Ex Parte Marilly et al

Patent Trial and Appeal Board

Oct 14, 2014

10932053 (P.T.A.B. Oct. 14, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte EMMANUEL MARILLY, STEPHANE BETGE-BREZETZ,
GERARD DELEGUE, and OLIVIER MARTINOT
__________

Appeal 2012-000558
Application 10/932,0531
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and
ANTON W. FETTING, Administrative Patent Judges.

LORIN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Emmauel Marilly, et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the final rejection of claims 1-6 and 8-15. We have jurisdiction
under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We REVERSE.2

1 The Appellants identify Alcatel as the real party in interest. App. Br. 2.
2 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed Jun. 21, 2011) and Reply Brief (“Reply Br.,” filed Sep. 21, 2011),
and the Examiner’s Answer (“Ans.,” mailed Jul. 21, 2011).
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Application 10/932,053

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THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A processing device for a network equipment element in a
communication network, the communication network equipped
with an accounting and billing management module, wherein
the processing device comprises:
processing means within the processing device, said
processing device within the network equipment element,
determining from values representing selected local parameters
of said equipment element and of selected traffic streams
received by said equipment element associated with an
identifier of at least one customer of said network, usage data
with respect to resources of the network corresponding to said
customer identifier, in accordance with dedicated policy rules
enforced by said associated network equipment element,
wherein the dedicated policy rules can be modified at the
network equipment element;
wherein the dedicated policy rules are transmitted to the
network equipment element directly in the form of commands
which conform to a simple network management protocol
(SNMP), or via an application programming interface (API), or
via the management information base (MIB);
wherein said processing means are arranged to store
some of said determined values in a memory so as to aggregate
these determined values with values previously determined, to
compare each aggregation of values with a threshold level
defined by certain of said policy rules, and in the event of said
threshold level being exceeded, to order said associated
network equipment element to interrupt the traffic associated
with the values which have been exceeded; and
wherein the processing device transmits said usage data
and the associated identifier to said accounting and billing
management module for billing of each customer designated by
said identifier.

Appeal 2012-000558
Application 10/932,053

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THE REJECTIONS

The Examiner relies upon the following as evidence of
unpatentability:
Crosskey
Thomas
Saari
Toure
Tubinis
Clayton
Naslund
Abidi

US 6,035,281
US 6,148,336
US 6,338,046 B1
US 2002/0116486 A1
US 2003/0014367 A1
US 6,574,610 B1
US 2005/0246282 A1
US 7,054,926 B1
Mar. 7, 2000
Nov. 14, 2000
Jan. 8, 2002
Aug. 22, 2002
Jan. 16, 2003
Jun. 3, 2003
Nov. 3, 2005
May 30, 2006
“Official notice is hereby taken that it is old and well known that
network equipments such as routers, gateways or switches receives
commands that conform to a SNMP, or via API or via MIB. . . .
Support for the official notice can be found in Abidi et al
(7054926) at col. 7, lines 33-38; Toure et al (2002/0116486) at
paragraphs 0023, 0026, 0033-0034.” Ans. 7. [Official Notice]

The following rejections are before us for review:
1. Claims 1-4, 8, 9, 11-14, 16, and 17 are rejected under 35 U.S.C.
§103(a) as being unpatentable over Saari, Tubinis, Thomas, and
Official Notice.
2. Claims 5 and 15 are rejected under 35 U.S.C. §103(a) as being
unpatentable over Saari, Tubinis, Thomas, Official Notice, and
Crosskey.
3. Claim 6 is rejected under 35 U.S.C. §103(a) as being unpatentable
over Saari, Tubinis, Thomas, Official Notice, and Naslund.
4. Claim 10 is rejected under 35 U.S.C. §103(a) as being unpatentable
over Saari, Tubinis, Thomas, Official Notice, and Clayton.

Appeal 2012-000558
Application 10/932,053

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ISSUES
Did the Examiner err in rejecting claims 1-4, 8, 9, 11-14, 16, and 17
under 35 U.S.C. §103(a) as being unpatentable over Saari, Tubinis, Thomas,
and Official Notice; claims 5 and 15 under 35 U.S.C. §103(a) as being
unpatentable over Saari, Tubinis, Thomas, Official Notice, and Crosskey;
claim 6 under 35 U.S.C. §103(a) as being unpatentable over Saari, Tubinis,
Thomas, Official Notice, and Naslund; and, claim 10 under 35 U.S.C.
§103(a) as being unpatentable over Saari, Tubinis, Thomas, Official Notice,
and Clayton?

