Ex Parte Rose et al

Patent Trial and Appeal BoardSep 24, 2012

10407783 (P.T.A.B. Sep. 24, 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. 10/407,783 04/04/2003 Kenneth M. Rose CIS0183C1US 2376 33031 7590 09/24/2012 CAMPBELL STEPHENSON LLP 11401 CENTURY OAKS TERRACE BLDG. H, SUITE 250 AUSTIN, TX 78758 EXAMINER HOMAYOUNMEHR, FARID ART UNIT PAPER NUMBER 2495 MAIL DATE DELIVERY MODE 09/24/2012 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 KENNETH M. ROSE, VENKATESHWAR R. PULLELA, DAVID S. WALKER, KEVIN C. WONG, KAICHUAN HE, and YU KWONG NG ____________________ Appeal 2010-005151 Application 10/407,783 Technology Center 2400 ____________________ Before DEBRA K. STEPHENS, ERIC S. FRAHM, and JOHNNY A. KUMAR, Administrative Patent Judges. KUMAR, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005151 Application 10/407,783 2 STATEMENT OF CASE Introduction Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-30. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Exemplary Claim Exemplary claim 1 under appeal reads as follows: 1. A method comprising: receiving a Ethernet frame, wherein the Ethernet frame comprises a Transmission Control Protocol (TCP) header, wherein the TCP header comprises a TCP header length value; comparing the TCP header length value to a predetermined value. Rejections on Appeal Claims 1-4, 8-10, 15-17, and 21 stand rejected under 35 U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as obvious over RFC 1858 (G. Ziemba et al., Security Considerations for IP Fragment Filtering, October 1995). (Ans. 3-6). Claims 5-7, 11-14, 18-20, and 22-27 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over RFC 1858, in view of Boucher (US 6,247,060 B1, Jun. 12, 2001). (Ans. 6-9). Appellants’ Contentions 1. Appellants contend that the Examiner erred in rejecting claim 1 because RFC 1858 does not teach the claimed “comparing the TCP header length value to a predetermined value.” (App. Br. 6-8; Reply Br. 4-5). Appeal 2010-005151 Application 10/407,783 3 Appellants further contend that “Data Offset and TRANSPORTLEN are not the same” since Data Offset is included in the TCP header of a packet whereas TRANSPORTLEN is not and they do not necessarily have the same value due to differing errors (App. Br. 7; Reply Br. 4). 2. Appellants contend that the Examiner erred in rejecting dependent claim 5 because RFC 1858 does not teach the claimed “wherein the predetermined value is 5.” (App. Br. 8-9). 3. Appellants contend that the Examiner erred in rejecting dependent claim 6 because RFC 1858 and Boucher do not teach the claimed “counting data bytes of the Ethernet frame to generate a total number of counted bytes” and “calculating a data length of an Internet Protocol (IP) payload of the Ethernet frame, wherein the data length is calculated as a function of the total number of counted bytes.” (App. Br. 9-10). Appellants argue the Examiner does not cite to any disclosure that communication systems based on Ethernet protocol require calculating the length of Ethernet datagrams for storing and processing the protocol data units (App. Br. 9). Instead, according to Appellants, the only length computed is TCP length which is the TCP header length plus the data length (App. Br. 10). 4. Appellants contend that the Examiner erred in rejecting dependent claim 7 because RFC 1858 and Boucher do not teach the claimed “calculating a second data length of the IP payload” and “comparing the calculated second data length to the second predetermined value.” (App. Br. 10-11). Instead, Boucher discloses a single data length of an IP payload and comparing that data length to a single predetermined constant (App. Br. 11). 5. Appellants contend that the Examiner also erred in rejecting dependent claim 24 because RFC 1858 and Boucher do not teach the Appeal 2010-005151 Application 10/407,783 4 claimed “wherein the datagram bytes are counted if a fragment offset value contained in the Ethernet frame is set to zero.” (App. Br. 12). Appellants argue comparing a TCP header length is different than counting datagram bytes (id.). Issues on Appeal Did the Examiner err in rejecting claims 1-4, 8-10, 15-17, and 21 as being anticipated or obvious because RFC 1858 fails to describe “comparing the TCP header length value to a predetermined value”? Did the Examiner err in finding that the combination of RFC 1858 and Boucher teaches or suggests the following claim limitations in claims 5-7, 11-14, 18-20, and 22-27: (a) “wherein the predetermined value is 5;” (b) “counting data bytes of the Ethernet frame to generate a total number of counted bytes” and “calculating a data length of an Internet Protocol (IP) payload of the Ethernet frame, wherein the data length is calculated as a function of the total number of counted bytes;” (c) “calculating a second data length of the IP payload” and “comparing the calculated second data length to the second predetermined value;” and (d) “wherein the datagram bytes are counted if a fragment offset value contained in the Ethernet frame is set to zero”? Appeal 2010-005151 Application 10/407,783 5 ANALYSIS