10275872 (B.P.A.I. Nov. 17, 2009)

Ex Parte I

Board of Patent Appeals and InterferencesNov 17, 2009

10275872 (B.P.A.I. Nov. 17, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE 1 ___________ 2 3 BEFORE THE BOARD OF PATENT APPEALS 4 AND INTERFERENCES 5 ___________ 6 7 Ex parte COLIN I’ANSON 8 ___________ 9 10 Appeal 2009-000685 11 Application 10/275,872 12 Technology Center 3600 13 ___________ 14 15 Decided: November 17, 2009 16 ___________ 17 18 Before HUBERT C. LORIN, ANTON W. FETTING, and JOSEPH A. 19 FISCHETTI, Administrative Patent Judges. 20 FETTING, Administrative Patent Judge. 21 DECISION ON APPEAL 22 Appeal 2009-000685 Application 10/275,872 2 STATEMENT OF THE CASE 1 Colin I’Anson (Appellant) seeks review under 35 U.S.C. § 134 (2002) of 2 a non-final rejection of claims 1-10, the only claims pending in the 3 application on appeal. 4 We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b) 5 (2002). 6 SUMMARY OF DECISION1 7 We AFFIRM. 8 THE INVENTION 9 The Appellant invented a way for charging for the use of 10 communications infrastructure resources including resources associated with 11 value-added services (VAS) (Specification 1:5-6). 12 An understanding of the invention can be derived from a reading of 13 exemplary claim 1, which is reproduced below [bracketed matter and some 14 paragraphing added]. 15 1. A method of charging for resource usage in a 16 communications infrastructure, comprising: 17 1 Our decision will make reference to the Appellant’s Appeal Brief (“App. Br.,” filed August 7, 2007) and Reply Brief (“Reply Br.,” filed November 15, 2007), and the Examiner’s Answer (“Answer,” mailed November 15, 2007). Appeal 2009-000685 Application 10/275,872 3 [1] using a packet switch 1 to divide user packet-data traffic into 2 a first traffic flow associated with value-added 3 service (VAS) resources provided by, or accessible 4 to, the communications structure, and 5 a second traffic flow for other traffic; 6 [2] routing the first traffic flow through a VAS marshalling 7 system; and 8 [3] using the VAS marshalling system to 9 identify and 10 meter 11 traffic components of the first traffic flow 12 intended for respective ones of the 13 individual VAS resources. 14 THE REJECTION 15 The Examiner relies upon the following prior art: 16 Kari US 6,480,485 B1 Nov. 12, 2002 Glitho US 6,625,141 B1 Sep. 23, 2003 Amin-Salehi US 2002/0052915 A1 May 2, 2002 Claims 1-10 stand rejected under 35 U.S.C. § 103(a) as unpatentable 17 over Kari, Glitho, and Amin-Salehi . 18 ARGUMENTS 19 The Appellant argues these claims as a group. Accordingly, we select 20 claim 1 as representative of the group. 37 C.F.R. § 41.37(c)(1)(vii) (2008). 21 Appeal 2009-000685 Application 10/275,872 4 The Appellant contends that there is nothing in the art that describes, 1 teaches, alludes to, or is in any other way connected to the concept of using a 2 packet switch to divide user packet-data traffic into (1) a first traffic flow 3 associated with value-added service resources provided by, or accessible to, 4 a communications structure, and (2) a second traffic flow for other traffic. 5 The Appellant takes it that the Examiner equates 'mediating access to 6 services and applications' in Amin-Salehi to the claimed "dividing user 7 packet-data traffic into a first traffic flow associated with value- added 8 service resources provided by, or accessible to, a communications structure, 9 and a second traffic flow for other traffic." App. Br. 5. The Appellant 10 contends that mediating is not dividing, as supported not just by the plain 11 meaning of the words themselves but by the disclosure of Amin-Salehi. The 12 Appellant proffers definitions from The American Heritage Dictionary of the 13 English Language, Fourth Edition. 2004. 14 Divide: to separate into parts, sections, groups, or branches. 15 Mediate: to resolve or settle (differences) by working with all the 16 conflicting parties; to effect or convey as an intermediate agent or 17 mechanism; to settle or reconcile differences. App. Br. 5-6. 18 Appellant also argues that the Examiner's motivation for combining 19 these three references is, besides hard to comprehend, completely lacking 20 any actual suggestion to combine the references or any indication of an 21 expectation of success. App. Br. 6. 22 Appeal 2009-000685 Application 10/275,872 5 ISSUES 1 The issue of whether the Appellant has sustained its burden of showing 2 that the Examiner erred in rejecting claims 1-10 under 35 U.S.C. § 103(a) as 3 unpatentable over Kari, Glitho, and Amin-Salehi as to whether it was 4 predictable for one of ordinary skill to use a packet switch to divide user 5 packet-data traffic into a first traffic flow associated with value-added 6 service (VAS) resources provided by, or accessible to, a communications 7 structure, and a second traffic flow for other traffic and whether it was 8 proper to combine the references. 