Ex Parte Davies et al

Patent Trials and Appeals Board

Jun 30, 2014

10406144 - (D) (P.T.A.B. Jun. 30, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte NEIL JAMES DAVIES, JUDITH YVONNE HOLYER,
LAURA ANNE LAFAVE, PETER WILLIAM THOMPSON,
CHRISTOPHER JAMES VOWDEN, and GRAHAM WILLMOTT
____________

Appeal 2011-011453
Application 10/406,144
Technology Center 2400
____________

Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM,
Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejections of claims 1-26. Br. 3 and 15-19; Ans. 2. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.

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REJECTIONS
The Examiner rejected claims 1, 10, 11, 12, 16, 17, and 21-26 under
35 U.S.C. § 103(a) as unpatentable over U.S. Patent No. 6,222,841 B1;
Apr. 24, 2001 to Taniguchi and U.S. Patent No. 6,490,248 B1; Dec. 3, 2002
to Shimojo. Ans. 5-12.
The Examiner rejected claims 2, 8, 14, and 19 under § 103(a) as
unpatentable over Taniguchi, Shimojo, and U.S. Patent No. 6,934,250 B1;
Aug. 23, 2005 to Kejriwal. Id. at 12-14.
The Examiner rejected claims 3-7, 13, 15, 18, and 20 under § 103(a)
as unpatentable over Taniguchi, Shimojo, and U.S. Patent No. 5,526,344;
Jun. 11, 1996 to Diaz. Id. at 14-18.
The Examiner rejected claim 9 under § 103(a) as unpatentable over
Taniguchi, Shimojo, and U.S. Patent No. 6,118,761; Sept. 12, 2000 to
Kalkunte. Id. at 18-19.
ILLUSTRATIVE CLAIM
Illustrative claim 1 is reproduced below.
1. A method of controlling an information flow in a data
transmission system, comprising:
receiving, at a controller, a plurality of data packets from a
plurality of data streams;
allocating, at the controller, a packet identifier and a priority
level to each data packet;
servicing, at the controller, packet identifiers in dependence on
the allocated priority levels;
storing, at the controller, each received packet in a respective
queue for each data stream, in the order in which it arrived; and
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outputting, at the controller, a packet from the head of a queue,
which queue includes a packet identified by a serviced packet
identifier.
ANALYSIS
Appellants present duplicative arguments for independent claims 1,
11, and 16. Br. 6-11. Appellants argue that the remaining claims are
allowable in light of their dependencies from claims 1, 11, and 16. Br. 11-
14. Id. at 11-14. We select claim 1 as representative of the subject matter
at-issue.
Claim 1 is rejected as obvious over Taniguchi and Shimojo. The
Examiner reads the claimed receiving, allocating, and servicing steps on
Taniguchi’s stream forming technique, principally finding that the
corresponding disclosed embodiment (i) receives a plurality of data streams
(claimed receiving), (ii) adds a packet identifier to each received packet
(claimed allocating), (iii) sets a correspondence between each packet
identifier and a priority level (claimed allocating), and (iv) filters (i.e.,
determines whether to transmit or abandon) a packet and included identifier
based on the identifier’s corresponded priority (i.e., claimed servicing). Ans.
5-6. The Examiner reads the claimed storing and outputting on Shimojo’s
fair packet output technique, principally finding that the corresponding
disclosed embodiment (i) buffers packets to respective queues of data
streams (claimed storing), and (ii) first-in-first-out (FIFO) outputs the
packets with respect to each queue (claimed outputting). Id. at 6. In short,
the Examiner determines that the claimed invention is achieved by a
combination of Taniguchi’s filtering and Shimojo’s buffering. Id.
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Appellants argue inter alia:
Claim 1 advantageously maintains the order of the packets
within each of a plurality of received data streams, whilst
allowing the controller to service packet identifiers to
selectively output from a plurality of data streams in
dependence on the priority allocated to packets within the data
streams. This means that the data stream within which the
highest priority packet is located is serviced as a priority, but
the order of the packets in that stream is not changed: the
packet at the front of that stream is output, irrespective of its
priority. Thus, the highest priority packet itself may not be
output, because it may not be at the front of the data stream.
This is a very useful concept as it allows data streams
containing predominantly high priority packets to be serviced
