Ex Parte Bouat

Board of Patent Appeals and Interferences

Nov 28, 2007

10032882 (B.P.A.I. Nov. 28, 2007)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SEBASTIEN BOUAT
____________

Appeal 2007-2348
Application 10/032,882
Technology Center 2100
____________

Decided: November 28, 2007
____________

Before JAMES D. THOMAS, JOSEPH F. RUGGIERO,
and JOHN A. JEFFERY, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 1-17. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm.
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STATEMENT OF THE CASE
Appellant invented a method for processing incoming messages on a
gatekeeper system of an Internet Protocol network. Specifically, the method
includes dispatching the incoming messages to different sub-processes. If
the message belongs to the same call as a previous message, the message is
sent to the same sub-process as the previous message.1 Claim 1 is
illustrative:
1. A method for processing messages incoming on a gatekeeper
system of an Internet Protocol network, wherein the gatekeeper system
includes a gatekeeper and a plurality of sub-processes each able to process a
series of such messages, the method comprising:

the gatekeeper receiving incoming messages; and

the gatekeeper dispatching received messages among the plurality of
sub-processes, wherein the received messages that belong to the same call
are dispatched to the same sub-process.

The Examiner relies on the following prior art references to show
unpatentability:
Brendel US 6,772,333 B1 Aug. 3, 2004
(filed Sep. 1, 1999)
Ma US 6,795,867 B1 Sep. 21, 2004
(filed Dec. 23, 1998)

Claims 1-17 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Ma and Brendel.

1 See generally Specification 2:20 – 3:17.
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Rather than repeat the arguments of Appellant or the Examiner, we
refer to the Briefs and the Answer2 for their respective details. In this
decision, we have considered only those arguments actually made by
Appellant. Arguments which Appellant could have made but did not make
in the Briefs have not been considered and are deemed to be waived. See 37
C.F.R. § 41.37(c)(1)(vii).

OPINION
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
Discussing the question of obviousness of a patent that claims a
combination of known elements, KSR Int’l v. Teleflex, Inc., 127 S. Ct. 1727
(2007) explains:
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, §103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill. Sakraida [v. AG
Pro, Inc., 425 U.S. 273 (1976)] and Anderson's-Black Rock[,
Inc. v. Pavement Salvage Co., 396 U.S. 57 (1969)] are
illustrative—a court must ask whether the improvement is more

2 We refer to the most recent Answer mailed November 1, 2006 throughout
this opinion.
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than the predictable use of prior art elements according to their
established functions.
KSR, 127 S. Ct. at 1740. If the claimed subject matter cannot be fairly
characterized as involving the simple substitution of one known element for
another or the mere application of a known technique to a piece of prior art
ready for the improvement, a holding of obviousness can be based on a
showing that “there was an apparent reason to combine the known elements
in the fashion claimed.” Id., 127 S. Ct. at 1740-41. Such a showing requires
“some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness. . . . [H]owever, the analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” Id., 127 S. Ct. at 1741
(quoting In re Kahn, 441 F.3d 977, 987 (Fed. Cir. 2006)).
If the Examiner’s burden is met, the burden then shifts to the
Appellant to overcome the prima facie case with argument and/or evidence.
Obviousness is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992).
Regarding independent claim 1, the Examiner's rejection essentially
finds that Ma discloses a method and system for processing incoming
messages on a gatekeeper system of an Internet Protocol network with every
claimed feature except for details of identifying the message/call using a
session identifier and directing the call to the same process that previously
processed the call. The Examiner cites Brendel as teaching a load balancing
technique that identifies session and call information by decoding the
message. The Examiner concludes that it would have been obvious to one
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of ordinary skill in the art at the time of the invention to modify Ma to direct
requests to the same server process that previously processed requests
associated with a particular session (Answer 4-5).
Appellant argues that Ma does not disclose the limitations calling for
“the gatekeeper receiving incoming messages…and…dispatching received
messages among the plurality of sub-processes” as claimed. According to
Appellant, Ma’s gateway does not disclose the recited gatekeeper since the
gateway does not dispatch received incoming messages as claimed. Rather,
Appellant contends, the gatekeeper [sic -- gateway] performs initial call
setup by sending a setup message to the gatekeeper to try to set up the call
(App. Br. 6; Reply Br. 4).
Appellant also argues that, upon receipt of the setup message, the
gatekeeper passes the setup message to its Load Management Unit (LMU) --
a unit that determines which gatekeeper (“sub-process”) will service the call.
Appellant notes that if the LMU determines that a different servicing
gatekeeper (“sub-process”) is to handle the call, the gateway -- not the LMU
-- dispatches the setup message to the servicing gatekeeper (App. Br. 6-9;
Reply Br. 4-5).
Appellant adds that the stand-alone LMU embodiment of Figure 3B
also does not teach or suggest “the gatekeeper dispatching received
messages among the plurality of sub-processes” as claimed. Appellant
emphasizes that, in this embodiment, dispatching messages among different
gatekeepers is done by Ma’s gateway (Br. 9). Appellant adds that Ma’s
gateway transmits messages to the LMU 358 -- not the gatekeepers 352,
354, 356 (“sub-processes”) (Reply Br. 5).
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The Examiner maintains that Ma discloses receiving incoming
messages and dispatching messages to plural gatekeeper processes via its
ability to redirect calls from an assigned gatekeeper to a servicing
gatekeeper. The Examiner notes that the standalone LMU embodiment of
Figure 3B shows that the LMU essentially performs a gatekeeping function.
According to the Examiner, in that embodiment, the LMU essentially acts as
an entry point for incoming calls and dispatches the call to a selected
gatekeeper instance (1-N) (Answer 9-10, 13).
We will sustain the Examiner’s rejection of independent claim 1. As
shown in Figure 1, the key aspects of Ma’s IP telephony system that pertain
to this appeal are the gateways (104, 106) and the gatekeepers (108, 109).
As the figure illustrates, Ma’s system includes multiple gateways 104, 106
coupled to an IP network 102. The gateways are coupled to endpoints 112,
114 and perform various data conversion and network management
functions (Ma, col. 3, l. 50 - col. 4, l. 2; Fig. 1).
The gatekeepers 108, 109 perform call setup and servicing functions.
The gatekeepers act as the central point for all calls within their respective
zones and provide call control services to registered endpoints. To this end,
the gatekeepers perform two important call control functions: (1) address
translation, and (2) bandwidth management (Ma, col. 5, ll. 18-30).
Associated with the gatekeepers are LMUs that distribute call load
among the gatekeepers (e.g., redirecting call load from an overloaded or
inoperative gatekeeper to another gatekeeper) (Ma, col. 4, ll. 29-38). During
call setup, the LMU receives a setup message from the assigned gatekeeper
that was received from a subscriber when initiating a call. The LMU
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determines which gatekeeper should set up and service the call (Ma, col. 2,
ll. 43-56).
For example, when an endpoint 112 initiates a call to endpoint 114,
the endpoint 112 dials gateway 104 requesting a call to endpoint 114. The
gateway 104 answers the call and initates call setup by sending a setup
message to gatekeeper 1083 with which the endpoint previously registered.
Gatekeeper 108, in turn, passes the setup message to its LMU.
Upon receipt of this setup message, the LMU determines which
gatekeeper 108, 109 will service the call. If the LMU determines gatekeeper
108 will service the call, it transfers control for continued call setup to the
gatekeeper 108. But if the LMU determines that gatekeeper 109 will service
the call, it directs the gatekeeper to issue a facility redirect message to the
endpoint 112, directing gateway 104 to send a setup message to gatekeeper
109. In response, gateway 104 then sends (1) a release message to
gatekeeper 108, and (2) a setup message to gatekeeper 109. Upon receipt of
the setup message, gatekeeper 109 then sets up and services the call (Ma,
col. 5, l. 63 - col. 6, l. 30; Fig. 4).
In addition to these call setup features, calls can be routed through the
gatekeepers 108 or 109 for more effective control (e.g., billing purposes)
(Ma, col. 5, ll. 43-49).

