Ex Parte Pullen

Patent Trial and Appeal Board

Aug 10, 2017

13435674 (P.T.A.B. Aug. 10, 2017)

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.
13/435,674 03/30/2012 David PULLEN 2875.8790000 7361
49579 7590 08/14/2017
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005
EXAMINER
PATEL, PARTHKUMAR
ART UNIT PAPER NUMBER
2468
NOTIFICATION DATE DELIVERY MODE
08/14/2017 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):
e-office @ skgf.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID PULLEN1
Appeal 2016-002957
Application 13/435,674
Technology Center 2400
Before BRUCE R. WINSOR, JON M. JURGOVAN, and
DAVID J. CUTITTAII, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1 and 3—20, all pending claims of the application.2
We have jurisdiction under 35 U.S.C. § 6(b). Oral arguments were heard on
August 1, 2017; a transcript of that hearing will be added to the record in
due time.
We affirm-in-part.
1 According to Appellant, the real party in interest is Broadcom Corporation.
Appeal Br. 3.
2 Claim 2 is cancelled. Appeal Br. 22.
Appeal 2016-002957
Application 13/435,674
STATEMENT OF THE CASE
According to Appellant, the application relates to alleviating
congestion in a cable modem by prioritizing incoming packets of data.
Spec. 2, 29.* * 3 Claims 1, 19, and 20 are independent. Claims 1, 3, 6, 8,
and 13 are exemplary and are reproduced below:
1. A cable modem, comprising:
a buffer pool, including a plurality of buffers, configured
to store packets;
a Media Access Control (MAC) external to the buffer
pool and coupled to the buffer pool, the MAC comprising:
a memory configured to store an incoming packet; and
an inspection engine coupled to the memory and
configured:
to parse the incoming packet to determine a
priority level of the incoming packet,
to determine whether a buffer is available in the
buffer pool to store the incoming packet, and
to allocate the buffer to store the incoming packet
based on the priority level of the incoming packet.
3. The cable modem of claim 1, wherein the buffer
pool further comprises:
a buffer manager configured to send a queue status signal
to the inspection engine to indicate availability of the buffer in
the buffer pool.
3 This Decision refers to: (1) Appellant’s Specification filed March 30, 2012
(Spec.); (2) the Final Office Action (Final Act.) mailed November 3, 2014;
(3) the Appeal Brief (Appeal Br.) filed July 6, 2015; (4) the Examiner’s
Answer (Ans.) mailed November 16, 2015 and (5) the Reply Brief (Reply
Br.) filed January 19, 2016.
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6. The cable modem of claim 3, wherein the
inspection engine is further configured to discard the incoming
priority packet when the incoming packet is a lower priority
packet compared to a high priority packet stored in the buffer
and the queue status indicates that no buffer of the plurality of
buffers is available to store the incoming packet.
8. The cable modem of claim 1, wherein the
inspection engine is configured to parse the packet to determine
at least one of an Internet Protocol version 4 (IPv4) or Internet
Protocol version 6 (IPv6) source address or destination address;
Transmission Control Protocol (TCP) or User Datagram
Protocol (UDP) source port or destination port; Ethernet Media
Access Control (MAC) address, Differentiated Services Code
Point (DSCP) field in an Internet Protocol (IP) header, Virtual
Local Area Network (VLAN), VLAN Identification (VID), and
Type of Service (TOS) bits to determine the priority level of the
incoming packet.
13. The cable modem of claim 1, wherein the
inspection engine is configured to be programmed remotely by
a cable modem termination system (CMTS) to determine the
priority level of the incoming packet.
RELERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal includes:
Lansing et al. (“Lansing”)
Chandran et al.
