Ex Parte Lyon

Patent Trial and Appeal Board

Jan 30, 2017

13194825 (P.T.A.B. Jan. 30, 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.
13/194,825 07/29/2011 Barrett Gibson Lyon FORT-010800 1686
64128 7590
MICHAEL A DESANCTIS
HAMILTON DESANCTIS & CHA LLP
FINANCIAL PLAZA AT UNION SQUARE
225 UNION BOULEVARD, SUITE 150
LAKEWOOD, CO 80228
EXAMINER
ABRISHAMKAR, KAVEH
ART UNIT PAPER NUMBER
2494
NOTIFICATION DATE DELIVERY MODE
02/01/2017 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):
mdesanctis @ hdciplaw.com
docket @ hdciplaw .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BARRETT GIBSON LYON
Appeal 2016-001631
Application 13/194,82s1
Technology Center 2400
Before MAHSHID D. SAADAT, NORMAN H. BEAMER,
and MATTHEW J. McNEILL, Administrative Patent Judges.
BEAMER, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—20. We have jurisdiction over the pending
rejected claims under 35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies Fortinet, Inc. as the real party in interest. (Br. 3.)
Appeal 2016-001631
Application 13/194,825
THE INVENTION
Appellant’s disclosed and claimed invention is related to directing
clients based on communication format. (Abstract.)
Claim 1, reproduced below, is illustrative of the subject matter on
appeal:
1. A system to which a Domain Name System (DNS) server
is configured to direct requests associated with a content
publisher, the system comprising:
a processor configured to:
receive a request from a client capable of communicating
via a plurality of supported communication formats, wherein
the request is capable of being serviced by a plurality of servers
each of which are configured to communicate via a different
communication format;
selectively redirect the client in accordance with one or
both of (i) a traffic management policy specified by the content
publisher and (ii) performance considerations; and
when redirecting the client in accordance with the
performance considerations, then the processor being further
configured to:
select a communication format from the plurality of
supported communication formats based on (i) the different
communication formats available via the plurality of servers
and (ii) performance expected to be provided to the client as a
result of using the selected communication format;
select a server from the plurality of servers that is
configured to communicate via the selected communication
format; and
redirect the client to the server; and
a memory coupled to the processor and configured to
provide the processor with instructions.
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Appeal 2016-001631
Application 13/194,825
REJECTIONS
The Examiner rejected claims 1—3, 13, and 17 under 35 U.S.C.
§ 103(a) as being unpatentable over Samprathi et al. (US 7,526,562 Bl,
issued Apr. 28, 2009), Sivasubramanian et al. (US 2009/0327517 Al, pub.
Dec. 31, 2009), and Cobelens (US 2007/0168440 Al, pub. July 19, 2007).
(Final Act. 3—9.)
The Examiner rejected claims 4—6 and 9 under 35 U.S.C. § 103(a) as
being unpatentable over Samprathi, Sivasubramanian, Cobelens, and
Blanchet (US 7,657,642 B2, issued Feb. 2, 2010). (Final Act. 10-12.)
The Examiner rejected claims 7 and 8 under 35 U.S.C. § 103(a) as
being unpatentable over Samprathi, Sivasubramanian, Cobelens, and
“Evaluation of IPv6 Auto-Transition Algorithm,” IETF Internal-Draft
submitted Oct. 24, 2004. (Final Act. 12—14.)
The Examiner rejected claims 10-12, 14—16, and 18—20 under 35
U.S.C. § 103(a) as being unpatentable over Samprathi, Sivasubramanian,
Cobelens, and “IPv6 Tunnel Broker with the Tunnel Setup Protocol (TSP),”
RFC 5572, submitted Feb. 2010. (Final Act. 14—17.)
ISSUES ON APPEAL
Appellant’s arguments in the Brief presents the following issues:2
Whether the Examiner erred in finding the combination of Samprathi,
Sivasubramanian, and Cobelens teaches or suggests the independent claim 1
2 Rather than reiterate the arguments of Appellant and the findings of the
Examiner, we refer to the Appeal Brief (filed May 9, 2015); the Final Office
Action (mailed Oct. 9, 2014); and the Examiner’s Answer (mailed Sept. 4,
2015) for the respective details.
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Application 13/194,825
limitations, “receive a request from a client capable of communicating via a
plurality of supported communication formats [and] select a communication
format from the plurality of supported communication formats,” and the
similar limitations recited in independent claims 13 and 17. (Br. 13—17.)
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments the Examiner erred. We disagree with Appellant’s arguments,
and we adopt as our own (1) the pertinent findings and reasons set forth by
the Examiner in the Action from which this appeal is taken (Final Act. 3—17)
and (2) the corresponding findings and reasons set forth by the Examiner in
