OLogN Technologies AG

Patent Trials and Appeals Board

Jul 23, 2021

2020006273 (P.T.A.B. Jul. 23, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/809,896 11/10/2017 Sergey IGNATCHENKO P34466US01/0026677.00151 9943
28381 7590 07/23/2021
Arnold & Porter Kaye Scholer LLP
601 Massachusetts Ave., NW
Washington, DC 20001-3743
EXAMINER
JANGBAHADUR, LAKERAM
ART UNIT PAPER NUMBER
2469
NOTIFICATION DATE DELIVERY MODE
07/23/2021 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):
ipdocketing@apks.com
ipdocketing@arnoldporter.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SERGEY IGNATCHENKO
Appeal 2020-006273
Application 15/809,896
Technology Center 2400
Before CAROLYN D. THOMAS, MICHAEL J. STRAUSS, and
PHILLIP A. BENNETT, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Appellant1 requests rehearing of our Decision mailed April 30, 2021
(“Dec.”) reversing the Examiner’s rejections of claims 1–28 and entering a
new ground of rejection of independent claims 1 and 15 pursuant to

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as OLOGN
TECHNOLOGIES AG. Appeal Br. 1.
Appeal 2020-006273
Application 15/809,896
2
37 C.F.R. § 41.52. Although we consider Appellant’s arguments, the
Request for Rehearing (“Req. Reh’g”) is DENIED.
DISCUSSION
Pursuant to pursuant to 37 C.F.R. § 41.52, we newly rejected claims 1
and 15 under 35 USC § 103 over Kompella, United States Patent
Application Publication 2007/0177594 published on August 2, 2007 in view
of Gopalakrishnan et al. (“Gopalakrishnan”), patent publication WO
2009/005162 A2 published on January 8, 2009. Dec. 6. Appellant contends
that (1) we misapprehended or overlooked Appellant’s argument in
formulating the new ground of rejection and (2) the combination presented
in the new ground of rejection is improper. We address each of these
contentions seriatim as they appear in the Request for Rehearing.

1. Appellant’s arguments in formulating the new ground of rejection
Appellant contends that “Gopalakrishnan neither teaches or suggests a
routing device that determines that a packet among a plurality of received
packets is a latency-critical packet, nor a routing device that generates a
copy-packet of that latency critical packet, let alone a routing device
configured to do both.” Req. Reh’g 5. Appellant argues, because
Gopalakrishnan discloses how urgently a missing (i.e., non-received) packet
needs to be transmitted, this does not determine that a received packet is a
latency-critical packet as required by the claim. Id. According to Appellant,
Gopalakrishnan’s algorithm for determining the strategy for re-transmitting
packets based on an urgency level occurs at the sender machine and not the
receiver machine. Id. at 5–6. Appellant argues, applying Gopalakrishnan’s
urgency determination to Kompella’s received packets would be an
Appeal 2020-006273
Application 15/809,896
3
improper mixing and matching of the Kompella and Gopalakrishnan routers.
Id. at 6.
Appellant’s arguments are unpersuasive because they fail to address
our finding that Kompella, not Gopalakrishnan, teaches receiving, by a first
routing device comprising a plurality of interfaces, a plurality of packets
form a source device via a first interface. Dec. 6. That is, Kompella is
relied upon for the “receiving of packets.” Gopalakrishnan is relied upon for
teaching “that packets may be designated as ‘urgent’ (i.e., latency-critical
packet).” Id. at 8. Thus, Appellant’s argument improperly attacks the
Gopalakrishnan reference individually when the rejection is based on the
combination of Kompella and Gopalakrishnan. “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 In re Keller, 642 F.2d 413, 425
(CCPA 1981)).
Although Gopalakrishnan’s purpose is to support the re-transmission
from a source device by having a receiving device indicate the urgency of a
retransmission request made to a sending device (Dec. 8 (citing
Gopalakrishnan page 24, lines 15 to page 25, line 8)), Appellant fails to
explain why Gopalakrishnan’s teaching is limited to applications in which a
determination that a missing packet is a latency-critical packet rather than
identifying latency-critical packets in general including received packets.
Thus, Appellant’s argument is improperly based on a wholesale
incorporation or combination of structures, rather than what Kompella and
Gopalakrishnan together fairly teach or suggest in combination.
The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
Appeal 2020-006273
Application 15/809,896
4
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the
art.
In re Keller, 642 F.2d at 425. The skilled artisan is not compelled to follow
blindly the teachings of one reference over those of another without the
exercise of independent judgment. See Lear Siegler, Inc. v. Aeroquip Corp.,
733 F.2d 881, 889 (Fed. Cir. 1984). Furthermore, the skilled artisan would
“be able to fit the teachings of multiple patents together like pieces of a
puzzle” because the skilled artisan is “a person of ordinary creativity, not an
automaton.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420–21 (2007).
Here, Appellant has not demonstrated that the proffered combination in
support of the conclusion of obviousness would have been “uniquely
challenging or difficult for one of ordinary skill in the art.” Leapfrog
Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007)
(citing KSR, 550 U.S. at 420).
Furthermore, a reasonable interpretation of Gopalakrishnan teaches or
suggests determining that a plurality of [received] packets comprises at least
one latency-critical packet. This is because packets that are subject to
retransmission by Gopalakrishnan’s packet processing and interfaces are (1)
first received from a video server (Gopalakrishnan; Fig. 1A) and (2) are
determined to include at least one-latency critical packet (e.g., determining
that a retransmission request indicates as such; Gopalakrishnan: page 24,
lines 15 to page 25, line 8).
Because we find the combination of Kompella and Gopalakrishnan
teaches or suggests that a routing device determines that a received packet is
latency-critical as required by claim 15, we do not address whether claim 1
Appeal 2020-006273
Application 15/809,896
5
requires the receiving and determining steps be performed in the recited
order such that it is the received plurality of packets that is determined to
comprise at least one latency-critical packet rather than simply the plurality
of packets that have been or will be received. See Req. Reh’g. 6–8.
For the reasons discussed above, Appellant fails to persuade us that
we erred in finding the combination of Kompella and Gopalakrishnan
teaches or suggests the subject matter of independent claims 1 and 15.

