2020004032 (P.T.A.B. Dec. 3, 2021)

QUALCOMM Incorporated

Patent Trials and Appeals BoardDec 3, 2021

2020004032 (P.T.A.B. Dec. 3, 2021)

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. 15/631,807 06/23/2017 Andy Yu 163404/1173-399 5944 115309 7590 12/03/2021 W&T/Qualcomm 106 Pinedale Springs Way Cary, NC 27511 EXAMINER MAMO, ELIAS ART UNIT PAPER NUMBER 2184 NOTIFICATION DATE DELIVERY MODE 12/03/2021 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): ocpat_uspto@qualcomm.com patents@wt-ip.com us-docketing@qualcomm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANDY YU, ANDREW CHEUNG, and AMEYA KULKARNI Appeal 2020-004032 Application 15/631,807 Technology Center 2100 Before JOHNNY A. KUMAR, JENNIFER S. BISK, and BETH Z. SHAW, Administrative Patent Judges. SHAW, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–6 and 28–35. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Qualcomm Incorporated. Appeal Br. 2. Appeal 2020-004032 Application 15/631,807 2 CLAIMED SUBJECT MATTER The claims are directed to programmable rate-matched data rate output regulator for isochronous data streams. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method for controlling communication in a Universal Serial Bus (USB) system, comprising: receiving variably-sized packets at a first processor having a USB driver; assembling uniformly-sized packets at the first processor; and passing the uniformly-sized packets to a second processor for use by applications at an application layer in a protocol stack. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Michels US 8,880,696 B1 Nov. 4, 2014 Takamatsuya US 7,349,407 B1 Mar. 25, 2008 Sander US 8,223,986 B2 July 14, 2012 May US 2002/0110213 A1 Aug. 15, 2002 Noel US 2006/0222016 A1 Oct. 5, 2006 Ferguson US 2007/0217598 A1 Sept. 20, 2007 REJECTIONS Claims 1–3, 5, 6, 10–12 and 28–32 are rejected under 35 U.S.C. § 103 as being unpatentable over Michels and Takamatsuya. Final Act. 2. Claims 4 and 13 are rejected under 35 U.S.C. § 103 as being unpatentable over Michels, Takamatsuya, and Sander. Final Act. 5. Appeal 2020-004032 Application 15/631,807 3 Claims 7, 8, and 15 are rejected under 35 U.S.C. § 103 as being unpatentable over Michels, Takamatsuya, and May. Final Act. 6. Claims 9 and 16 are rejected under 35 U.S.C. § 103 as being unpatentable over Michels, Takamatsuya, and Noel. Final Act. 7. Claims 33–35 are rejected under 35 U.S.C. § 103 as being unpatentable over Michels, Takamatsuya, and Ferguson. Final Act. 8. OPINION On this record, we see no error in the Examiner’s reliance on the cited references for collectively teaching or suggesting the elements recited in the claims. We adopt as our own the findings set forth by the Examiner in the Final Rejection and Answer. See Final Act. 2–11; Ans. 4–10. Appellant does not dispute the Examiner’s findings regarding the individual teachings of any of the references, but rather, argues that the references are not properly combinable. See Appeal Br. 7–11; Reply Br. 3–4. An explicit teaching, suggestion, or motivation in the references is not necessary to support a conclusion of obviousness. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415–16 (2007); In re Ethicon, Appeal 2015-1696 (Fed. Cir. Jan. 3, 2017) (Order). The Supreme Court has instructed that “a court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions” (KSR, 550 U.S. at 417), and apply “an expansive and flexible approach” to obviousness (id. at 415). Appeal 2020-004032 Application 15/631,807 4 Claim 1 Michels teaches the limitations of claim 1, including receiving variably-sized packets at a first processor (i.e., receiving a data packet at delivery controller of a DMA channel, 2:15–17); assembling uniformly- sized packets at the first processor (i.e., segmenting, interleaving and assembling the received data packet into one or more CPU bus packets, 2:17–19); and passing the uniformly-sized packets to a second processor for use by applications at an application layer in a protocol stack (i.e., transmitting the interleaved and/or assembled data packets across a packetized CPU bus to CPU 220, 3:11–16, Fig. 2). Final Act. 2–3. The Examiner finds that Michels does not explicitly teach the computing system being a Universal Serial Bus (USB) system, and a first processor having a USB driver. Id. Takamatsuya teaches a data communication method using a USB system including a USB driver. Final Act. 3 (citing Takamatsuya 11:47–52; 14:33–39). As the Examiner explains in the Answer, one of ordinary skill in the art would have been motivated to combine Michels and Takamatsuya to implement Michels’ packetized data and message communication method into USB based communication systems, because distribution of statistically same size packets will make