3 Although Ma indicates that the setup message is sent to gateway 108 (not
gatekeeper 108) in Column 5, Line 67, we presume that this designation is a
typographical error. Throughout the reference, the numeral 108 consistently
refers to a gatekeeper.
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Based on this functionality, we find that the gatekeepers 108, 109
(with their associated LMUs)4 receive incoming messages of various types
including call setup messages, as well as the data associated with the call
itself via the routing feature noted above.
While we agree with Appellant that the gatekeepers 108, 109 (with
their associated LMUs) do not dispatch the particular setup and release
messages that were sent from the gateway among the multiple gatekeepers,
the gatekeepers’ LMUs nevertheless select the appropriate gatekeeper to
service the call. Since calls can be routed through the gatekeepers 108 or
109 themselves (Ma, col. 5, ll. 43-49), this selection of an appropriate
gatekeeper via the setup process would, in effect, dispatch received
messages pertaining to the call itself among the various gatekeepers (“sub-
processes”).5
For at least these reasons, and since Appellant has not disputed the
Examiner’s reliance on the secondary reference to Brendel, we conclude that
Appellant has not persuasively rebutted the Examiner’s prima facie case of
obviousness of independent claim 1 based on the collective teachings of Ma
and Brendel. The Examiner’s rejection of independent claim 1 is therefore
sustained.

4 We note in passing that the term “gatekeeper” as claimed does not preclude
a combined gatekeeper and associated LMU, such as that shown in Figures 1
and 3A of Ma.
5 We note in passing that the language of claim 1 does not distinguish the
type of messages that the gatekeeper receives and dispatches. That is, the
claim does not preclude the gatekeeper and its associated LMU (1) receiving
incoming messages in the form of setup messages, and (2) dispatching
received messages pertaining to the call itself among the various
gatekeepers via the gatekeeper selection process noted above.
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Claims 2-17
Although Appellant nominally argues the rejection of (1) claims 2-10
and 16; (2) claim 11; (3) claim 12; (4) claim 13; (5) claim 14; (6) claim 15;
and (7) claim 17 separately (App. Br. 10-12; Reply Br. 7-8), Appellant’s
arguments have not persuasively rebutted the Examiner’s prima facie case of
obviousness. Regarding claims 2-10 and 16, Appellant merely states that the
claims are patentable by virtue of their dependence on claim 1. For the
reasons previously discussed, however, we will sustain the Examiner’s
rejection of those claims.
Regarding claims 11, 13, and 15 (as well as claims 12, 14, and 17),
Appellant merely alleges that the cited prior art does not disclose the recited
limitations, but provide no supporting analysis or explanation as to why the
cited prior art fails in this regard. See App. Br. 10-12; see also Reply Br. 7-
8. Merely pointing out what a claim recites is not considered an argument
for separate patentability of the claim. 37 C.F.R. § 41.37(c)(1)(vii). In any
event, Appellants have not persuasively rebutted the Examiner's prima facie
case of obviousness based on the collective teachings of the references
indicated on pages 3-8 of the Answer. The Examiner's rejection of these
claims is therefore sustained.

DECISION
We have sustained the Examiner's rejection with respect to all claims
on appeal. Therefore, the Examiner’s decision rejecting claims 1-17 is
affirmed.

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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

KIS

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