Alcatel Lucent

Patent Trials and Appeals Board

Mar 26, 2020

14143499 - (D) (P.T.A.B. Mar. 26, 2020)

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.
14/143,499 12/30/2013 Jeroen van Bemmel 814973-US-NP 7106
46363 7590 03/26/2020
Tong, Rea, Bentley & Kim, LLC
Nokia
12 Christopher Way
Suite 105
Eatontown, NJ 07724
EXAMINER
RASHID, ISHRAT
ART UNIT PAPER NUMBER
2459
NOTIFICATION DATE DELIVERY MODE
03/26/2020 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):
Nokia.IPR@nokia.com
docketing@trbklaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEROEN VAN BEMMEL
Appeal 2019-001403
Application 14/143,499
Technology Center 2400
Before MICHAEL J. STRAUSS, PHILLIP A. BENNETT, and
IFTIKHAR AHMED, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–4, 6–8, 11–13, 16–22,3 and 26–28.

1 We refer to the Specification, filed December 30, 2013 (“Spec.”); Final
Office Action, mailed April 26, 2018 (“Final Act.”); Appeal Brief, filed June
13, 2018 (“Appeal Br.”); Examiner’s Answer, mailed October 5, 2018
(“Ans.”); and Reply Brief, filed December 5, 2018 (“Reply Br.”).
2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Alcatel Lucent.
Appeal Br. 3.
3 Claim 23 was canceled and is not pending in the application. Final Act. 1.
The claim was canceled June 28, 2017 by Appellant with the Request for
Appeal 2019-001403
Application 14/143,499
2
See Final Act. 1. Claims 5, 9, 10, 14, 15, and 23–25 are canceled. Appeal
Br., Claims App’x. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to distributed multi-level stateless load
balancing. Spec., Title. Claim 1, reproduced below with claim element
labels added in brackets and a disputed limitation emphasized in italics, is
illustrative of the claimed subject matter:
1. An apparatus, comprising:
a processor and a memory communicatively connected to the
processor, the processor configured to:
[(i)] receive an initial connection packet of a stateful-connection
protocol at a first load balancer, the initial connection packet of the
stateful-connection protocol configured to request establishment of
a stateful connection;
[(ii)] perform a load balancing operation at the first load balancer
to control forwarding of the initial connection packet of the stateful-
connection protocol toward a set of second load balancers
configured to perform load balancing across respective subsets of
processing elements of a set of processing elements; and
[(iii)] receive, at the first load balancer from one of the second
load balancers, an initial connection response packet of one of the
processing elements associated with the one of the second load
balancers, wherein the initial connection response packet comprises

Continued Examination (RCE). However, the Examiner failed to remove
the rejection analysis for Claim 23 from the Office Action. Final Act. 21–
22. The Appellant acknowledged Claim 23 is canceled. Appeal Br. 5. The
Appellant erroneously listed the rejection of Claim 23 as one of the grounds
of rejections to be reviewed on appeal. Appeal Br. 12.

Appeal 2019-001403
Application 14/143,499
3
status information associated with the one of the processing
elements.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Brendel US 6,182,139 B1 Jan. 30, 2001
Joseph et al. US 2004/0003085 A1 Jan. 1, 2004
Bahl US 2006/0080446 A1 Apr. 13, 2006
Shimada US 2006/0212597 A1 Sept. 21, 2006
Ahmad et al. US 2010/0036903 A1 Feb. 11, 2010
Nishikawa US 2010/0036956 A1 Feb. 11, 2010
Li et al. US 2011/0078303 A1 Mar. 31, 2011
Sundararaj US 2013/0111467 A1 May 2, 2013
Arisoylu et. al. US 2013/0297798 A1 Nov. 7, 2013
Anand et al. US 2014/0369204 A1 Dec. 18, 2014

REJECTIONS
Claims 1–4 and 19–22 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Arisoylu and Shimada. Final Act. 4–9.
Claims 6–8 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Arisoylu, Shimada, and Bahl. Final Act. 9–11.
Claim 11 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Arisoylu, Shimada, and Nishikawa. Final Act. 11–13.
Claim 12 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Arisoylu, Shimada, and Anand. Final Act. 13–14.
Claim 13 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Arisoylu, Shimada, and Brendel. Final Act. 14–16.
Claims 17 and 26–28 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Arisoylu, Shimada, and Joseph. Final Act. 16–19.
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Application 14/143,499
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Claim 18 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Arisoylu, Shimada, and Ahmad. Final Act. 20–21.
Claim 16 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Arisoylu, Shimada, and Sundararaj. Final Act. 22–23.

STANDARD OF REVIEW
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
OPINION
The Examiner finds the combination of Arisoylu and Shimada teaches
the subject matter of claim 1, the Examiner relying on Arisoylu for claim
elements (i) and (ii) and Shimada for claim element (iii). Final Act. 4–7. In
particular, the Examiner finds Shimada’s disclosure of “embed[ding]
transmission information indicating a status of a server . . . in a client
response packet from the server” teaches or suggests a disputed limitation of
claim element (iii) reciting “wherein the initial connection response packet
comprises status information associated with the one of the processing
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Application 14/143,499
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elements.” Final Act. 6 (citing Shimada Fig. 5B, ¶¶ 7–10) (emphasis
omitted). Shimada’s Figure 5B is depicted below:

Block Diagram of Shimada’s Multi-Stage Load Distributing Apparatus
(Shimada Fig. 5B, ¶ 37)
Appellant contends “an HTTP response packet, as disclosed in the
cited portions of Shimada, does not teach or suggest an initial connection
response packet as recited in Appellants’ claim 1,” because “[Shimada’s]
HTTP protocol is a connectionless application layer protocol.” Appeal Br.
14. Although Shimada explicitly discloses the use of “TCP-IP,” at least the
TCP portion being a stateful connection protocol (Spec., Abstract ),
Appellant contends “[t]his portion of Shimada is not referring to other
protocol options for the client request/response packets of Shimada; rather,
this portion of Shimada is referring to a protocol for an entirely separate
communication between the adjacent stages of the load distributing
apparatus of Shimada.” Id. at 14–15 (citing Final Act. 4 and Shimada ¶ 71).
The Examiner responds, finding “[n]owhere in the claim is it recited
that the initial connection response packet is part of a stateful connection.”
Ans. 4. Though Claim 1 recites “an initial connection packet of a stateful-
connection protocol,” the Examiner finds “just naming a packet an initial
Appeal 2019-001403
Application 14/143,499
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connection response packet does not create any specific relationship to the
initial connection packet.” Id. at 5. The Examiner further responds, finding
“even if the claim language required the response packet be ‘of a stateful
protocol’, the combined teachings [of Arisoylu and Shimada] would render
obvious this requirement.” Id. In particular, the Examiner finds the
combination of Arisoylu and Shimada teaches “Shimada’s response packet
be transmitted/received via one of Arisoylu’s stateful TCP or SCTP
connections.” Id.
Appellant replies, contending “Appellants’ claim 1 by itself, and
especially when read in light of Appellants’ as-filed application, clearly
indicates that the initial connection response packet is a packet of the
stateful-connection protocol that is used in establishment of the stateful
connection.” Reply Br. 3. Appellant further contends
even assuming arguendo that the proposed combination of
Arisoylu and Shimada could be interpreted as disclosing that a
response packet of Shimada is transmitted/received via a stateful
connection . . . , this still would fail to meet the claim language
in which the response packet is sent prior to the stateful
connection being established since it is part of the stateful
connection establishment process.
Reply Br. 5 (emphasis omitted).
Appellant’s argument is unpersuasive of reversible Examiner error.
We agree with the Examiner the disputed “initial connection response
packet” is taught by the combination of Shimada and Arisoylu, because
“Shimada’s response packet [would] be transmitted/received via one of
Arisoylu’s stateful TCP or SCTP connections.” Ans. 5. “Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references.” In re
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Application 14/143,499
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Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642
F.2d 413, 425 (CCPA 1981)).
We agree with the Examiner in finding “[n]owhere in the claim is it
recited that the initial connection response packet is part of a stateful
connection.” Ans. 4 (emphasis omitted). During examination of a patent
application, pending claims are given their broadest reasonable construction
consistent with the specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d
1359, 1364 (Fed. Cir. 2004). However, a particular embodiment appearing
in the written description must not be read into the claim if the claim
language is broader than the embodiment. See In re Van Geuns, 988 F.2d
1181, 1184 (Fed. Cir. 1993) (“[L]imitations are not to be read into the claims
from the specification.”). Construing claims broadly during prosecution is
not unfair to the applicant, because the applicant has the opportunity to
amend the claims to obtain more precise claim coverage. Acad. of Sci. Tech
Ctr., 367 F.3d at 1364. See also In re Skvorecz, 580 F.3d 1262, 1267–68
(Fed. Cir. 2009) (“Applicant always has the opportunity to amend the claims
during prosecution, and broad interpretation by the examiner reduces the
possibility that the claim, once issued, will be interpreted more broadly than
is justified.” (quoting Manual of Patent Examining Procedure § 2111)).
Unlike the initial connection packet specifically recited as being “of a
stateful-connection protocol,” no such characterizing recitation is associated
with the argued initial connection response packet. Cf. Appeal Br. 14, Reply
Br. 3–4.4 We are unpersuaded by Appellant’s argument that, because an

4 Appellant’s claim 1 recites an “initial connection packet of a
stateful-connection protocol” and an associated “initial
connection response packet.” While an explicit recitation of
“initial stateful connection response packet” is missing, the use
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initial connection packet used to establish a stateful connection is of a
stateful-connection protocol, an initial connection response packet must also
be of a stateful-connection protocol. See Reply Br. 3. Instead, we note,
during prosecution, Appellant amended the claims to remove a requirement
tying the initial connection packet to the argued initial connection response
packet by deleting the limitation requiring the processor be configured to
receive an initial connection response packet responsive to the initial
connection packet. See Amendment filed June 28, 2017. Therefore, in the
absence of sufficient evidence that one skilled in the art would have
understood an initial connection response protocol be of a stateful-
connection protocol, we do not interpreted the claims as being so limited as
such. Accordingly, Appellant’s argument is not commensurate with the
scope of the claims.
We are also unpersuaded by Appellant’s argument that the
combination of Arisoylu and Shimada teaching the use of TCP or SCTP
(i.e., stateful protocols) to transmit a response packet is deficient because the
response packet is not sent prior to establishment of the stateful connection.
Reply Br. 5. Claim 1 does not recite, nor is it reasonably understood to be
limited to, the argued temporal relationship. Accordingly, such argument is
likewise not commensurate in scope with the claims.

of the term “connection” in conjunction with “stateful-
connection protocol” is such that subsequent uses of the term
“connection” (e.g., in “initial connection response packet”) will
be understood to inherit the earlier reference to the connection
being stateful (namely, “stateful connection protocol”).
Reply Br. 3.
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Application 14/143,499
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Appellant further contends “the cited portions of Shimada merely
disclose that an HTTP response packet includes transmission information in
the form of an IP address of a server” and “IP address of the server is not
‘status information’ as claimed.” Appeal Br. 16 (citing Shimada Fig. 5B,
¶¶ 7–10).
The Examiner responds, finding Shimada explicitly discloses
“transmission information indicating a status of a server.” Ans. 5 (citing
Shimada ¶ 10). The Examiner finds “[t]his embedded [transmission]
information . . . is an IP address of the selected back-end server, and
Shimada clearly considers an IP address to be ‘status information.’” Id.
According to the Examiner “an IP address of a backend server [teaches] a
‘state’ of the server because an IP address indicates the currently assigned
reachable network address of the server.” Id. at 6. The Examiner finds
“[b]oth in the instant application and Shimada, the collection of status
information is collected for the same reason, ‘load balancing based on
status information’ (Appellant’s Specification at page 5 line 22), and ‘to
perform allocation control’ (Shimada [0011]).” Id.
Appellant responds, contending “the Examiner fails to cite any part of
Shimada that teaches or suggests that a server IP address included in such a
client response packet is considered to be status information of the server.”
Reply Br. 6. According to Appellant, because “the IP address of a server is
expected to remain relatively constant over time, it would not be useful as
status information of the server.” Id. (emphasis omitted). Appellant argues
“knowledge of which IP addresses are currently assigned to which servers
provides no information indicative as to whether those servers are under-
loaded or over-loaded and, thus, clearly is not suitable for use as status
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Application 14/143,499
10
information which may serve as the basis for performing load balancing.”
Id. at 6–7 (emphasis omitted).
Appellant’s argument is unpersuasive of reversible Examiner error.
We agree with the Examiner the disputed “status information” is taught by
Shimada’s disclosure of “transmission information indicating a status of a
server.” Ans. 5 (citing Shimada ¶ 10). That is, Shimada’s specific example
of providing status information as an IP address does not vitiate the
generalized teaching of providing status information. Furthermore, even if
as alleged by Appellant that Shimada’s “IP address . . . may be used to
determine server status information” (Appeal Br. 16 (emphasis omitted)),
this fact alone is sufficient to find Shimada’s IP address, used to obtain
status information, at least suggests that the disputed initial connection
response packet includes status information (the IP address pointing to status
information).
We further agree with the Examiner in finding an “IP address
indicates the currently assigned reachable network address of the server.”
Ans. 6. Being currently reachable/available is a status. Further, Appellant
appears to agree an IP address is not constant. See Reply Br. 6 (describing
IP address as “relatively constant”). Because the current IP address of a
backend server is a mutable attribute/condition of the backend server, the
current IP address of the backend server is a status.
For the reasons discussed above, Appellant’s contentions are
unpersuasive of reversible Examiner error. Accordingly, we sustain the
rejection of independent claim 1 under 35 U.S.C. § 103 as being
unpatentable over Arisoylu and Shimada. We further sustain the rejection of
independent claims 19 and 20 that are argued on the basis of claim 1
Appeal 2019-001403
Application 14/143,499
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(Appeal Br. 17) together with the rejections of dependent claims 2–4, 6–8,
11–13, 16–18, 21, 22, and 26–28, which are not argued separately with
particularity.
CONCLUSION
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1–4, 19–
22
103 Arisoylu, Shimada 1–4, 19–22
6–8 103 Arisoylu, Shimada, Bahl 6–8
11 103 Arisoylu, Shimada,
Nishikawa
11
12 103 Arisoylu, Shimada, Anand 12
13 103 Arisoylu, Shimada,
Brendel
13
17, 26–28 103 Arisoylu, Shimada, Joseph 17, 26–28
18 103 Arisoylu, Shimada,
Ahmad
18
16 103 Arisoylu, Shimada,
Sundararaj
16
Overall
Outcome:
1–4, 6–8,
11–13, 16–
22, 26–28

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