Ex Parte KhaddamDownload PDFPatent Trial and Appeal BoardMay 25, 201813802016 (P.T.A.B. May. 25, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/802,016 03/13/2013 Mazen Khaddam 124538 7590 05/30/2018 Cox Communications, Inc. c/o Next IP Law Group LLP Two Ravinia Suite 500 Atlanta, GA 30346 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 33020-RA35 9276 EXAMINER HUQ, OBAIDUL ART UNIT PAPER NUMBER 2473 NOTIFICATION DATE DELIVERY MODE 05/30/2018 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): bgunter@nextiplaw.com bbalser@nextiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MAZEN KHADDAM Appeal2017-004375 Application 13/802,016 Technology Center 2400 Before ST. JOHN COURTENAY III, DENISE POTHIER, and ALEX YAP, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1, 2, 4--9, 11-15, and 17-20, which are all the claims pending in this application. Claims 3, 10, and 16 are cancelled. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Introduction Appellant's invention "generally related to telecommunications and, more particularly, is related to digital networks." (Spec. ,r 1 ). Appeal2017-004375 Application 13/802,016 Exemplary Claim 1. A method comprising: receiving a bundle of packets to be transmitted from a first point to a second point across a digital network, the digital network comprising multiple route legs between the first point and the second point; determining a number of clusters to transform the bundle into by determining an average nodal degree of connectivity in the digital network; and transmitting each of the clusters on a different leg of the multiple route legs from the first point to the second point. (Emphasis added regarding contested limitation). Rejections A. Claims 1, 4, 7, 8, 11, 14, 15, 17, and 20 are rejected under pre-AIA 35 U.S.C. § 112, second paragraph, as being indefinite. B. Claims 1, 8, and 15 are rejected as being obvious over the combined teachings and suggestions of Cohen et al. ("US 2013/0132603 Al; May 23, 2013) (hereinafter "Cohen"), in view of Kamal et al. (US 2009/0135717 Al; May 28, 2009) (hereinafter "Kamal"). C. Claims 2 and 9 are rejected under pre-AIA 35 U.S.C. § I03(a) as being obvious over the combined teachings and suggestions of Cohen, Kamal, and Park et al. (US 2010/0217763 Al; Aug. 26, 2010) (hereinafter "Park"). D. Claims 4, 5, 11, 12, 17, and 18 are rejected under pre-AIA 35 U.S.C. § I03(a) as being obvious over the combined teachings and suggestions of Cohen, Kamal, and Carpini et al. (US 2003/0043792 Al; Mar. 6, 2003) (hereinafter "Carpini"). 2 Appeal2017-004375 Application 13/802,016 E. Claims 6, 13, and 19 are rejected under pre-AIA 35 U.S.C. § I03(a) as being obvious over the combined teachings and suggestions of Cohen, Kamal, and Anderson et al. (US 2005/0271072 Al; Dec. 8, 2005) (hereinafter "Anderson"). F. Claims 7, 14, and 20 are rejected under pre-AIA 35 U.S.C. § I03(a) as being obvious over the combined teachings and suggestions of Cohen, Kamal, and Vasseur et al. (US 2007/0047469 Al; Mar. 1, 2007) (hereinafter "Vasseur"). Issues on Appeal Did the Examiner err in rejecting claims 1, 4, 7, 8, 11, 14, 15, 17, and 20 as being indefinite under pre-AIA 35 U.S.C. § 112, second paragraph? Did the Examiner err in rejecting claims 1, 2, 4--9, 11-15, and 17-20 as being obvious over the cited combinations of references, under pre-AIA 35 U.S.C. § I03(a)? ANALYSIS We have considered all of Appellant's argument and any evidence presented. To the extent Appellant has not advanced separate, substantive arguments for particular claims, or other issues, such arguments are waived. See 37 C.F.R. § 4I.37(c)(l)(iv). Rejection A of claims 1, 4, 7, 8, 11, 14, 15, 17, and 20 under 3 5 U.S. C. § 112, second paragraph 3 Appeal2017-004375 Application 13/802,016 Claims 4, 11, and 17-Indefiniteness Regarding dependent claims 4, 11, and 17, the Examiner concludes the claim language "substantially equal number of packets" is indefinite because of the relative term of degree "substantially." Final Act. 2. Appellant cites numerous cases to support Appellant's assertion that "the law is clear that the use of terms of degree, such as 'substantially,' in patent claims does not necessarily render the claims indefinite." App. Br. 7. In particular, Appellant (App. Br. 8) cites to Andrew Corp. v. Gabriel Electronics, 847 F.2d 819 (Fed. Cir. 1988), regarding the Federal Circuit's interpretation of the claim language "substantially equal." App. Br. 8. We note Andrew Corp., 847 F.2d at 821, further cites to Seattle Box Co. v. Industrial Crating & Packing, 731 F.2d 818,826 (Fed. Cir. 1984), in which the court also considered the claim language "substantially equal" and provided the following guidance: Definiteness problems often arise when words of degree are