We disagree with Appellants’ above contentions 1-5. With regard to claims 1-30, we adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner’s Answer (Ans. 4-19) in response to Appellants’ Appeal Brief. We concur with the conclusions reached by the Examiner. We highlight the following arguments for emphasis. As to Appellants’ above contention 1, we disagree with Appellants’ arguments. We agree with the Examiner (Ans. 4-5 and 12-15) that in Section 3.2.1, RFC 1858 teaches or suggests “comparing the TCP header length value to a predetermined value.” We agree with the Examiner that RFC 1858 explicitly teaches computing the length of the transport header and comparing it against TMIN (predetermined value). (Ans. 4; Section 3.2.1, p. 4). Thus, the Examiner did not err in rejecting claim 1 as being anticipated or obvious over RFC 1858. Appellants argue the patentability of independent claims 8, 14, 21, and 27, and their dependent claims, based on the same arguments presented for claim 1 (see App. Br. 8), which we found to be unpersuasive. As to Appellants’ above contention 2, we disagree with Appellants’ arguments. We agree with the Examiner (Ans. 6, 15) that RFC 1858’s Section 3.2.1 teaches or suggests that the predetermined value “is a function of transport protocol and particular filters currently configured. Therefore, the number is not set to be only 4.” (Ans. 15). Thus, the Examiner has set forth why an ordinary skilled artisan would have found it obvious to have the predetermined value be equal to 5. Appellants have not presented any Appeal 2010-005151 Application 10/407,783 6 persuasive evidence or argument that the ordinary artisan would not have possessed the knowledge and skills rendering him capable of meeting the claimed limitation. Appellants further argue that claims 11 and 18 recite similar features as claim 5 (App. Br. 9), and thus claims 11 and 18 fall with claim 5. As to Appellants’ above contention 3, we disagree with Appellants’ arguments. The Examiner finds that an artisan would recognize that such limitations are inherent to TCP networks of RFC 1858 because an “IP router must count the length of an IP packet to parse, filter and rout[e] the packets.” (Ans. 16-17.) Appellants did not present sufficient argument or evidence to persuade us of error in the Examiner’s findings. As such, we agree with the Examiner that the combination of RFC 1858 and Boucher teaches or suggests the claimed “counting data bytes of the Ethernet frame to generate a total number of counted bytes” and “calculating a data length of an Internet Protocol (IP) payload of the Ethernet frame, wherein the data length is calculated as a function of the total number of counted bytes.”1 Appellants further argue that claims 12, 19, and 23 recite similar features as claim 6 (App. Br. 10), and thus claims 12, 19, and 23 fall with claim 6. As to Appellants’ above contention 4, we disagree with Appellants’ arguments. The Examiner finds that “these teachings are nothing more than the basic concepts of the IP protocol, and that one skilled in art related to IP protocol would be very familiar with such teachings.” (Ans. 18). We agree 1 The Examiner provides supplemental discussion of how RFC 791 and RFC 793 describe the details of IP routing of packets (Ans. 16-17). We need not reach this supplemental reasoning as we find the Examiner’s reliance on the teachings of RFC 1858 and Boucher to be sufficient to support the Examiner’s conclusion. Appeal 2010-005151 Application 10/407,783 7 with the Examiner’s findings on page 18 of the Answer. Also, the Appellants did not present sufficient argument or evidence to persuade us of error in the Examiner’s findings. The Examiner also finds that Boucher teaches or suggests “comparing the length of the IP packet to a determined value to make sure the length of the IP packet is larger than the predetermined value.” (Ans. 8 citing Boucher, Col. 58, Section 5.2.3). We agree with the Examiner. Appellants further argue that claims 13 and 20 recite similar features as claim 7 (App. Br. 11), and thus claims 13 and 20 fall with claim 7. As to Appellants’ above contention 5, we disagree with Appellants’ arguments. The Examiner took Official Notice that it was known to calculate the length of the IP payload by counting the bytes. Final Rej. 12. Appellants’ arguments have not addressed this Official Notice by the Examiner. We find the Official Notice to not be unreasonable. Thus, we find no error in the Examiner’s taking of Official Notice and we sustain the Examiner’s rejection of claim 24. CONCLUSIONS (1) The Examiner did not err in rejecting claims 1-4, 8-10, 15-17, and 21 under 35 U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as obvious over RFC 1858. (2) The Examiner did not err in rejecting claims 5-7, 11-14, 18-20, and 22-27 under 35 U.S.C. § 103(a) as being unpatentable over RFC 1858 in view of Boucher. (3) Claims 1-30 are not patentable. Appeal 2010-005151 Application 10/407,783 8 DECISION The Examiner’s rejection of claims 1-30 are affirmed. 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 msc