Ex Parte Joshi et al

Patent Trial and Appeal Board

Apr 29, 2014

95001822 (P.T.A.B. Apr. 29, 2014)

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.
95/001,822 11/17/2011 Prajakta S. JOSHI 11517.0016-01000 1535
87916 7590 04/30/2014
2nd Reexam Group - Novak Druce + Quigg LLP
1000 Louisiana Street
Fifty-Third Floor
Houston, TX 77002
EXAMINER
STEELMAN, MARY J
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
04/30/2014 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
______________

BROCADE COMMUNICATIONS SYSTEMS, INC.,
Patent Owner and Appellant

v.

A10 NETWORKS, INC.,
Requester
______________

Appeal 2014-001644
Reexamination Control No. 95/001,822
United States Patent 7,840,678 B2
1

Technology Center 3900
______________

Before JOHN C. MARTIN, HOWARD B. BLANKENSHIP, and
MAHSHID D. SAADAT, Administrative Patent Judges.

MARTIN, Administrative Patent Judge.

1
This patent (hereinafter “’678 patent”) issued on November 23, 2010,
based on Application 12/506,130, filed on July 20, 2009, as a continuation
of Application 10/839,919, filed on May 6, 2004 (now Patent US
7,584,301). Claim 7 of the ’678 patent was amended by a Certificate of
Correction dated September 20, 2011. Claims 1, 11, and 15 have been
canceled by Ex Parte Reexamination Certificate US 7,840,678 C1, which
issued on January 15, 2014.
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DECISION ON APPEAL
Brocade Communications Systems, Inc. (hereinafter “Patent Owner”)
has appealed the Examiner’s rejections of original claims 1-19 of the ’678
patent. P.O. Appeal Br. at 4.
2
A Respondent Brief was filed by A10
Networks, Inc. (hereinafter “Requester” or “A10 Networks”) on January 17,
2013. Requester on June 13, 2013, filed a Notice of Withdrawal of Third
Party Requester A10 Networks, Inc. indicating withdrawal from this
proceeding.
3
The Examiner’s Answer was mailed on July 17, 2013. Patent
Owner’s Rebuttal Brief Pursuant to 37 C.F.R. § 41.71 was filed on
September 11, 2013.
Inasmuch as claims 1, 11, and 15 have been canceled by Ex Parte
Reexamination Certificate US 7,840,678 C1 (issued Jan. 15, 2014), this
appeal is dismissed with respect to these claims, leaving the rejections of
only dependent claims 2-10, 12-14, and 16-19 for our consideration.
We have jurisdiction under 35 U.S.C. §§ 6, 134, and 315.
We AFFIRM.

2
Patent Owner’s Appeal Brief Pursuant to 37 C.F.R. § 41.67, filed
December 17, 2012.
3
This Notice states (at page 1): “Third Party Requester, A10 Networks, Inc.
(‘A10’), has entered into a settlement agreement with the Patent Owner,
Brocade Communications Systems, Inc., and as such is withdrawing from
this proceeding. A10 will make no further comment or otherwise participate
in the proceeding and further withdraws any pending petition and/or
opposition A10 filed.”
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I. STATEMENT OF THE CASE
A. Related Litigation and Reexamination Proceedings
The ’678 patent was the subject of litigation styled: Brocade
Communications Systems, Inc. v. A10 Networks, Inc., Case No. 10-CV-
03428-LHK (N.D. Cal.). P.O. Appeal Br. 43 (“X. Related Proceedings
Appendix”).
A petition
4
by Patent Owner to terminate this inter partes
reexamination proceeding as a result of a final decision in the above-
identified litigation was dismissed in a USPTO decision mailed on
August 30, 2013.
5

The above-noted ex parte reexamination certificate terminated ex
parte reexamination proceeding 90/011,763 (hereinafter “the ex parte
proceeding”), which was initiated by a Request for Ex Parte Reexamination
filed by A10 Networks on June 27, 2011. In a non-final Office action
mailed in the ex parte proceeding on October 4, 2011, the Examiner (at page
3) rejected claims 1, 11, and 15 under 35 U.S.C. § 102(b) for anticipation by
3-DNS Ref. Guide,
6
which is one of the references relied on in the rejections
before us in this appeal. This rejection was maintained (at page 15) in a