2. The combination of Kompella and Gopalakrishnan
First, Appellant argues that Kompella’s routers lack the necessary
hardware that would allow incorporating the functionality of
Gopalakrishnan’s computer instructions per the combination. Req. Reh’g. 9.
Specifically, Appellant contends nothing in Kompella suggests that the
router stores a copy of a packet already transmitted to a receiver or another
router. Id.
Appellant’s argument is unpersuasive because it again fails to address
our findings. In particular, we find Gopalakrishnan, not Kompella, teaches
or suggests the disputed determining step. Dec. 8. That is,
Gopalakrishnan’s disclosure of computer instructions to evaluate the latency
effect of certain packets and re-transmit those packets includes the requisite
teaching structure enabling the accomplishment of these tasks. See In re
Antor Media Corp., 689 F.3d 1282, 1289 (Fed. Cir. 2012) (prior art
references are presumed enabled.).
Furthermore, we disagree with Appellant’s argument that
“Kompella’s routers lack the necessary hardware that would allow
incorporating the functionality of Gopalakrishnan’s computer instructions.”
Appeal 2020-006273
Application 15/809,896
6
Req. Reh’g. 9. For instance, Kompella discusses in a multicast tree, a router
144E that receives packets from a source device 146 and then duplicates the
packets and sends copies of packets to a receiver 140B. Kompella ¶ 89.
Second, Appellant argues that a person having ordinary skill in the art
(POSITA) would not have been motivated to make the necessary hardware
modifications to Kompella’s router that would enable incorporation of
Gopalakrishnan’s software instructions. Req. Reh’g. 10. According to
Appellant, the combination results in a requirement to store copies of
packets even after they have been transmitted that “increase[s] the cost of
Kompella’s routers, making it more expensive to implement the system
disclosed therein.” Id. Appellant argues, because of the additional
computational burden, a POSITA would have no reason to make such
modifications without hindsight. Id.
We again are not persuaded because increased cost is not dispositive
of obviousness. In re Farrenkopf, 713 F.2d 714, 718 (Fed. Cir. 1983) (“That
a given combination would not be made by businessmen for economic
reasons does not mean that persons skilled in the art would not make the
combination because of some technological incompatibility. Only the latter
fact would be relevant.”) Herein, Appellant fails to provide sufficient
evidence or reasoned argument to persuade us that incorporating
Gopalakrishnan’s computer instructions to evaluate the latency effect of
certain packets into Kompella’s routers in order “to maintain the quality of
video streaming in the face of bandwidth demands and other challenges that
would result in packet loss and degradation in network quality” (Dec. 8)
involves a technological incompatibility. See Medichem, S. A. v. Rolabo, S
L., 437 F.3d 1157, 1165 (Fed. Cir. 2006) (“a given course of action often has
Appeal 2020-006273
Application 15/809,896
7
simultaneous advantages and disadvantages, and this does not necessarily
obviate motivation to combine”); Winner Int'l Royalty Corp. v. Wang, 202
F.3d 1340, 1349 n.8 (Fed. Cir. 2000) (“The fact that the motivating benefit
comes at the expense of another benefit, however, should not nullify its use
as a basis to modify the disclosure of one reference with the teachings of
another. Instead, the benefits, both lost and gained, should be weighed
against one another.”).
We are also unpersuaded by Appellant’s contention that the
combination is improper, arguing that Kompella has no discussion or
suggestion on the lack of reliability in the network and would be improper
hindsight. Req. Reh’g. 10. We disagree because there is no requirement for
the references themselves to provide motivation for the combination and, in
any case, as explained in our rejection, Gopalakrishnan discloses the
requisite motivation for the combination. See Dec. 8.
In connection with Appellant’s contention that the combination is
based on improper hindsight (Req. Reh’g. 10), we note as follows:
Any judgment on obviousness is . . . necessarily a reconstruction
based upon hindsight reasoning, but so long as it takes into
account only knowledge which was within the level of ordinary
skill at the time the claimed invention was made and does not
include knowledge gleaned only from applicant’s disclosure,
such a reconstruction is proper.

