 103(a) as unpatentable over
Walker and Postel. The remaining claims each depend from claims 1, 11, or
19. Because we do not sustain the rejection of the base claims, we also do
not sustain the rejections of the dependent claims.
DECISION
The Examiner's rejections of claims 1-25 are reversed.
REVERSED
record) in finding "sending a next one of the plurality of messages only after
confirming that the device has accepted a most recently sent one of the
plurality of messages." Ans. 14.
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