Ex Parte Bouknight et al

Patent Trial and Appeal BoardNov 29, 2012

10716688 (P.T.A.B. Nov. 29, 2012)

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. 10/716,688 11/19/2003 Wendell J. Bouknight JR. RSW920030238US1 (130) 6588 46320 7590 11/29/2012 CAREY, RODRIGUEZ, GREENBERG & O''KEEFE, LLP STEVEN M. GREENBERG 950 PENINSULA CORPORATE CIRCLE SUITE 2022 BOCA RATON, FL 33487 EXAMINER WHIPPLE, BRIAN P ART UNIT PAPER NUMBER 2448 MAIL DATE DELIVERY MODE 11/29/2012 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 WENDELL J. BOUKNIGHT JR. And DAVID B. GILGEN _____________ Appeal 2010-006662 Application 10/716,688 Technology Center 2400 ______________ Before CARL W. WHITEHEAD, JR., ERIC S. FRAHM, and ANDREW J. DILLON, Administrative Patent Judges. FRAHM, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-006662 Application 10/716,688 2 STATEMENT OF THE CASE1 This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection of claims 1-3 and 14-16. Claims 4-13, 17, and 18 have been canceled. Claims 19-26, added by amendment with the Notice of Appeal filed May 26, 2009 and entered by the Advisory Action mailed August 26, 2009, have neither been appealed nor argued by Appellants (see generally App. Br. 2- 3). Accordingly, we confine our decision to claims 1-3 and 14-16. See Ex parte Ghuman, 88 USPQ2d 1478 (BPAI 2008) (precedential). Following our decision, the Examiner should cancel the non-appealed claims. See id.; see also Manual of Patent Examining Procedure (MPEP) § 1215.03, Rev. 8, July 2010. We reverse. Appellants’ Invention The invention is directed to an autonomic buffer configuration method and a machine readable storage with a computer program thereon for performing the method, wherein the method comprises the steps of monitoring buffer data, recording buffer profiles for the buffer data, computing an optimal buffer size, and re-sizing at least one buffer (see independent claims 1 and 14; Spec. ¶¶ [0026]-[0028]; Abs.). Claim 1 is representative of the invention and is reproduced below, with lettered bracketing and emphasis added to the disputed portion of the claim: 1 Throughout our decision, we refer to the Appeal Brief filed September 9, 2009 (“Br.”), and the Examiner’s Answer mailed December 9, 2009 (“Ans.”). No Reply Brief has been filed. Appeal 2010-006662 Application 10/716,688 3 1. An autonomic buffer configuration method comprising the steps of: [A] monitoring data flowing through buffers in a communications system; [B] recording in at least one buffer profile different data sizes for different ones of said data flowing through said buffers during an established interval of time; [C] computing an optimal buffer size based upon a specification of a required percentage of times a buffer must be able to accommodate data of a particular size; and, [D] re-sizing at least one of said buffers without re- initializing said at least one resized buffer. Examiner’s Rejection The Examiner has rejected claims 1-3 and 14-16 under 35 U.S.C. § 103(a) as being unpatentable over Bakshi (US 6,836,785 B1, Dec. 28, 2004, filed Nov. 22, 2000), Dupont (US 6,842,800 B2, Jan. 11, 2005, filed Aug. 30, 2001), and Koval (US 5,339,413, Aug. 16, 1994). Ans. 3-7. ISSUE2 Base on Appellants’ arguments at pages 8-15 of the Brief, the following dispositive issue is presented on appeal: Did the Examiner err in rejecting claims 1-3 and 14-16 because the combination of references fails to teach or suggest computing an optimal 2 We recognize that Appellants’ arguments present additional issues. Many of the arguments presented by the additional issues are not persuasive; nonetheless we were persuaded of error by the issue regarding limitation [C] recited in claim 1 (and similarly recited in claim 14, the buffer size calculation limitation), and as such we do not reach the additional issues as the issue regarding buffer size calculation is dispositive of the appeal. Appeal 2010-006662 Application 10/716,688 4 buffer size in accordance with limitation [C] as recited in independent claim 1, and as similarly recited in remaining independent claim 14? ANALYSIS We have reviewed Appellants’ arguments in the Brief and we concur with Appellants’ conclusion that the Examiner erred in finding that the combination of references, and specifically Bakshi, teaches or suggests computing an optimal buffer size based on a “required percentage” as claimed. Specifically, we find that Bakshi computes the size of a variable size buffer 302 based on an acceptance limit 306 that varies from 0-100% (col. 4, ll. 9-16). Therefore, we agree with Appellants (Br. 8) that Bakshi discloses basing buffer size calculations on a number, or limit 306, and not “a required percentage of times a buffer must be able to accommodate data of a particular size,” as required by claims 1 and 14. We also agree with Appellants (Br. 10) that Dupont fails to teach or suggest using “a required percentage of times a buffer must be able to accommodate data of a particular size” as a factor in computing optimal buffer size (see Dupont at col. 2, ll. 47-49 and col. 3, ll. 24-34). Further, we agree with Appellants (Br. 9) that no combination of Bakshi and Dupont would lead one of ordinary skill in the art to compute buffer size in the manner of limitation [C] set forth in claim 1, and as similarly set forth in claim 14. Finally, we agree with Appellants (Br. 11) that the Examiner has failed to show or explain how or why one of ordinary skill in the art would modify Bakshi’s buffer size calculation method with Dupont’s method to achieve the method of limitation [C] in claim 1. Likewise, Koval fails to Appeal 2010-006662 Application 10/716,688 5 cure the deficiencies of Bakshi and Dupont with respect to the buffer size calculation limitations of claims 1 and 14, and the Examiner only relies upon Koval to teach or suggest the use of plural buffers (Ans. 6). Accordingly, we do not sustain the Examiner’s rejection of independent claims 1 and 14, as well as claims 2, 3, 15, and 16 depending respectively therefrom. CONCLUSION Appellants have persuaded us of error in the Examiner’s decision to reject claims 1-3 and 14-16. DECISION The decision of the Examiner to reject claims 1-3 and 14-16 is reversed. REVERSED Vsh