Ex Parte Dolganow et al

Patent Trial and Appeal Board

Jan 23, 2017

12371197 (P.T.A.B. Jan. 23, 2017)

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.
12/371,197 02/13/2009 Andrew Dolganow ALC 3461 7142
76614 7590 01/25/2017
Terry W. Kramer, Esq.
Kramer & Amado, P.C.
330 John Carlyle Street
3rd Floor
Alexandria, VA 22314
EXAMINER
SHAIFER HARRIMAN, DANT B
ART UNIT PAPER NUMBER
2434
NOTIFICATION DATE DELIVERY MODE
01/25/2017 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):
mail@krameramado.com
ipsnarocp @ alcatel-lucent, com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW DOLGANOW, JASON RUSMISEL, and
STEVE MORIN
Appeal 2016-002666
Application 12/371,197
Technology Center 2400
Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 1—20, which are all the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We Affirm.
Invention
The claimed invention on appeal relates to “management of traffic in
a telecommunications network and, more particularly, to managing
transmission of peer-to-peer content over such a network.” (Spec. 11).
Appeal 2016-002666
Application 12/371,197
Representative Claim
1. A method for managing transmission of peer-to-peer
(P2P) content over a telecommunications network, the
method comprising:
receiving a plurality of packets belonging to an Internet
Protocol (IP) flow between a source peer and a
destination peer in a network element in the
telecommunications network;
performing deep packet inspection (DPI) to identify an
application protocol associated with the IP flow, wherein
the P2P content uses a P2P protocol;
performing DPI to extract keys from the packets in the IP
flow, each extracted key uniquely identifying the P2P
content associated with the IP flow;
populating a P2P content database with the extracted keys;
querying the populated P2P content database by
comparing the extracted keys to key fields in the P2P
content database, [LI] wherein each key field in the P2P
content database corresponds to a respective traffic
management action field; and
[L2] performing a traffic management action associated
with the traffic management action field corresponding to
the key field in the P2P content database.
(Contested limitations LI and L2 bracketed and emphasized).
Related Appeals
This appeal is related to PTAB Decision 2012-011913, Application
No. 12/371,197 (same as instant application), mailed on February 2, 2015.
(Examiner Affirmed).
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Application 12/371,197
Rejections
A. Claims 1, 3—7, 9, 11—14, and 16—20 are rejected under 35 U.S.C.
§ 103(a) as being obvious over the combined teachings and
suggestions of Twiss (US 2008/0049619 Al; publ. Feb. 28, 2008),
Ray (US 2009/0238071 Al; publ. Sept. 24, 2009), and Oberlander
(US 5,509,000; iss. Apr. 16, 1996).
B. Claims 2 and 10 are rejected under 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of Twiss, Ray,
Oberlander, and Cohen (US 2007/0297417 Al; publ. Dec. 27, 2007).
C. Claims 8 and 15 are rejected under 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of Twiss, Ray,
Oberlander, and Mahmood (US 2004/0213198 Al; publ.
Oct. 28, 2004).
Grouping of Claims
Based on Appellants’ arguments, we decide the appeal of rejection A
of claims 1, 3, 4, 9, 11—14, and 16—20 on the basis of representative claim 1.
See 37 C.F.R. § 41.37(c)(l)(iv). We address rejection A of separately
argued claims 5, 6, and 7, infra. Rejections B and C are not substantively or
separately argued, and are addressed infra.
ANALYSIS
We have considered all of Appellants’ arguments and any evidence
presented. We find Appellants’ arguments unpersuasive for the reasons
discussed infra. We adopt as our own: (1) the findings and legal conclusions
set forth by the Examiner in the Final Office Action from which this appeal
is taken, and (2) the findings, legal conclusions, and explanations set forth in
the Answer in response to Appellants’ arguments (Ans. 23—33). We
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highlight and address specific findings and arguments for emphasis in our
analysis below.
Rejection A of Representative Claim 1
Appellants substantively contest limitation LI: “wherein each key
field in the P2P content database corresponds to a respective traffic
management action field. ...” (Emphasis added) (App. Br. 6). Further,
regarding limitation L2, Appellants (id.) contend:
On pages 2 and 3, the final Office Action further alleged
that Ray's data field 375 may include DPI information. In
particular, the Examiner cites a list of DPI inspection codes.
