Ex Parte Kommula

Patent Trial and Appeal Board

Jan 25, 2018

12506137 (P.T.A.B. Jan. 25, 2018)

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
ATTORNEY DOCKET NO. CONFIRMATION NO.
085149-520564 3546
EXAMINER
CHIOU, ALBERT
ART UNIT PAPER NUMBER
2443
NOTIFICATION DATE DELIVERY MODE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/506,137 07/20/2009
7590 01/29/2018120954
SF General
Polsinelli PC
Three Embarcadero Center, Suite 2400
San Francisco, CA 94111
Sunanda Lakshmi Kommula
01/29/2018 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):
cadocket @ Polsinelli. com
ADrury@Polsinelli.com
ASkovmand @ Polsinelli. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUNANDA LAKSHMI KOMMULA
Appeal 2017-003415
Application 12/506,137
Technology Center 2400
Before JUSTIN BUSCH, JOHN P. PINKERTON, and ALEX S. YAP
Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 2, 4, and 7—21, which are all the pending claims. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
CLAIMED SUBJECT MATTER
Appellant’s invention relates generally to applying global load server
balancing (GLSB) algorithms configured for a primary domain to requests
for aliases (based on canonical name (CNAME) domain name system (DNS)
entries) of that primary domain when resolving a DNS request to one of the
Appeal 2017-003415
Application 12/506,137
aliases into an Internet Protocol (IP) address. Spec. Tflf 9, 18.1 Claims 1, 7,
10, and 15 are independent claims. Claim 10 is representative and
reproduced below:
10. An apparatus to provide load balancing, the apparatus
comprising:
a network device to load balance configurable as a proxy
to an authoritative domain name system (DNS) server and
including:
a non-transitory storage medium having
instructions stored thereon;
a parser to receive a DNS reply and to detect the
CNAME record in said DNS reply, wherein said DNS
reply was generated by the authoritative DNS server in
response to a DNS query to resolve an alias into network
addresses, the alias associated with a canonical name
(CNAME) record, wherein the alias is for a primary
domain; and
a controller coupled to the parser, the controller being
operative to apply a load balancing algorithm for the primary
domain, to a list of one or more network addresses provided in
the DNS reply to the DNS query to resolve the alias into network
addresses.
REJECTIONS
Claims 1, 2, 4, 13, and 21 stand rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter. Final Act. 2—3.
1 Our references to Appellant’s Specification are to the version published as
US 2010/0011120 Al, which was published on January 14, 2010, for ease of
reference because Appellant refers to the publication of the application
rather than the originally filed specification.
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Application 12/506,137
Claims 1, 4, 7—17, and 19-21 stand rejected under 35 U.S.C. § 103(a)
as being obvious in view of Leighton (US 2002/0124080 Al; Sept. 5, 2002)
and Swildens (US 6,754,706 Bl; June 22, 2004). Final Act. 3—8.
Claims 2 and 18 stand rejected under 35 U.S.C. § 103(a) as being
obvious in view of Leighton, Swildens, and Logan (US 6,578,066 Bl; June
10,2003). Final Act. 8-9.
Claims 1, 2, 4, and 7—21 stand rejected for non-statutory double
patenting over claims 1—29 of U.S. Patent No. 7,574,508. Final Act. 9-10.
ANALYSIS
Double Patenting Rejection
The Examiner rejects claims 1, 2, 4, and 17—21 on the ground of non-
statutory double patenting. Final Act. 9—10. The Examiner finds the
pending claims are not patentably distinct from claims 1—29 of U.S. Patent
No. 7,574,508. Final Act. 10. Appellant presents no argument traversing
the double patenting rejection. See generally Br. 8—14. Accordingly,
Appellant has waived appeal as to this rejection, and we summarily sustain
the non-statutory double patenting rejection of claims 1, 2, 4, and 17—21.
Rejection of Claims Under 35 U.S.C. § 112, Second Paragraph
The Examiner rejects independent claim 1, and dependent claims 2, 4,
13, and 21, under 35 U.S.C. § 112, second paragraph, as indefinite for
failing to particularly point out and claim the subject matter. Final Act. 2—3.