(“Chandran”)
Wang et al. (“Wang”)
Thi et al. (“Thi”)
Taskin et al. (“Taskin’’)
US 2003/0058795 Al
US 7,620,055 B1
US 7,724,740 B1
US 2011/0200048 Al
WO 2009/154581 Al
Mar. 27, 2003
Nov. 17, 2009
May 25, 2010
Aug. 18,2011
Dec. 23, 2009
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Application 13/435,674
REJECTIONS
(1) Claims 1, 3, 4—6, 8—11, 13, 17, 19, and 20 stand rejected under
35 U.S.C. § 103(a) as unpatentable over the combination of Wang and
Lansing. Final Act. 4—13.
(2) Claims 7, 12, 14, and 15 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Wang, Lansing, and
Chandran. Final Act. 13—16.
(3) Claim 16 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Wang, Lansing, and Thi. Final
Act. 16-17.
(4) Claim 18 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Wang, Lansing, and Taskin. Final
Act. 17.
Our review in this appeal is limited only to the above rejections and
issues raised by Appellant. Arguments not made are waived. See MPEP
§ 1205.02; 37 C.F.R. §§ 41.37(c)(l)(iv) and 41.39(a)(1).
ISSUES
1. Does the Examiner err in finding the combination of Wang and
Lansing teaches or suggests “[a] cable modem, comprising: ... a Media
Access Control (MAC) external to the buffer pool and coupled to the buffer
pool, the MAC comprising: a memory configured to store an incoming
packet; and an inspection engine coupled to the memory,” as recited in
claim 1?
2. Does the Examiner err in finding the combination of Wang and
Lansing teaches or suggests “a buffer manager configured to send a queue
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status signal to the inspection engine to indicate availability of the buffer in
the buffer pool,” as recited in claim 3?
3. Does the Examiner err in finding the combination of Wang and
Lansing teaches or suggests “wherein the inspection engine is further
configured to discard the incoming priority packet when the incoming
packet is a lower priority packet compared to a high priority packet stored in
the buffer,” as recited in claim 6?
4. Does the Examiner err in finding the combination of Wang and
Lansing teaches or suggests “wherein the inspection engine is configured to
parse the packet... to determine the priority level of the incoming packet,”
as recited in claim 8?
5. Does the Examiner err in finding the combination of Wang and
Lansing teaches or suggests “wherein the inspection engine is configured to
be programmed remotely by a cable modem termination system (CMTS) to
determine the priority level of the incoming packet,” as recited in claim 13?
CONTENTIONS AND DISCUSSION
Issue 1 — claim 1
We disagree with Appellant’s contentions with respect to independent
claim 1, and we adopt as our own (1) the Examiner’s findings and reasoning
set forth in the Office Action from which this appeal is taken (Final Act. 4—
6) and (2) the Examiner’s reasoning set forth in the Examiner’s Answer
(Ans. 2—8). We highlight the following points for emphasis.
The Examiner finds Wang teaches a media access controller
(“MAC”), as recited in claim 1. Final Act. 4 (citing Wang Fig. 8 and 10:4—
6, 10:44—63, and 20:33—48).
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Appellant argues,
the packet parser classifier 311, the priority packet upload
engine 318, and the receive packet data buffer 305 of Wang are
not part of MAC/PHY 306 of Wang. Rather, as seen in FIG. 8
of Wang, the packet parser classifier 311, the priority packet
upload engine 318, and the receive packet data buffer 305 of
Wang are only part of the network interface card (NIC) 13.
.... [Thus,] Wang [does not] describe anywhere its MAC 306
includes the memory and inspection engine recited in claim 1.
Appeal Br. 13.