used in a claim. That some claim language may not be precise, however, does not automatically render a claim invalid. When a word of degree is used the district court must determine whether the patent's specification provides some standard for measuring that degree. The trial court must decide, that is, whether one of ordinary skill in the art would understand what is claimed when the claim is read in light of the specification. Id., emphasis added. The aforementioned Federal Circuit case law supports Appellant's position (App. Br. 7) that the claim language "substantially equal" is not necessarily indefinite. (Claims 4, 11, and 17). Turning to the Specification for context, we find one of ordinary skill in the art would understand what is claimed in light of the Specification's description of reducing resources allocated to the backbone by splitting bundles of packets into smaller 4 Appeal2017-004375 Application 13/802,016 clusters of packets, e.g., as described in paragraph 18. Moreover, our reviewing court has adopted a broad interpretation for the term "substantial" as used in patent claims. The Court of Appeals for the Federal Circuit has repeatedly reaffirmed that the term "substantial" implies "approximate." Wilson Sporting Goods Co. v. Hillerich & Bradsby Co., 442 F.3d 1322, 1329 (Fed. Cir. 2006). 1 Applying this guidance here, we reverse the Examiner's rejection of claims 4, 11, and 17 under 35 U.S.C. § 112, second paragraph. Claims 1, 8, and 15 - Indefiniteness Regarding claims 1, 8, and 15, the Examiner concludes the claimed feature "determining the average nodal degree of connectivity" is not clearly defined. Final Act. 3. However, we note the Examiner does arrive at a claim construction: "As best understood by the [E]xaminer[,] the plain meaning of the term is 1 See also Playtext Products, Inc. v. Procter & Gamble Co., 400 F.3d 901, 907 (Fed. Cir. 2005) ("The term 'substantial' is a meaningful modifier implying 'approximate,' rather than 'perfect."'), citing Liquid Dynamics Corp. v. Vaughan Co., Inc., 355 F.3d 1361, 1368 (Fed. Cir. 2004). In Wilson Sporting Goods, the court determined that a claimed "insert having a substantially circular cross-section" did not need to be perfectly circular. Wilson Sporting Goods, 442 F.3d at 1328-29, emphasis added. Similarly, in Playtext Products, the court determined that the claimed "substantially flattened surfaces" did not require a perfectly flat surface. Playtext Products, 400 F.3d at 907. See also Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325, 1334--35 (Fed. Cir. 2010) (finding the phrase "not interfering substantially" to be definite where intrinsic evidence provided multiple examples that would allow a skilled artisan to determine whether a particular chemical bond linkage group would "interfer[ e] substantially" with hybridization). 5 Appeal2017-004375 Application 13/802,016 interpreted as determining multiple routes to transmit traffic based in the average degree/cost/capacity of the connectivity." Id., emphasis added. Applicant contends that a "'degree of connectivity' for a node is a term of art understood by one of ordinary skill in the art. As such, a non- limiting definition of the term may be termed as the average nearest neighbor degree of nodes as found at https://networkx.github. io/documentation/latest/reference/generated/networkx.algorithms. assortativity.average degree connectivity.html." App. Br. 8. We were unable to access the webpage located at the above URL. However, we did locate the term "average degree connectivity" at the following URL: https://networkx.github.io/documentation/stable/reference/algorithms/ assortativity.html (URL address as of May 21, 2018). A quick Internet search also revealed the following relevant publication located at: https://www.researchgate.net/publication/220971613_Node _ Connectivity _Analysis_in_Multi-Hop_ Wireless_N etworks Bakhshi, Bahador & Khorsandi, Siavash, NODE CONNECTIVITY ANALYSIS IN MULTI-HOP WIRELESS NETWORKS (2010), 1-6.10.1109/WCNC.2010.5506578, states: ABSTRACT: In this paper, we study node connectivity in multi- hop wireless networks. Nodal degree of connectivity as one of the fundamental graph properties is the basis for the study of network connectivity and has been a major research issue in multi-hop wireless networks. We use Random Geometric Graphs (RGG) to model multi-hop wireless networks and present a non-asymptotic analysis assuming bounded area and finite 6 Appeal2017-004375 Application 13/802,016 number of nodes. We assume random uniformly scattered nodes in a square-shaped bounded area. We derive a closed-form formula for the expected value of node degree of connectivity and propose an approximation algorithm for degree distribution in multi-hop wireless