4
Patent Owner’s Petition Under 37 C.F.R. § 1.182 to Terminate the
Reexamination Proceedings, filed July 10, 2013.
5
Decision Dismissing Petition to Terminate Inter Partes Reexamination
Proceeding.
6
3-DNS Ref. Guide, version 4.2. Request 3.
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final Office action mailed April 25, 2012, and affirmed by the Patent Trial
and Appeal Board in a July 24, 2013, Decision on Appeal in Appeal 2013-
005049 (at page 13). Patent Owner’s Appeal to the U.S. Court of Appeals
for the Federal Circuit was dismissed in a November 22, 2013, Order by
agreement of the parties.
7
Claim 1 was then canceled by Ex Parte
Reexamination Certificate US 7,840,678 C1, which issued on January 15,
2014.

B. The Rejections in This Inter Partes Reexamination Proceeding
The following rejections of dependent claims 2-10, 12-14, and 16-19
are before us for our consideration:
1. Claims 2-10, 12-14, 16, 17, and 19 under 35 U.S.C. § 102(b) for
anticipation by 3-DNS Ref. Guide. Right of Appeal Notice (“RAN”),
mailed August 9, 2012, at 5.
2. Claims 2-7, 9, 12, 14, and 19 under 35 U.S.C. § 102(e) for
anticipation by Skene.
8
Id. at 10.
3. Claims 3-5, 10, 12, and 14 under 35 U.S.C. § 102(b) for
anticipation by Delgadillo.
9
Id. at 12.
4. Claims 2-10, 12-14, and 16-19 under 35 U.S.C. § 103(a) for
obviousness over Foundry ServerIron Guide
10
in view of Wang.
11
Id. at 20.

7
In re Brocade Commc’ns Sys., No. 14-1057 (Fed. Cir. Nov. 22, 2013).
8
Skene, et al., US 7,441,045 B2, issued on October 21, 2008.
9
Kevin Delgadillo, Cisco DistributedDirector (©1999).
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II. DISCUSSION
A. The Rejection of Claims 2-10, 12-14, 16, 17, and 19 for Anticipation by
3-DNS Ref. Guide
In addressing this ground of rejection, Patent Owner’s Appeal Brief
treats dependent claims 2-10, 12-14, 16, 17, and 19 as standing or falling
with (now canceled) independent claims 1, 11, and 15. See P.O. Appeal
Br. 13 (“3-DNS does not disclose each and every limitation of at least
independent claims 1, 11, and 15 and therefore also does not anticipate
dependent claims 2-10, 12-14, 16, 17 and 19 of the [’]678 patent.”).
The rejection of dependent claims 2-10, 12-14, 16, 17, and 19 under
35 U.S.C. § 102(b) for anticipation by 3-DNS Ref. Guide therefore is
affirmed for the same reasons that the rejection of claims 1, 11, and 15 on
this ground was affirmed in the Board’s July 24, 2013, Decision on Appeal
in Appeal 2013-005049, which resulted in the cancelation of claims 1, 11,
and 15 by Ex Parte Reexamination Certificate US 7,840,678 C1.

10
Foundry ServerIron Installation and Configuration Guide (2000). Cited
as “Foundry ServerIron Guide” in Patent Owner’s Appeal Brief (e.g., at 4)
and as “Conf. Guide” in the Request for Inter Partes Reexamination
(hereinafter “Request”), filed on June 27, 2011 (e.g., at 4). The Examiner
refers to this reference as both “Foundry ServerIron Guide” and “Conf.
Guide” pages 12-20 of the RAN.
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B. The Rejections for Anticipation by Skene and Delgadillo
In view of our affirmance of the rejection of claims 2-10, 12-14, 16,
17, and 19 for anticipation by 3-DNS Ref. Guide, it is unnecessary to reach
the merits of either the anticipation rejection based on Skene, which is
directed to claims 2-7, 9, 12, 14, and 19, or the anticipation rejection based
on Delgadillo, which is directed to claims 3-5, 10, 12, and 14.

