Ex Parte Phadnis et al

Board of Patent Appeals and Interferences

Oct 21, 2009

09785884 (B.P.A.I. Oct. 21, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte AMIT PHADNIS, PANKAJ VYAS, and
CHANDRAHASA CHAKRAVARTHI PULLAGURA
____________

Appeal 2008-005300
Application 09/785,884
Technology Center 2400
____________

Decided: October 21, 2009
____________

Before LANCE LEONARD BARRY, HOWARD B. BLANKENSHIP, and
THU A. DANG, Administrative Patent Judges.

BARRY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Patent Examiner rejected claims 1-50, 59, 60, and 67-85. The
Appellants appeal therefrom under 35 U.S.C. § 134(a). We have jurisdiction
under 35 U.S.C. § 6(b).

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INVENTION
The invention at issue on appeal "minimizes the overhead on a
communication network caused by processing keep-alive status messages by
aggregating several such messages into a single packet ('aggregated request
packet') . . . and transmitting the single packet on the communication
network." (Spec. 4.) "A reply message ("aggregated reply packet") received
on the communication network may also contain the status of multiple
sessions, thereby further reducing the data overhead." (Id.)

ILLUSTRATIVE CLAIM
1. A method of processing a plurality of keep-alive
messages generated by a corresponding plurality of end
systems, each of said plurality of keep-alive messages being
designed to request the status of a corresponding point to point
(PPP) session implemented on a communication network, said
method comprising:
receiving in an aggregation device said plurality of keep-
alive messages;
generating in said aggregation device an aggregated
request packet which includes data indicating that the status of
said PPP sessions is requested; and
sending said aggregated request packet to a peer
aggregation device.

PRIOR ART
Pereira US 5,781,726 Jul. 14, 1998
Chao US 5,964,837 Oct. 12, 1999
Ketcham US 6,721,334 B1 Apr. 13, 2004

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Simpson, (RFC I66I: Point-to-Point Protocol, July 1994).
Rosenberg et al., (An RTP Payload Format for User Multiplexing,
May 1998), available at http://tools.ietf.org/html/draft-ietf-avt-
aggregation-00.txt

REJECTIONS
Claims 1-4, 8-10,14-16, 21-23, 25, 29, 30, 35-40, 42, 46-50, 59, 60,
69, 72, 75, and 78-85 stand rejected under 35 U.S.C. § 103(a) over
Ketcham and Pereira.

Claims 5-7, 11, 13, 17-19, 24, 26, 28, 31, 32, 34, 41,43, and 45 stand
rejected under 35 U.S.C. § 103(a) over Ketcham, Pereira, and Chao.

Claims 12, 20, 27, 33, and 44 stand rejected under 35 U.S.C. § 103(a)
over Ketcham, Pereira, Chao, and Simpson.

Claims 67, 68, 70, 71, 73, 74, 76, and 77 stand rejected under
35 U.S.C. § 103(a) over Ketcham, Pereira, and Rosenberg.

CLAIMS 1, 8, 9, 15, 16, 21, 37, 59, 69, 75, AND 78
The Appellants argue claims 1, 15, 21, and 37 as a group. (App. Br. 12.)
Rather than arguing the rejection of claims 8, 9, 16, 59, 69, 75, or 78
separately, they rely on their argument for the group. (Id. 25.) Therefore,
claims 8, 9, 15, 16, 21, 37, 59, 69, 75, and 78 stand or fall with claim 1. See
37 C.F.R. § 41.37(c)(1)(vii).

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ISSUE
The Examiner concludes that "[i]t would have been obvious to one of
ordinary skill in the art at the time of the applicant's invention to modify the
system of Ketcham by adding the ability to use keep-alive messages as the
data packets as provided by Pereira." (Ans. 4.) The Appellants make the
following argument.
As the technique of Pereira is an alternative technique to the
claimed invention, it would lead away from the claimed
invention. The technique of Pereira is an alternative technique
to a similar problem as in claim 1 since Pereira transmits
polling traffic related to a single session while blocking the
polling traffic related to other sessions to the same destination.
(App. Br. 15.) Therefore, the issue before us is whether the Appellants
have shown error in the Examiner's finding that one of ordinary skill in the
art would have had reason to modify Ketcham by adding the ability to use
keep-alive messages as taught by Pereira.

LAW
"What the prior art teaches and whether it teaches toward or away
from the claimed invention . . . is a determination of fact." Para-Ordnance
Mfg., Inc. v. SGS Importers Int'l, Inc., 73 F.3d 1085, 1088 (Fed. Cir. 1995).
"The prior art’s mere disclosure of more than one alternative does not
constitute a teaching away from any of these alternative because such
disclosure does not criticize, discredit, or otherwise discourage the solution
claimed . . ." In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).

