Ex Parte CookDownload PDFBoard of Patent Appeals and InterferencesMar 9, 201110387289 (B.P.A.I. Mar. 9, 2011) Copy Citation 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. 10/387,289 03/12/2003 Fred S. Cook 2072 (16063) 7580 33272 7590 03/09/2011 SPRINT COMMUNICATIONS COMPANY L.P. 6391 SPRINT PARKWAY MAILSTOP: KSOPHT0101-Z2100 OVERLAND PARK, KS 66251-2100 EXAMINER MILLS, DONALD L ART UNIT PAPER NUMBER 2462 MAIL DATE DELIVERY MODE 03/09/2011 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte FRED S. COOK ____________ Appeal 2009-006817 Application 10/387,289 Technology Center 2400 ____________ Before JOSEPH F. RUGGIERO, MAHSHID D. SAADAT, and THOMAS S. HAHN, Administrative Patent Judges. RUGGIERO, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-006817 Application 10/387,289 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection of claims 1-14, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Rather than reiterate the arguments of Appellant and the Examiner, reference is made to the Appeal Brief (filed February 21, 2008), the Answer (mailed May 14, 2008), and the Reply Brief (filed June 19, 2008) for the respective details. Appellant’s Invention Appellant’s invention relates to the prediction of re-routing interactions for a communication network having a plurality of network elements. A respective device state image, including a failover setting, is constructed for each of the network elements, and each device state image is transmitted to a network simulator. Upon a modification of a device state image by a prospective network element failover, a performance of the communications network is simulated and a determination is made as to whether acceptable performance is maintained. (See generally Spec. 4:27- 5:21). Claim 1 is illustrative of the invention and reads as follows: 1. A method of predicting re-routing interactions in a communications network including a plurality of network elements, said method comprising the steps of: 2 Appeal 2009-006817 Application 10/387,289 constructing a respective device state image for each of said plurality of network elements, each of said device state images including a failover setting of a respective one of said network elements; transmitting said device state images to a network simulator; simulating a performance of said communications network in response to said device state images using a predictive network performance model in said network simulator; transmitting a prospective network element failover of a predetermined one of said network elements to said network simulator; simulating a performance of said communications network in response to said device state images using said predictive network performance model modified by re-routing that would result from said prospective network element failover; and detecting whether an acceptable performance is maintained in view of said prospective network element failover. The Examiner’s Rejection The Examiner’s Answer cites the following prior art references: Agrawal US 2001/0038471 A1 Nov. 8, 2001 Creamer US 6,519,228 B1 Feb. 11, 2003 Binder US 2003/0156549 A1 Aug. 21, 2003 (filed Jan. 9, 2003) Claims 1-5, 7-12, and 14 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Creamer in view of Binder. 3 Appeal 2009-006817 Application 10/387,289 Claims 6 and 13 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Creamer in view of Binder and Agrawal. ANALYSIS Claims 1-5, 7-12, and 14 Appellant’s arguments with respect to the obviousness rejection based on the combination of Creamer and Binder, of independent claims 1 and 8 focus on the alleged deficiency of either reference, taken alone or in combination, of teaching or suggesting the claimed invention. According to Appellant (App. Br. 5-7; Reply Br. 1-2), neither of the applied Creamer or Binder references discloses the construction of device state images including a failover setting, let alone the use of such device state images to modify a network performance model by re-routing of network traffic. We agree with Appellant. As argued by Appellant (App. Br. 6; Reply Br. 1-2), Creamer merely discloses the manual insertion of a fault to put a registration server into an unknown state to test the ability of the server to recover. (Creamer, Fig. 5C; col. 10, ll. 17-36). We find no disclosure in Creamer of any creation of device state images that include a failover setting, nor any teaching or suggestion of the re-routing of network traffic while the server is being tested. Similarly, we agree with Appellant (App. Br. 6-7; Reply Br. 2) that, while Binder may simulate user related behavior in the form of user profiles, there is no construction of any state images of network devices, nor any use of failover settings as part of the device state images. (Binder, ¶ [0023)]. We further agree with Appellant that, while the Examiner directs attention to paragraph [0035] of Binder as providing a teaching of evaluating network 4 Appeal 2009-006817 Application 10/387,289 system behavior based on network element failovers, there is nothing in this cited portion, nor elsewhere in Binder, that teaches or suggests the re-routing of network traffic as a result of a network element failover. For the above reasons, we do not sustain the Examiner’s 35 U.S.C. § 103(a) rejection of independent claims 1 and 8, nor of claims 2-5, 7, 9-12, and 14 dependent thereon. Claims 6 and 13 We also do not sustain the Examiner’s obviousness rejection of dependent claims 6 and 13 in which the Agrawal reference is added to the combination of Creamer and Binder to address the “meshed” optical network feature of the rejected claims. We find nothing in Agrawal which overcomes the innate deficiencies of Creamer and Binder as discussed supra. CONCLUSION OF LAW Based on the findings of facts and analysis above, we conclude that Appellant has shown the Examiner erred in rejecting claims 1-14 for obviousness under 35 U.S.C. § 103(a). DECISION The Examiner’s 35 U.S.C. § 103(a) rejection of claims 1-14, all of the appealed claims, is reversed. 5 Appeal 2009-006817 Application 10/387,289 REVERSED ELD SPRINT COMMUNICATIONS COMPANY L.P. 6391 SPRINT PARKWAY MAILSTOP: KSOPHT0101-Z2100 OVERLAND PARK, KS 66251-2100 6 Copy with citationCopy as parenthetical citation