C. The Rejection of Claims 2-10, 12-14, and 16-19 for Obviousness Based
on Foundry ServerIron Guide in view of Wang
For the above reasons, it is also not necessary to address the rejection
of claims 2-10, 12-14, 16, 17, and 19 for obviousness based on Foundry
ServerIron Guide in view of Wang. This ground of rejection therefore will
be considered with respect to only claim 18, which does not stand rejected
on any other ground.
Patent Owner’s arguments regarding this ground of rejection treat
claim 18 as standing or falling with parent claim 15. See P.O. Appeal Br. 32
(“Foundry ServerIron Guide in view of Wang does not render obvious at
least independent claims 1, 11 and 15, and therefore also does not render
obvious dependent claims 2-10, 12-14 and 16-19 of the [’]678 patent.”). We
accordingly will address the obviousness of only claim 15, which reads as
follows:

11
Wang, et al., US 7,584,262 B1, granted September 1, 2009.
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15. An apparatus, comprising:
a load balance switch that includes:
a first storage unit to store a plurality of load balancing
policies, which are to be applied by said load balance switch to
rank addresses of different domains, wherein each of said load
balancing policies specify an order of application of a plurality
of metrics of each respective load balancing policy; and
a controller coupled to the first storage unit to use a
respective one of said stored load balancing policies to rank
addresses of each one of said domains.
Claims App. (P.O. Appeal Br. 40-41) (emphasis added).
The corresponding subject matter in the ’678 patent is briefly
described below. Figure 1 of the ’678 patent is reproduced below.
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Figure 1 illustrates an example of a GSLB (global server load balancing)
system that can employ an embodiment of the invention. ’678 patent
4:24-25. A GSLB switch 12 that is connected to Internet 14 acts as a proxy
for an authoritative Domain Name System (DNS) server 16 for a domain
(e.g., “foundrynet.com”). Id. at 4:25-29. As explained below, GSLB switch
12 can provide GSLB for a plurality of domains.
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GSLB switch 12 communicates via the Internet 14 and routers 19 and
21 with site switches 18A and 18B at site 20, site switches 22A and 22B at
site 24, and any other similarly configured site switches. Id. at 4:36-41.
More particularly, site switches 18A, 18B, 22A, and 22B connect routers 19
and 21 to servers 26A to 26N. Id. at 4:39-41.
A client program 28 connected to Internet 14 communicates with a
local DNS server 30. Id. at 4:60-62. When a browser on client program 28
requests a web page, a query is sent to local DNS server 30 to resolve the
symbolic host name (e.g., www.foundrynet.com) to an IP address of a host
server. Id. at 4:62-67. DNS server 30 responds by providing client
program 28 with a list of IP addresses corresponding to the resolved host
name. Id. at 4:67-5:2. This list of IP addresses is either retrieved from the
local DNS server 30’s cache, if the TTL (time to live
12
) of the responsive IP
addresses in the cache has not expired, or obtained from the GSLB switch 12
as a result of a recursive query. Id. at 5:2-5.
In prior art systems, a GSLB switch can use metrics to evaluate the
list of IP addresses received from its associated DNS server in the following
manner, described under the heading “Background Information”:
When the DNS server sends the list of IP addresses in response
to a client query, the GSLB switch evaluates this list by
applying a GSLB policy in conjunction with using the
information provided by the site switches. The GSLB policy
contains, among other possible specifications, the metrics that