In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971); see also Radix Corp.
v. Samuels, 13 USPQ2d 1689, 1693 (D.D.C. 1989) (“[A]ny obviousness
inquiry necessarily involves some hindsight.”); In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006), cited with approval in KSR Int’l Co. v. Teleflex, Inc.,
550 U.S. 398, 418 (2007) (“[R]ejections on obviousness grounds . . . must
Appeal 2020-006273
Application 15/809,896
8
[include] some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.”); and Nat’l Steel Car, Ltd. v.
Canadian Pacific Ry., Ltd., 357 F.3d 1319, 1337 (Fed. Cir. 2004) (“It has
long been the law that the motivation to combine need not be found in prior
art references, but equally can be found ‘in the knowledge generally
available to one of ordinary skill in the art.’”) (quoting In re Jones, 958 F.2d
347, 351 (Fed. Cir. 1992)). The Court further instructs,
[w]hen there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable
solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this leads
to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense.

KSR, 550 U.S. at 421.
As found in our rejection of the claims:
It would have been obvious to a person having ordinary skill in
the art at a time before the effective filing of the application to
have modified the Kompella device by including
Gopalakrishnan’s computer instructions onto the routers to
evaluate the latency effect of certain packets and to re-transmit
those designated packets. Such a person would have done so with
a reasonable expectation of success because of the need to
maintain the quality of video streaming in the face of bandwidth
demands and other challenges that would result in packet loss
and degradation in network quality (Gopalakrishnan: page 9,
lines 17 to page 10 line 14).
Dec. 8. Appellant fails to persuade us that this reasoning is inadequate, not
supported by the applied art of record, or is otherwise insufficient to support
the legal conclusion of obviousness.
Appeal 2020-006273
Application 15/809,896
9
Third and finally, Appellant argues that the combination cannot be
saved by incorporating Gopalakrishnan’s software instructions into
Kompella’s sender device. Req. Reh’g. 11. As Appellant admits, we have
not suggested doing so. Id. Accordingly, we do not address this issue
further.
DECISION
We have considered the arguments raised by Appellant in the Request
for Rehearing, but Appellant has not persuaded us that we misapprehended
or overlooked any points in rendering our Decision. Accordingly, we
decline to modify our prior Decision.
DECISION SUMMARY
Final Outcome of Appeal after Rehearing:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed New
Grounds
1–3, 15–
17
102(a)(2) Gopalakrishnan,
Kompella
1–3, 15–
17
1, 15
4–14, 18–
28
103 Gopalakrishnan,
Kompella, Menon
4–14, 18–
28

Overall
Outcome
1–28 1, 15

REHEARING DENIED