Ex Parte Short et al

Board of Patent Appeals and Interferences

Oct 30, 2009

09693481 (B.P.A.I. Oct. 30, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
___________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte JOEL E. SHORT, FREDERIC DELLY, MARK F. LOGAN, and
DANIEL TOOMEY
____________
Appeal 2009-002481
Application 09/693,4811
Technology Center 2400
____________
Decided: October 30, 2009
____________

Before JEAN R. HOMERE, JOHN A. JEFFERY, and ST. JOHN
COURTENAY III, Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

DECISION ON APPEAL

1 Filed on October 20, 2000. This application claims priority from
provisional application 60/161,182, filed October 22, 1999. The real party
in interest is Nomadix, Inc. (App. Br. 1.)
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I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 3, 6, 8, 9, 11 through 13, and 28 through 35. Claims 2,
4, 5, 7, and 14 through 27 have been cancelled. (App. Br. 4.) Claim 10 is
allowable if rewritten in independent form including all the limitations of the
respective base claims and any other intervening claims. (Ans. 17-18.) We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellants’ Invention
Appellants invented a method for providing dynamic bandwidth
management on a per subscriber basis in a communication network. (Spec.
1, ll. 10-12.) Appellants’ Figure 4B depicts the operations performed by a
gateway device on the data packets being delivered to the network. (Spec.
17, ll. 12-13.) At blocks 300 and 310, the gateway device receives a new
packet for processing, it extracts the media access control (“MAC”) address,
and retrieves the subscriber profile associated therewith. (Spec. 17, ll. 13-
17.) At block 320, the gateway device determines the bandwidth chosen by
the subscriber based on the subscriber’s profile. (Spec. 17, ll. 17-23.) At
block 330, if the packet transmission requires adjustment, the gateway
device calculates the appropriate delay and processes the data packet
accordingly. (Spec. 17, ll. 23-24.) Further, the subscriber may dynamically
change either the downlink or uplink bandwidths. (Spec. 14, ll. 10-13.)
Additionally, the subscriber can establish asymmetric bandwidths for
upstream and downstream communications. (Spec. 10, ll. 5-9.)

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Illustrative Claim
Independent claim 1 further illustrates the invention as follows:
1. A method for dynamic control of data transfer by a subscriber during
an on-going network session, comprising:

receiving a data packet at a gateway device;

identifying, at the gateway device, a subscriber associated with the
data packet;

retrieving from memory a subscriber profile that includes subscriber-
selected bandwidth;

determining if a transfer rate for data packet transmission should be
adjusted based on the subscriber-selected bandwidth; and

adjusting the transfer rate for data packet transmission based on the
outcome of the determination process;

wherein the transfer rate for data packet transmission is adjustable by
a subscriber at any time during the on-going network session based on
adjustment of the subscriber-selected bandwidth during the on-going
network session, and

wherein retrieving from memory a subscriber profile that includes
subscriber-selected bandwidth further comprises retrieving from memory a
subscriber profile that includes a first subscriber-selected bandwidth for
information being sent to a network and a second subscriber-selected
bandwidth for information being retrieved from a network, the first and
second subscriber-selected bandwidths being separate.

Prior Art Relied Upon
The Examiner relies on the following prior art as evidence of
unpatentability:
Fowler 5,793,978 Aug. 11, 1998
Sherman 5,978,387 Nov. 2, 1999
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(filed May 31, 1996)
Jones 6,307,836 B1 Oct. 23, 2001
(filed Dec. 10, 1997)
Barton 6,310,886 B1 Oct. 30, 2001
(filed Aug.18, 1998)
Salkewicz 6,609,153 B1 Aug. 19, 2003
(filed Dec. 24, 1998)
Gulliford 6,618,355 B1 Sep. 9, 2003
(filed May 7, 1999)
Ayres 6,738,371 B1 May 18, 2004
(filed Sep. 28, 1999)

Rejections on Appeal
The Examiner rejects the claims on appeal as follows:
Claims 1 and 35 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Ayres, Sherman, and Jones.
Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Ayres, Sherman, Jones, and Gulliford.
Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Ayres, Sherman, Jones, and
Salkewicz.
Claims 8, 9, 11, 13, 29 through 32, and 34 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over the combination of Ayres,
Sherman, Jones, and Fowler.
Claim 12 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Ayres, Sherman, Jones, Fowler, and
Barton.
Claims 28 and 33 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Ayres and Sherman.