12
’678 patent 1:40.
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are to be applied to the list of IP addresses and the order in
which they are to be applied to select the best IP address. After
the GSLB switch evaluates the addresses returned by the DNS
server using the metrics in the policy, the GSLB switch sends
the ordered address list, having the optimum address for access
listed at the top, to the client.
Id. at 1:62-2:6 (emphasis added). The improved GSLB system described in
the ’678 patent solves the following problem with the prior art GSLB
system:
Currently, the user (such as a system administrator) can
only define such a GSLB policy (or other load balancing
policies) globally. This global GSLB policy is applicable to all
the domains for which the GSLB switch is providing GSLB. For
instance, consider the example where the GSLB switch is
providing GSLB for www.foo.com and www.test.com. (Also
note in this example that for the domain www.foo.com, “www”
is referred to as the “host” and “foo.com” is referred to as the
“zone”). . . .
If the user wants a round-trip time (RTT) metric to be
used for selection of the best IP address for the domain
www.foo.com but not for the domain www.test.com, then there
is currently no provision for this capability.
Id. at 2:19-38 (emphasis added).
The invention described in the ’678 patent solves this problem by
permitting users to “define a host-level policy (alternatively or additionally
to the global GSLB policy) and apply the host-level policy to hosts in GSLB
domains.” Id. at 3:29-32. Thus, “[i]n effect the user can enable different
policies for different hosts.” Id. at 3:32-33.
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Figure 2 of the ’678 patent is reproduced below.

Figure 2 is a block diagram illustrating a GSLB switch in accordance with
the invention. Id. at 2:61-62. GSLB switch 12 includes a GSLB switch
controller 201 that is communicatively coupled to various modules,
including a first storage unit 212 and a second storage unit 210. Id. at 6:41-
45; 7:15-27. First storage unit 212 contains one or more configured
GSLB host-level policies. Id. at 7:15-18. These host-level policies can in
turn specify, for each host, the metrics to be used for selection of IP
addresses, the order in which the metrics are to be applied, the parameters
for the metrics (such as tolerance, limits, and the like), or other associated
settings. Id. at 7:18-22. Second storage unit 210 contains one or more
global GSLB policies, which may be default policies in some embodiments.
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Id. at 7:22-25.
Figure 5 of the ’678 patent is reproduced below.

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Figure 5 is a flowchart 500 depicting use of a host-level policy for selection
of IP addresses during the GSLB process. Id. at 10:14-15. At block 502, a
client program 28 queries for a domain for which GSLB switch 12 is
providing load balancing. Id. at 10:16-17. Authoritative DNS server 16
sends back a reply containing the IP addresses for the requested domain
(block 504), and GSLB switch 12 extracts the host/domain for the above
query (e.g., the host H1) (block 506). Id. at 10:17-19. If GSLB switch 12
determines (blocks 508, 510) that a host-level GSLB policy (e.g., P1) is
associated with host H1, GSLB switch 12 retrieves the information for
policy P1 from the GSLB host-policy database (block 512). Id. at 10:23-31.
GSLB switch 12 then uses this host-level policy P1 to select the best IP
address for client program 28 (block 514). Id. at 10:31-33.
The Examiner’s rejection for obviousness over Foundry ServerIron
Guide in view of Wang incorporates by reference the reasoning set forth at
pages 9, 10, and 98-135 of the Request. Non-final Office action, mailed
January 12, 2012, at 6 (“Issue 4”). The proposed rejection of claim 15 is
described at pages 124-30 of the Request.
As explained in greater detail below, the proposed rejection of
claim 15 relies on Foundry ServerIron’s Guide’s Chapter 7 (“Configuring
Global Server Load Balancing”) for a teaching of a load balancing switch
(specifically, a “GSLB ServerIron”) having a storage unit that stores a load
balancing policy to be used to rank addresses returned by a DNS server,
wherein the load balancing policy specifies an order of application of a
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plurality of metrics of the load balancing policy. Wang is relied on for a
teaching of storing a plurality of different load balancing policies to be
applied to respective different domains.
Foundry ServerIron Guide’s Figure 7.1, which is similar to Figure 1
of the ’678 patent, is reproduced below.
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Foundry ServerIron Guide 7-2. Figure 7.1 shows an example of a GSLB
configuration in which a “GSLB ServerIron” is connected to the
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authoritative DNS proxy for a specific domain, foundrynet.com. Id.
13
The
GSLB ServerIron can serve a plurality of domains. See id. (“You can
configure the ServerIron for more than one domain; this example uses only
one for simplicity.”).
The GSLB configuration depicted in Figure 7.1 performs the
following five steps, of which step 4 is a load balancing step:
1. The client’s local DNS sends a recursive query for
foundrynet.com.
2. The GSLB ServerIron, as proxy for the authoritative
DNS, forwards the lookup request from the client’s local DNS
to the authoritative DNS. . . .
3. The authoritative DNS for foundrynet.com answers
the client’s query (forwarded by the GSLB ServerIron) by
sending a list of IP addresses for the sites that correspond to the
requested host.
4. The GSLB ServerIron assesses the IP address in the
DNS Reply to determine the optimal site for the client and
moves the address for that site to the top of the list.
5. The client receives a reordered list of IP addresses.
Typical clients use the first address in the list. Since the

