Ex Parte Lewis

Board of Patent Appeals and Interferences

Dec 20, 2011

10991791 (B.P.A.I. Dec. 20, 2011)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/991,791 11/18/2004 Larry DeWayne Lewis 7000-380 9136
27820 7590 12/20/2011
WITHROW & TERRANOVA, P.L.L.C.
100 REGENCY FOREST DRIVE
SUITE 160
CARY, NC 27518
EXAMINER
SISON, JUNE Y
ART UNIT PAPER NUMBER
2443
MAIL DATE DELIVERY MODE
12/20/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte LARRY DEWAYNE LEWIS
____________________

Appeal 2010-001152
Application 10/991,791
Technology Center 2400
____________________

Before KEVIN F. TURNER, STEPHEN C. SIU, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
36. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

THE INVENTION
The claims are directed to packet-based communications, and in
particular to identifying and controlling communication sessions via an
access concentration point. (Spec. Para. [0001].)
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. An apparatus comprising:
at least one access network interface;
at least one packet network interface; and
a control system associated with the at least access
network interface and the at least one packet network interface,
the control system adapted to:
monitor packets being routed;
identify select ones of the packets representing
access messages intended for a peer-to-peer access
service; and
identify select ones of the packets from the peer-
to-peer access service representing access reply messages
in response to the access messages.
(Appeal Brief, Claims Appendix1 22.)

1 Appeal Brief filed June 9, 2009, hereinafter “App. Br.” and “Claims
App’x,” respectively.
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THE REJECTIONS
I. The Examiner rejected claims 1 and 19 under 35 U.S.C. § 102(e)
as anticipated by Bauer et al. (US 2006/0168304 A1, published
July 27, 2006). (Examiner’s Answer, dated July 21, 2009, “Ans.”
3-6.)

II. The Examiner rejected claims 1-5, 7-23, and 25-36 under 35
U.S.C. § 102(e) as anticipated by Williams (US 2006/0251000 A1,
published November 9, 2006). (Ans. 7-16.)

III. The Examiner rejected claims 2-18 and 20-36 under 35 U.S.C. §
103(a) as unpatentable over Bauer in view of Schulzrinne et al.
(“The Session Initiation Protocol: Internet-Centric Signaling,”
published October 2000). (Ans. 16-24.)

IV. The Examiner rejected claims 6 and 24 under 35 U.S.C. § 103(a)
as unpatentable over Williams in view of Schulzrinne. (Ans. 25-
26.)

ISSUES
Rejection I
The Examiner found that Bauer discloses a network traffic control
unit corresponding to the control system of Appellant’s claims. (Ans. 3-4.)
Particularly, the Examiner found that Bauer discloses that the network traffic
control unit monitors and filters messages, such as connection requests and
responses, that relate to peer-to-peer applications corresponding to the
control system adapted to “identify . . . messages intended for a peer-to-peer
access service” and “from the peer-to-peer access service” recited in the
claims. (Ans. 4-6.)
Appellant contends that Bauer does not disclose a control system
adapted to identify access messages intended for a peer-to-peer access
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service and from a peer-to-peer access service because Bauer does not
disclose a peer-to-peer access service. (App. Br. 14-16.) Appellant argues
instead that Bauer discloses filtering packets intended for and from a peer
node, which Appellant argues is not equivalent to the peer-to-peer access
service recited in the claims. (App. Br. 15-16.)