the Examiner’s Answer in response to Appellant’s Appeal Brief (Ans. 3—8).
We concur with the applicable conclusions reached by the Examiner, and
emphasize the following.
In finding Samprathi, Sivasubramanian, and Cobelens teach or
suggest the independent claim limitations at issue, the Examiner relies on the
disclosure in Samprathi for handling DNS queries where devices operate
under both IPv4 and IPv6 protocols, including dual stack devices. (Final
Act. 3—5; Ans. 4, 7; Samprathi Figs. 6A, 6B, col. 1,11. 9—14, col. 5,11. 10-
37, col. 8,1. 52—col. 9,1. 2.) The Examiner also relies on the disclosure in
Cobelens of configuring dual stack devices that support both IPv4 and IPv6
communication formats. (Final Act. 8—9; Ans. 5, 7—8; Cobelens Figs. 4, 5;
1133,34.)
Appellant argues “Samprathi relates to network environments in
which IPv4-only and IPv6-only device coexist [and] Samprathi shows no
interest in dual stack clients.” (Br. 13—14.) Therefore, argues Appellant,
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Application 13/194,825
Samprathi does not teach or suggest clients capable of communicating via a
plurality of communication formats, as required by the claims. (Id.) As
evidence of alleged Examiner error, Appellant refers to the Examiner’s
statement that Samprathi “does not exclude such a scenario [i.e., the claimed
capability of a plurality of communications formats].” (Br. 14—15.)
Appellant also characterizes the Examiner rejections as based on inherency,
and argues lack of support for that ground. (Br. 15.) Finally, Appellant
states that Cobelens provides no additional support for the rejections. (Br.
16.)
As the Examiner states, Appellant’s arguments are unpersuasive
because non-obviousness cannot be established by attacking references
individually where, as here, the ground of unpatentability is based upon the
teachings of a combination of references. In re Merck & Co., Inc., 800 F.2d
1091, 1097 (Fed. Cir. 1986). We find no error in the Examiner’s findings,
which are unrebutted:
Samprathi_526 is not limited to networks where ‘IPv4-only and
IPv6-only device coexist’ since Samprathi_526 shows ‘interest
in dual stack clients,’ where, under the broadest reasonable
interpretation consistent with the specification, any of
Samprathi_526's network devices reads on the term ‘client’. . . .
(Ans. 4.) Moreover, as the Examiner states, the finding that Samprathi does
not exclude a capability of a plurality of communications formats establishes
Samprathi does not teach away from the subject matter of the claims, and the
Examiner further states that the rejection does not rely upon inherency, but
rather upon the combined teachings of the cited references. (Ans. 6.)
Appellant’s assertions in regard to Cobelens are unpersuasive as
conclusory because merely reciting the language of a particular claim and
asserting the cited prior art reference does not teach or suggest the claim
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Application 13/194,825
limitation, without more, fails to constitute a separate issue of patentability.
See 37 C.F.R. § 41.37(c)(l)(iv); In reLovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011). We are not persuaded of error in the Examiner’s finding with respect
to the disclosure of Cobelens and its combination with Samprathi:
In Cobelens, a dual-stack device (‘client’) initiates
communication by, for example, multi casting both IPv4 and
IPv6 query packets over network to discover an appropriate
responding device (server). . . where it would be appreciated by
one of ordinary skill in the art to combine the inventions of
Cobelens and Samprathi_562 at least to come up with a
solution where ‘a request [is] from a client capable of
communicating via a plurality of supported communication
formats’ to allow discovery to be done by dual-stack devices, as
taught in Cobelens, in the environment supporting IPv4, IPv6,
and dual-stack devices, as taught in Samprathi_526 as well as
Cobelens.
(Ans. 5.)
CONCLUSION
For the reasons stated above, we sustain the obviousness rejections of
independent claims 1, 13, and 17 over Samprathi, Sivasubramanian, and
Cobelens. We also sustain the obviousness rejections of claims 2 and 3 over
Samprathi, Sivasubramanian, and Cobelens, which rejections are not argued
separately with particularity. With respect to the remaining rejections of
claims 4—12, 14—16, and 18—20 over the various combinations of references
as above listed, Appellant repeats the arguments made with respect to the
independent claims. (Br. 17—21.) Therefore, we sustain those rejections for
the same reasons as stated above.
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Application 13/194,825
DECISION
We affirm the Examiner’s rejections of claims 1—20.
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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