bandwidth distribution even out over time, and CPU bus bandwidth sharing will be fair. Ans. 4 (quoting Michels, 1:34–37). Therefore, it would have been obvious to the ordinarily-skilled artisan at the time of the invention to combine Michels’ disclosure of a packetized data and message communication method (Michels, 2:15–19, 3:11–16, Fig. 2) with Takamatsuya’s teachings of a USB communication system (see Takamatsuya, 11:47–52; 14:33–39) because Takamatsuya is also directed to Appeal 2020-004032 Application 15/631,807 5 a method of segmenting packetized data for transmission. Ans. 4. Because both references are directed to segmenting packetized data for transmission, the ordinarily-skilled artisan would have reasonably used Takamatsuya’s USB system, even if Michels does not explicitly teach a USB system and USB driver. See Takamatsuya, 14:33–39; Michels, 1:34–37, 2:15–19. Moreover, such a combination is an obvious predictable variation of known elements. “The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR, 550 U.S. at 416. “If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability.” Id. at 417. The ordinarily-skilled artisan, being “a person of ordinary creativity, not an automaton,” would be able to fit the teachings of Michels and Takamatsuya together like pieces of a puzzle to predictably result in the claimed method for controlling communication in a USB system. Id. at 420–21. The Examiner proposes using prior art elements predictably according to their established functions—an obvious improvement. See KSR, 550 U.S. at 417. Appellant has not demonstrated that the proposed combination would have been “uniquely challenging or difficult for one of ordinary skill in the art,” and we determine the proposed modification would have been well within the purview of the ordinarily skilled artisan. Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Appellant’s contention that one of ordinary skill in the art would not look to Michels because packets in “a USB system do not have widely different packet size characteristics” (Reply Br. 3–4) is not only speculative and unsubstantiated on this record, the recited “variably-sized packets” does not preclude some packets being “roughly the same size,” Appeal 2020-004032 Application 15/631,807 6 (Reply Br. 4)—and the recited “variably-sized packets” also does not preclude packets without “widely different packet size characteristics.” Id. at 3. Similarly, Appellant’s contention that “the ability to manipulate a data stream into uniformly sized packets in a USB stream is non-trivial” (id. at 4) is speculative and unsubstantiated on this record. Not only is this contention unsubstantiated by any evidence on this record, it is well settled that “a determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (citations omitted). Therefore, we are not persuaded that the Examiner erred in rejecting claim 1, and we sustain the rejection of claim 1. We also sustain the obviousness rejections of claims 2–16 and 28–32. Despite nominally arguing these claims separately, Appellant reiterates similar arguments made in connection with claim 1, and alleges that the additional cited prior art fails to cure those purported deficiencies. See Appeal Br. 9–11. We are not persuaded by these arguments for the reasons previously discussed. Dependent Claims 33–35 We also sustain the Examiner’s rejection of dependent claims 33–35, which depend from claim 1. Appellant does not explain why the Examiner’s combination of Michels, Takamatuya, and Ferguson is erroneous apart from mere conclusory statements. It is well settled that mere attorney arguments and conclusory statements, which are unsupported by factual evidence, are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (attorney argument is not evidence). See also Manual of Patent Examining Appeal 2020-004032 Application 15/631,807 7 Procedure (MPEP) § 2145 (9th ed. Nov. 2015) (“Attorney argument is not evidence unless it is an admission, in which case, an examiner may use the admission in making a rejection.”). The Examiner proposes using prior art elements predictably according to their established functions—an obvious improvement. See KSR, 550 U.S. at 417. Therefore, we are not persuaded that the Examiner erred in rejecting dependent claims 33–35. CONCLUSION The Examiner’s rejections are affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–3, 5, 6, 10–12, 28– 32 103 Michels, Takamatsuya 1–3, 5, 6, 10–12, 28– 32 4, 13 103 Michels, Takamatsuya, Sander 4, 13 7, 8, 14, 15 103 Michels, Takamatsuya, May 7, 8, 14, 15 9, 16 103 Michels, Takamatsuya, Noel 9, 16 33–35 103 Michels, Takamatsuya, Ferguson 33–35 Overall Outcome 1–16, 28–35 Appeal 2020-004032 Application 15/631,807 8 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED