Ex Parte Wong et al

Patent Trial and Appeal Board

Aug 31, 2016

13490750 (P.T.A.B. Aug. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/490,750
23553 7590
MARKS & CLERK
P.O. BOX957
STATIONB
FILING DATE
06/07/2012
09/01/2016
OTTA WA, ON KIP 5S7
CANADA
FIRST NAMED INVENTOR
Kin-Yee Wong
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.
25212-US 4412
EXAMINER
NGUYEN, BAO G
ART UNIT PAPER NUMBER
2461
MAILDATE DELIVERY MODE
09/01/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KIN-YEE WONG and JOSEPH RORAI 1
Appeal2015-001643
Application 13/490,750
Technology Center 2400
Before JAMES R. HUGHES, TERRENCE W. McMILLIN, and
MONICA S. ULLAGADDI, Administrative Patent Judges.
McMILLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision2 on appeal under 35 U.S.C. § 134(a) of the final
rejection of claims 1-13, which are all the pending claims. Final Act. 1. We
have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 According to Appellants, the real party in interest is Alcatel Lucent. App.
Br. 2.
2 Our decision refers to the Final Office Action mailed January 13, 2014
("Final Act."); Appellants' Appeal Brief filed July 14, 2014 ("App. Br.");
the Examiner's Answer mailed September 17, 2014 ("Ans."); Appellants'
Reply Brief filed November 17, 2014 ("Reply Br."); and the Specification
filed June 7, 2012 ("Spec.").
Appeal2015-001643
Application 13/490,750
THE CLAHvIED n~VENTION
According to the Specification, "[ t ]his invention relates to
determination of power costs between points in a telecommunication
network." Spec. 1. Independent claims 1 and 8 are directed to methods and
independent claim 11 is directed to a system. App. Br. I-III (Claims
Appendix). Claim 1 recites:
A method comprising:
generating at a first node a first packet with a packet type
indicating that a power cost of a path is to be determined;
transmitting the first packet;
receiving at the first node a second packet in reply to the
first packet; and
determining from the data portion of the second packet the
power cost of the path.
App. Br. I.
REJECTIONS ON APPEAL
Claims 1-3, 5, 8, 9, 11, and 12 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Orlik et al. (US 2005/0111428 Al,
published May 26, 2005) ("Orlik") and Higashiyama et al. (US
2004/0017770 Al, published Jan. 29, 2004) ("Higashiyama"). Final Act. 2.
Claims 4 and 6 stand rejected under 35 U.S.C. § 103 (a) as being
unpatentable over Orlik, Higashiyama, and Sultan et al. (US 2008/0159309
Al, published July 3, 2008) ("Sultan"). Final Act. 7.
Claims 7, 10, and 13 stand rejected under 35 U.S.C. § 103 (a) as being
unpatentable over Orlik, Higashiyama, and Ise et al. (2003/0133411 Al,
published July 17, 2003) ("Ise"). Final Act. 9.
2
Appeal2015-001643
Application 13/490,750
ANALYSIS
We have reviewed the rejection of claim 1-13 in light of Appellants'
arguments. We are not persuaded that Appellants identify reversible error.
We agree with and adopt the Examiner's findings, reasoning, and
conclusions as set forth in the Final Office Action (Final Act. 2-10) and the
Examiner's Answer (Ans. 2-15). We highlight the following for emphasis.
Appellants argue the cited art fails to teach or suggest, "generating at
a first node a first packet with a packet type indicating that a power cost of a
path is to be determined," as recited in independent claim 1. App. Br. 8,
Reply Br. 3--4. Independent claims 8 and 11 contain analogous limitations.
App. Br. 11-12. See, also, Reply Br. 3 ("Claims 1, 8, and 11 explicitly refer
to a packet type indicating that the power cost of a path is to be
determined."). The Examiner relies on the "route request packet" taught in
Orlik and the related teachings in paragraphs 22, 23, 35, 41, 45, and 65 of
Orlik. Ans. 2, 5-7, 10-13; Final Act. 2-3, 5---6. The cited passages in Orlik
support the Examiner's finding that this disputed limitation is taught by
Orlik. For example, paragraph 41 of Orlik teaches, "the source node
broadcasts 440 the route request packet 221" and paragraph 65 of Orlik
teaches, "[ e Jach node that receives a route request packet determines and
forwards the power cost." We are not persuaded of error by this argument.
Appellants argue that the cited art fails to teach or suggest
determining the "power cost" as recited in the independent claims. App. Br.
6-9; Reply Br. 2-3. The Examiner cites Orlik as teaching determination of
"power cost." Ans. 10-11; Final Act. 3. For example, in the Examiner's
Answer on page 11, the Examiner cites paragraph 65 of Orlik which states:
Each node that receives route request packet determines and
