Ex Parte Kalmbach et alDownload PDFPatent Trial and Appeal BoardNov 30, 201713297882 (P.T.A.B. Nov. 30, 2017) 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. 13/297,882 11/16/2011 Michael T. Kalmbach ROC920110220US1 9888 46296 7590 12/04/2017 MARTIN & ASSOCIATES, LLC P.O. BOX 548 CARTHAGE, MO 64836-0548 EXAMINER SEFCHECK, GREGORY B ART UNIT PAPER NUMBER 2477 NOTIFICATION DATE DELIVERY MODE 12/04/2017 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): derekm@ideaprotect.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL T. KALMBACH and MARK D. SCHROEDER Appeal 2016-004631 Application 13/297,8821 Technology Center 2400 Before ROBERT E. NAPPI, JAMES W. DEJMEK, and KAMRAN JIVANI, Administrative Patent Judges. DEJMEK, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1,7, 15, 21, and 24. Appellants have canceled claims 2—6, 8—14, 16— 20, 22, and 23. App. Br. 17—20. We have jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify International Business Machines Corporation as the real party in interest. App. Br. 1. Appeal 2016-004631 Application 13/297,882 STATEMENT OF THE CASE Introduction Appellants’ disclosed and claimed invention is directed to “caching of data at the edge of a mobile data network ... so data from the cache may be delivered to user equipment when requested without the request propagating through the core network and without the data having to travel through the core network.” Spec. 12. In a disclosed embodiment, data patterns in the historical data usage may be used to define cache load and cache flush criteria. Spec. 16. Claim 1 is representative of the subject matter on appeal and is reproduced below with the disputed limitations emphasized in italics'. 1. A mobile data network comprising: a plurality of basestations, each basestation communicating with a corresponding antenna that transmits and receives radio signals to and from user equipment, wherein the plurality of basestations are part of a radio access network that communicates with a core network in the mobile data network, one of the plurality of basestations comprising: a data caching mechanism that logs usage data relating to interaction of a plurality of user equipment with the one basestation, processes the usage data to determine at least one usage pattern that comprises date, time and device type of the plurality of user equipment accessing the one basestation, generates from at least one usage pattern at least one cache load criterion that specifies date, time and device type of user equipment, generates from the at least one usage pattern at least one cache flush criterion that specifies date, time and device type of user equipment, wherein the data caching mechanism stores in a cache first internet protocol (IP) data retrieved from the internet through the core network in response to a first IP data request from first user equipment when the at least one cache load criterion is satisfied and flushes data from the cache when the at least one cache flush criteria is satisfied, the data caching mechanism returning the first IP data in response to a second IP 2 Appeal 2016-004631 Application 13/297,882 data request without sending the second IP data request to the core network. The Examiner’s Rejection Claims 1, 7, 15, 21, and 24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Mayo et al. (US 2005/0216519 Al; Sept. 29, 2005) (“Mayo”) and Lam et al. (US 2008/0005121 Al; Jan. 3, 2008) (“Lam”). Final Act. 2-4. ANALYSIS2 Claims 1 and 15 Appellants assert the prior art fails to teach or suggest determining a usage pattern comprising date, time, and device type information from the usage data. App. Br. 5—6; Reply Br. 2—3. In particular, Appellants argue “nothing in Mayo teaches the usage patterns . . . include date, time and device type.” App. Br. 6. Instead, Appellants contend the usage patterns described in Mayo include the number of unauthorized users, the number of times a web site was visited by a guest and a list of favorite web sites. App. Br. 6 (citing Mayo 128). Additionally, Appellants argue the gathering of usage data by Mayo does not teach the processing of such data into usage patterns, but only teaches the logging of usage data. Reply Br. 3 Non-obviousness cannot be established by attacking references individually where, as here, the ground of unpatentability is based upon the 2 Throughout this Decision, we have considered the Appeal Brief, filed October 12, 2015 (“App. Br.”); the Reply Brief, filed March 29, 2016 (“Reply Br.”); the Examiner’s Answer, mailed January 29, 2016 (“Ans.”); and the Final Office Action, mailed May 11, 2015 (“Final Act.”), from which this Appeal is taken. 3 Appeal 2016-004631 Application 13/297,882 teachings of a combination of references. In re Keller, 642 F.2d 413, 426 (CCPA 1981). Rather, the test for obviousness is whether the combination of references, taken as a whole, would have suggested the patentee’s invention to a person having ordinary skill in the art. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). We are unpersuaded of Examiner error because, as the Examiner explains, “the rejection is based upon the combination of Mayo and Lam.” Ans. 5 (emphasis omitted). In particular, the Examiner relies on Mayo to teach, inter alia, the monitoring/logging of usage data to determine a usage pattern of the plurality of user equipment (UE) accessing the base station. Ans. 5 (citing May 28—36, 43, Abstract, Fig. 1); see also Final Act. 3. The Examiner states Mayo does not explicitly disclose the usage pattern comprises date, time, and device type information and relies on Lam for this teaching. Ans. 5—6 (citing Lam || 86—89, 116, Figs. 7, 8); see also Final Act. 4. The Examiner concludes it would have been obvious to one of ordinary skill in the art to modify the usage patterns of Mayo to include the date, time, and device type information of Lam to “increas[e] capacity and enabl[e] predictive caching of data based upon the various usage information collected in Mayo and Lam.” Final Act. 4. Mayo is directed to an access point that allows guests to obtain Internet access. Mayo 1 5. Mayo discloses the access point includes monitoring logic to determine the usage of each guest and predict information that may be of interest and locally cache such information. Mayo ^Hf 5—6. Further, Mayo describes the local monitor may quantify the number of times a web page has been requested, a list of favorite sites and “many, many other types of information.” Mayo 27—28. Mayo also 4 Appeal 2016-004631 Application 13/297,882 discloses the web cache application operates dynamically and, thus, “as usage changes, or as further insight is gathered into usage patterns (either locally or remotely), the web cache application 110 will attempt to predict guest usage.” Mayo 134. Additionally, a management application within the access point determines how long usage information is maintained. Mayo 138. Lam is generally directed to a network-extended storage device. Lam, Abstract. In a disclosed embodiment, using a network-extended storage virtualization approach, “the storage capacity of a portable storage device coupled to a host computer is . . . extended beyond its physical capacity, by transparently providing the portable storage device with a back-end network repository over a network connection.” Lam 1 59. Lam describes a data pre-fetching operation by the network-extended storage device to reduce latency associated with accessing data stored on the network repository. Lam 176, Fig. 7. The pre-fetch analysis is “an analysis of the data being accessed, or upon a pattern of accesses, in order to correlate an access order.” Lam 1112, Fig. 7. Additionally, Lam describes a delete determination (i.e., flush operation) “indicative of whether to delete the data from the portable storage device.” Lam H 86—87, Fig. 8. The determination of deletion “is based upon factors such as user preference, file size, desired system performance, storage medium capacity, or other factors.” Lam 1116. Lam also describes determining whether a usage threshold has been reached, which considers, inter alia, date and time information that the data is accessible. Lam 1116. Further, Lam discloses data on the portable storage device may be managed according to “data type, usage pattern, or other factors.” Lam 1 89. 5 Appeal 2016-004631 Application 13/297,882 We are unpersuaded of Examiner error and, contrary to Appellants’ arguments, find Mayo discloses gathering and processing usage data into usage patterns. See, e.g., Mayo ]Hf 20, 27—28. Further, we agree with the Examiner that Mayo contemplates using different types of information regarding usage patterns, including their determination and usage in generating at least one cache load criterion and at least one cache flush criterion. Ans. 5—6; Final Act. 3; Mayo 28—30, 32, 34, 36. Additionally, Appellants have not provided sufficient persuasive evidence that including date, time, and device type information in Lam, as found by the Examiner, with the usage patterns of Mayo would have been “uniquely challenging or difficult for one of ordinary skill in the art.” 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, 420 (2007)). Appellants also argue the Examiner does not identify any specific teachings in Lam as allegedly teaching the claimed cache flush criterion. App. Br. 6—7; Reply Br. 4—5. Rather, Appellants contend the Examiner broadly identifies sixteen paragraphs from Lam. App. Br. 6—7. Further, Appellants assert there is nothing in Lam that suggests the “Other Factors” to indicate whether deletion is appropriate include date, time, and device type information. Reply Br. 5 (referring to Lam, Fig. 8). In response, the Examiner notes, and we agree, the identified paragraphs of Lam are directed to a delete determination, which the Examiner finds teaches the claimed at least one flush criterion. Ans. 6. In particular, paragraphs 114 through 117 further describe the method for generating a delete determination as illustrated in Figure 8 of Lam. In addition to contemplating “other factors,” Lam also identifies determining a 6 Appeal 2016-004631 Application 13/297,882 usage threshold based on “date and time information that the data is accessible” as part of the delete determination. Lam 1116. Thus, we agree with the Examiner that Lam teaches, or reasonably suggests, including date, time and device type (see, e.g., Lam 1 89) information as part of a delete determination (i.e., cache flush criterion). Appellants assert once data is stored in the cache in Lam, device type would not be part of any cache flush criteria because: (i) the device type is already known and only data suitable for that device is already stored in the cache, and (ii) the device type of the device that contains the cache does not read on the device type of user equipment, as recited in the claims. App. Br. 7—8; Reply Br. 6—8. As an initial matter, it is well settled that mere attorney arguments and conclusory statements, which are unsupported by factual evidence, are entitled to little probative value. In re Geisler, 116 L.3d 1465, 1470 (Led. Cir. 1997). Lam teaches managing data “according to the data type, usage pattern, or other factors,” which the Examiner finds suggests factors such as date, time, and device type. See final Act. 4. Additionally, the Examiner finds Lam’s reference to a particular device (i.e., an MP3 player) is exemplary and that Lam “clearly shows a specific device type that would be used by a user, differentiated from other types of devices and/or data.” Ans. 7. further, the Examiner finds “Lam also at least acknowledges the applicability of its disclosure to different network topologies, including wireless/mobile communication between devices in a cellular network” and, thus, is consistent with the claimed “device type of user equipment.” Ans. 7 (citing Lam || 36, 61, 131, Pig. 12). Accordingly, Appellants’ arguments do not apprise us of Examiner error. 