9 FACTS PERTINENT TO THE ISSUES 10 The following enumerated Findings of Fact (FF) are believed to be 11 supported by a preponderance of the evidence. 12 Facts Related to the Prior Art 13 Kari 14 01. Kari is directed to charging for the use of network services 15 (Kari 1:8-29) by providing the internal backbone network of a 16 packet radio network with a new support node establishing a 17 gateway from the packet radio network to the actual billing system 18 (Kari 2:34-37). 19 02. Kari describes the using its backbone to provide a charging 20 information collecting system which is independent of the billing 21 system implementation in a packet radio network. Kari 2:14-16. 22 23 Appeal 2009-000685 Application 10/275,872 6 Glitho 1 03. Glitho is directed to providing a Value-Added Service (VAS) in 2 a telecommunications network operable with Session Initiation 3 Protocol (SIP). Glitho 2:42-44. 4 04. Glitho describes how networks within the Internet rely on 5 packet switches. Glitho 1:26-32. 6 Amin-Salehi 7 05. Amin-Salehi is directed to taking advantage of NSPs (Network 8 Service Provider) position as the first-stage access conduit to the 9 Internet to offer NSP originated applications and services. The 10 NSP, which operates the public physical access transmission 11 medium for communicating IP packets to and from a service 12 subscriber device, includes within its access network a server that 13 functions as a Value-Added Service (VAS) Gateway. Amin-14 Salehi ¶ 0007. 15 06. Amin-Salehi describes a configuration in which data is routed 16 to either a valued added services gateway or elsewhere. Amin-17 Salehi ¶’s 0015-17. 18 Facts Related To The Level Of Skill In The Art 19 07. Neither the Examiner nor the Appellant has addressed the level 20 of ordinary skill in the pertinent arts of systems analysis and 21 programming, packet switching systems design, or internet traffic 22 management and accounting systems design. We will therefore 23 consider the cited prior art as representative of the level of 24 Appeal 2009-000685 Application 10/275,872 7 ordinary skill in the art. See Okajima v. Bourdeau, 261 F.3d 1350, 1 1355 (Fed. Cir. 2001) (“[T]he absence of specific findings on the 2 level of skill in the art does not give rise to reversible error ‘where 3 the prior art itself reflects an appropriate level and a need for 4 testimony is not shown’”) (quoting Litton Indus. Prods., Inc. v. 5 Solid State Sys. Corp., 755 F.2d 158, 163 (Fed. Cir. 1985). 6 08. A router is a form of packet switch. 7 Facts Related To Secondary Considerations 8 09. There is no evidence on record of secondary considerations of 9 non-obviousness for our consideration. 10 PRINCIPLES OF LAW 11 Claim Construction 12 During examination of a patent application, pending claims are 13 “given their broadest reasonable interpretation consistent with the 14 specification.” In re Prater, 415 F.2d 1393, 1396 (CCPA 1969); See 15 also, In re Bond, 910 F.2d 831, 833 (Fed.Cir.1990). Limitations 16 appearing in the specification but not recited in the claim are not read 17 into the claim. E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 18 1369 (Fed. Cir. 2003) (claims must be interpreted “in view of the 19 specification” without importing limitations from the specification 20 into the claims unnecessarily). See also Tex. Digital, 308 F.3d 1200, 21 1204-05. 22 Obviousness 23 A claimed invention is unpatentable if the differences between it and 24 the prior art are “such that the subject matter as a whole would have been 25 Appeal 2009-000685 Application 10/275,872 8 obvious at the time the invention was made to a person having ordinary skill 1 in the art.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007); Graham 2 v. John Deere Co., 383 U.S. 1, 13-14 (1966). 3 In Graham, the Court held that that the obviousness analysis is 4 bottomed on several basic factual inquiries: “[(1)] the scope and content of 5 the prior art are to be determined; [(2)] differences between the prior art and 6 the claims at issue are to be ascertained; and [(3)] the level of ordinary skill 7 in the pertinent art resolved.” Graham, 383 U.S. at 17. See also KSR, 550 8 U.S. at 406. “The combination of familiar elements according to known 9 methods is likely to be obvious when it does no more than yield predictable 10 results.” KSR, 550 U.S. at 416. 11 ANALYSIS 12 Claim 1 requires [1] using a packet switch to divide user packet-data 13 traffic into a first traffic flow associated with value-added service (VAS) 14 resources provided by, or accessible to, the communications structure, and a 15 second traffic flow for other traffic; [2] routing the first traffic flow through 16 a VAS marshalling system and [3] using the VAS marshalling system. 