Ex Parte Fairhurst et al

Patent Trial and Appeal Board

Dec 1, 2012

11634572 (P.T.A.B. Dec. 1, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/634,572 12/06/2006 Mark Fairhurst 4404
7590 12/03/2012
NET NAVIGATION SYSTEMS, LLC
106 FANNIN AVENUE EAST
ROUND ROCK, TX 78664
EXAMINER
HSU, ALPUS
ART UNIT PAPER NUMBER
2465
MAIL DATE DELIVERY MODE
12/03/2012 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 MARK FAIRHURST and BRENDAN FRANCIS DURKIN
____________

Appeal 2010-005569
Application 11/634,5721
Technology Center 2400
____________

Before JOSEPH F. RUGGIERO, JEFFREY S. SMITH, and
JOHN A. EVANS, Administrative Patent Judges.

EVANS, Administrative Patent Judge

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to Cut-
Through Information Schedulers. The Examiner has rejected the claims as
obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.

1 The real party in interest is Applied Micro Circuits Corporation.
Appeal 2010-005569
Application 11/634,572

2
STATEMENT OF THE CASE
A cut-through system and method are provided for scheduling
information in an information distribution device. The method receives a
plurality of information streams. A master schedule is created to select
messages from the information streams for transfer to a corresponding
plurality of remote links. The messages (e.g., packets) may have either a
fixed or variable length. The master schedule is responsible for managing a
communication link overall maximum bandwidth, and a message bandwidth
for each remote link. Concurrently, an underrun schedule is created to select
segment rates for a first group of messages destined to corresponding first
group of remote links, and manage the message segment rate for the first
group of messages. For example, the first group of messages may be
destined to remote links that are sensitive to underrun. (Abstract).
Claims 1-20 are on appeal. Claims 1 and 11 are independent. The
claims have not been argued separately and therefore stand or fall together.
37 C.F.R. § 41.37(c)(1)(vii). Claim 1 is illustrative and reads as follows
with disputed limitations italicized:
1. In an information distribution device, a cut-through
method for scheduling information, the method comprising:
receiving a plurality of information streams;
creating a master schedule to:
select a first plurality of messages from the information
streams for transfer to a corresponding first plurality of remote
links, where each message has a length chosen from a group
consisting of fixed and variable length;
manage an overall maximum bandwidth for the first
plurality of remote links;
manage a communication link bandwidth for each remote
link; and,
creating an underrun schedule to:
select segment rates for a first message from the first
Appeal 2010-005569
Application 11/634,572

3
plurality of messages destined to a corresponding first of
remote link; and;
manage a communication link message segment rate for
the first message.
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as obvious over Konda
and Acharya (Ans. 4-19).
Claim Groupings
Based on Appellants’ arguments in the Appeal Brief, we will decide
the appeal on the basis of claims as set forth below. See 37 C.F.R. §
41.37(c)(1)(vii).
CLAIMS 1 AND 11
CONTENTIONS AND ISSUE
The Examiner has rejected claims 1-20 under 35 U.S.C. § 103(a) as
obvious over Konda (US 2007/0053356 A1, priority US 60/515,985, filed
Oct. 30, 2003) and Acharya (US 2008/0069138 A1, filed Sep. 19, 2006).
(Ans. 4-19). The Examiner finds that Konda teaches each claimed
limitation, except that Konda does not teach an underrun. (Ans. 4-5).2 The
Examiner cites Acharya as teaching an underrun schedule “to select and
manage segment rates of a first group of messages, though scheduling as
such was well known in the art at the time of the invention.” (Ans. 5).
Appellants contend,
Acharya reference has been combined with Konda based upon
the assumption that the combination discloses every limitation

2 Rather than repeat the Examiner’s positions and Appellants’ arguments in
their entirety, we refer to the following documents for their respective
details: Appellants’ Appeal Brief (App. Br.) filed October 14, 2009, the
Examiner’s Answer (Ans.) mailed November 24, 2009, and Appellants’
Reply Brief (Reply Br.) filed December 4, 2009. Arguments that Appellants
did not make in the Briefs have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(1)(vii) (2010).
Appeal 2010-005569
Application 11/634,572

4
recited in Applicant's claims 1 and 11. However, neither Konda
nor Acharya drill down to the detail of particular messages.
Since neither Konda nor Acharya distinguish between particular
messages, they cannot disclose the management of a message
segment rates. Therefore, even if elements from Acharya are
combined with Konda, the combination does not explicitly
disclose every limitation of claims 1 and 11.
(App. Br. 14).
The Examiner answers,
Appellant argues that such segment rates are a level of
granularity not envisioned by Acharya. Even if the disclosed
invention does include this alleged further level of granularity,
it is not clearly demonstrated within the language of the claim.
(Ans. 20-21). The Examiner further finds that Appellants’ arguments “are
not directed to the particular language of the claims. Therefore, if there is a
particular limitation within a claim that the applicant believes has not been
taught sufficiently, examiner is unaware.” (Advisory 2).
Appellants reply the Examiner asserts the claim language can be
interpreted broadly enough to cover a type of message, as opposed to a
particular message, but that the claims were amended explicitly to avoid
such an interpretation, by replacing the phrase, “first group of messages”
with the phrase, “first message.” (Reply Br. 3-4).
The issue with respect to this rejection is whether the cited art teaches
or suggests creating an underrun schedule to manage a communication link
message segment rate for the first message.

PRINCIPLES OF LAW
During examination, claim terms are to be given their broadest
reasonable interpretation, as they would have been understood by one of
Appeal 2010-005569
Application 11/634,572

5
ordinary skill in the art, taking into account whatever enlightenment may be
provided by the Specification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997). To be his own lexicographer, a patentee must use a “special
definition of the term [that] is clearly stated in the patent specification or file
history.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.
Cir. 1996).
ANALYSIS
Appellants essentially argue that because neither Konda nor Acharya
distinguish between particular messages, they cannot disclose the
management of a message segment rates. However, Appellants equate
packets and segments, e.g., “[n]either does Konda disclose the concept of a
message as comprising either a fixed or variable number of segments
(packets).” (App Br. 8). Appellants admit that Konda refers to a “packet
rate.” (App. Br. 8) (Citing Konda Abstract, paragraph [0011]). In view of
Appellants’ admission, we concur with the Examiner’s finding that Konda
teaches “segment rates.”
Appellants further argue:
However, neither Konda nor Acharya drill down to the detail of
particular messages. Since neither Konda nor Acharya distinguish
between particular messages, they cannot disclose the management of
a message segment rates. Therefore, even if elements from Acharya
are combined with Konda, the combination does not explicitly
disclose every limitation of claims 1 and 11.
(App. Br. 14).
Appellants’ argument is foreclosed by our finding that packets are the
equivalent of segments. Appellants have not acted as their own
lexicographer, nor have they provided specification or other evidence to
exclude definition which equates packets and segments.
Appeal 2010-005569
Application 11/634,572

6
CONCLUSION OF LAW
We are not persuaded that the Examiner has erred in rejecting claims
1 and 11 as obvious.

CLAIMS 2-10 AND 12-20
CONTENTIONS AND ISSUE
Appellants note that claims 2-10 depend from claim 1 and that claims
12-20 depend from claim 11. Appellants argue the dependent claims are
patentable for the reasons advanced in favor of claims 1 and 11. (App. Br.
16).

ANALYSIS AND CONCLUSIONS OF LAW
For the reasons discussed above, we are not persuaded that the
Examiner has erred in rejecting claims 2-10 and 12-20.

SUMMARY
We affirm the rejection of claims 1-20 as obvious.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

gvw