In particular, the Examiner finds claim 1 ’s recitation of “the network
addresses received” lacks antecedent basis, rendering claim 1 indefinite.
Final Act. 2. The Examiner further explains that claim 1 recites receiving a
DNS reply, which “includes a canonical name (CNAME) record identifying
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Application 12/506,137
a primary domain” that is associated with network addresses, but does not
recite receiving the associated network addresses. Ans. 12.
Appellant’s only response is that claim 1 “recites that network
addresses are received by the processor in a DNS reply, and this provides
sufficient antecedent basis for the phrase ‘the network addresses received’ to
which the Examiner takes issue.” App. Br. 9. Appellant provides no further
explanation in the Reply Brief. See generally Reply Br. 3—10.
We are not persuaded the Examiner erred. During examination of a
patent application, pending claims are given their broadest reasonable
construction consistent with the specification. In re Prater, 415 F.2d 1393,
1404—05 (CCPA 1969); In re Am. Acad. ofSci. Tech. Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004). The patent statute requires that a claim “particularly
point[] out and distinctly claim[] the subject matter which the applicant
regards as [the] invention.” 35 U.S.C. § 112, second paragraph. Every word
or phrase used in a claim must have a clear meaning. In re Packard, 751
F.3d 1307, 1309 (Fed. Cir. 2014); Ex parte McAward, Appeal
2015-006416, 2017 WE 3669566, at *5 (PTAB Aug. 25, 2017)
(precedential) (explaining that the USPTO finds a “claim is indefinite when
it contains words or phrases whose meaning is unclear.” (quoting Packard,
751 F.3d at 1314)). Furthermore:
[W]hen the USPTO has initially issued a well-grounded rejection
that identifies ways in which language in a claim is ambiguous,
vague, incoherent, opaque, or otherwise unclear in describing
and defining the claimed invention, and thereafter the applicant
fails to provide a satisfactory response, the USPTO can properly
reject the claim as failing to meet the statutory requirements of
§ H2(b).
McAward, 2017 WF 3669566, at *6 (quoting Packard, 751 F.3d at 1311).
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Application 12/506,137
A claim may be definite even if certain elements lack antecedent
basis. See, e.g., Energizer Holdings, Inc. v. Int’l Trade Comm’n, 435 F.3d
1366, 1370-71 (Fed. Cir. 2006) (“[DJespite the absence of explicit
antecedent basis, ‘[i]f the scope of a claim would be reasonably
ascertainable by those skilled in the art, then the claim is not indefinite.’”
(quoting Bose Corp. v. JBL, Inc., 274 F.3d 1354, 1359 (Fed. Cir. 2001)));
see also Manual of Patent Examining Procedure § 2173.05(e) (stating
that “the failure to provide explicit antecedent basis for terms does not
always render a claim indefinite”). Nevertheless, the lack of antecedent
basis may support a conclusion that the meaning of a claim term is unclear.
That is the case here.
Claim 1 recites, in pertinent part, “receiving ... a [DNS] reply . . .
wherein the DNS reply includes a [CNAME] record identifying the primary
domain, the primary domain having associated network addresses.” Thus, as
noted by the Examiner, Ans. 12, the claim recites receiving a DNS reply that
includes a CNAME record, the record identifies a primary domain, and the
primary domain has associated network addresses. The fact that the claim
recites the primary domain has associated network addresses does not
require that the network addresses are received, let alone received as part of
the DNS reply. Claim 1 further recites “sending ... a response . . . that
includes a list of the network addresses associated with the primary
domain,” indicating the drafter knew how to more clearly refer back to the
previously recited “associated network addresses.” Given the context of the
claims, it is not clear whether Appellant intended to refer to the “associated
network addresses” or to some other network addresses received in response
to the DNS request, either as part of the recited DNS reply or in some other
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Application 12/506,137
message. Therefore, the meaning of the recited “network addresses received
in response to the DNS request” is unclear, leaving a person of ordinary skill
in the art to speculate regarding the scope of the claim. Packard, 751 F.3d at
1309. Accordingly, based on this record, we agree with the Examiner that
claim 1, and claims 2, 4, 13, and 21 via their dependency therefrom, are
indefinite.
