Ex Parte Lynn et al

Patent Trial and Appeal Board

Nov 22, 2017

13874008 (P.T.A.B. Nov. 22, 2017)

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.
13/874,008 04/30/2013 Thomas William Lynn JR. 26141.0155U1 9324
16000 7590
Comcast
c/o Ballard Spahr LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309
EXAMINER
LATORRE, IVAN O
ART UNIT PAPER NUMBER
2414
NOTIFICATION DATE DELIVERY MODE
11/27/2017 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):
USpatentmail@ballardspahr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS WILLIAM LYNN JR., PHILLIP
ANDREW SANDERSON, and BRAD A. HILGENFELD
Appeal 2017-006227
Application 13/874,008
Technology Center 2400
Before BRADLEY W. BAUMEISTER, JEREMY J. CURCURI, and
AARON W. MOORE, Administrative Patent Judges.
CURCURI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 3—16, and 18—22. Final Act. 1. We have jurisdiction
under 35 U.S.C. § 6(b).
Claims 1,3,5, 6, and 21 are rejected under 35 U.S.C. § 103(a) as
obvious over Park (US 2006/0092964 Al; May 4, 2006) and Triantafillis
(US 7,801,021 Bl; Sept. 21, 2010). Final Act. 3-6.
Claim 4 is rejected under 35 U.S.C. § 103(a) as obvious over Park,
Triantafillis, and Alcatel Lucent (“7750 SR OS Triple Play Guide,” Alcatel
Lucent, July 2012). Final Act. 6—8.
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Application 13/874,008
Claim 7 is rejected under 35 U.S.C. § 103(a) as obvious over Park,
Triantafillis, and Sampath (US 2014/0204730 Al; July 24, 2014). Final
Act. 8—9.
Claims 8, 10, and 12—15 are rejected under 35 U.S.C. § 103(a) as
obvious over Sampath and Triantafillis. Final Act. 9-13.
Claims 9 and 11 are rejected under 35 U.S.C. § 103(a) as obvious over
Sampath, Triantafillis, and Park. Final Act. 13—15.
Claims 16, 18—20, and 22 are rejected under 35 U.S.C. § 103(a) as
obvious over Park, Triantafillis, and Sampath. Final Act. 15—19.
We reverse.
STATEMENT OF THE CASE
Appellants’ invention relates to “provisioning and validating a
network.” Abstract. Claim 1 is illustrative and reproduced below:
1. A method comprising:
dynamically generating a first communication tunnel
between a network access point and a first tunnel endpoint;
determining availability of the first tunnel endpoint based
on whether a response is received to a transmission dynamically
generating and traversing within the first communication
tunnel;
if the first tunnel endpoint is determined to be available,
routing network traffic to the first tunnel endpoint; and
if the first tunnel endpoint is determined to be
unavailable, providing a second communication tunnel between
the network access point and a second tunnel endpoint.
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ANALYSIS
The Obviousness Rejection of Claims 1,3,5,6, and 21
over Park and Triantafillis
Contentions
The Examiner finds Park and Triantafillis teach all limitations of
claim 1. Final Act. 3—5. The Examiner finds Park teaches all limitations of
claim 1, except for (claim 1) “dynamically generating and traversing within
the first communication tunnel.” Final Act. 3^4. The Examiner finds
Triantafillis teaches (claim 1) “determining availability of the first tunnel
endpoint based on whether a response is received to a transmission
dynamically generating and traversing within the first communication
tunnel.” Final Act. 4—5.
The Examiner reasons
It would have been obvious to one of ordinary skill in the
art before the effective filing date of the claim[ed] invention to
combine the teachings of a method for dynamically generating
a communication tunnel and determining availability] of a
communication tunnel, as taught by Park, with the teachings of
the determination based on whether a response is received to a
transmission dynamically generating and traversing within the
first communication tunnel, as taught by Triantafillis. Traffic
cannot be routed along alternative paths because the source
endpoint considers the tunnel operational, i.e., in an “up” state,
and thus continues to route the packet traffic to the tunnel even
though the traffic is not received at the destination endpoint.
Therefore, it would be desirable to provide a mechanism that
enables a source endpoint of tunnel to determine if the tunnel’s
destination endpoint is reachable (Triantafillis Column 1—
Column 2).
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Final Act. 5; see also Ans. 15. (“One of ordinary skill in the art would look
to the teachings of Triantafillis in order to provide desirable improvements
in determining availability of a generated tunnel.”).