13
In addition, each of GSLB sites 1 and 2 includes two “site ServerIrons.”
Foundry ServerIron Guide 7-3.
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ServerIron has optimized the list for the client, the first address
is the best address.
Id. This reference more particularly explains: “By default, the GSLB
ServerIron retains the same number of IP addresses in the DNS replies from
the DNS server. The GSLB policy swaps the IP address on the top of the list
with the ‘best’ address, selected by the GSLB policy.” Id. at 7-25 (quoted at
Request 125, limitation 7.2).
Although Patent Owner does not deny that the GSLB ServerIron uses
an ordered plurality of metrics to rank the addresses (as required by
claim 15), we note that the GSLB ServerIron can use a selected plurality of
the following metrics, applied in the desired order, to evaluate the server IP
addresses in a DNS reply:
• The server’s health
• The site ServerIron’s session capacity/threshold
• The round-trip time between the remote ServerIron and the
DNS client
• The geographic location of the server
• The site ServerIron’s available session capacity
• The site ServerIron’s FlashBack speed (how quickly the
GSLB receives the health check results)
• The Least Response selection (the site ServerIron that has
been selected less often than others)
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NOTE: The default order for the metrics is the order shown
above.
Id. at 7-4. See also id. at 7-5 (“NOTE: You can change the order in which
the GSLB policy applies the metrics.”).
Furthermore, the selected metrics and metric order are stored in a flash
memory of the GSLB ServerIron:
USING THE WEB MANAGEMENT INTERFACE
1. Log on to the device using a valid user name and password
for read-write access.
. . . .
5. For each metric, select the new order position from the
Order field’s pulldown menu for that metric. For example,
to change the order of the session capacity threshold
and RTT metrics, select 3 from the Session Capacity
Threshold field’s pulldown menu and select 2 from the
Round Trip Time field’s pulldown menu. If you select
0, the metric is disabled. (This is the same as
removing the checkmark from the metric’s Enable
checkbox.)
. . . .
6. Click Apply to implement the change.
7. Select the Save link at the bottom of the dialog, then select
Yes when prompted to save the configuration change to the
startup-config file on the device’s flash memory.”
Id. at 7-33 (italics added) (quoted at Request 125-26, incorrectly identifying
the reference page as “7-16”). Patent Owner does not deny that this flash
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memory functions as a “first storage unit” (claim 15) for storing a GSLB
policy consisting of an ordered plurality of metrics.
As already noted, Foundry ServerIron Guide explains (at 7-2) that
“[y]ou can configure the ServerIron for more than one domain.” Under
these circumstances, the GSLB ServerIron presumably will apply the same
load balancing policy to requests for all domains served by the GSLB
ServerIron, which is the problem described in the “Background Information”
in the ’678 patent (at 2:19-41) and solved by the claimed invention.
The Request relies on Wang for a teaching of associating different
load balancing policies with different domains: “To the extent that Conf.
Guide does not disclose that a separate GSLB Policy (a claimed ‘load
balancing policy’) is associated with each domain, Wang does disclose a
separate pattern rule (claimed ‘load balancing policy’) is associated with
each domain.” Request 126 (quoted with approval page 33 of the May 5,
2012, Action Closing Prosecution).
Wang’s invention relates generally to data networks, load balancing,
and persistent connections and more particularly to a method of and
apparatus for allocating resources to resource requests in accordance with
persistence policies. Wang 1:32-34. Figure 1 of Wang is reproduced below.
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Figure 1 is a block diagram of one embodiment of a proxy server load
balancer 20 incorporating Wang’s invention, with the functional blocks (22-
40) of the proxy server load balancer 20 being organized into various layers
1 to 7 corresponding to the Reference Model for Open Systems
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Interconnection (OSI) promulgated by the International Standards
Organization (ISO). Id. at 5:25-31.
The Request (at pages 126-27) specifically relies on Wang’s Figure 5,
reproduced below.

