Don Bowman et al.

Patent Trials and Appeals Board

Dec 27, 2019

10853099 - (D) (P.T.A.B. Dec. 27, 2019)

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.
10/853,099 05/26/2004 Don Bowman K8001278US 4911
34236 7590 12/27/2019
Gowling WLG (Canada) LLP
50 QUEEN STREET NORTH, STE. 1020
P.O. BOX 2248
KITCHENER, ONTARIO N2H6M2
CANADA
EXAMINER
STRANGE, AARON N
ART UNIT PAPER NUMBER
2448
NOTIFICATION DATE DELIVERY MODE
12/27/2019 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):
JEFF.WONG@GOWLINGWLG.COM
VAL.COTTRILL@GOWLINGWLG.COM
Waterloo.IP@gowlingwlg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DON BOWMAN and HARMEET SINGH BEDI
Appeal 2018-001034
Application 10/853,099
Technology Center 2400
BEFORE JASON V. MORGAN, TERRENCE W. McMILLIN, and
KENNENTH G. SCHOPFER, Administrative Patent Judges.
McMILLIN, 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 63–65, 69, 93, 98, and 99. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.2

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 Sandvine
Incorporated ULC. Appeal Br. 3.
2 We have considered and herein refer to the Specification of May 26, 2004
(“Spec.”); Final Office Action of Oct. 21, 2016 (“Final Act.”); Appeal Brief
Appeal 2018-001034
Application 10/853,099

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CLAIMED SUBJECT MATTER
The claims are directed to a “method for detecting abnormal patterns
of computer message traffic.” Spec. 1. Sole independent claim 63 is
reproduced below (emphasis added):
63. A method for detecting a source or destination of abnormal
message traffic on a network, said method comprising:
tracking messages between a plurality of sources and a
plurality of destinations, wherein tracking messages comprises:
determining the source and destination of a
message;
generating a source and destination pair counter for
each source and destination pair;
incrementing the source and destination pair
counter based on at least some of the messages and an
amount of messages between said source and said
destination;
determining a bandwidth variation of a rate of
messages to a destination, wherein determining the
bandwidth variation comprises:
generating a bandwidth counter for each
destination;
updating the bandwidth counter based on the
rate of messages to a destination; and
determining if a predetermined amount of
time has passed; and
comparing values in the source and
destination pair counter to a predetermined source
and destination pair threshold and comparing
values in the bandwidth counter to a
predetermined steady rate of messages after the
predetermined amount of time has passed to
determine if there is abnormal message traffic
related to a source or destination based on both
comparisons.

of May 16, 2017 (“Appeal Br.”) and Examiner’s Answer of Sept. 5, 2017
(“Ans.’).
Appeal 2018-001034
Application 10/853,099

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REJECTION
Claims 63–65, 69, 93, 98 and 99 stand rejected under 35 U.S.C. § 112,
first paragraph, for failing to comply with the written description
requirement.
OPINION
The claims are rejected for failing to comply with the written
description requirement of Section 112, first paragraph. Final Act. 5.
Specifically, the Examiner finds that the steps of “determining a bandwidth
variation of a rate of messages to a destination” and of “comparing values in
the bandwidth counter to a predetermined steady rate of messages”3 as set
forth in claim 63 are not described in the Specification. Id.; see also Ans. 2–
3.
Section 112 provides:
The specification shall contain a written description of the
invention, and of the manner and process of making and using it,
in such full, clear, concise, and exact terms as to enable any
person skilled in the art to which it pertains, or with which it is
most nearly connected, to make and use the same, and shall set
forth the best mode contemplated by the inventor of carrying out
his invention.

35 U.S.C. § 112(a) (2012); pre-AIA 35 U.S.C. § 112, first paragraph, (2006).
A description adequate to satisfy the written-description requirement must
“reasonably convey[] to those skilled in the art that the inventor had
possession of the claimed subject matter as of the filing date.” Ariad

3 The Examiner incorrectly states this step in making the rejection. See Final
Act. 5. However, this step is accurately set forth elsewhere in the Final
Action (see Final Act. 3) and in the Examiner’s Answer (see Ans. 2, 6).
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Application 10/853,099

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Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en
banc) (citation omitted, alteration in original).
With regard to “determining a bandwidth variation of a rate of
messages to a destination,”4 the Final Action states:
The specification describes a bandwidth variation detector
determining whether a steady rate of messages is being provided
by a sender and also describes calculating bandwidth variation
based upon the destination of received messages. However, none
of the proffered disclosure describes determining a bandwidth
variation “of a rate of messages to a destination.”

