Ex Parte Delregno et al

Patent Trial and Appeal Board

Nov 23, 2016

13665561 (P.T.A.B. Nov. 23, 2016)

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.
13/665,561 10/31/2012 Christopher Nicholas DELREGNO 20120331 1228
7590 11/28/201625537
VERIZON
PATENT MANAGEMENT GROUP
1320 North Court House Road
9th Floor
ARLINGTON, VA 22201-2909
EXAMINER
CHO, HONG SOL
ART UNIT PAPER NUMBER
2467
NOTIFICATION DATE DELIVERY MODE
11/28/2016 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):
patents @ verizon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER NICHOLAS DELREGNO and
MATTHEW WILLIAM TURLINGTON
Appeal 2015-006748
Application 13/665,561
Technology Center 2400
Before CARLA M. KRIVAK, JASON V. MORGAN, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
SZPONDOWSKI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’
Final Rejection of claims 1—20. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
Appeal 2015-006748
Application 13/665,561
STATEMENT OF THE CASE
Appellants’ invention is directed to a method and system for
selectively metering network traffic, and in particular, to resizing a network
tunnel based on criteria associated with incoming traffic to the network.
Spec. 1,2. Claim 1, reproduced below, is representative of the claimed
subject matter:
1. A method comprising:
determining, during a sampling period, network traffic that
matches a predetermined class of service criteria of a network service
provider;
determining, based on the sample, a frequency or a relevancy of
network traffic matching the predetermined class of service criteria;
calculating, based on the frequency or relevancy, a minimal
amount of bandwidth to reserve for tunneling subsequent network
traffic associated with the predetermined class of service criteria over
a network of the service provider; and
initiating, based on the calculation, a resizing of a network
tunnel associated with the subsequent network traffic.
REJECTIONS
Claims 1, 3—6, 9—11, 13—16, 19, and 20 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Turlington et al. (US
2010/0002724 Al; published Jan. 7, 2010) (“Turlington”) and Takeda (US
2002/0055999 Al; published May 9, 2002).
Claims 2, 7, 8, 12, 17, and 18 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Turlington, Takeda, and
Tse-Au (US 6,816,456 Bl; issued Nov. 9, 2004).
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Appeal 2015-006748
Application 13/665,561
ANALYSIS
After considering each of Appellants’ arguments, we agree with the
Examiner. We refer to and adopt the Examiner’s findings and conclusions
as set forth in the Examiner’s Answer and in the action from which this
appeal was taken. Ans. 3^4; Final Act. 2—5. Our discussions here will be
limited to the following points of emphasis.
Issue: Did the Examiner err in finding the combination of Turlington
and Takeda teaches or suggests “determining, during a sampling period,
network traffic that matches a predetermined class of service criteria of a
network service provider,” as recited in independent claims 1 and 11?
Appellants contend “Takeda does not describe ‘reserving a tunnel to
support particular QoS (Quality of Service) levels for traffic associated with
a particular application.” App. Br. 7. Therefore, Appellants argue:
[N]o realistic reason has been provided which would
impel a person of ordinary skill in the art to look to the finding
a matching pair of inflow and outflow packet feature data, as
disclosed in Takeda, and somehow insert this arrangement of
Turlington et al. in order to carry out [the disputed limitation.]
Id. at 7—8; see also Reply Br. 4—5.
We are not persuaded by Appellants’ arguments and agree with the
Examiner’s findings. Ans. 3^4; Final Act. 2—5. The Examiner relies on
Turlington for all of the limitations in claims 1 and 11 except capturing
network traffic matching the predetermined class of service criteria, for
which the Examiner relies on Takeda. Final Act. 2—3. Turlington describes
sampling traffic flow rates at regular intervals in order to make adjustments
to the bandwidth as necessary. Turlington || 15, 21. Takeda describes
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Appeal 2015-006748
Application 13/665,561
matching feature data of an inflow packet to feature data of an outflow
packet. Takeda 1 84. The Examiner concludes:
[I]t would have been obvious to one having ordinary skill
in the art at the time the invention was made to modify the
system of Turlington with the teaching of Takeda for the
benefit of providing efficient utilization of network resources
by reserving a tunnel to support particular QoS levels for traffic
associated with a particular application class.
Final Act. 3.
Appellants argue the reasoning provided by the Examiner is not
described in Takeda. App. Br. 7. While the Examiner must establish that
“there was an apparent reason to combine the known elements in the fashion
claimed,” KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007), the
apparent reason to combine references need not come from the references
themselves. See DyStar Testilfarben GmbH & Co. Deutschland KG v. C.H.
Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006). The proper inquiry is
whether the Examiner has articulated adequate reasoning based on a rational
underpinning to explain why a person of ordinary skill in the art would have
been led to combine Turlington and Takeda. See KSR, 550 U.S. at 418. In
this case, the Examiner has provided a reasoning (providing efficient
utilization of network resources by reserving a tunnel) with rational
underpinnings (to support particular QoS levels for traffic associated with a
particular application class). See Final Act. 3; In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006). Appellants have not persuasively rebutted the Examiner’s
findings, nor have Appellants provided evidence that combining the
teachings was “uniquely challenging or difficult for one of ordinary skill in
the art,” or that such a combination “represented an unobvious step over the
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Application 13/665,561
prior art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162
(Fed. Cir. 2007).
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of independent claims 1 and 11. For the same reasons, we sustain the
Examiner’s 35 U.S.C. § 103(a) rejection of dependent claims 2—10 and 12—
20.
DECISION
For the above reasons, the Examiner’s rejection of claims 1—20 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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