Rejection II
The Examiner found that Williams discloses universal mobile
telecommunications system user equipment (UMTS UE) (having a stateful
inspector), which corresponds to the control system of Appellant’s claims.
(Ans. 7-8.) The Examiner also found that Williams discloses a control
system adapted to “identify . . . messages intended for a peer-to-peer access
service” and “from the peer-to-peer access service” because Williams
teaches that the UMTS UE detects control messages such as Voice Over IP
(VOIP) session control messages and processes session initiation protocol
(SIP) (a well-known peer-to-peer protocol) messages in a secondary packet
data protocol (PDP) context. (Ans. 7-9, 34.)
Appellant argues that Williams does not disclose a control system
adapted to identify packets representing access messages intended for a
peer-to-peer access service and from a peer-to-peer access service because
Williams does not disclose a peer-to-peer access service. (App. Br. 18, 20.)
Appellant also argues that Williams does not relate to identifying access
messages intended for or from a peer-to-peer access service but instead to
detecting application-specific packets. (App. Br. 19.)
Therefore, the dispositive issues on appeal are:
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(1) Whether the Examiner erred in finding that Bauer discloses a
control system adapted to “identify . . . messages intended for a
peer-to-peer access service” and “from the peer-to-peer access
service,” as recited in Appellant’s claims?
(2) Whether the Examiner erred in finding that Williams discloses a
control system adapted to “identify . . . messages intended for a
peer-to-peer access service” and “from the peer-to-peer access
service,” as recited in Appellant’s claims?

PRINCIPLES OF LAW
“Both anticipation under § 102 and obviousness under § 103 are two-
step inquiries. The first step in both analyses is a proper construction of the
claims . . . . The second step in the analyses requires a comparison of the
properly construed claim to the prior art.” Medichem S.A. v. Rolabo S.L.,
353 F.3d 928, 933 (Fed. Cir. 2003) (internal citations omitted).
When claim terminology is construed in the United States Patent and
Trademark Office (USPTO), claims are to be given their broadest reasonable
interpretation consistent with the specification, reading claim language in
light of the specification as it would be interpreted by one of ordinary skill in
the art. See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004). While it is true that limitations may not be imported into the
claims from the Specification, it is equally true that claim language must not
be read in isolation but, rather, must be interpreted in light of the disclosure
in the Specification. See Phillips v. AWH Corp., 415 F.3d 1303, 1319 (Fed.
Cir. 2005) (en banc) (reaffirming the view that the Specification “is always
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highly relevant to the claim construction analysis. Usually, it is dispositive;
it is the single best guide to the meaning of a disputed term”).
Claims directed to an apparatus must be distinguished from the prior
art in terms of structure rather than function, provided the structure is
capable of performing the function. See In re Schreiber, 128 F.3d 1474,
1477-78 (Fed. Cir. 1997).

FACTUAL FINDINGS (FF)
1. Bauer discloses a network traffic control unit (NTCU) that filters
messages that indicate that they are peer-to-peer application
related. (Para. [0025].)
2. Bauer discloses that the filter unit of the NTCU intercepts peer-to-
peer application traffic on a network line irrespective of the
destination of the messages. (Para. [0026].)

ANALYSIS
At the outset, we note that Appellant does not separately argue
Rejections III and IV other than to argue that the claims subject to these
rejections are dependent on allowable claims and to argue that Schulzrinne
does not overcome the deficiencies of Bauer and Williams. (App. Br. 20-
21.) Accordingly, we confine our discussion to Rejections I and II, with the
understanding that our comments apply equally to Rejections III and IV.