Final Act. 5. The Applicant relies on Figure 5 and the related description in
the Specification as describing this step. Appeal Br. 12. Figure 5 is
reproduced below.

4 In addition, claim 63 recites that “determining the bandwidth variation
comprises: generating a bandwidth counter for each destination, updating the
bandwidth counter based on the rate of messages to a destination, and
determining it a predetermined amount of time has passed . . . and
comparing values in the bandwidth counter to a predetermined steady rate of
messages.” These elements of claim 63 further define steps to “determin[e]
a bandwidth variation of a rate of messages to a destination.”
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Figure 5 depicts, “a flowchart of the logical structure of the bandwidth
variation detector.” Spec. 8:13–14. The detailed description of Figure 5
states, “[b]eginning at step 40a, a message is read to determine the
destination address of the message” and “[a]t step 40b a counter
corresponding to the destination address is updated.” Id. at 8:14–17
(emphases added). The next step in Figure 5, 40c, is labelled “Report
Time?” and is described in the detailed description as “[a]t step 40c a test is
made to determine if it is time to generate a report on bandwidth variation.”
Id. at 8:17–18. We find a disclosure of determining how much the “counter
corresponding to the destination address” has been updated in a period of
time is a written description of determining the “rate of messages to a
destination” as recited.
In Figure 5, step 40e is labelled “Calculate Bandwidth Variation” and
step 40f is labelled “Threshold Met?” In addition, the detailed description of
the “bandwidth variation detector” of Figure 5 provides “[a]ny number of
schemes may be used to determine if an abnormality in bandwidth variation
exists. The use of a moving average has been found to work well.” Spec.
8:22–24. And, a “test is then made at step 40f to determine if the desired
threshold for bandwidth variation has been met.” Id. at 8:25–26. We find
that using a moving average to determine if an “abnormality in bandwidth
variation exists” and performing a “test . . . to determine is the desired
threshold for bandwidth variation has been met” describe “determining a
bandwidth variation” as recited. Based on the depiction of the “bandwidth
variation detector” in Figure 5 and the cited passages from the detailed
description of the “bandwidth variation detector” at page 8, lines 13–31, of
the Specification, we find that the Specification provides a written
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Application 10/853,099

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description of “determining a bandwidth variation of a rate of messages to a
destination” as recited in claim 63.
With regard to the step of “comparing values in the bandwidth counter
to a predetermined steady rate of messages” as set forth in claim 63, the
Final Action states, “[t]he specification only mentions ‘bandwidth counters’
in the context of determining whether they should be initialized (p. 8, ll. 27–
29) and does not describe comparing values in the ‘bandwidth counters’ to
anything at all, much less to a ‘predetermined steady rate of messages.’”
Final Act. 5–6. We find this statement is inaccurate. In Figure 5, step 40b is
labelled “Update Bandwidth Counter.” The related passage in the detailed
description of Figure 5 in the Specification states, “[a]t step 40b a counter
corresponding to the destination address is updated.” Spec. 8:16–17. Thus,
the Specification describes updating the “bandwidth counter” of the
“bandwidth variation detector” as well as initializing it. And, we find that
“comparing values in the bandwidth counter to a predetermined steady rate
of messages” is supported by steps 40e (“Calculate Bandwidth Variation”)
and 40f (“Threshold Met?”) of Figure 5 and the related description in the
Specification of “[t]he use of a moving average” “to determine if the desired
threshold for bandwidth variation has been met.” See id. at 8:24–26.
For the foregoing reasons, we find that the Specification provides a
written description of both the steps of “determining a bandwidth variation
of a rate of messages to a destination” and of “comparing values in the
bandwidth counter to a predetermined steady rate of messages” as set forth
in claim 63. Therefore, the rejection of independent claim 63 and dependent
claims 64, 65, 69, 93, 98, and 99 on the basis that these limitations lack
written description support cannot be sustained.
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Application 10/853,099

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CONCLUSION
The Examiner’s rejection of claims 63–65, 69, 93, 98, and 99 is
reversed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
63–65, 69,
93, 98, 99
112, first
paragraph
Written Description 63–65, 69,
93, 98, 99

REVERSED