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Appellants’ Contentions
Appellants contend that Jones’ disclosure of two subscriber-selected
bandwidths entails selecting a variable number of upstream and downstream
bearer channels from the network via a subscriber interface device. (App.
Br. 5-6; Reply Br. 3-4.) In particular, Appellants argue that Jones’ cited
disclosure does not teach that the bandwidths of the respective channels may
be separate or subscriber-selected. (Id.) Therefore, Appellants submit that
Jones does not teach retrieving from memory a subscriber profile that
includes a first subscriber-selected bandwidth for information being sent to a
network and a second subscriber-selected bandwidth for information being
retrieved from a network, the first and second subscriber-selected
bandwidths being separate, as recited in independent claim 1. (Id.)
Examiner’s Findings and Conclusions
The Examiner finds that Ayres’ disclosure of a subscriber profile with
a subscriber-selected bandwidth and both upstream and downstream
channels, in conjunction with Jones’ disclosure of two, separate subscriber-
selected bandwidths, teaches the disputed claim limitation. (Ans. 16.)

II. ISSUE
Have Appellants shown that the Examiner erred in concluding that the
combination of Ayres, Sherman, and Jones renders independent claim 1
unpatentable? In particular, the issue turns on whether the proffered
combination teaches retrieving from memory a subscriber profile that
includes a first subscriber-selected bandwidth for information being sent to a
network and a second subscriber-selected bandwidth for information being
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retrieved from a network, the first and second subscriber-selected
bandwidths being separate, as recited in independent claim 1.

III. FINDINGS OF FACT
The following Findings of Fact (“FF”) are shown by a preponderance
of the evidence.
Ayres
1. Ayres generally relates to regulating and managing the flow of
data packets in a packet data router. (Col. 1, ll. 20-23.) Ayres discloses that
the end user may be single customers themselves, or there may be multiple
(e.g. networked) users combined as a single customer account by the Internet
Service Provider (“ISP”). (Col. 1, ll. 65-67.) “Each customer account may
be allocated a respective level of service priority and packet throughput
bandwidth by the ISP, depending on the type and level of service
connectivity that is contracted for.” (Col. 1, l. 67 through Col. 2, l. 3.)
2. Ayres’ Figure 1 depicts a preferred packet data router (20)
employed as an internal gateway by an ISP (22). (Col 4, l. 66 through Col 5,
l. 1.)
The router (20) receives “upstream” data packets from a
plurality of different end users (24). Based on routing
information contained in each received data packet, the router
(20) either (1) forwards the packet to a respective Internet
server (38); (2) forwards the packet to an end user (24)
connected to the router (20); or (3) drops the packet due to it
having an unknown destination address or being otherwise
undeliverable. The router (20) also receives “downstream” data
packets from the Internet server(s) (38) and, if possible,
forwards the received downstream packets to respective end
users (24.)
(Col. 5, ll. 1-10.)
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3. Ayres’ Figure 3 depicts that, based on respective quality of
service (“QOS”) profiles (74) maintained by the ISP (22), the flow manager
(54) will adjust the flow rate of ingress data queue(s) (48) that will least
adversely impact QOS criteria for any one end user (24), user group (32A or
32B) and/or virtual router instances (“VRI”) (50 or 52). (Col. 8, ll. 33-37.)
In particular, certain aspects of each customer QOS profile (74) are
maintained in the data queue head structure (55) of each ingress data queue
(48). (Col. 8, ll. 38-40.) Further, “[t]he flow manager (54) also manages
data bursts that may be received on each ingress data queue (48).” (Col. 8,
ll. 55-56.) “The QOS user profiles (74) preferably provide for an end user
(24) to be given an additional amount of packet processing bandwidth for a
short period of time in order to accommodate for occasional burst packet
traffic.” (Col. 8, ll. 56-60.)
Jones
4. Jones generally relates to increasing and decreasing bandwidth
allocated to a communications session, and changing the access line mode
during the course of a communications session. (Col. 4, ll. 30-33.) Jones’
Figure 1 depicts that “[u]pstream communication is accomplished over
upstream channels (122) including ‘n’ number of Bearer and a Data (n B+D)
upstream channels of bandwidth.” (Col. 7, ll. 55-57). “Downstream
communication is facilitated over downstream channels (124) including ‘m’
number of Bearer and a Data (m B+D) downstream channels of bandwidth.”
(Col. 7, ll. 57-60.) Further, “[n]etwork intelligence (114) permits the
network to respond to subscriber application service requests to provide user
(104) transport bandwidth (112)” and call processing. (Col. 9, ll. 47-49; 52-
53.) “Call processing handles a call setup initial request and subsequent
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requests during the connection of the call to add or subtract transport
bandwidth (112) within the subscriber’s service profile.” (Col. 9, ll. 53-56.)