Appellant’s argument is not responsive to the Examiner’s findings and
is, therefore, unpersuasive. The Examiner finds MAC functions in Wang are
performed by a combination of reference items 305, 306, 311, and 318
(Ans. 3 (citing Wang Fig. 8)), rather than by MAC/PHY 306 alone, as
argued by Appellant. Accordingly, Appellant’s argument that the Examiner
must demonstrate that items 305, 311, and 318 are “included within”
MAC/PHY 306 is misguided because the Examiner does not rely on
MAC/PHY 306 alone to teach the claimed MAC. Appeal Br. 14. Instead,
the Examiner finds it is the combined functionality of items 305, 306, 311,
and 318 that performs media access control functions, and, thus, suggests the
claimed MAC. Appellant’s assertion that Wang fails to teach the claimed
MAC does not evidence lack of obviousness, but, rather, “begs the
substantive question of whether there are facial differences to be bridged”
between the structure and functionality of the cited portions of Wang and the
claimed MAC. See In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011). A
reference does not have to satisfy an ipsissimis verbis test to disclose a
claimed element, therefore, Appellant’s demand for such an exacting match
is not persuasive of error. See In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir.
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2009). Accordingly, we agree with the Examiner’s finding that the cited
structure from Wang performs the claimed MAC functions and, thus,
teaches a MAC, as claimed.
Appellant further argues items 311,318, 305, and 306 “are only part
of the network interface card (NIC) 13” and NIC 13 is not a MAC. Appeal
Br. 13. We find this argument unpersuasive because it is irrelevant whether
the cited items are part of NIC 13. The Examiner does not rely on NIC 13 to
suggest the claimed MAC but rather cites items 311,318, 305, and 306.
Ans. 3. As discussed in the preceding paragraph, Appellant fails to
specifically respond to this finding.
Appellant argues the Examiner has “failed to provide clear and
articulated reasoning having a rational underpinning as to why the claimed
invention would have been obvious to a person having ordinary skill in the
art.” Appeal Br. 16.
We are not persuaded by Appellant’s argument because the Examiner
has provided reasoning with rational underpinnings as a reason to combine
Wang with the teachings of Lansing, namely, by “[hjaving a capability to
determine the buffer availability, greater reliability and greater control in the
communication can be carried out.” Final Act. 6; see In re Kahn, 441 F.3d
977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds [require]
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness”) (cited with approval in KSR Int 7 Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007). Appellant fails to show why this
reasoning is deficient. Appellant also fails to provide any evidence
demonstrating the Examiner’s proffered combination would have been
“uniquely challenging or difficult for one of ordinary skill in the art,”
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Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007).
Appellant further argues “the Examiner has reached the legal
conclusion of obviousness only through impermissible hindsight
reconstruction.” Id. We find this argument unpersuasive because the
Examiner has articulated a reason having rational underpinnings for making
the proposed combination, as discussed above. Appellant fails to
demonstrate the combination is based on impermissible hindsight rather than
the Examiner’s articulated reason.
The Examiner finds Wang’s NIC 13 teaches a “cable modem,” as
recited in claim 1. Final Act. 4 (citing Wang 7:22—32 and 48—57).
Appellant argues Wang fails to teach a cable modem, as claimed,
because “[t]he NIC 13 of Wang cannot be reasonably construed to be ‘a
cable modem.’” Reply Br. 7—8. Specifically, Appellant argues,
[t]he applied portion of Wang describes functions of MAC 20
such as conforming packets to IEEE 802.3 Data Link Layer
protocol. (Wang, 7:22-57.) The applied portion of Wang
further describes other packet processing functions. Id.
However, describing MAC functionality or the IEEE 802.3
Data Link Layer protocol functions performed by NIC 13 does
not imply that NIC 13 is a cable modem as understood by one
of ordinary skill in the art.
Reply Br. 8.