However, the Examiner ignores the required correspondence for
each key field in the P2P content database with a respective
traffic management action field.
Emphasis omitted.
In the principal and Reply Briefs, Appellants repeatedly emphasize
the use of the word “each” as recited in contested limitation LI (“wherein
each key field in the P2P content database corresponds to a respective
traffic management action field' ’) (emphasis added). However, in reviewing
the proffered support (App. Br. 2) for the claim term “each” (that was added
by amendment to claim 1), we find no clear support in the sections of the
Specification and drawings cited by Appellants. Therefore, we find a
question is initially raised regarding whether the claim 1 amendment adding
the word “each” has written description support under 35 U.S.C. § 112, first
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Application 12/371,197
paragraph.1
Turning to the question of obviousness, we decide the following
issues presented in this appeal:
Issues: Under § 103, did the Examiner err by finding the cited
combination of Twiss, Ray, and Oberlander would have collectively taught
or suggested the contested limitations (with emphasis added):
[LI] wherein each key field in the P2P content database
corresponds to a respective traffic management action field;
[L2] performing a traffic management action associated with
the traffic management action field corresponding to the keyfield
in the P2P content database[,]
within the meaning of claim 1? 2
In reviewing the record, we find the Examiner reads the recited
“extracted keys'’ (emphasis added) (i.e., extracted from the IP packet flow)
which “uniquely [identify] the P2P content associated with the IP flow”
1 We leave this issue to the further consideration of the Examiner in the
event of further prosecution of this application. Although the Board is
authorized to reject claims under 37 C.F.R. § 41.50(b), no inference should
be drawn when the Board elects not to do so. See Manual of Patent
Examining Procedure (MPEP) § 1213.02 (9th Ed., Rev. 07.2015,
Nov. 2015).
2 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 111 F.3d
1048, 1054 (Fed. Cir. 1997). Cfi Spec. 1 66 (“the foregoing disclosure,
description, and figures are for illustrative purposes only and do not in any
way limit the invention, which is defined only by the claims”).
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(claim 1) on the signatures taught by Twiss 175 (see Ans. 6),3 and as
additionally taught by Ray, e.g., ]f 14:
With deep packet inspection, signatures are used to identify
specific network applications and protocols in use over a
network. In their most broad sense, signatures are patterns of
data bit "recipes" which are chosen to uniquely identify an
associated application or protocol. When a new application or
protocol is encountered, the data packets of the new application
are analyzed and an appropriate signature is developed and
added to a database, typically referred to as a signature
library. In an embodiment of the invention, packets transmitted
by a particular application or protocol are received, and the
packets are analyzed using deep packet inspection to generate
a signature. The signature may then be compared to entries in
the signature library, and if a match is found, the data packets
are identified as being associated with a particular application or
protocol identified in the signature library.
Emphasis added. See also Ray H 13, 20.4
3 See Twiss (175) (“A determination of whether payload data comprises
P2P typical data may be made by, in effect, masking out variable portions of
data in a protocol and then comparing the data to one or more known
allowed message formats which (preferably) serve as a signature for the
P2P protocol (or protocols) it is desired to control” (emphasis added).
4 See e.g., Ray (120):
Results 215, 225, and 235 are provided to a signature generator
module 240. The signature generator module 240 generates a
DPI signature 245 associated with the packet 180 based upon
results 215, 225, and 235. The DPI signature 245 is provided to
a signature lookup module 250. The signature lookup module
250 performs a lookup of the DPI signature 245 from a
signature library 260 to determine an identity 255 of one or
more of a particular application and protocol associated with
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Given this evidence, we find the described use of the signatures of
Twiss (175) and Ray flflf 13, 14), teaches or suggests contested limitation
LI, as claimed. We further find both Twiss (Abstract) and Ray (13) are
directed, at least in part, to the various issues associated with the routing of
peer-to-peer (P2P) data. See, e.g., Twiss Tflf 12, 42, Ray 13.
