Ex Parte Hilt et alDownload PDFPatent Trial and Appeal BoardMay 22, 201511395455 (P.T.A.B. May. 22, 2015) 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. 11/395,455 03/31/2006 Volker Hilt 6-12 9938 46304 7590 05/22/2015 RYAN, MASON & LEWIS, LLP 48 South Service Road Suite 100 Melville, NY 11747 EXAMINER VOSTAL, ONDREJ C ART UNIT PAPER NUMBER 2453 MAIL DATE DELIVERY MODE 05/22/2015 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 PATENT TRIAL AND APPEAL BOARD ____________ Ex parte VOLKER HILT and INDRA WIDJAJA __________ Appeal 2012-001923 Application 11/395,455 1 Technology Center 2400 ____________ Before HUBERT C. LORIN, JOSEPH A. FISCHETTI, and MICHAEL C. ASTORINO, Administrative Patent Judges. LORIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Volker Hilt, et al. (Appellants) seek our review under 35 U.S.C. § 134 of the final rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b) (2002). SUMMARY OF DECISION We REVERSE. 2 1 The Appellants identify Alcatel-Lucent as the real party in interest. App. Br. 1. 2 Our decision will make reference to the Appellants’ Appeal Brief (“App. Br.,” filed Apr. 25, 2011) and Reply Brief (“Reply Br.,” filed Sept. 20, 2011), and the Examiner’s Answer (“Ans.,” mailed July 20, 2011). Appeal 2012-001923 Application 11/395,455 2 THE INVENTION Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A method of routing messages in a network comprising a plurality of servers, the method comprising the steps of: receiving in a first server feedback information from downstream servers of the network, the downstream servers including at least first and second downstream servers associated with respective first and second paths between the first server and a target server, the feedback information comprising congestion measures for respective ones of the downstream servers; and adjusting a message routing process in the first server based on the received feedback information to compensate for imbalance among the congestion measures; wherein at least a given one of the downstream servers on one of the first and second paths receives a response from the target server to an invite request sent to the target server from the first server; and wherein the given downstream server compares a congestion measure contained in the response from the target server with a congestion measure of the given downstream server and if the congestion measure of the given downstream server indicates a higher level of congestion than the congestion measure contained in the response from the target server, the given downstream server modifies the response from the target server to include the congestion measure of the given downstream server before forwarding the response upstream to the first server. THE REJECTIONS The Examiner relies upon the following as evidence of unpatentability: Krishnamurthy Faccin US 2001/0025310 A1 US 2002/0120729 A1 Sept. 27, 2001 Aug. 29, 2002 Appeal 2012-001923 Application 11/395,455 3 Kadansky Bowman-Amuah Key Yamada Skog US 6,507,562 B1 US 6,578,068 B1 US 2004/0148423 A1 US 2005/0055436 A1 US 2008/0114850 A1 Jan. 14, 2003 June 10, 2003 July 29, 2004 Mar. 10, 2005 May 15, 2008 The following rejections are before us for review: 1. Claims 1, 12, 13, and 20 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Key and Krishnamurthy. 2. Claims 2, 3, 6, 14, and 15 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Kadansky. 3. Claims 4, 5, 8, 17, and 18 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Yamada. 4. Claim 7 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, Kadansky, and Yamada. 5. Claims 9 and 10 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Bowman-Amuah. 6. Claims 11 and 19 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Faccin. 7. Claim 16 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Skog. ISSUES Did the Examiner err in rejecting claims 1, 12, 13, and 20 under 35 U.S.C. § 103(a) as being unpatentable over Key and Krishnamurthy; claims 2, 3, 6, 14, and 15 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Kadansky; claims 4, 5, 8, 17, and 18 under Appeal 2012-001923 Application 11/395,455 4 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Yamada; claim 7 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, Kadansky, and Yamada; claims 9 and 10 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Bowman- Amuah; claims 11 and 19 under 35 U.S.C. §103(a) as being unpatentable over Key, Krishnamurthy, and Faccin; and, claim 16 under 35 U.S.C. §103(a) as being unpatentable over Key, Krishnamurthy, and Skog. FINDINGS OF FACT We rely on the Examiner’s factual findings stated in the Answer. Additional findings of fact may appear in the Analysis below. ANALYSIS The rejection of claims 1, 12, 13, and 20 under 35 U.S.C. § 103(a) as being unpatentable over Key and Krishnamurthy. Claims 1, 12, 13 and 20 are the independent claims. All the independent claims, and thus all the claims on appeal, include the limitation “wherein the given downstream server compares a congestion measure contained in the response from the target server with a congestion measure of the given downstream server.” As to this limitation the Examiner takes the position that “Key: fig 4, [0011], [0013], [0046], [0051] and [0055]” (Ans. 6) suggests it. Key describes a system for controlling bandwidth usage in network communications involving an intermediary device, such as a router (see para. 31), to detect incipient network congestion. When the intermediary device