networks. Our extensive simulation results confirm that the proposed non-asymptotic analyses are quite accurate. Emphases added. We note the claim language "average nodal degree of connectivity" (claims 1, 8, and 15) also finds support in Appellant's Specification (i120): "The number of parallel legs that the bundle is composed of may be set based on the average nodal degree of connectivity in the network backbone." Emphasis added. Based upon a preponderance of the evidence, we reverse the Examiner's rejection of claims 1, 8, and 15 under 35 U.S.C. § 112, second paragraph, for essentially the same reasons argued by Appellant in the Appeal Brief 8: "a 'degree of connectivity' for a node is a term of art understood by one of ordinary skill in the art." Claims 7, 14, and 20-Indefiniteness Regarding claims 7, 14, and 20, the Examiner concludes the claimed feature "constrained shortest path tie breaker" is not clearly defined. Final Act. 3. However, we note the Examiner does arrive at a construction: "As best understood by the [E]xaminer[,] the plain meaning of the term is interpreted as [the] constrained shortest path threshold or limit." Id. Applicant contends that "one of ordinary skill in the art understands, that in the case of a constrained shortest path tie breaker[,] which would lead 7 Appeal2017-004375 Application 13/802,016 to an error condition, as used in the claim, if there is not a constrained shortest path because there is a tie between at least two paths, then a path should be randomly selected to break the tie." App. Br. 9, emphasis added. Turning to Appellant's Specification for context, we find the following supporting descriptions: In an example implementation, the one or more of the following steps may be utilized: examine the cost savings for various bundle LSP [(Label Switched Path)] sizes; sampling a traffic demand matrix at its 95th percentile; utilizing facility-based link protection for fast recovery time with zero BW LSPs and shared risk link groups (SRLG) to guide constrained shortest path first (CSP F) for the bypass computations; Spec. ,r 28, emphasis added. In order to optimize a deployment according to the methods of multipath load balancing disclosed herein, the network may be prepared by ensuring that the same TE metric is assigned to all clusters of a given bundle LSP in order to achieve equal-cost load balancing. Additionally, the maximum number of LSPs that are resolved to the same next-hop will be limited. The CSPF tie- breaker is set to RANDOM to yield the best results. Spec. ,r 32, emphasis added. Given the aforementioned supporting descriptions in Appellant's Specification (i-fi-f 28, 32), and for essentially the same reasons argued by Appellant (App. Br. 9), we are constrained on this record to reverse the Examiner's rejection of claims 7, 14, and 20 under 35 U.S.C. § 112, second paragraph. Rejection B of Independent Claims 1, 8, and 15 under§ 103(a) Issue: Under pre-AIA 35 U.S.C. § 103(a), did the Examiner err by finding that Cohen and Kamal would have collectively taught or suggested 8 Appeal2017-004375 Application 13/802,016 the contested limitation "determining a number of clusters to transform the bundle into by determining an average nodal degree of connectivity in the digital network[,]" within the meaning of representative independent claim 1? 2 Emphasis added. Appellant contends, inter alia: Even if, assuming for the sake of argument, Cohen discloses seamless path switching of streams and Kamal discloses routing packets based on capacity, both Cohen and Kamal fail to disclose determining a number of clusters to transform the bundle into by determining an average nodal degree of connectivity in the digital network. Contrary to the assertion in the Office Action, nodal degree connectivity and node capacity are not equivalent metrics. In fact, Kamal presents a definition of node degree as a number of neighbors with a direct connection to a node, which is entirely different from capacity. Applicant respectfully submits that Kamal fails to disclose using the average nodal degree of connectivity to determine the number of clusters into which to divide a bundle and that it would not be obvious in light of the combination of the Cohen and Kumal [sic] references to do so. As the cited the combination of references does not disclose, teach, or suggest, either implicitly or explicitly, singularly or in combination, all the elements of claim 1, the rejection should be withdrawn for at least that reason. App. Br. 10-11, emphasis added. We note Appellant restates essentially the identical arguments regarding independent claim 8 (App. Br. 13-14), and regarding independent claim 15. App. Br. 16. The Examiner disagrees, and further explains the basis for the rejection of claim 1 in the Answer 17: 2 We give the contested claim limitations the broadest reasonable interpretation (BRI) consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). 