We find Ray’s signatures (114) which uniquely identify applications
or protocols associated with P2P content (114, “the data packets of the new
application are analyzed and an appropriate signature is developed and
added to a database, typically referred to as a signature library”) (emphasis
added), teach or suggest the recited “extracted keys” which populate “key
fields in the P2P content database,” i.e., “performing DPI to extract keys
from the packets in the IP flow, each extracted key uniquely identifying the
P2P content associated with the IP flow; ... in the P2P content database
[LI] wherein each key field . . . .” (Claim 1) (emphasis added).
Given this evidence (id.), we find Ray’s signatures which are “added
to a database, typically referred to as a signature library” (114) teach or at
least suggest the claimed step of “populating a P2P content database with
the extracted keys,” within the meaning of claim 1. (emphasis added).
We find Ray’s one-byte DPI inspection code information that is
inserted into data field 375 of Ray’s IP packet header (Fig. 3) teaches or
suggests the contested “traffic management action field” as recited in
the packet 180. The identity 255 is provided to a DPI
information generator 270 that functions to determine DPI
information 265 based upon the identity 255.
Emphasis added.
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contested limitation L2 of claim 1, because Ray’s DPI inspection code is
expressly described as being used for traffic control purposes. See, e.g., Ray
123:
The DPI inspection code instructs the centralized network
controller 150 on the manner in which the packet and other traffic
is to be handled for traffic control purposes. An example of
DPI inspection codes includes: a T representing the stopping of
sending packets, a '2' representing the slowing down of packets,
a '3' representing the rerouting of traffic, a '4' representing the
stopping of billing for traffic, a '9' representing the continuation
of sending of traffic, an 'A' representing the pausing of the traffic,
and a 'Z' representing the prioritizing of the traffic.
Emphasis added. See also Ray 113.
Thus, we find the Examiner’s proffered combination of Twiss and
Ray (and Oberlander) teaches or suggests all that is contested. The extracted
key (Ray’s unique signature), that uniquely identifies P2P content associated
with the IP flow, is expressly taught as being “added to a database” (114).
We note claim 1 does not positively recite that the “traffic management
action field” is actually stored as a field in the “P2P content database” that is
populated “with the extracted keys.”
Ray’s DPI inspection code (i.e., “traffic management action field” —
claim 1) is stored in an IP packet header (Ray’s data field 375, Fig. 3),
instead of being stored in a database record (Cf with the record field
arrangement depicted in Appellants’ Figure 2 — i.e., Key 210 and Action
230 fields).
Although not stored as fields within the same record in a database (as
depicted in Appellants’ Figure 2, but not claimed in claim 1), we
nevertheless find Ray’s P2P “signature” (i.e., “key field in the P2P content
database” — claim 1) and DPI inspection code (i.e., “traffic management
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action field” — claim 1) correspond to each other, in the manner described
in Ray’s paragraphs 20—23, within the meaning of Appellants’ claim 1.
We additionally note the Examiner looks to the tertiary Oberlander
reference to teach or suggest populating a database with keys. (Final Act. 8—
9). Given the totality of the evidence relied upon by the Examiner, we find
Appellants’ claimed arrangement would not have been “uniquely
challenging or difficult for one of ordinary skill in the art” at the time of
Appellants’ invention. Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d
1157, 1162 (Fed. Cir. 2007) (citing KSR Inti Co. v. Teleflex, Inc., 550 U.S.
398,418 (2007).
On this record, we find Appellants have not shown that Ray’s DPI
inspection code (123) (i.e., a “traffic management action field” — claim 1)
that corresponds to Ray’s DPI signature (120) (extracted key field — claim
1) that is “added to a database” (Ray |14) would have been anything “more
than a combination of prior art elements according to known methods to
yield predictable results.” KSR, 550 U.S. at 416. Nor has Appellant
provided objective evidence of secondary considerations (such as
unexpected results) which our reviewing court guides “operates as a
beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese and
Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013).
Therefore, on this record, and based upon a preponderance of the
evidence, we find Appellants’ arguments unavailing regarding contested
limitations FI and F2, for essentially the same reasons articulated by the
Examiner in the Answer, and for the reasons further discussed above.
