Ethernity Networks Ltd.

Patent Trials and Appeals BoardAug 24, 2020

2019003642 (P.T.A.B. Aug. 24, 2020)

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. 14/166,906 01/29/2014 David Levi 8385-US 7852 69054 7590 08/24/2020 RECHES PATENTS HaArba''a Towers North Tower TEL AVIV, 6473925 ISRAEL EXAMINER REYES ORTIZ, HECTOR E ART UNIT PAPER NUMBER 2472 NOTIFICATION DATE DELIVERY MODE 08/24/2020 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): MAIL@I-P.CO.IL OREN@I-P.CO.IL eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DAVID LEVI and SHAVIT BARUCH ____________ Appeal 2019-003642 Application 14/166,906 Technology Center 2400 ____________ Before JOHN A. JEFFERY, CARL L. SILVERMAN, and JAMES W. DEJMEK, Administrative Patent Judges. JEFFERY, Administrative Patent Judge. DECISION ON APPEAL Under 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–32. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2017). Appellant identifies the real party in interest as Ethernity Networks Ltd. Appeal Br. 3. Appeal 2019-003642 Application 14/166,906 2 STATEMENT OF THE CASE Appellant’s invention distributes high data traffic over multiple wireless links to form a high-bandwidth wireless backbone. To this end, a source router receives multiple data streams and transmits them wirelessly to destination routers that, in turn, send stream fragments to a gateway that reconstructs and outputs the streams. See generally Spec. 13–16, 78. Claim 1 is illustrative: 1. A data distribution system, comprising: a source router; destination routers; and a gateway; wherein the source router is arranged to receive multiple data streams and wirelessly transmit the multiple data streams over multiple source router output wireless communication links towards the destination routers; wherein the destination routers are arranged to wirelessly receive the multiple data streams over destination routers input wireless links and to transmit the multiple data streams to the gateway; wherein each destination router is configured to receive at least a fragment of a data stream and to send the at least fragment of the data stream, directly or via one or more other destination routers, to the gateway; and wherein the gateway is arranged to reconstruct the multiple data streams and output from the data distribution system the multiple data streams over one or more gateway output links. Appeal 2019-003642 Application 14/166,906 3 THE REJECTIONS The Examiner rejected claims 1 and 17 under 35 U.S.C. § 103 as unpatentable over Satapathy (US 7,865,185 B1; issued Jan. 4, 2011). Ans. 3–4.2 The Examiner rejected claims 2, 3, 7, 9, 11, 16, 18, 19, 23, 25, 27, and 32 under 35 U.S.C. § 103 as unpatentable over Satapathy and Krishnaswamy (US 2013/0064198 A1; published Mar. 14, 2013). Ans. 4–6. The Examiner rejected claims 4 and 20 under 35 U.S.C. § 103 as unpatentable over Satapathy, Krishnaswamy, and Lee (US 2014/0064249 A1; published Mar. 6, 2014). Ans. 6–7. The Examiner rejected claims 5, 6, 8, 21, 22, and 24 under 35 U.S.C. § 103 as unpatentable over Satapathy, Krishnaswamy, and Pasotti (US 2014/0050087 A1; published Feb. 20, 2014). Ans. 7–8. The Examiner rejected claims 10 and 26 under 35 U.S.C. § 103 as unpatentable over Satapathy, Krishnaswamy, and Antoniou (US 2003/0216141 A1; published Nov. 20, 2003). Ans. 8. The Examiner rejected claims 12, 13, 28, and 29 under 35 U.S.C. § 103 as unpatentable over Satapathy, Krishnaswamy, Antoniou, and Hampel (US 2013/0195004 A1; published Aug. 1, 2013). Ans. 8–9. The Examiner rejected claims 14 and 30 under 35 U.S.C. § 103 as unpatentable over Satapathy, Krishnaswamy, and Chandra (US 2009/0088089 A1; published Apr. 2, 2009). Ans. 10. 2 Throughout this opinion, we refer to (1) the Appeal Brief filed July 15, 2018 (“Appeal Br.”); (2) the Examiner’s Answer mailed February 5, 2019 (“Ans.”); and (3) the Reply Brief filed April 4, 2019 (“Reply Br.”). Appeal 2019-003642 Application 14/166,906 4 The Examiner rejected claims 15 and 31 under 35 U.S.C. § 103 as unpatentable over Satapathy, Krishnaswamy, and Kovvali (US 2015/0124622 A1; published May 7, 2015). Ans. 10. THE OBVIOUSNESS REJECTION OVER SATAPATHY The Examiner finds that Satapathy discloses every recited element of independent claim 1, but does not transmit or receive multiple data streams wirelessly. Ans. 3–4, 11. The Examiner, however, concludes that it would have been obvious to substitute Satapathy’s wireline interface with a wireless interface—a simple substitution of one known element for another to produce a predictable result. Ans. 4, 11–12. Appellant argues that because Satapathy uses both wired and wireless communication—a dual communication capability that improves earlier approaches that were limited to just one communication type—Satapathy teaches away