Ex Parte Alferness et al

Patent Trial and Appeal Board

Feb 7, 2014

10667029 (P.T.A.B. Feb. 7, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MERWIN H. ALFERNESS, WILLIAM J. GOETZINGER,
KENT H. HASELHORST, LONNY LAMBRECHT, and
JOSHUA W. RENSCH
___________

Appeal 2011-000749
Application 10/667,029
Technology Center 2100
____________

Before MAHSHID D. SAADAT, CAROLYN D. THOMAS, and
DANIEL N. FISHMAN, Administrative Patent Judges.

FISHMAN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-000749
Application 10/667,029

2

This is an appeal under 35 U.S.C. § 134(a) of the final rejection of all
pending claims (1-23). We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

STATEMENT OF THE CASE
THE INVENTION
Appellants’ invention relates to adjusting allocation of memory
bandwidth in a network processor by: (1) determining an amount of memory
bandwidth of a network processor used by each of a plurality of data types;
and (2) dynamically adjusting the amount of memory bandwidth allocated to
at least one of the plurality of data types based on the determination. See
generally, Abstract.
Claim 1, reproduced below, is illustrative:
1. A method of self-adjusting allocation of memory
bandwidth in a network processor system comprising:
determining an amount of memory bandwidth of a
network processor used by a plurality of data types to transmit
data through a plurality of active ports;
determining an amount of memory bandwidth of the
network processor used by each of the plurality of data types;
and
dynamically adjusting an amount of memory bandwidth
allocated to at least one of the plurality of data types based on
the determinations.

THE REJECTIONS
Claims 1-7, 11-18, 22, and 23 are rejected under 35 U.S.C. § 102(b)
as anticipated by Olnowich (US 6,098,123). Ans. 3-7.
Appeal 2011-000749
Application 10/667,029

3

Claims 8-10 and 19-21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Olnowich. Ans. 7-8.

ISSUE
Rather than repeat the arguments here, we refer to Appellants’ Briefs
(“App. Br.” filed June 15, 2009 and “Reply Br.” filed September 21, 2010)
and the Examiner’s Answer (“Ans.” mailed July 21, 2010) for the respective
positions of Appellants and the Examiner.
Appellants’ arguments present us with the following dispositive issue:
Has the Examiner erred by finding that Olnowich teaches, “determining an
amount of memory bandwidth of a network processor used by a plurality of
data types to transmit data through a plurality of active ports” as recited in
claim 1?

ANTICIPATION REJECTION
ANALYSIS
In rejecting claim 1, the Examiner’s interprets a plurality of data types
as reading on Olnowich’s disclosure of different ports exchanging data with
different connected devices and transmitting at differing speeds over
different ports. Ans. 3-4. Appellants argue, “the present application notes
by way of inclusion that ‘[t]he data may be of one or more data types, such
as ATM, Fast Ethernet, and/or Gigabit Ethernet.’” App. Br. 8. Appellants
further contend:
However, neither the function of a port (send/receive), the
destination of its data (processor/network), nor the slowing of
the transmission speed of data have been shown by the Office
to equate to “a plurality of data types.” That is, these passages
Appeal 2011-000749
Application 10/667,029

4

have not been shown to disclose anything other than one type of
data being transmitted using four (4) different ports.
Id. (emphasis omitted). We agree.
“[D]uring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification.” In re Hyatt, 211
F.3d 1367, 1372 (Fed. Cir. 2000) (emphasis added). We find the Examiner’s
interpretation unreasonably broad in light of the Specification and
inconsistent with the Specification. The Specification, though not providing
a complete definition, clearly uses the term “data type” in reference to
different protocols. See, e.g., Spec. 1:33 through 2:1 (“For an ATM
(Asynchronous Transfer Mode) data type”), 2:3 (“Ethernet data types”);
2:20 (“ATM data type”), 4:11-12 (“certain data type (e.g., Fast Ethernet or
Gigabit Ethernet, etc.)”), 7:9-10 (“Gigabit Ethernet data type”), 7:17-18
(“one of the plurality of data types refers to Fast Ethernet data”), 7:22-23
(“Fast Ethernet data type”), 7:28-29 (“Fast Ethernet data type”), 8:2-3 (“Fast
Ethernet data type”), 8:21-22 (“data of the ATM, Fast Ethernet, and Gigabit
Ethernet data types”), 9:7 (“Fast Ethernet data type”), etc. We find the
Examiner’s interpretation of “plurality of data types” inconsistent with the
Specification. “The construction that stays true to the claim language and
most naturally aligns with the patent’s description of the invention will be, in
the end, the correct construction.” Renishaw PLC v. Marposs Societa’ per
Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998) (citation omitted).
The Examiner further explains that the Specification also recites that
the data transmitted and received may be “one or more” of the exemplary
data types (ATM, Fast Ethernet, and Gigabit Ethernet) and thus finds “that
‘one or more data types’ also suggests the possibility of only one data type.”
Ans. 9-10 (emphasis omitted). We do not agree. These citations to the
Appeal 2011-000749
Application 10/667,029

5

Specification relate to transmissions of “one or more data types” over the
plurality of ports but do not suggest a limitation of the recited “plurality of
data types” to encompass a single data type. The Examiner provides similar
interpretations of recitations of “one or more” in the Specification, further
indicating each is within the scope of the claim and could encompass
transmission of a single data type over multiple ports. Ans. 10, 12-14. For
the same reason, we do not agree. The claims clearly require a plurality of
data types rather than a single data type used on each of the plurality of
ports.
The Examiner also asserts recitations of dependent claims 9, 10, 20,
and 21 suggest “the plurality of data types including only a Gigabit Ethernet
data type, or the possibility of the plurality of data types including only a
Fast Ethernet data type (emphasis on ‘or’ suggested by ‘at least one of’) -
hence a plurality of data types being of the same type.” Ans. 10-11
(underlining omitted). We do not agree. The recitations of these dependent
claims merely require that the plurality of data types include at least one of a
selection of possible data types. As above, these recitations do not narrow
the scope of the recited “plurality of data types” to encompass only one data
type.
The Examiner further states:
Appellants’ disclosure, therefore, does not preclude
data of the same type being transmitted at different rates
from being considered as data of a plurality of data types -
hence does not preclude data being transmitted using
different ports and at different rates from being considered
as data of a plurality of data types. It also appears that
appellants’ disclosure does not even preclude data being
transmitted using different ports from being considered
data of a plurality of types (as discussed above, appellants'
Appeal 2011-000749
Application 10/667,029

6

disclosure suggests a plurality of data types being of the
same type).
Ans. 11. For the same reasons as above, we do not agree. We find nothing
in the Specification supporting an interpretation of “plurality of data types”
to encompass a single data type transmitted using different rates/speeds or a
common, single data type transmitted over a plurality of ports.
In view of the above discussions, we are persuaded that the Examiner
erred by finding that Olnowich teaches, “determining an amount of memory
bandwidth of a network processor used by a plurality of data types to
transmit data through a plurality of active ports” as recited in claim 1. We
therefore do not sustain the anticipation rejection of claim 1. Independent
claims 12 and 23 include similar recitations and therefore we do not sustain
the rejection of claims 12 and 23 and all dependent claims.

OBVIOUSNESS REJECTIONS
Claims 8-10 and 19-21 depend (indirectly) from claims 1 and 12,
respectively, and thus, we do not sustain the Examiner’s rejections under
§ 103.

DECISION
For the above reasons, the rejections of claims 1-23 under 35 U.S.C.
§§ 102 and 103 are reversed.

REVERSED

msc