FINDING OF FACT (FF)
1. Pereira includes the following disclosure.
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When two devices are physically connected via
communications media, such as a local area network LAN or a
wide area network WAN, the devices may use a connection
oriented protocol such as specified in IEEE 802.2 Type 2
standards, to ensure a link layer reliable transfer of information
from one device to another. . . . When the devices have no
information to transfer, they typically continue to send polling
traffic, such as the receive ready RR and receiver not ready
protocol data units of the 802.2 Type 2 standard, between each
other to keep the connection up and maintain data transfer ready
state. In this manner, the devices are ready to transfer data
immediately when required, without waiting for the completion
of a set up process to get into a data transfer state before
transferring information data.
(Col. 1, ll. 14-33.)

ANALYSIS
Pereira discloses that keep-alive messages ensure devices are ready to
transfer data immediately when required. (FF 1.) Although the Appellants
may be correct that Pereira also describes a technique for transmitting
polling traffic related to a single session while blocking polling traffic
related to other sessions to the same destination, the Examiner does not rely
on the reference for this technique. He relies on Pereira merely for its
teaching of keep-alive messages. Furthermore, we disagree with the
Appellants that the reference's mere disclosure of "an alternative technique"
(Appeal Br. 15) constitutes a teaching away from any of the claimed
invention because such disclosure does not criticize, discredit, or otherwise
discourage the invention.

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CONCLUSION
Based on the aforementioned facts and analysis, we conclude that the
Appellants have shown no error in the Examiner's finding that one of
ordinary skill in the art would have had reason to modify Ketcham by adding
the ability to use keep-alive messages as taught by Pereira.

CLAIMS 2, 3, 22, 38, 39, AND 47-50
The Appellants argue claims 2, 38, and 47 as a group. (App. Br. 16.)
Rather than arguing the rejection of claims 3, 22, 39, or 47-50 separately,
they rely on their argument for the group. (Id. 17, 25.) Therefore, claims 3,
22, 38, 39, and 47-50 stand or fall with claim 2.

ISSUE
The Examiner finds that "one would have reasonably expected that
combining Ketcham's teaching of waiting a certain time period for
aggregating packets and Pereira's teaching of waiting a certain time period to
receive a first reply to a keep-alive message would be successful." (Ans. 32-
33.) The Appellants make the following argument.
[T]he chances of router 314 of Ketcham including in an
aggregated reply packet the status of the same set of sessions as
those requested in an aggregated request packet, is random.
Therefore, the probability of success of the combination
of Ketcham and Pereira operating as in claim 2 is random.
(App. Br. 17.) Therefore, the issue before us is whether the Appellants have
shown that there was no reasonable expectation of success in combining
teachings of Ketcham and Pereira.

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LAW
The presence or absence of a reason "to combine references in an
obviousness determination is a pure question of fact." In re Gartside, 203
F.3d 1305, 1316 (Fed. Cir. 2000). "The combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results." KSR Int'l v. Teleflex Inc., 550 U.S. 398, 416
(2007). "Obviousness does not require absolute predictability. . . Only a
reasonable expectation that the beneficial result will be achieved is
necessary to show obviousness." In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986) (internal citations omitted).

ANALYSIS
We agree with the Examiner that the "Appellant's [sic] argument
confuses the standards for a reasonable expectation of success." (Answer
32.) "[T]he test is not centered on whether success would be random but
whether success could be reasonably predicted." (Id.)

Here, we find no support for the contention that the Examiner’s
proffered combination of Ketcham and Pereira would not have a reasonable
expectation of success or that the Examiner has failed to establish such a
reasonable expectation of success in formulating the rejection. In contrast,
we find the predictable use of familiar prior art elements according to their
established functions would have conveyed a reasonable expectation of
success to a person of ordinary skill at the time of the invention.

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CONCLUSION
Based on the aforementioned facts and analysis, we conclude that the
Appellants have not shown that there was no reasonable expectation of
success in combining teachings of Ketcham and Pereira.

CLAIMS 4, 10, 11, 12-14, 23, 25, 26-36, 40, 42-46, 60, 72, AND 79-85
The Appellants argue claims 4, 23, and 40 as a first group (App. Br.
18); claims 10, 25, 30, and 42 as a second group (id. 23); claims 11, 26, 31,
and 43 as a third group (id. 24); and claims 79-85 as a fourth group (id. 22).
Rather than arguing the rejection of claims 12-14, 27-29, 32-36, 44-46, 60,
or 72 separately, they rely on their argument for the second group. (Id. 25.)
Therefore, claims 23 and 40 stand or fall with claim 4; claims 12-14, 25, 27-
30, 32-36, 42, and 44-46, 60, and 72 stand or fall with claim 10; claims 26,
31, and 43 stand or fall with claim 11; and claims 80-85 stand or fall with
claim 79.

ISSUE
Regarding claim 4, the Examiner makes the following findings.
Ketcham discloses sending response packets to terminals
that do not support aggregated packets. (Col. 3, 11. 14-20 and
col. 4, 11. 58-63). Combined with Pereira, the combination
teaches submitting keep alive reply messages to those terminals
that do not support aggregated packets. The keep alive reply
message is sent without the need of waiting for the aggregated
reply packet because the terminal does not support aggregated
packets.
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(Ans. 33.) The Appellants argue that "Pereira, column 5 lines 45-47 . . .
request polls, but is silent on when the responses are generated." (Appeal
Br. 18.)

Regarding claim 10, the Examiner finds that "examining said
aggregated request packet to determine that the status of said plurality of
point-to-point sessions is requested" is taught by "Ketcham, column 8,
lines 15-22, wherein the aggregated packet contains the poll requests as
disclosed by Pereira) . . . ." (Answer 6.) The Appellants argue that "[t]here
is no disclosure or suggestion in Ketcham that the content of a received
aggregated request packet is examined to determine the specific point-o-
point [sic] sessions, for which the status is requested." (Appeal Br. 24.)

Regarding claim 11, the Examiner finds that "Chao teaches retrieving
local connectivity information for the connections from a node; the
connectivity information reads on the status information of the session.
(Col. 5, 11. 52-58)." (Answer 36.) The Appellants "believe[ ] that in the
Examiner's construction of the combination of Ketcham and Pereira,
router 314 would rely on status packets received from external to router
314." (Appeal Br. 25.)

Regarding claim 79, the Examiner finds that "said receiving, said
generating and said sending are performed in an aggregation device
implemented as a single device (Ketcham, figure 4, item 308)."
(Answer 16.) The Appellants argue "that the art of record, even in
combination does not teach or reasonably suggest the feature of '. . . wherein
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said receiving, said generating and said sending are performed in an
aggregation device implemented as a single device . . . .'" (Appeal Br. 22-
23.)

Therefore, the issue before us is whether the Appellants have shown
error in the Examiner's findings regarding claims 4, 10, 11, or 79.

LAW
"The test for obviousness is what the combined teachings of the
references would have suggested to one of ordinary skill in the art." In re
Young, 927 F.2d 588, 591 (Fed. Cir. 1991) (citing In re Keller, 642 F.2d
413, 425 (CCPA 1981)). "Non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references." In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986) (citing Keller, 642 F.2d at 425). In determining
obviousness, furthermore, a reference "must be read, not in isolation, but for
what it fairly teaches in combination with the prior art as a whole." Id.

"It is not the function of [the U.S. Court of Appeals for the Federal
Circuit] to examine the claims in greater detail than argued by an appellant,
looking for nonobvious distinctions over the prior art." In re Baxter
Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991). Similarly, it is not the
function of this Board to examine claims in greater detail than argued by an
appellant, looking for distinctions over the prior art.

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ANALYSIS
The Examiner makes specific findings regarding the obviousness of
claims 4, 10, 11, and 79. More specifically, he relies on columns 3 and 4 of
Ketcham in combination with Pereira to have suggested the limitations of
claim 4; column 8 of Ketcham in combination with Pereira to have
suggested the limitations of claim 10; column 5 of Chao to teach the
limitations of claim 11; and element 308 of Ketcham to teach the limitations
of claim 79.

The Appellants do not address, let alone show error in these specific
findings. Regarding claim 4, they argue about a different column (of
Ketcham) than the one relied on by the Examiner and ignore Pereira.
Regarding claim 10, they argue about Ketcham but ignore Pereira.
Regarding claim 11, they argue about Ketcham and Pereira but ignore Chao.
Regarding claim 79, they argue about different elements of Ketcham and
Pereira.

CONCLUSION
Based on the aforementioned facts and analysis, we conclude that the
Appellants have shown no error in the Examiner's findings regarding
claims 4, 10, 11, and 79.

CLAIMS 5-7, 17-20, 24, AND 41
The Examiner finds that "Chao also teaches updating the topology
map based on reply packets received from polled nodes. (Col. 6, 11. 33-
48)." (Answer 34.) The Appellants argue that "Chao merely discloses
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polling and event monitoring based techniques, which are both initiated from
within management of Chao, to update the topology table." (Appeal Br.
20.)

ISSUE
Therefore, the issue before us is whether the Appellants have shown
error in the Examiner's finding that Ketcham, Pereira, and Chao would have
suggested using an aggregated reply packet to update a remote status table.