forwards the power cost in the same manner. In this way, the
3
Appeal2015-001643
Application 13/490,750
source node receives an ordered list of nodes that constitute a
route to the destination node and the power cost associated with
each node along the route.
Appellants argue "power cost" as taught by Orlik relates to residual power in
the nodes (Orlik ifi14 7-65) and not "power cost" as claimed. App. Br. 6-9;
Reply Br. 2-3.
Appellants' argument is not commensurate with the scope of the
claims. During examination, claims are given the broadest reasonable
construction consistent with the Specification. In re Am. A cad. of Sci. Tech
Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). Appellants fail to point to any
limiting definition or description of "power cost" in the Specification. App.
Br. 6-9; Reply Br. 2-3. Paragraph 3 8 of the Specification states: "The scope
of the invention is solely defined by the appended claims." Appellants fail
to point to any language in the claims distinguishing "power cost" as
claimed from "power cost" as taught by Orlik. App. Br. 6-9; Reply Br. 2-3.
Accordingiy, "power cost" as recited in the claims has not been shown to
exclude "power cost" as taught by Orlik. Thus, we are not persuaded of
error by this argument.
Appellants argue the cited reference fails to teach or suggest,
"determining from the data portion of the second packet the power cost of
the path," as recited in independent claims 1 and 8. App. Br. 9-11.
Independent claim 11 contains an analogous limitation. Id. at II-III. The
Examiner cites paragraph 22 of Higashiyama as teaching this limitation.
Final Act. 3. Paragraph 22 of Higashiyama states: "A data portion of the
above mentioned BPDU includes at least a root ID, bridge ID, [and] root
path cost." Appellants argue the Examiner has relied on hindsight in
4
Appeal2015-001643
Application 13/490,750
combining the teachings of Orlik and Higashiyama. App. Br. 9--11. In the
Examiner's Answer, the Examiner responds:
Orlik teaches determining [the power cost of the path] form
[sic] the header portion of the second packet (Orlik i-f [0046]).
Orlik is combined with Higayashi [sic] to include the concept
of using a data portion of the packet to include the cost
information. The patent claims the mere substitution of the
header portion as taught by Orlik with the data portion as taught
by Higashiyama. The combination of familiar elements
according to known methods is likely to be obvious when it
does no more than yield predictable results.
Ans. 14. Appellants do not persuasively rebut the Examiner's findings
regarding this disputed limitation in the Reply Brief. Reply Br. 1-5. We
agree with the Examiner. The Examiner's combination of the references and
obviousness conclusion are supported by the cited references and the law
relating to obviousness. See, e.g, KSR Intern. Co. v. Teleflex Inc., 550 U.S.
398, 416 (2007) ("The combination of familiar elements according to known
methods is likely to be obvious when it does no more that yield predictable
results."). Appellants do not present sufficient evidence that would persuade
us the Examiner's conclusion relies on "knowledge gleaned only from
applicant's disclosure." See In re McLaughlin, 443 F.2d 1392, 1395, (CCPA
1971 ). Accordingly, we are not persuaded of error by this argument.
Appellants argue the cited combination of references fails to teach or
suggest, "determining whether a next node in a path exists," as recited in
independent claim 8. App. Br. 10; Reply Br. 4. In the Examiner's Answer,
the Examiner responds:
The end of paragraph [0045] of Orlik states 'intermediate node
adds 490 its 'intermediate' address, delay and power costs to
the request packet, and rebroadcast [sic] 440 the packet. This
5
Appeal2015-001643
Application 13/490,750
process is repeated until the RREQ packet reaches the
destination node" ... The disclosed portion shows that Orlik
teaches broadcasting the packet until the packet reaches the
destination node which in tum teaches whether a next node in
the path exist [sic] by using a list of addresses ( Orlik paragraph
[0018]).
Ans. 12-13. We agree with the Examiner that Orlik teaches the disputed
limitation. We are not persuaded by this argument.
With regard to the dependent claims, Appellants rely on the
arguments presented for the independent claims. App. Br. 10-12. For the
reasons provided above for the independent claims, we sustain the rejection
of the dependent claims.
DECISION
The rejections of claims 1-13 are 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)(l )(iv).
AFFIRMED
6