Figure 5 shows an example of layer 5-7 policy rules that allow the proxy
server manager (36 in Figure 1) to make forwarding decisions based on the
domain name requested by the user and on “string patterns” in the URL. Id.
at 8:40-43. In this Figure 5 example:
The layer 5-7 policy rules are keyed off unique combinations of
Virtual IP address, destination port number, and protocol (TCP
or UDP) found in the client request. The proxy server manager
then looks into the client request and determines the domain.
Once the domain has been determined, the URL is matched
against a list of pattern rules. Each of the pattern rules has its
own server group associated with it.
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Id. at 8:44-50 (emphasis added). We understand this paragraph to mean that
Figure 5 shows two lists of pattern rules: a first list consisting of three
pattern rules for the domain “www.shoes.com” and a second list consisting
of two pattern rules for the domain “www.socks.com.”
14
The ’678 patent
next explains that “[o]nce a match [with a pattern rule] has been found, the
user-configured load balancing policy or scheduling policy is applied to the
server group, and the client request is forwarded to the selected server at the
user-configured destination port number.” Id. at 8:50-54. Policy engine 40
(Fig. 1) supports a number of scheduling policies and persistence policies,
including hashing, round robin, weighted round robin, utilization percentage,
least connections, weighted least connections, and priority scheduling. Id. at
9:8-12.
As shown in Figure 5, the three server groups that correspond to the
three pattern rules for domain www.shoes.com are respectively associated
with scheduling policies “round robin,” “round robin,” and “least
connections.” Similarly, the two server groups that correspond to the two
pattern rules for domain www.socks.com are respectively associated with
scheduling policies “weighted round robin” and “least connections.” Wang
also describes an alternate example or embodiment (not depicted in

14
The Request is therefore incorrect to describe Figure 5 as “disclos[ing] a
first pattern rule . . . associated with a first domain, www.shoes.com, and a
second pattern rule associated with a second domain, www.socks.com.”
Request 127) (emphasis added).
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Figure 5), in which load balancing is based on domain names without also
being based on URL string patterns. See id. at 8:55-57 (“The layer 5-7
pattern rules permit HTTP traffic to be load balanced on the basis of the
destination domain only, or a combination of the destination domain and
URL.”) (emphasis added); id. at 9:5-7 (“Each pattern rule (or domain name
if no pattern rules are used) has its own associated server group, scheduling
policy, and rewrite port number.”) (emphasis added).
15
We find that if the
Figure 5 example is modified to perform load balancing based on domain
names but not on URL string patterns, each of domains www.shoes.com and
www.socks.com will have a single corresponding server group, which in
turn will have a single associated load scheduling policy for selecting a
server from the server group. Furthermore, because in the Figure 5 example
the two domains have different respective lists of scheduling policies, a
person skilled in the art would have understood that the domains
www.shoes.com and www.socks.com in the modified embodiment can have
different respective scheduling (i.e., load balancing) policies. For example,
these two domains can have scheduling policies “round robin” and
“weighted round robin,” respectively.
For above reasons, we agree with the Examiner’s finding that “Wang
teaches that traffic may be load balanced based on the domain associated
with that traffic’s destination. Wang at 8:55-9:57.” RAN 16.