Accordingly, we sustain rejection A of representative claim 1. The
associated grouped claims fall with claim 1. See “Grouping of Claims'1'’
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supra.
Dependent claims 5 and 6
We note the contested steps of method claims 5 and 6 are each
preceded by the same recited temporal predicate condition: “when the
extracted key is not located in the P2P content database” (emphasis added)
(then perform the recited contested step or act}. We particularly note the
language of claims 5 and 6 does not expressly preclude performing the
contested steps at other times when the predicate condition is not satisfied.
For example, claims 5 and 6 do not positively recite performing the intended
acts only “when the extracted key is not located in the P2P content
database.” (Emphasis added). Therefore, under a broad but reasonable
interpretation, we conclude these conditional claims do not positively
require the contested conditional limitations to ever be performed. See Ex
parte Schulhauser, No. 2013-007847, at *9 (PTAB April 28, 2016)
(precedential), holding:
[t]he Examiner did not need to present evidence of the
obviousness of the remaining method steps of claim 1 that are
not required to be performed under a broadest reasonable
interpretation of the claim (e.g., instances in which the
electrocardiac signal data is not within the threshold
electrocardiac criteria such that the condition precedent for the
determining step and the remaining steps of claim 1 has not been
met[;]
see also Ex parte Katz, No. 2010-006083,2011 WL 514314, at *4—5 (BPAI
Jan. 27,2011).
Here, we apply the precedential guidance of Schulhauser to the
contested conditional limitations of claims 5 and 6. Therefore, the Examiner
need not present evidence establishing the obviousness of the conditional
step, or the following steps, of method claims 5 and 6, because we conclude
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the recited conditional steps are not required to be performed under a
broadest reasonable interpretation of the claim. Accordingly, we sustain
rejection A of claims 5 and 6.
Dependent claim 7
Claim 7 recites: “The method for managing transmission of P2P
content according to claim 1, wherein the traffic management action
comprises: notifying a network management entity that a transfer involving
the P2P content item has occurred.”
As discussed above, the Examiner maps the recited “traffic
management action field” of claim 1 to Ray’s DPI inspection code (| 23).
We find Ray (123) expressly teaches: “The DPI inspection code instructs
[i.e. notifies] the centralized network controller 150 on the manner in which
the packet and other traffic is to be handled for traffic control purposes.”
Therefore, we find Ray teaches or at least suggests the contested
notifying step.5 Accordingly, we sustain rejection A of claim 7.
Rejections B and C
Appellants do not advance separate, substantive arguments and/or
supporting evidence demonstrating error regarding the Examiner’s rejection
B of claims 2 and 10, and rejection C of claims 8 and 15. Instead,
Appellants merely restate the purported deficiencies of the base combination
5 “[T]he question under 35 [U.S.C. §] 103 is not merely what the references
expressly teach but what they would have suggested to one of ordinary skill
in the art at the time the invention was made.” Merck & Co., Inc. v. Biocraft
Labs., Inc., 874 F.2d 804, 807—08 (Fed. Cir. 1989), cert, denied, 493 U.S.
975 (Fed. Cir. 1989) (internal citation and quotation omitted); see also
MPEP § 2123.
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of references, as previously raised regarding Rejection A of independent
claim 1. Arguments not made are considered waived. See 37 C.F.R.
§ 41.37(c)(l)(iv). Therefore, we sustain the Examiner’s rejection B of
claims 2 and 10, and rejection C of claims 8 and 15, for the same reasons
discussed above regarding Rejection A of independent claim 1.
Reply Brief
To the extent Appellants may advance new arguments in the Reply
Brief not in response to a shift in the Examiner’s position in the Answer, we
note arguments raised in a Reply Brief that were not raised in the Appeal
Brief or are not responsive to arguments raised in the Examiner’s Answer
will not be considered except for good cause. See 37 C.F.R. § 41.41(b)(2).
Conclusion
For at least the aforementioned reasons, on this record, we are not
persuaded the Examiner erred. We find a preponderance of the evidence
supports the Examiner’s underlying factual findings and ultimate legal
conclusion of obviousness for all contested issues on appeal.
DECISION
We affirm the Examiner’s decision rejecting claims 1—20 under
§ 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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