detects congestion, it marks an IP packet with ECN (Explicit Appeal 2012-001923 Application 11/395,455 5 Congestion Notification) information. See para. 10. In one embodiment, the marking is accomplished by setting an ECN flag indicating “Congestion Experienced.” Para. 35. The indication is made when the device breaches a congestion indication threshold. Para. 45. See also para. 51. The packets marked as congested are received by a receiving end system which then sends feedback to a transmitting system as a result of which the transmitting system alters the transmission rate to better optimize the bandwidth usage at the device. Para 45. See also para. 55. Nowhere does Key disclose “wherein the given downstream server compares a congestion measure contained in the response from the target server with a congestion measure of the given downstream server” as claimed. The Examiner appears to agree, arguing instead that The examiner considers "intermediary device" and/or "incipient resource" are similar to given downstream server, considers "if the number" ... "exceeds" is similar to compares, considers "preset congestion threshold" are similar to congestion measure contained in the response from the target server, considers "end system" is similar to target server, considers "number of packets 310" is similar to congestion measure of the given downstream server, considers "exceeds" is similar to if the congestion measure ... indicates a higher level of congestion, considers "provides an indication of incipient resource congestion" and/or "marked packets" are similar to before forwarding the response, considers "transmitter" is similar to upstream to the first server.); Ans. 6–7. Notwithstanding that no claim construction analysis has been conducted to ascertain whether the claimed subject matter reasonably broadly covers what Key discloses, the Examiner’s “similarity” rationale for Appeal 2012-001923 Application 11/395,455 6 finding obviousness is nevertheless not supported by a preponderance of evidence. There is insufficient evidence to support equating (a) the claimed “downstream server” to Key’s “intermediary device”; (b) the claimed “congestion measure contained in the response from the target server” to Key’s “preset congestion threshold”; (c) the claimed “target server” to Key’s “end system”; and, (d) the claimed “congestion measure of the given downstream server” to Key’s “number of packets 310” such that one of ordinary skill in the art would have been led to a system “wherein the given downstream server compares a congestion measure contained in the response from the target server with a congestion measure of the given downstream server” as claimed. Rather, Key discloses a device that marks packets with congestion information when a threshold is exceeded, which congestion information can be used in a feedback system for controlling transmission rates. At most, Key would lead one to measure congestion against a threshold. Key provides no suggestion to compare two congestion measures, one contained in a response from a target server and the other of a given downstream server and therefore would not lead one of ordinary skill in the art to a system “wherein the given downstream server compares a congestion measure contained in the response from the target server with a congestion measure of the given downstream server” as claimed. A prima facie case of obviousness has not been made out by a preponderance of the evidence in the first instance. Accordingly, the rejection is not sustained. The rejection of claims 2, 3, 6, 14, and 15 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Kadansky. Appeal 2012-001923 Application 11/395,455 7 The rejection of claims 4, 5, 8, 17, and 18 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Yamada. The rejection of claim 7 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, Kadansky, and Yamada. The rejection of claims 9 and 10 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Bowman-Amuah. The rejection of claims 11 and 19 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Faccin. The rejection of claim 16 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Skog. These rejections are directed to claims dependent on claims 1 and 13, whose rejection we have reversed above. For the same reasons, we will not sustain the rejections of claims 2-11 and 14-19 over the cited prior art. Cf., In re Fine, 837 F.2d 1071, 1075 (Fed. Cir. 1988). CONCLUSIONS The rejection of claims 1, 12, 13, and 20 under 35 U.S.C. § 103(a) as being unpatentable over Key and Krishnamurthy is not sustained. The rejection of claims 2, 3, 6, 14, and 15 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Kadansky is not sustained. The rejection of claims 4, 5, 8, 17, and 18 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Yamada is not sustained. The rejection of claim 7 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, Kadansky, and Yamada is not sustained. Appeal 2012-001923 Application 11/395,455 8 The rejection of claims 9 and 10 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Bowman-Amuah is not sustained. The rejection of claims 11 and 19 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Faccin is not sustained. The rejection of claim 16 under 35 U.S.C. § 103(a) as being unpatentable over Key, Krishnamurthy, and Skog is not sustained. DECISION The decision of the Examiner to reject claims 1-20 is reversed. REVERSED JRG Copy with citationCopy as parenthetical citation