Rejection I
We are not persuaded by Appellant’s argument that Bauer does not
disclose the apparatus recited in claim 1. Bauer discloses an NTCU that
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filters messages that are peer-to-peer application related, where the filter unit
of the NTCU intercepts peer-to-peer application traffic on a network line
irrespective of the destination of the messages. (FF 1, 2.) Thus, we agree
with the Examiner that because messages to and from a peer-to-peer access
service are “peer-to-peer related,” the NTCU disclosed in Bauer would be
capable of performing the function of identifying such messages. (Ans. 4.)
See In re Schreiber, 128 F.3d at 1477-78 (noting that the proper issue is
whether prior art discloses the claimed structure; not whether the prior art
device has been used in the manner claimed). Accordingly, we agree with
the Examiner’s finding that the network traffic control unit taught in Bauer
anticipates claim 1.
However, claim 19 stands on different footing. Claim 19 is a method
claim, which requires the identification of packets intended for and from a
peer-to-peer access service.
In the Examiner’s Answer, the Examiner appears to equate the NTCU
of Bauer to Appellant’s claimed peer-to-peer access service (Ans. 30) while
also equating the NTCU to Appellant’s claimed control system (Ans. 28).
However, a plain reading of Appellant’s claims requires that the control
system and the peer-to-peer access service be two separate entities.
The Examiner also appears to equate the peer-to-peer access service to
a peer-to-peer application running on a user computer (i.e. on a peer). (Ans.
5, 28-29.) However, Appellant’s Specification describes the peer-to-peer
access service as a separate entity from the peers. (Spec. [0018]-[0020],
[0026]-[0028]; Fig. 1; Fig. 2A; Fig. 3). In light of the Specification, we
conclude that one of ordinary skill in the art would not interpret peer-to-peer
access service to include a peer-to-peer application running on a peer. See
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Phillips v. AWH Corp., 415 F.3d at 1319 (noting that the Specification’s
description is highly relevant to the meaning of a claim term); see also In re
Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (noting
that claims are to be given their broadest reasonable interpretation in
proceedings before the USPTO). In view of the claim interpretation, the
Examiner has not shown that Bauer discloses a peer-to-peer access service.
Thus, we find that Bauer does not disclose a peer-to-peer access service.
In conclusion, we affirm Rejection I with respect to claim 1 and
reverse Rejection I with respect to claim 19. Because we find that claim 1 is
anticipated by Bauer and Appellant does not substantively contest the
Examiner’s reliance on Schulzrinne (Ans. 20-21), we also affirm Rejection
III with respect to claims 2-18, which depend from claim 1. Because we
find that claim 19 is not anticipated by Bauer, we reverse Rejection III with
respect to claims 20-36, which depend from claim 19.

Rejection II
The Examiner has not shown that the invention of Williams is capable
of identifying messages intended for and from a peer-to-peer access service.
Williams discloses a stateful inspection session monitor that, inter alia,
monitors packets looking for VOIP session control packet(s). (Para. [0064].)
These session imitation messages utilize session initiation protocol (SIP)
(Para. [0063]), which the Examiner found to be a well-known peer-to-peer
protocol (Ans. 8, 34).
However, the ability to monitor the presence of VOIP session control
packets, sent according to SIP, as disclosed in Williams, does not necessarily
extend to the ability to detect messages intended for or from a peer-to-peer
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access service. Similarly, the ability to monitor incoming messages sent
according to SIP for processing in a secondary PDP context does not
necessarily include the ability to detect messages intended for or from a
peer-to-peer access service.
Because there is an insufficient basis from which to find Williams
discloses a control system capable of monitoring and identifying packets
intended for and from a peer-to-peer access service, we do not agree with the
Examiner that Williams anticipates the claims on appeal. Because the
claims subject to Rejection IV are dependent on either claim 1 or 19, we
reverse Rejection IV for the same reasons.

CONCLUSIONS
The Examiner did not err in finding that Bauer discloses a control
system adapted to “identify . . . messages intended for a peer-to-peer access
service” and “from the peer-to-peer access service,” as recited in Appellant’s
claims.
The Examiner erred in finding that Bauer discloses identifying
messages intended for a peer-to-peer access service and from the peer-to-
peer access service as recited in Appellant’s claims.
The Examiner erred in finding that Williams discloses a control
system adapted to “identify . . . messages intended for a peer-to-peer access
service” and “from the peer-to-peer access service,” as recited in Appellant’s
claims.
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DECISION
We affirm the Examiner’s rejection of claim 1 under 35 U.S.C. §
102(e) as anticipated by Bauer.
We affirm the Examiner’s rejection of claims 2-18 under 35 U.S.C. §
103(a) as unpatentable over Bauer in view of Schulzrinne.
We reverse the Examiner’s rejection of claim 19 under 35 U.S.C. §
102(e) as anticipated by Bauer.
We reverse the Examiner’s rejection of claims 1-5, 7-23, and 25-36
under 35 U.S.C. § 102(e) as anticipated by Williams.
We reverse the Examiner’s rejection of claims 20-36 under 35 U.S.C.
§ 103(a) as unpatentable over Bauer in view of Schulzrinne.
We reverse the Examiner’s rejection of claims 6 and 24 under 35
U.S.C. § 103(a) as unpatentable over Williams in view of Schulzrinne.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1).
AFFIRMED-IN-PART

CU