Ex Parte Cook

Board of Patent Appeals and Interferences

Mar 9, 2011

10387289 (B.P.A.I. Mar. 9, 2011)

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:
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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.
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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
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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.

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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