Among other contentions, Appellants argue
The stated motivation to combine Park and Triantafillis
is insufficient for the proposed combination. The Examiner
explains that the motivation to combine Park and Triantafillis
would be “to provide a mechanism that enables a source
endpoint of tunnel to determine if the tunnel’s destination
endpoint is reachable” Office Action, p. 6. The Examiner
further explains, “Traffic cannot be routed along alternative
paths because the source endpoint considers the tunnel
operational, i.e., in an ‘up’ state, and thus continues to route the
packet traffic to the tunnel even though the traffic is not
received at the destination endpoint.” The cited motivation is a
generic statement that does not provide motivation for
modifying Park to teach a transmission that dynamically
generates and traverses within a tunnel. The motivation
provided by the Examiner has nothing to do with the dynamic
generation of tunnels, nor would it motivate the modification of
either Park or Triantafillis to read on the recited claim
language.
App. Br. 8; see also Reply Br. 5 (“For example, with such a generic
motivation, the only change to Park that one of ordinary skill would be
motivated to make using Triantafillis would be that keep alive packets might
be used to determine availability of a tunnel after a tunnel was established
based on the teachings of Park.”).
Analysis
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
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produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential).
On the record before us, the Examiner has not provided a sufficient
articulated reasoning, with a rational underpinning, that the claimed
invention would have been obvious.
Park discloses “establish[ing] a bi-directional tunnel through direct
communication between a tunnel end point (TEP) and a user node without
user assistance.” Park Abstract. In Fig. 6, Park illustrates a first TEP failing
to establish a tunnel endpoint, and then a second TEP successfully
establishing a tunnel endpoint. See Park Fig. 6, ]Hf 82—85 (describing Fig. 6).
Block 605 indicates tunnel configuration failure (at the first TEP) and at this
point there is not a configured tunnel.
Triantafillis discloses “[a] technique that enables a source endpoint of
a tunnel employing encapsulation to determine if a destination endpoint of
the tunnel is reachable or unreachable. The technique issues ‘keepalive’
packets that are returned to the source endpoint by a reachable destination
endpoint.” Triantafillis Abstract.
Triantafillis further discloses
For example in one embodiment, keepalive packets are sent at
regular intervals and a counter is kept to track the number of
return-keepalive messages that are outstanding, i.e., the number
of return-keepalive messages that have not been received at the
source endpoint. When the counter reaches a predetermined
threshold, the source endpoint concludes the destination
endpoint is unreachable and responds accordingly.
Triantafillis col. 8,11. 48—55.
At its essence, the Examiner’s reasoning in the Final Action is that “it
would be desirable to provide a mechanism that enables a source endpoint of
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tunnel to determine if the tunnel’s destination endpoint is reachable.” Final
Act. 5 (citing Triantafillis cols. 1—2). But the Examiner does not adequately
explain how or why Park would be modified to achieve the claimed
invention.
To the extent Park’s tunnel configuration failure (Fig. 6, 605) teaches
(claim 1) “determining availability of the first tunnel endpoint based on
whether a response is received to a transmission” (Final Act. 3), Park’s
tunnel configuration failure (Fig. 6, 605) does not provide a tunnel. Thus, the
Examiner’s reasoning that “it would be desirable to provide a mechanism
that enables a source endpoint of tunnel to determine if the tunnel’s
destination endpoint is reachable” does not adequately explain how or why
Park would be modified to achieve the claimed invention because Park’s
tunnel configuration failure (Fig. 6, 605) does not provide a tunnel in which
Triantafillis’s keepalive messages may be sent.
The Examiner’s additional explanation in the Examiner’s Answer
(Ans. 15) refers to determining availability of a generated tunnel; however,
as discussed above, Park’s tunnel configuration failure (Fig. 6, 605) does not
provide a tunnel. Thus, the Examiner’s Answer does not cure the deficiency
of the Final Action. Rather, we agree with Appellants’ further argument in
the Reply Brief that “[f]or example, with such a generic motivation, the only
change to Park that one of ordinary skill would be motivated to make using
Triantafillis would be that keep alive packets might be used to determine
availability of a tunnel after a tunnel was established based on the teachings
of Park.’ '’ Reply Br. 5.
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We, therefore, do not sustain the Examiner’s rejection of claim 1. We
also do not sustain the Examiner’s rejection of claims 3, 5, 6, and 21, which
depend from claim 1.
The Obviousness Rejection of Claim 4 over Park,
Triantafillis, and Alcatel Lucent
The rejection of claim 4 does not cure the deficiency discussed above
in relation to claim 1. See Final Act. 6—8, Ans. 25.
We, therefore, do not sustain the Examiner’s rejection of claim 4.
The Obviousness Rejection of Claim 7 over Park, Triantafillis, and
Sampath
The rejection of claim 7 does not cure the deficiency discussed above
in relation to claim 1. See Final Act. 8—9, Ans. 25.