7 Appeal 2016-004631 Application 13/297,882 Additionally, Appellants contend the Examiner has not set forth articulated reasoning with rational underpinning to combine the teachings of Mayo and Lam in the manner suggested to support the legal conclusion of obviousness. App. Br. 8—12; Reply Br. 8—12. In particular, Appellants argue the Examiner relies on two unrelated advantages (specifically, increasing capacity and enabling predictive caching of data based upon the various usage information collected) as a motivation to combine the references. App. Br. 9. As the Examiner explains: both Mayo and Lam provide disclosure that shows consideration of various usage parameters in managing dynamic network data storage. Lam’s disclosure of increased capacity would clearly benefit Mayo in that cached data can be managed more effectively with greater capacity to cache requested data within the predictive caching in Mayo. The ability to increase capacity while dynamically managing finite storage would clearly be recognized as relevant and advantageous by one of ordinary skill in the art. Ans. 8. We disagree with Appellants that the advantages are unrelated. As discussed, Mayo teaches caching information within an access point based on determined usage patterns. Mayo contemplates the use of “many, many other types of information” (Mayo 128) and the Examiner relies on the information taught or suggested by Lam (i.e., date, time, and device type). Lam also teaches pre-fetching (i.e., caching) information in a device based on usage information. Additionally, Lam teaches data management techniques based on usage patterns to increase capacity of the device. An obviousness analysis “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art 8 Appeal 2016-004631 Application 13/297,882 would employ.” KSR, 550 U.S. at 418. “A person of ordinary skill is also a person of ordinary creativity, not an automaton.” KSR, 550 U.S. at 421. We agree with the Examiner that an ordinarily skilled artisan would have found it obvious to apply the data management techniques of Lam to the access point of Mayo “by utilizing information such as the date, time and device type of past usage, as in Lam, thereby increasing capacity and enabling predictive caching of data based upon the various usage information collected in Mayo and Lam.” See Linal Act. 4 Lor the reasons discussed supra, we are unpersuaded of Examiner error. Accordingly, we sustain the Examiner’s rejection of claim 1. Lor similar reasons, we also sustain the Examiner’s rejection of claim 15, which recites similar limitations and was not argued separately. See App. Br. 12. Claims 7, 21, and 24 To the extent Appellants assert the rejection of claims 7, 21, and 24 are in error for the same reasons as those advanced with respect to claim 1 (see, e.g., App. Br. 12, 14), we are, for the reasons discussed regarding claim 1, unpersuaded of error. Claim 7 recites “the data caching mechanism determines user equipment that makes a number of IP requests that exceeds a predetermined threshold and generates the at least one cache load criterion to accommodate the user equipment that makes the number of IP requests that exceeds the predetermined threshold.” Claims 21 and 24 recite similar limitations. Appellants contend the Examiner erred in finding Lam teaches a usage threshold, as claimed. App. Br. 12—13; Reply Br. 12—14. 9 Appeal 2016-004631 Application 13/297,882 In response, the Examiner finds, and we agree, both Mayo and Lam teach caching data in response to when the number of requests for data (i.e., IP requests) exceeds a predetermined threshold. Ans. 9—10. In particular, Mayo describes predicting information that may be of interest based on the usage pattern and caching the information of interest. Mayo 1 6. Additionally, Mayo teaches the local monitor may gather information including “the number of times each web site was visited by a guest” in determining usage patterns. Mayo 128. A person having ordinary skill in the art would understand that the number of times each web site was visited by a guest would be compared to a threshold number to determine whether the information is of interest and should be cached, as taught by Mayo. See Ans. 10; see also KSR, 550 U.S. at 418. Additionally, the Examiner finds Lam teaches the use of usage thresholds in determining, inter alia, whether to delete content (i.e., flush the cache). Final Act. 4 (citing Lam || 116—117, 123). We disagree with Appellants that the usage threshold in Lam “has nothing to do with” a number of IP requests exceeding a predetermined threshold. See App. Br. 13. Rather, we agree with the Examiner’s explanation that the usage threshold pertains to requests for data over an IP network by users. Ans. 10. For the reasons discussed supra, we are unpersuaded of Examiner error. Accordingly, we sustain the Examiner’s rejection of claim 7. For similar reasons, we also sustain the Examiner’s rejection of claims 21 and 24, for which Appellants advance similar arguments. See App. Br. 13—15. 10 Appeal 2016-004631 Application 13/297,882 DECISION We affirm the Examiner’s decision rejecting claims 1,7, 15, 21, and 24. 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). See 37 C.F.R. §41.50(f). AFFIRMED 11 Copy with citationCopy as parenthetical citation