Rejection of Claims Under 35 U.S.C. § 103
The Examiner rejects claims 1, 4, 7—17, and 19—21 as obvious in view
of Leighton and Swildens. Final Act. 3—8. The Examiner rejects claims 2
and 18 as obvious in view of Leighton, Swildens, and Logan. Final Act. 8—
9. In particular, the Examiner finds Leighton teaches or suggests every
limitation of each independent claim, except for the “applying ... a load
balancing algorithm” limitation. Final Act. 3—6 (citing Leighton || 24, 37,
Fig. 4). The Examiner then finds Swildens teaches or suggests the applying
a load balancing algorithm limitation and provides a rationale for combining
the identified teachings of Leighton and Swildens. Final Act. 5 (citing
Swildens 8:34—9:6).
Appellant argues the pending claims as a group and identifies claim
10 as representative. App. Br. 10, 13—14. Appellant contends the
combination of Leighton and Swildens fails to teach or suggest the recited
limitations, as arranged in independent claim 10. App. Br. 10—13; Reply
Br. 3—10. Taken as a whole, Appellant’s various arguments essentially
assert Leighton uses the CNAME record and the DNS query differently than
as recited in the claims. In particular, Appellant contends: Leighton’s
CNAME records resolve to a global traffic management (GTM) system of a
content delivery network rather than a primary domain, App. Br. 11;
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Leighton’s local nameserver receives the CNAME record, but merely
forwards the DNS request to the GTM to resolve the domain name and does
not perform load balancing, App. Br. 11—12; Leighton uses the CNAME to
resolve a domain name to a GTM and does not use the CNAME to resolve
aliases for a primary domain into a network address, App. Br. 12; and
Swildens teaches applying load balancing based on the domain name being
resolved, not based on a primary domain when the domain name being
resolved is an alias, App. Br. 12—13. See Reply Br. 6—7 (explaining that
simply using a CNAME record does not teach or suggest using the CNAME
record as recited and that, to the extent Leighton’s local nameserver
selecting an address is considered load balancing, Leighton still does not
apply a load balancing algorithm to addresses provided in the DNS reply), 8—
10 (explaining that the Examiner’s rejection does not consider the claims as
a whole—i.e., even combining Leighton’s and Swildens’ identified
teachings does not teach or suggest the claims as a whole).
The Examiner explains that claim 10 “imposes three particular
requirements regarding an alias and a CNAME record,” and finds Leighton
teaches each of the requirements. Ans. 12—13. The Examiner finds “the
local name server must detect the CNAME record in the reply in order to
proceed to query the GTM name server,” the reply “is a DNS request”
because it “is responsive to a query to resolve a primary domain” and “any
reply received from an authoritative name server ... is a DNS reply,” and
“the alias is associated with the CNAME record” because “the authoritative
name server has been configured to return a CNAME to the GTM name
servers when queried with the alias.” Ans. 13. The Examiner further finds
Leighton “discloses that an authoritative name server should ‘return a
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CNAME to the GTM name servers’ responsive to ‘a request to the
authoritative name server’ issued by the local name server to resolve an end
user’s request for a web page (i.e., a primary domain).” Ans. 12—13; see
also Ans. 14 (“The response containing the CNAME is a DNS reply, and
such a reply is received responsive to a request from the local name server
on behalf of the client.”).
The Examiner’s mapping of Leighton’s disclosure to the identified
requirements, however, is unclear and appears to be inconsistent.
Specifically, it is unclear what aspects of Leighton the Examiner finds teach
or suggest the alias and the primary domain. As would have been
understood by one of ordinary skill in the art, the recited alias that is being
resolved in the claims is an alternate name for a primary domain, such that
the alias and the primary domain would resolve to the same network
address(es). See, e.g., Spec. 19 (explaining how DNS CNAME records and
A records work and how an alias for a primary domain may be resolved
using CNAME records). The Examiner appears to acknowledge this
understanding of the recited alias and primary domain name in
characterizing the claims as requiring, in part, “the DNS reply is responsive
to a DNS query to resolve an alias for a primary domain.'1'’ Ans. 12.