We, therefore, do not sustain the Examiner’s rejection of claim 7.
The Obviousness Rejection of Claims 8,10, and 12-15
over Sampath and Triantafillis
Contentions
The Examiner finds Sampath and Triantafillis teach all limitations of
claim 8. Final Act. 9—11. The Examiner finds Sampath teaches all
limitations of claim 8, except for (claim 8) “configured to dynamically
generate and traverse within a communication tunnel.” Final Act. 9—10. The
Examiner finds Triantafillis teaches (claim 8) “determining availability,
based on whether a response is received to a transmission configured to
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dynamically generate and traverse within a communication tunnel.” Final
Act. 10-11.
The Examiner reasons
It would have been obvious to one of ordinary skill in the
art ... to combine the teachings of a method for providing
identifiers and determining availability of a second and third
device, as taught by Sampath, with the teachings of the
determination based on whether a response is received to a
transmission dynamically generating and traversing within the
first communication tunnel, as taught by Triantafillis. Traffic
cannot be routed along alternative paths because the source
endpoint considers the tunnel operational, i.e., in an “up” state,
and thus continues to route the packet traffic to the tunnel even
though the traffic is not received at the destination endpoint.
Therefore, it would be desirable to provide a mechanism that
enables a source endpoint of tunnel to determine if the tunnel’s
destination endpoint is reachable (Triantafillis Column 1—
Column 2).
Final Act. 11; see also Ans. 19. (“One of ordinary skill in the art would look
to the teachings of Triantafillis in order to provide desirable improvements
in determining availability of a created tunnel.”).
Among other arguments, Appellants argue “[t]he Examiner fails to
show that one of ordinary skill in the art would combine the references in the
manner proposed by the Examiner and that such combination would teach or
suggest all of the recited claim elements.” App. Br. 9; see also Reply Br. 5—
7.
Analysis
On the record before us, the Examiner has not provided a sufficient
articulated reasoning, with a rational underpinning, that the claimed
invention would have been obvious.
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Sampath discloses
Implementing gateway redundancy in a network includes
sending a message to a first device of multiple devices of a
network through a controller where the first device is a master
gateway and a second device of the multiple devices is a
backup gateway, and making a decision as to whether the first
device remains as the master gateway.
Sampath Abstract.
The Examiner finds Sampath lacks determining availability based on
a response to a transmission configured to dynamically generate and
traverse within a communication tunnel. See Final Act. 9—10. To the extent
Triantafillis teaches a transmission configured to dynamically generate and
traverse within a communication tunnel, at its essence, the Examiner’s
reasoning in the Final Action is that “it would be desirable to provide a
mechanism that enables a source endpoint of tunnel to determine if the
tunnel’s destination endpoint is reachable.” Final Act. 11 (citing Triantafillis
cols. 1—2); see also Ans. 19.
The Examiner’s reasoning here is similar to the Examiner’s reasoning
for claim 1. Thus, our analysis here is similar to our analysis for claim 1.
The Examiner does not adequately explain how or why Sampath would be
modified to achieve the claimed invention. For example, Sampath discloses
“[e]ach of the packets sent from the gateway redundancy system (312) [is]
encapsulated into OpenFlow packet_out messages that are sent from the
OpenFlow controller (314). The first device will (316) unwrap the
OpenFlow packet_out message containing the encapsulated packet and put
the formerly encapsulated packet onto the network.” Sampath 133. It is
unclear on this record how or why Sampath would be modified to
incorporate Triantafillis’s keepalives, which are different. See Triantafillis
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Abstract (“The destination endpoint [of the tunnel], in turn, decapsulates the
packet to yield the return-keepalive packet and forwards the return-keepalive
packet preferably over the tunnel towards the source endpoint.”).
We, therefore, do not sustain the Examiner’s rejection of claim 8. We
also do not sustain the Examiner’s rejection of claims 10 and 12—15, which
depend from claim 8.
The Obviousness Rejection of Claims 9 and 11 over
Sampath, Triantafillis, and Park
The rejection of claims 9 and 11 does not cure the deficiency
discussed above in relation to claim 8. See Final Act. 13—15, Ans. 25.
We, therefore, do not sustain the Examiner’s rejection of claims 9 and
11.
The Obviousness Rejection of Claims 16,18-20, and 22 over Park,
Triantafillis, and Sampath
Contentions
The Examiner finds Park, Sampath, and Triantafillis teach all
limitations of claim 16. Final Act. 15—18.