15
These two statements are quoted, with underlining, at page 126 of the
(Continued on next page.)
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The Examiner next states the case for the obviousness of combining
the above teachings of Foundry ServerIron Guide (i.e., “Conf. Guide”) and
Wang as follows:
[A] person of ordinary skill would be motivated to use the per-
domain pattern rules of Wang in the load balancing system of
Conf. Guide. Doing so would allow the load balancing method
of Conf. Guide to select the best host for a client, based on
properties unique to each domain. This is consistent with the
stated goal of Conf. Guide, to “ensure[] that a client always
receives a DNS reply for a host site that is available and is the
best choice among the available hosts.” Conf. Guide at 7-1. A
person of ordinary skill in the art, looking to ensure that the
clients of Conf. Guide system always receive the “best choice”
host, would have looked to solutions in other load balancing
systems, including systems that used pattern-matching rules
such as Wang. Because the per-domain behavior of Wang uses
a known technique (assigning values to a domain) to achieve a
predictable outcome (different rules are applied to different
domains), it would have been obvious to modify the system of
Conf. Guide to include it. See KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 417 (2007) (“[I]f a technique has been used to
improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the
same way, using the technique is obvious unless its actual
application is beyond his or her skill.”).
RAN 16-17 (alterations in original). As noted above, the GSLB ServerIron
in Foundry ServerIron Guide presumably uses the same load balancing
policy (e.g., plurality of ordered metrics) to rank servers for all of the

Request.
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25
domains handled by the GSLB ServerIron. Thus, we understand the
Examiner’s position to be that it would have been obvious in view of Wang
to modify the GSLB ServerIron so that it (i) stores a plurality of different
load balancing policies (e.g., pluralities of ordered metrics) and (ii) uses
different ones of these load balancing policies to rank address for respective
different domains handled by the GSLB ServerIron.
Patent Owner’s arguments against the rejection are unpersuasive. One
argument is:
Wang and the Foundry ServerIron Guide are not properly
combinable because Wang discloses substantially the same
disclosure as the Foundry ServerIron Guide. . . . A person of
ordinary skill in the art would not look to Wang when
substantially identical teachings are already found within the
Foundry ServerIron Guide.
P.O. Appeal Br. 32. As support for this argument, Patent Owner (id. at 33)
compares Wang’s Figure 5 with the URL switching depicted in Figure 6.1 in
Foundry ServerIron Guide’s Chapter 6 (“Configuring Web Switching”).
Figure 6.1 is reproduced below.
16

16
This copy of Figure 6.1, which we downloaded from the web page
identified in Patent Owner’s Appeal Brief at page 32, footnote 9, is slightly
more legible than the copy of this figure that appears at page 33 of Patent
Owner’s Appeal Brief, which copy is much more legible than the figure in
the record copy of the reference.
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Figure 6.1 is an example of a URL switching configuration. Foundry
ServerIron Guide 6-3 (page not numbered). Patent Owner relies on the
following description of URL switching:
The diagram in Figure 6.1 illustrates a basic example of URL
switching. The ServerIron is connected to three groups of load-
balanced real servers. The server group with ID = 1 contains
the /home directory for the web site. The server group with ID
= 2 contains all the GIF files for the web site. The server group
with ID = 3 contains all the CGI applications for the web site.
The ServerIron has URL switching policies in place that cause
HTTP requests to be directed as follows:
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• HTTP requests containing URL strings that start with
the text “/home” are sent to server group ID = 1.
• HTTP requests containing URL strings that end with
the text “gif” are sent to server group ID = 2.
• HTTP requests containing URL strings that have the
text “/cgi-bin/” anywhere within are sent to server
group ID = 3.
• If a URL string does not start with the text “/home”, end
with the text “gif”, or contain the text “/cgi-bin/”, the
HTTP request is sent to server group ID = 1.
Id. at 6-3 (quoted in P.O. Appeal 32-33 with underlining omitted). Patent
Owner also relies on the following paragraph:
URL switching policies define selection criteria for URL strings
and specify what happens when a URL string matches the
selection criteria. If an HTTP request contains a URL string
that matches a policy’s selection criteria, the HTTP request can
be sent to a load-balanced real server group or to another policy
for additional matching.
Id. at 6-4 (quoted in P.O. Appeal 33). Referring to these passages and
Figure 6.1, Patent Owner argues that “[s]uch disclosure is substantially
similar to the disclosure of Wang as seen in FIG. 5 . . . , wherein a server
group is associated with a pattern rule used to select a real server within the
server group,” with the result that “Wang adds nothing to the Foundry
ServerIron Guide and therefore the two references are not properly
combinable.” P.O. Appeal Br. 33-34.
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The Examiner found this argument unpersuasive for the following
reasons: “Foundry ServerIron Guide does not explicitly disclose URL
switching policies associated with a domain. Wang, however, does disclose
pattern rules associated with domains. In other words, Wang discloses a
load balance switch that distributes traffic on a per-domain basis.” Answer
20.
We agree with the Examiner. As noted above, Wang’s Figure 5 example
associates respective different sets of scheduling (i.e., load balancing)
policies with the two domains, and Wang’s modified embodiment can
associate a first scheduling policy (e.g., “round robin”) with the first domain
and a different scheduling policy (e.g., “weighted round robin”) with the
second domain.
Patent Owner also argues:
Wang does not disclose load balancing hosts based on
metrics, but instead discloses load balancing real servers based
on content requests. This is made clear in Figure 5 of Wang,
wherein the pattern rule (alleged load balancing policy) that is
associated with the domain[] is load balancing the domain
based on content requested within the domain as determined by
a pattern in the URL.
P.O. Appeal Br. 36. This argument is unpersuasive because it overlooks
Wang’s above-discussed modified embodiment, in which load balancing is
based on domain names without also being based on URL string patterns.
Patent Owner’s final argument that “neither the scheduling policies
nor the pattern rules in Wang are associated with a first site switch” (P.O.
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Appeal Br. 36) is unpersuasive because claim 15 of the ’678 patent does not
recite a “site switch.”
17