9 Appeal2017-004375 Application 13/802,016 The [E]xaminer respectfully disagrees: due to the lack of clear definition of the term "average nodal degree of connectivity" the term is interpreted as "average degree/cost/capacity" of the path to transmit combination of data traffic. Kamal discloses a method for determining number of packets for every round (i.e., number of clusters to transform the bundle into) for routing by determining the normalized capacity (i.e., the average nodal degree of connectivity) using the formula as explained in paragraph [0214] (see Kamal, paragraph [0214] and equation 3.20). Ans. 17. The Examiner restates the identical reasons and explanation (id.) regarding remaining independent claims 8 and 15, on pages 20 and 22-23 of the Answer, respectively. As pointed out by the Examiner regarding rejection A under§ 112, supra: "determining the average nodal degree of connectivity ... is allegedly not clearly defined." Final Act. 8. However, as noted above, the Examiner provides a claim interpretation: "[T]he term 'average nodal degree of connectivity' is interpreted as 'average degree/cost/capacity' of the path to transmit combination of data traffic." Final Act. 17, emphasis omitted. Because we find no limiting definition in the Specification for "determining the average nodal degree of connectivity" ( claim 1 ), we find the corresponding literal support in Appellant's Specification does not preclude the Examiner's broader reading; that is, "[t]he number of parallel legs that the bundle is composed of may be set based on the average nodal degree of connectivity in the network backbone." Spec. i-f20, emphases added. Moreover, Appellant admits that "[i]n fact, Kamal presents a definition of node degree as a number of neighbors with a direct connection 10 Appeal2017-004375 Application 13/802,016 to a node, which is entirely different from capacity." App. Br. 11, emphasis added. See Kamal ,r 3 18: "the number of neighbors with a direct connection to a node ... is called the node degree." We find taking the average of the nodal degree in Kamal (i-f 318) would have merely produced a predictable result. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 401 (2007) ("[A] combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results."). Moreover, Appellant does not file a Reply Brief to rebut the Examiner's claim construction. Because "applicants may arnend daims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee." In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (internal citation omitted). Given the absence of a limiting definition in the Specification for "determining the average nodal degree of connectivity" ( claim 1 ), on this record, we are not persuaded the Examiner's claim interpretation is overly broad, unreasonable, or inconsistent with the Specification. Final Act. 1 7. Moreover, Appellant provides no persuasive evidence that combining the teachings of Cohen and Kamal in the manner proffered by the Examiner (Final Act. 9) would have been "uniquely challenging or difficult for one of ordinary skill in the art," Leapfrog Enterprises, Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007), or would have realized more than a predictable result. See Kamal, Abstract and ,r 9. Final Act. 9. Therefore, on this record, and based upon a preponderance of the evidence, we are not persuaded the Examiner erred regarding rejection B of independent claims 1, 8, and 15. 11 Appeal2017-004375 Application 13/802,016 Rejections C-F of the Remaining Dependent Claims Because Appellant has not advanced separate, substantive arguments for the remaining rejected dependent claims 2, 4--7, 9, 11-14, and 17-20 on appeal, such arguments are waived. See 37 C.F.R. § 4I.37(c)(l)(iv). Conclusions The Examiner erred in rejecting claims 1, 4, 7, 8, 11, 14, 15, 17, and 20 as being indefinite under pre-AIA 35 U.S.C. § 112, second paragraph. The Examiner did not err in rejecting claims 1, 2, 4--9, 11-15, and 17-20 as being obvious over the cited combinations of references under pre-AIA 35 U.S.C. § 103(a). DECISION We reverse the Examiner's decision rejecting claims 1, 4, 7, 8, 11, 14, 15, 17, and 20 under pre-AIA 35 U.S.C. § 112, second paragraph. We affirm the Examiner's decision rejecting claims 1, 2, 4--9, 11-15, and 17-20 under pre-AIA 35 U.S.C. § 103(a). Because we have affirmed at least one ground of rejection with respect to each claim on appeal, the Examiner's decision is affirmed. See 37 C.F.R. § 4I.50(a)(l). 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(±). AFFIRMED 12 Copy with citationCopy as parenthetical citation