17 Limitation [3] is not under contention. Limitation [2] is under contention 18 only to the extent that limitation [1] is argued as not providing the first 19 traffic flow required for limitation [2]. 20 Thus the issue before us is whether the art describes, or shows that it was 21 predictable to divide user packet data traffic into a flow associated with 22 value added service resources and a flow for other traffic. The claim does 23 not recite any particular structure or algorithm for performing such a 24 division. 25 Appeal 2009-000685 Application 10/275,872 9 The Examiner construed the limitation of a packet switch as any node 1 that divides traffic. The Examiner based this on the Specification’s 2 disclosure of flow being divided by a "switching node" into standard traffic 3 flow and value-added service traffic flow. Answer 6-7. With this 4 construction, the Examiner found that Amin-Salehi describes a network 5 service provider gateway that provides value added services and describes 6 how its information is divided into data packets transmitted with a header 7 containing the address of a node where the packets are sent. The Examiner 8 further found that the NSP switch passes the divided information to a router, 9 which decodes the IP header for routing the IP packet's payload to the proper 10 destination. 11 The Examiner found this division mechanism to be analogous to that in 12 the Applicant's specification at ¶ 0028 stating that "the basic user traffic flow 13 is divided by switching node 50 into a standard traffic flow 51 that, for 14 example, is routed to an ISP 52, and a VAS traffic flow 53 that is routed to a 15 VAS marshalling system.” The Examiner accordingly found that Amin-16 Salehi teaches a division as claimed of routing data packets to the ISP and to 17 Value Added Services consistent with a construction compatible with the 18 Appellant's specification. Answer 7. Thus, the Examiner found that the 19 scope of limitation [1] was broad enough to encompass conventional packet 20 switching predicated on header destination fields, which is the underlying 21 internet protocol routing mechanism, which Amin-Salehi relies on. 22 The Appellant responds that Amin-Salehi does not teach dividing the 23 information into a first traffic flow associated with value-added service 24 (VAS) resources provided by, or accessible to, the communications 25 structure, and a second traffic flow for other traffic. Reply Br. 3. The 26 Appeal 2009-000685 Application 10/275,872 10 Appellant does not provide any reasoning why conventional packet 1 switching would not read on dividing the packet data in the conventional 2 manner found by the Examiner to be described in Amin-Salehi. 3 The Appellant argues that the Examiner focused on the Specification 4 rather than the claim. Reply Br. 2-3. As we found supra, the Examiner was 5 merely providing a construction of the claim limitation that was consistent 6 with the Specification. The Appellant also contends the Examiner found 7 mediating rather than dividing. App. Br. 5-6. The Examiner responded this 8 was not the case. Answer 7-8. The Appellant never argues the Examiner’s 9 central finding that conventional packet switching reads on the claim where 10 one destination is a valued added service as in Amin-Salehi. See FF 06. 11 Next we take up the issue of whether one would have combined the 12 references. The Examiner relied on Amin-Salehi to show the general claim 13 limitations and on Glitho and Kari to describe the use of a packet switch and 14 of accounting for charging of usage respectively in packet networks such as 15 that in Amin-Salehi. Each of Glitho and Kari describe the characteristics of 16 the existing Internet and of packet switched networks, that they use packet 17 switches and provide services which are paid for. FF 01 - 04. Thus, the 18 Examiner has only relied on Glitho and Kari as evidence of the environment 19 within which Amin-Salehi operates. Clearly given that Amin-Salehi already 20 is described as operating in a packet switched environment, there would be a 21 reasonable expectation of success. 22 Accordingly we find the Appellant’s arguments unpersuasive. 23 Appeal 2009-000685 Application 10/275,872 11 CONCLUSIONS OF LAW 1 The Appellant has not sustained its burden of showing that the Examiner 2 erred in rejecting claims 1-10 under 35 U.S.C. § 103(a) as unpatentable over 3 Kari, Glitho, and Amin-Salehi. 4 DECISION 5 To summarize, our decision is as follows. 6 • The rejection of claims 1-10 under 35 U.S.C. § 103(a) as unpatentable 7 over Kari, Glitho, and Amin-Salehi is sustained. 8 No time period for taking any subsequent action in connection with this 9 appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). 10 11 AFFIRMED 12 13 mev 14 15 HEWLETT-PACKARD COMPANY 16 INTELLECTUAL PROPERTY ADMINISTRATION 17 3404 E. HARMONY ROAD 18 MAIL STOP 35 19 FORT COLLINS CO 80528 20