Because Patent Owner has not persuaded us of error in the Examiner’s
rejection of (now canceled) claim 15 for obviousness over Foundry
ServerIron Guide in view of Wang, we sustain the rejection on that ground
of claim 18, which Patent Owner treats as standing or falling with claim 15.

III. SUMMARY
This appeal is dismissed with respect to claims 1, 11, and 15, which
were canceled by Ex Parte Reexamination Certificate US 7,840,678 C1
(Jan. 15, 2014).
We have sustained the following rejections:
1. Claims 2-10, 12-14, 16, 17, and 19 under 35 U.S.C. § 102(b) for
anticipation by 3-DNS Ref. Guide.
2. Claim 18 under 35 U.S.C. § 103(a) for obviousness over Foundry
ServerIron Guide in view of Wang.
Because we have sustained rejections of claims 2-10, 12-14, and 16-
19 on the above grounds, we found it unnecessary to reach the merits of the
following rejections:

17
The phrase “site switch” instead appears in claims 11 and 15 of parent
patent US 7,584,301 B1.
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(a) Claims 2-10, 12-14, and 16, 17, and 19 under 35 U.S.C. § 103(a)
for obviousness over Foundry ServerIron Guide in view of Wang.
(b) Claims 2-7, 9, 12, 14, and 19 under 35 U.S.C. § 102(e) for
anticipation by Skene.
(c) Claims 3-5, 10, 12, and 14 under 35 U.S.C. § 102(b) for
anticipation by Delgadillo.

IV. DECISION
The Examiner’s decision that claims 2-10, 12-14, and 16-19 are
unpatentable over the prior art is affirmed.
In the event neither party files a request for rehearing within the time
provided in 37 C.F.R. § 41.79, and this decision becomes final and
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must
timely serve notice on the Director of the United States Patent and
Trademark Office. See 37 C.F.R. §§ 90.1 and 1.983.
AFFIRMED

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31
ack

For Patent Owner:

2ND REEXAM GROUP - NOVAK DRUCE + QUIGG LLP
1000 LOUISIANA STREET
FIFTY-THIRD FLOOR
HOUSTON TX 77002

For Third Party Requester:

FINNEGAN, HENDERSON, FARABOW
GARRETT & DUNNER, LLP
901 NEW YORK AVENUE, NW
WASHINGTON, DC 20001-4413