LAW
"The Patent and Trademark Office (PTO) must consider all claim
limitations when determining patentability of an invention over the prior
art." In re Lowry, 32 F.3d 1579, 1582 (Fed. Cir. 1994) (citing In re Gulack,
703 F.2d 1381, 1385 (Fed. Cir. 1983)).

FINDING OF FACT (FF)
2. Claim 5 recites in pertinent part the following limitations: "updating
said remote status table with the information in said aggregated reply
packet . . . ." Claims 17, 24, and 41 recite similar limitations. Claims 6, 7
depend from, and incorporate all the limitations of, claim 5. Claims 18-20
depend from, and incorporate all the limitations of, claim 17.

ANALYSIS
Considering all the limitations (FF 2), claims 5-7, 17-20, 24, and 41
require updating a remote status table with data in an aggregated reply
packet, wherein the data was "received based on reception of keep-alive
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messages from the end system." (Appeal Br. 20.) Although the Examiner
finds that Chao updates its topology map based on reply packets received
from polled nodes, he does not address the use of an aggregated reply packet
to update the topology map.

CONCLUSION
Based on the aforementioned facts and analysis, we conclude that the
Appellants have shown error in the Examiner's finding that Ketcham,
Pereira, and Chao would have suggested using an aggregated reply packet to
update a remote status table.

CLAIMS 67, 68, 70, 71, 73, 74, 76, AND 77
The Appellants argue claims 67, 68, 70, 71, 73, 74, 76, and 77
as a group. (App. Br. 21.) Therefore, claims 68, 70, 71, 73, 74, 76, and 77
stand or fall with claim 67.

ISSUE
The Examiner makes the following conclusion.
It would have been obvious to one of ordinary skill in the art at
the time of the applicant's invention to modify the combination
of Ketcham and Pereira by adding the ability for the message
aggregator to generate less data in the aggregated message than
the data forming the plurality of messages together as provided
by Rosenberg.
(Answer 26.) The Appellants make the following argument.
Rosenberg is directed to multiplexing real-time transport
protocol (RTP) in the context of voice applications and public
switched telephone networks (PSTN), which is a different
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technological area from the other references relied upon in the
rejection. The intuitive connection required between the
references is simply lacking and thus renders Rosenberg
unsuitable for combining with the teachings of Pereira and
Ketcham.
(Appeal Br. 22.) Therefore, the issue before us is whether the Appellants
have shown error in the Examiner's reliance on Rosenberg.

LAW
"Whether a reference in the prior art is 'analogous' is a fact question."
In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992) (citing Panduit Corp. v.
Dennison Mfg. Co., 810 F.2d 1561, 1568 n.9 (Fed. Cir. 1987)). Two criteria
have evolved for answering the question: "(1) whether the art is from the
same field of endeavor, regardless of the problem addressed, and (2) if the
reference is not within the field of the inventor's endeavor, whether the
reference still is reasonably pertinent to the particular problem with which
the inventor is involved." Id. at 658-59 (citing In re Deminski, 796 F.2d
436, 442 (Fed. Cir. 1986); In re Wood, 599 F.2d 1032, 1036 (CCPA 1979)).
"A reference is reasonably pertinent if, even though it may be in a different
field from that of the inventor's endeavor, it is one which, because of the
matter with which it deals, logically would have commended itself to an
inventor's attention in considering his problem." Id. at 659. "To qualify as
analogous art under the second criterion, . . . we do not believe that a prior
art reference need be reasonably pertinent to each and every problem with
which an inventor is involved; reasonable pertinence to a single such
problem suffices." Ex parte Gaechter, 65 USPQ2d 1690, 1692 (BPAI
2002).

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FINDINGS OF FACT
3. The Appellants' invention "invention minimizes the overhead on a
communication network caused by processing keep-alive status messages by
aggregating several such messages into a single packet . . . and transmit[s]
the single packet on the communication network." (Spec. 4.)

4. Rosenberg "describes an RTP payload format for multiplexing data
from multiple users into a single RTP packet. Such multiplexing is
especially useful for transporting voice data between Internet telephony
gateways. It causes significant reductions in header overheads . . . ."
(Abstract.)

ANALYSIS
Here, one of the problems with which the Appellants are involved is
minimizing overhead. (FF 3.) Rosenberg is also concerned with reducing
overhead. (FF 4.) Because the reference is reasonably pertinent to a
problem with which the Appellants are involved, we find that it constitutes
analogous art.

CONCLUSION
Based on the aforementioned facts and analysis, we conclude that the
Appellants have shown no error in the Examiner's reliance on Rosenberg.

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DECISION
We affirm the rejection of claims 1-4, 8-10, 11-16, 21-23, 25-40, 42-
50, 59, 60, and 67-85. In contrast, we reverse the rejection of claims 5-7,
17-20, 24, and 41.

No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(1)(v).

AFFIRMED-IN-PART

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