We find this argument unpersuasive. Appellant, in essence, argues
the Examiner’s interpretation of the term “cable modem,” as recited in claim
1, is unreasonably broad. Appellant, however, fails to establish the
Examiner’s interpretation is not the broadest reasonable interpretation
consistent with Appellant’s Specification. See In re Am. Acad, of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under broadest reasonable
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interpretation, the words of the claim must be given their plain meaning
unless the plain meaning is inconsistent with the Specification. In re Zletz,
893 F.2d 319, 321 (Fed. Cir. 1989). The plain meaning of a term means the
ordinary and customary meaning given by those of ordinary skill in the art at
the time of the invention. In re Suitco Surface, Inc., 603 F.3d 1255, 1259—
60 (Fed. Cir. 2010). The presumption that a term is given its ordinary and
customary meaning may be rebutted by Appellant clearly setting forth a
different definition of the term in the Specification. In re Morris, 111 F.3d
1048, 1054 (Fed. Cir. 1997). Here, Appellant fails to demonstrate that the
term “cable modem” has been clearly defined in Appellant’s Specification in
a way that is inconsistent with the Examiner’s interpretation. Therefore,
Appellant fails to establish the Examiner’s interpretation of a cable modem
is unreasonable. The plain meaning of “cable modem” in the computer
context is “a modem that sends and receives data through a coaxial cable
television network instead of the phone lines, as with conventional
modems.” Microsoft Computer Dictionary 80 (5th ed. 2002).
In addition, the Microsoft Computer Dictionary, in defining a network
interface card, states “[njetwork interface cards mediate between the
computer and the physical media, such as cabling, over which transmissions
travel.” Microsoft Computer Dictionary 363 (5th ed. 2002, emphasis added).
Based on this meaning, because Wang’s network interface card may send
and receive modulated data over a cable, we agree with the Examiner’s
finding that NIC 13 performs functions of cable modem, and therefore,
suggests a cable modem. Ans. 3 (citing Wang 7:22-32 and 48-57).
Accordingly, we agree that the claimed cable modem, given a reasonable
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interpretation in light of the Specification, encompasses Wang’s NIC 13.
Ans. 4—5.
For emphasis, we note that Lansing teaches a cable modem (see
Lansing Fig. 1, item 104). Even if we were to accept (which we do not),
arguendo, Appellant’s contention that Wang’s NIC is not encompassed
within the broadest reasonable interpretation of a “cable modem,” we would
not be persuaded of Examiner error. As discussed above, the functions of a
NIC and a cable modem are similar; so much so that one of ordinary skill in
the art would naturally look to the NIC art when seeking to improve
Lansing’s cable modem. Where a rejection is based on a combination of
references, the order in which prior art references are cited to the Applicant
is of no significance, but merely a matter of exposition. In re Bush, 296 F.2d
491,496 (CCPA1961).
We, thus, sustain the Examiner’s obviousness rejection of claim 1.
We also sustain the Examiner’s obviousness rejection of independent claims
19 and 20, which recite similar limitations and are not argued separately, for
similar reasons. Appeal Br. 17. Dependent claims 4, 5, 7, 9-12, and 14—18,
are not argued separately, and thus, fall with their respective independent
claims. Appeal Br. 17—20.
Issue 2 — claim 3
The Examiner finds Lansing teaches “a buffer manager configured to
send a queue status signal to the inspection engine to indicate availability of
the buffer in the buffer pool,” as recited in claim 3. Final Act. 6 (citing
Lansing || 30-38).
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Appellant argues the Examiner’s finding is erroneous because
“Lansing describes a status of queues in a local SD RAM 114 that is within
a MAC 112.” Appeal Br. 17 (citing Lansing || 30-38). In contrast, the
‘buffer pool’ and ‘buffer manager’ as recited in dependent claim 3 are
external to the MAC.” Appeal Br. 17—18. We find this argument
unpersuasive. We agree with and adopt the Examiner’s findings that
Lansing’s CMTS scheduler 110 is separate/extemal from MAC 112 as our
own. Ans. 5—6.
Appellant’s argue “claim 3 recites a signal from a buffer manager
within the buffer pool to an inspection engine in the MAC. Lansing
describes an interrupt signal from MAC 112 to the CMTS (see, Lansing,
| [0039].). Therefore, Lansing is describing a signal from the MAC to the
CMTS as opposed to a signal from a buffer manager external to the MAC to
the inspection engine within the MAC.”