The Examiner reasons
It would have been obvious to one of ordinary skill in the
art ... to combine the teachings of a method for dynamically
generating a communication tunnel and determining
availab[ilty] of a communication tunnel, as taught by Park, with
the teachings of transmitting the data dynamically generates and
transmits the data within a first communication tunnel, as
taught by Triantafillis, and the teachings of a threshold time
period for response. Traffic cannot be routed along alternative
paths because the source endpoint considers the tunnel
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operational, i.e., in an “up” state, and thus continues to route the
packet traffic to the tunnel even though the traffic is not
received at the destination endpoint. Therefore, it would be
desirable to provide a mechanism that enables a source
endpoint of tunnel to determine if the tunnel’s destination
endpoint is reachable (Triantafillis Column 1—Column 2).
Furthermore, Sampath provides techniques offers [sic]
greater flexibility to the customer and the ability to recognize
failure and keep the system alive (Sampath Paragraph [0001-
0016]). One of ordinary skill in the art would [have been] able
to simpl[y] substitute the signaling for determining tunnel
availability of Triantafillis with the known signaling for
determining availability of an endpoint through a signaling with
a response within a threshold period of time, as taught by
Sampath.
Final Act. 17—18; see also Ans. 24. (“One of ordinary skill in the art would
[have] look[ed] to the teachings of Triantafillis in order to provide desirable
improvements in determining availability of a generated tunnel.”) and
Ans. 24—25 (“It would have been obvious to one of ordinary skill in the art
to modify the teachings of Park in view of Triantafillis with the teachings of
Sampath. Sampath provides techniques that offer greater flexibility to the
customer and the ability to recognize failure and keep the system alive
(Sampath Paragraph [0001-0016]).”).
Among other arguments, Appellants contend:
The Examiner cites the same passages of Triantafillis
along with the same reasoning as provided for claim 1. For
similar reasons as above, the combination of Park in view of
Triantafillis and further in view of Sampath does not teach
“transmitting, from the network access point, data to the first
tunnel endpoint, wherein transmitting the data dynamically
generates and transmits the data within a first communication
tunnel between the network access point and the first tunnel
endpoint” and “if a response to the data is received from the
first tunnel endpoint within a threshold time period, continuing
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to transmit additional data to the first tunnel endpoint” as
recited in claim 16. As explained above, the Examiner admits
that neither Park nor Sampath teach the recited claim language.
App. Br. 10; see also Reply Br. 7 (“The Examiner cites the same passages of
Park, Sampath, and Triantafillis along with similar reasoning as provided
for claims 1 and 8.”).
Analysis
On the record before us, the Examiner has not provided a sufficient
articulated reasoning, with a rational underpinning, that the claimed
invention would have been obvious.
The Examiner finds Park and Sampath lack transmitting the data
dynamically generates and transmits the data within a first communication
tunnel between the network access point and the first tunnel endpoint. See
Final Act. 16—17. To the extent Triantafillis teaches this subject matter, at its
essence, the Examiner’s reasoning with respect to Triantafillis in the Final
Action is that “it would be desirable to provide a mechanism that enables a
source endpoint of tunnel to determine if the tunnel’s destination endpoint is
reachable.” Final Act. 17 (citing Triantafillis cols. 1—2); see also Ans. 24.
The Examiner’s reasoning here is similar to the Examiner’s reasoning for
claim 1. Thus, our analysis here is similar to our analysis for claim 1. The
Examiner does not adequately explain how or why one would have modified
Park to achieve the claimed subject matter.
At best, Park’s tunnel configuration request (Fig. 6, 604) teaches
(claim 1) “determining a first tunnel endpoint; transmitting, from the
network access point, data to the first tunnel endpoint.” See Final Act. 15—
16. However, Park’s tunnel configuration failure (Fig. 6, 605) does not
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provide a tunnel. Thus, the Examiner’s reasoning that “it would be desirable
to provide a mechanism that enables a source endpoint of tunnel to
determine if the tunnel’s destination endpoint is reachable” does not
adequately explain how or why Park would be modified to achieve the
claimed subject matter because Park’s tunnel configuration failure (Fig. 6,
605) does not provide a tunnel in which Triantafillis’s keepalive messages
may be sent.
The Examiner’s additional explanation in the Examiner’s Answer
(Ans. 24) refers to determining availability of a generated tunnel; however,
as discussed above Park’s tunnel configuration failure (Fig. 6, 605) does not
provide a tunnel. Thus, the Examiner’s Answer does not cure the deficiency
of the Final Action.
We, therefore, do not sustain the Examiner’s rejection of claim 16.
We also do not sustain the Examiner’s rejection of claims 18—20 and 22,
which depend from claim 16.
DECISION
The Examiner’s decision rejecting claims 1, 3—16, and 18—22 is
reversed.
REVERSED
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