The Examiner explains that Leighton’s authoritative name server
returns a CNAME to a GTM name server in response to a request by the
local name server to resolve “an end user’s request for a web [site] (i.e., a
primary domain).” Ans. 13. Thus, in one instance, the Examiner appears to
map Leighton’s web page to the primary domain and identifies Leighton’s
attempt to resolve that web page or primary domain as teaching or
suggesting the recited DNS reply generated “in response to a DNS query to
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Application 12/506,137
resolve an alias into network addresses.'1'’ Thus, according to the Examiner’s
mapping, Leighton’s user request for a web page is relied upon for teaching
the recited “alias.” The Examiner subsequently finds “the authoritative
name server has been configured to return a CNAME to the GTM name
servers when queried with the alias.’ '’ Ans. 13. Leighton explains that the
authoritative nameserver returns a CNAME to the GTM name server when
the local nameserver translates an end user’s request for a web site into a
DNS request for an IP address of the web site. Leighton 137; Fig. 4 (steps
1—3). Thus, the Examiner appears to be mapping Leighton’s web site to the
recited alias, in addition to the primary domain.
Accordingly, we agree with Appellant that the Examiner fails to
consider the claims as a whole when considering whether Leighton’s and
Swildens’ disclosures teach or suggest the recited limitations. The cited
aspects of Leighton disclose using a GTM server to globally load balance
web content for a web site among various mirror sites. See, e.g., Leighton
Tflf21—23, 37. Although it is possible that Leighton may be applicable to
environments using aliases as recited in the claims, the cited portions of
Leighton do not specifically contemplate using CNAME records to route
different aliases to a network address affiliated with a “primary domain,” as
recited in Appellant’s claims.
We note, as mentioned in the prior paragraph, that the majority of the
disputed aspects of Appellant’s claims generally relate to resolving an alias
for a primary domain using CNAME records. Appellant’s alleged invention
appears to be directed to the ability to configure a global server load
balancing switch to apply a load balancing algorithm for a primary domain
to all of its alias domains. See, e.g., Spec. Tflf 10, 27, 32—34, 38-40. The
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Patent Trial and Appeal Board is a review body, rather than a place of initial
examination. Thus, we leave to the Examiner to ascertain whether Appellant
has admitted that these aspects of the claims are prior art or were otherwise
well-known by persons of ordinary skill in the art at the time of Appellant’s
invention. See Spec, 2—10 (explaining that, in current systems, global
server load balancing applies load balancing algorithms only to those
domains specifically configured to have load balancing applied such that,
when load balancing is desired for every host in systems with large numbers
of CNAME records (i.e., aliases), each host needs to be separately
configured). Pursuant to 37 C.F.R. § 41.77, we have the discretion to enter a
new ground of rejection. We decline to exercise that discretion in this
matter. Our decision not to enter a new ground of rejection for all claims
should not, however, be considered as an indication regarding the
appropriateness of further rejection or allowance of the non-rejected claims.
See MPEP § 1213.03.
Constrained by this record, therefore, we are persuaded the Examiner
erred in rejecting independent claim 10. For similar reasons, we are
persuaded the Examiner erred in rejecting independent claims 1, 7, and 15,
which recite commensurate limitations, and claims 4, 8, 9, 11—14, 16, 17,
and 19—21, which depend from and incorporate the limitations of one of
claims 1,7, 10, and 15. Similarly, because the Examiner does not rely on
Logan to cure the identified deficiency in the rejection of claims 2 and 18,
we also are persuaded the Examiner erred in rejecting claims 2 and 18 for
the same reasons.
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SUMMARY
On this record and for the reasons discussed above, we sustain the
Examiner’s rejections of claims 1, 2, 4, and 7—21 for non-statutory double
patenting over claims 1—29 ofU.S. Patent No. 7,574,508 and claims 1, 2, 4,
13, and 21 under 35 U.S.C. § 112, second paragraph, but we do not sustain
the Examiner’s rejection of claims 1, 2, 4, and 7—21 under 35 U.S.C.
§ 103(a).
DECISION
We affirm the Examiner’s rejection of claims 1, 2, 4, and 7—21.
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).
AFFIRMED
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