more quickly than data streams with predominantly low priority
packets. However, the order of the data packets within each
data stream can be maintained.
Br. 6.
The argument is not commensurate with the scope of claim 1. There
is no recitation in the claim of any requirement for the queued data stream
containing the highest priority packet (anywhere within that queued stream
and amongst all queued streams) to be output before the other queued
streams. Nor is does the claim recite a requirement for the head-end packet
of each queued stream to be output irrespective of that packet’s priority.
Rather, the corresponding recitations of claim 1 require steps of:
servicing . . . packet identifiers in dependence on the allocated
priority levels; storing . . . each received packet in a respective
queue . . . in the order in which it arrived; and outputting . . . a
packet from the head of a queue, which queue includes a packet
identified by a serviced packet identifier.
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The Examiner found that the claimed servicing reads on Taniguchi’s
filtering of packets and included identifiers based on assigned priority. See
supra page 3 (explaining the rejection). And, the Examiner found that the
claimed storing and outputting read on Shimojo’s FIFO buffering of packets
into respective queues of data streams (FIFO for each queue). Id.
Appellants have not presented any plain language meanings, Specification
lexicography, or Specification disclaimers for the claimed servicing, storing,
and outputting features. In other words, Appellants have not presented an
understood or implicit meaning of “servicing” that distinguishes over the
proposed combination of filtering and buffering.
Appellants also argue that the proposed combination of Taniguchi’s
and Shimojo’s teachings is unreasonable, particularly contending that
Shimojo’s FIFO buffering of packets conflicts with Taniguchi’s preference
to output packets in order of assigned priority. Br. 7-9; see also Taniguchi,
col. 7:42-49. The contention is factually incorrect. Contrary to the
contention, Taniguchi’s “preferential[] transmit[ting of] packets in the order
from those having higher priority” refers to transmitting of higher priority
packets and abandoning of lower priority packets . . . . Id. at col. 7, ll. 43-
44; see col. 7, l. 1 – col. 8, l. 5. Namely, transmission is unconditionally
permitted for packets of a priority level above a discrimination range,
unconditionally ceased (i.e., abandoned) for packets of a priority level below
the discrimination range, and increased over time for packets of a priority
level within the discrimination range. Id. at col. 7, ll. 52-60. Consequently,
Taniguchi’s “in order” statement is fully:
[T]he stream shaping processing unit 02 preferentially transmits
packets in the order from those having higher priority levels
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within the range of the available network bandwidth on the
basis of the correspondence between the packet identifiers and
priority levels registered in the table 03, and increases the
number of packets to be transmitted within the allowable range.
Id. at col. 7, ll. 43-49 (emphasis added). In sum, Appellants’ argument fails
to account for the “in order” teaching’s complete description.
Moreover, assuming arguendo that Appellants’ contrary view of
Taniguchi’s “in order” teaching was correct, the teaching would nonetheless
pertain strictly to Taniguchi’s packet outputting; not to Taniguchi’s packet
filtering. Thus, the “in order” teaching would not discredit the proposed
combination of Taniguchi’s filtering and Shimojo’s FIFO buffering, but
rather would constitute a mere preference for FIFO outputting (in and of
itself). See DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d
1314, 1327 (Fed. Cir. 2009) (“A reference does not teach away . . . if it
merely expresses a general preference for an alternative invention but does
not ‘criticize, discredit, or otherwise discourage’ investigation into the
invention claimed.” (Citation omitted)); In re Keller, 642 F.2d 413, 425
(CCPA 1981) (“The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the structure of the
primary reference . . .”).

DECISION
For the foregoing reasons, the Examiner’s decision rejecting claims 1-
26 is 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).
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AFFIRMED

ELD