from using only wireless interfaces as the Examiner proposes. Appeal Br. 13–16; Reply Br. 2–3. ISSUE Under § 103, has the Examiner erred in rejecting claim 1 by finding that Satapathy would have taught or suggested transmitting and receiving multiple data streams wirelessly? This issue turns on whether Satapathy teaches away from substituting the disclosed wired interfaces with wireless interfaces as the Examiner proposes. Appeal 2019-003642 Application 14/166,906 5 ANALYSIS On this record, we agree with Appellant that the Examiner’s proposal to substitute a wireless interface for Satapathy’s wired interface is problematic, for this proposed substitution runs counter to the very teachings of the reference and, therefore, teaches away from that approach. Satapathy explains in the Background section that service providers used wireless or wireline means to communicate with an access device, such as a telephone or computer. Satapathy col. 1, ll. 25–33. Our emphasis on the term “or” underscores that wireless and wireline approaches were used alternatively in the prior art. See id. Consequently, associated systems employing those alternatives were limited by each alternatives’ respective protocols, equipment, software, and distances between access and switching devices. Satapathy col. 1, ll. 33–38. Satapathy’s invention, however, overcomes these drawbacks by combining wireless and wireline access technologies to improve capacity, throughput, accessibility, and effectiveness. Satapathy col. 1, ll. 40–43; col. 2, ll. 52–60; Abstract. As Satapathy explains, this combination of wireless and wireline technologies improves systems that use only a single access technology by enabling more effective and efficient communications, especially in areas where a single access technology has limited capacity or lacks ideal connectivity. Satapathy col. 2, ll. 52–60; col. 3, ll. 4–6. Given this improvement, to suggest that it would have somehow been obvious to substitute Satapathy’s disclosed wireline interface with a wireless interface to yield a single wireless access technology as the Examiner proposes (Final Act. 4; Ans. 11–12) is diametrically opposite to what Satapathy teaches and, therefore, is untenable on this record. It is well Appeal 2019-003642 Application 14/166,906 6 settled that a reference teaches away from the claimed invention when the reference criticizes, discredits, or otherwise discourages investigation into the claimed invention. See Norgren Inc. v. Int’l Trade Comm’n, 699 F.3d 1317, 1326 (Fed. Cir. 2012); see also In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006). That is the case here, at least regarding using solely wireless access technology in Satapathy with the Examiner’s proposed substitution. In other words, the Examiner’s proposed substitution negates the very benefits achieved by Satapathy’s invention, namely the improved capacity, throughput, accessibility, and effectiveness that is realized by using both wireless and wired technologies together. See Satapathy col. 1, ll. 40–43; col. 2, ll. 52–60; Abstract. Although substituting wireless communication technology in lieu of wired technology is not a leap of inventiveness, such a substitution is nevertheless unjustified where, as here, the cited prior art teaches away from that substitution. The Examiner’s statement that Appellant does not explain how Salkintzis or Katz criticizes, discredits, or discourages investigation into the claimed invention (Ans. 12) is puzzling, for these references were not cited, nor has the Examiner explained their relevance here. In any event, even if this inartful statement was intended to refer to Satapathy, it is unavailing given Satapathy’s teaching away from the Examiner’s proposed substitution as noted above. Therefore, we are persuaded that the Examiner erred in rejecting claims 1 and 17. Appeal 2019-003642 Application 14/166,906 7 THE OTHER OBVIOUSNESS REJECTIONS Because the Examiner has not shown that the cited prior art cures the deficiencies noted above regarding the rejection of the independent claims, we do not sustain the obviousness rejections of the dependent claims (Ans. 4–10) for similar reasons. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 17 103 Satapathy 1, 17 2, 3, 7, 9, 11, 16, 18, 19, 23, 25, 27, 32 103 Satapathy, Krishnaswamy 2, 3, 7, 9, 11, 16, 18, 19, 23, 25, 27, 32 4, 20 103 Satapathy, Krishnaswamy, Lee 4, 20 5, 6, 8, 21, 22, 24 103 Satapathy, Krishnaswamy, Pasotti 5, 6, 8, 21, 22, 24 10, 26 103 Satapathy, Krishnaswamy, Antoniou 10, 26 12, 13, 28, 29 103 Satapathy, Krishnaswamy, Antoniou, Hampel 12, 13, 28, 29 14, 30 103 Satapathy, Krishnaswamy, Chandra 14, 30 15, 31 103 Satapathy, Krishnaswamy, Kovvali 15, 31 Overall Outcome 1–32 Appeal 2019-003642 Application 14/166,906 8 REVERSED