IV. PRINCIPLES OF LAW
Obviousness
“On appeal to the Board, an applicant can overcome a rejection [under
§ 103] by showing insufficient evidence of prima facie obviousness or by
rebutting the prima facie case with evidence of secondary indicia of
nonobviousness.” In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998).
Section 103 forbids issuance of a patent when “the differences
between the subject matter sought to be patented and the prior
art are such that the subject matter as a whole would have been
obvious at the time the invention was made to a person having
ordinary skill in the art to which said subject matter pertains.”

KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007).
In KSR, the Supreme Court emphasized "the need for caution in
granting a patent based on the combination of elements found in the prior
art," and discussed circumstances in which a patent might be determined to
be obvious. Id. at 415 (citing Graham v. John Deere Co., 383 U.S. 1, 12
(1966)). The Court reaffirmed principles based on its precedent that "[t]he
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results." Id. at 416.
The operative question in this "functional approach" is thus "whether the
improvement is more than the predictable use of prior art elements according
to their established functions." Id. at 417.
In identifying a reason that would have prompted a person of ordinary
skill in the relevant field to combine the prior art teachings, the Examiner
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must show some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness. KSR, 550 U.S. at 418 (quoting
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).

V. ANALYSIS
Claim 1
Independent claim 1 recites, in relevant part:
retrieving from memory a subscriber profile that includes a first
subscriber-selected bandwidth for information being sent to a network
and a second subscriber-selected bandwidth for information being
retrieved from a network, the first and second subscriber-selected
bandwidths being separate.