We find this argument unpersuasive. We agree with and adopt the
Examiner’s findings that Lansing teaches sending a signal from CMTS
scheduler 110 to MAC 112 as our own. Ans. 6 (citing Lansing Tig. 3).
We, thus, sustain the Examiner’s obviousness rejection of claim 3.
Issue 3 — claim 6
The Examiner finds Lansing teaches “the inspection engine is further
configured to discard the incoming priority packet when the incoming
packet is a lower priority packet,” as recited in claim 6. final Act. 7 (citing
Lansing || 39-41).
Appellant argues the Examiner’s finding is erroneous because “the
applied portions of Lansing describe dropping lower priority packets stored
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in a queue (see, Lansing, 141) as opposed to dropping an ‘ incoming packet
[that] is a lower priority packet compared to a high priority packet stored in
the buffer’ as recited in claim 6.” Appeal Br. 18.
We find Appellant’s argument unpersuasive because we agree with
the Examiner’s finding that “Lansing describes dropping lower priority
packets stored in a queue which are incoming packets.” Ans. 7. Appellant
fails to establish why the presence of packets in the buffer/queue in Lansing
negates the Examiner’s finding that the packets are incoming packets.
We, thus, sustain the Examiner’s obviousness rejection of claim 6.
Issue 4 — claim 8
The Examiner finds Wang teaches “wherein the inspection engine is
configured to parse the packet... to determine the priority level of the
incoming packet,” as recited in claim 8. Final Act. 8 (citing Wang 3:9-11,
5:2-8, 10:44^47, and 12:6-10).
Appellant argues the Examiner’s finding is erroneous because Wang
discusses classifying a packet rather than determining a priority level and
“[classifying a packet is too vague to provide the necessary teaching.”
Appeal Br. 19.
We find this argument unpersuasive. We agree with and adopt the
Examiner’s finding that Wang’s parser/classifier logic includes at least one
embodiment that determines a priority level. Final Act. 7; Ans. 7. For
example, Wang states “[in] one aspect of the invention, the resources using
the parser/classifier logic providing an innovative scheme to perform
management of packet priority.” Wang 10: 4—6 (cited by the Examiner at
Ans. 7). Citing a different embodiment of Wang, Appellant argues “the
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priority described in Wang is not for the packet but for transferring a data
payload associated with the retrieved data.” Reply Br. 11 (citing Wang,
20:43—46). Appellant, however, fails to specifically respond to all of the
embodiments discussed by the Examiner, such as the example provided
above from Wang’s column 10.
We, thus, sustain the Examiner’s obviousness rejection of claim 8.
Issue 5-claim 13
The Examiner finds Wang teaches “wherein the inspection engine is
configured to be programmed remotely by a cable modem termination
system (CMTS) to determine the priority level of the incoming packet,” as
recited in claim 13 Final Act. 9; Ans. 7—8 (citing Wang 2:7—10, 7:22—24,
5:37—42). Specifically, the Examiner finds Wang teaches “using the
interface master circuit (which is a part of CMTS system) coupled to #10, 12
and 14 [to] do the system management i.e. remote programming the
inspection engine which is a part of NIC.” Ans. 7—8.
Appellant argues the Examiner errs because “Wang does not describe
a CMTS as doing the programming” and “Wang does not describe remote
programming of the inspection engine ‘to determine the priority level of the
incoming packet as recited in claim 13.” Appeal Br. 19-20.
We find Appellant’s arguments persuasive because the Examiner fails
to establish which portion of Wang is relied upon to teach an “interface
master circuit” and why the Examiner finds “interface master circuit” is part
of the CMTS system. Ans. 7. Therefore, on this record, we do not sustain
the Examiner’s rejection of claim 13.
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DECISION
We affirm the Examiner’s decision rejecting claims 1, 3—12, and 14—
20 under 35 U.S.C. § 103(a).
We reverse the Examiner’s decision rejecting claim 13 under
35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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