As detailed in the Findings of Fact section above, Ayres discloses the
flow manager will adjust the flow rate of data queues based on a QOS user
profile maintained by the ISP. (FF 3) Further, Ayres discloses that the QOS
user profile allows a respective end user to be given an additional amount of
packet processing bandwidth in order to accommodate for occasional burst
packet traffic. (Id.) We find that Ayres’ disclosure teaches that an ISP
maintains user profiles for respective users, whereby the user profile
contains user-selected bandwidth. We also find that a respective user can
request an additional amount of bandwidth to accommodate larger data
packet requests.
Next, we find that Jones discloses increasing and decreasing
bandwidth allocated to communications session, whereby the session utilizes
upstream and downstream channels. (FF 4.) Further, Jones discloses adding
or subtracting transport bandwidth within the subscriber’s service profile.
(Id.) We thus find that Jones’ disclosure teaches a user profile containing
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both upstream and downstream channels. An ordinarily skilled artisan
would readily appreciate that Jones’ disclosure teaches increasing and
decreasing the data rate (bandwidth) by adding or subtracting a variable
number of upstream or downstream channels.
In summary, we find that the ordinarily skilled artisan would
appreciate that the combination of Ayres’ disclosure with Jones’ would
predictably result in a user profile that may contain bandwidths for a
variable number of upstream and downstream channels. Further, the
ordinarily skilled artisan would understand that a user could request
additional bandwidth to accommodate larger data packet requests by taking
the aggregate collection of increased upstream or downstream channels.
Thus, we find that the cited disclosures of Ayres and Jones teach the
disputed limitation as set forth above. It follows that Appellants have failed
to show that the Examiner erred in concluding that the combination of
Ayres, Sherman, and Jones renders independent claim 1 unpatentable.
Claims 3, 6, 8, 9, and 11 through 13
Appellants do not provide separate arguments with respect to
dependent claims 3, 6, 8, 9, and 11 through 13. Therefore, we select
independent claim 1 as being representative of the cited claims.
Consequently, Appellants have not shown error in the Examiner’s rejection
of dependent claims 3, 6, 8, 9, and 11 through 13 for the reasons set forth in
our discussion of independent claim 1 above. 37 C.F.R. § 41.37(c)(1)(vii).
Claim 28
Appellants contend that Ayres discloses that the customer account and
not an individual data packet determines the respective level of service
priority. (App. Br. 7-9; Reply Br. 4.) Therefore, Appellants submit that
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Ayres’ cited disclosure does not teach determining if the transfer rate for
data packet transmissions should be adjusted based on a priority of the data
packet, as recited in independent claim 28. (Id.) We do not agree.
As detailed in the Findings of Fact section above, Ayres discloses that
each customer account is allocated a respective level of service priority and
packet throughput bandwidth by the ISP. (FF 1.) We find that Ayres’
disclosure teaches that each data packet has a respective level of service
priority by virtue of the level of service priority allotted to the customer
account associated therewith. Therefore, we agree with the Examiner that
each respective data packet is assigned a service priority based on the
corresponding customer account. Thus, we find that the cited disclosure of
Ayres teaches determining if the transfer rate for data packet transmission
should be adjusted based on a priority of the data packet, as recited in
independent claim 28. It follows that Appellants have failed to show that the
Examiner erred in concluding that the combination of Ayres and Sherman
renders independent claim 28 unpatentable.
Claims 29 through 32
Appellants do not provide separate arguments with respect to
dependent claims 29 through 32. Therefore, we select independent claim 28
as being representative of the cited claims. Consequently, Appellants have
not shown error in the Examiner’s rejection of dependent claims 29 through
32 for the reasons set forth in our discussion of independent claim 28 above.
37 C.F.R. § 41.37(c)(1)(vii).
Claim 33
Appellants contend that Ayres’ disclosure of forwarding packets
based on routing information does not teach performing a packet translation
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function to enable the subscriber to access any network without re-
configuration of a host device of the subscriber, as recited in independent
claim 33. (App. Br. 9-10; Reply Br. 4-6.) Further, Appellants argue that the
Examiner has improperly relied upon personal knowledge because the
Examiner has not provided support for the Examiner’s conclusion that the
normal operations of data routing does not require the re-configuration of a
router unless a necessary reconfiguration is indicated. (Reply Br. 5-6.) We
do not agree.
As detailed in the Findings of Fact Section above, Ayres discloses a
packet data router that receives data packets from a plurality of different end
users. (FF 2.) Based on routing information contained in each received data
packet, the data router may forward the data packet to a respective Internet
server or respective end user, or drop the data packet due to it having an
unknown destination address. (Id.) We find that Ayres’ disclosure teaches a
router that processes the routing information contained within each data
packet and routes the data packet accordingly. In particular, we find that an
ordinarily skilled artisan would readily appreciate that conventional data
routing operations do not require reconfiguring the router unless indicated
otherwise. In summary, since Ayres’ disclosure does not require that the
router needs reconfiguring each time the router engages in conventional data
packet routing, we find that Ayres’ disclosure of a router that processes the
routing information contained within each data packet and routes the data
packet accordingly, teaches the disputed limitation as set forth above. It
follows that Appellants have failed to show that the Examiner erred in
concluding that the combination of Ayres and Sherman renders independent
claim 33 unpatentable.
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Claims 34 and 35
Appellants do not provide separate arguments with respect to
dependent claims 34 and 35. Therefore, we select independent claim 33 as
being representative of the cited claims. Consequently, Appellants have not
shown error in the Examiner’s rejection of dependent claims 34 and 35 for
the reasons set forth in our discussion of independent claim 33 above. 37
C.F.R. § 41.37(c)(1)(vii).

VI. CONCLUSION OF LAW
Appellants have not shown that the Examiner erred in rejecting claims
1, 3, 6, 8, 9, 11 through 13, and 28 through 35 as being unpatentable under
35 U.S.C. § 103(a).

VII. DECISION
We affirm the Examiner’s decision to reject claims 1, 3, 6, 8, 9, 11
through 13, and 28 through 35 as being unpatentable under 35 U.S.C. §
103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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