FINDINGS OF FACT
We rely on the Examiner’s factual findings stated in the Answer.
Additional findings of fact may appear in the Analysis below.

ANALYSIS
The rejection of claims 1-4, 8, 9, 11-14, 16, and 17 under 35 U.S.C. §103(a)
as being unpatentable over Saari, Tubinis, Thomas, and Official Notice.

With respect to the subject matter of the two independent claims 1 and
13, the Examiner’s position is that Saari discloses all the limitations except:
1. “wherein the dedicated policy rules can be modified at the network
equipment element.” (claim 1);
2. “wherein said processing means are arranged to store some of said
determined values in a memory so as to aggregate these determined
values with values previously determined, to compare each
aggregation of values with a threshold level defined by certain of said
policy rules, and in the event of said threshold level being exceeded,
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to order said associated network equipment element to interrupt the
traffic associated with the values which have been exceeded.” (claim
1); and,
3. “wherein the dedicated policy rules are transmitted to the network
equipment element directly in the form of commands which conform
to a simple network management protocol (SNMP), or via an
application programming interface (API), or via the management
information base (MIB).” (claim 1).
Ans. 5-7.
As evidence that the prior art discloses said claim limitations missing from
Saari, the Examiner cites Thomas, Tubinis, and Official Notice, respectively.
Ans. 6-7. The Examiner finds that it would have been obvious to one of
ordinary skill in the art to include in Saari the features disclosed in Thomas,
Tubinis, and Official Notice and thereby arrive at the claimed subject matter
as a whole. Ans. 6-7.
The Appellants disagree. The Appellants especially focus on the
claim limitation “wherein the dedicated policy rules are transmitted to the
network equipment element directly in the form of commands which
conform to a simple network management protocol (SNMP), or via an
application programming interface (API), or via the management
information base (MIB)” (claim 1), arguing in part that the apparent
reasoning used by the Examiner in establishing that one of ordinary skill in
the art would have included said feature in Saari is insufficient. App. Br. 13-
14.
The Examiner took Official Notice that “it is old and well known that
network [equipment] such as [routers], gateways or switches receives
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commands that conform to SNMP, or via API or via MIB. . . Support for the
official notice can be found in Abidi et al (7054926) at col. 7, lines 33-38;
Toure et al (2002/0116486) at paragraphs 0023, 0026, 0033-0034.” Ans. 7.
Column 7, lines 33-38 of Abidi discloses:
Referring first to FIG. 3A, at step 302, a specified grammar is
established for one or more location specifier values and
location elements. As a part of step 302, logic may be
programmed into an SNMP agent of a router or other network
device to manage MIB objects containing location specifiers
that conform to the specified grammar.

Paragraphs 23, 26, 33, and 34 of Toure disclose:

[0023] The invention provides a method of using a supervision
client based on an OPC protocol to supervise and control a
transport network including a data server based on an SNMP
protocol, which method consists of connecting the supervision
client to a gateway including means for providing a connection
between the data server and the supervision client using a
description of the data of the data server from a management
information base.

[0026] The invention also provides a data server based on an
SNMP protocol including a gateway adapted to provide a
connection with a supervision client based on an OPC protocol
using a description of the data of the server from a management
information base.

[0033] According to the invention, the connection between the
server 2 and the OPC supervision client 3 is provided by one or
more gateways integrated into the server 2, and in particular a
gateway 4; the server 2 can also be connected to a plurality of
supervision clients 3.

[0034] The gateway 4 is a program defining a protocol for
communication between an SNMP server and an OPC client for
visualizing the data to be supervised, preferably in tree form
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and animated. The data supplied by the server 2 consists of the
objects to be supervised and their properties. By "objects" is
meant the equipments 1 of the transport network concerned.

We have reviewed these passaged and find that Abidi discloses logic
programmed “into an SNMP agent of a router or other network device to
manage MIB objects” and Toure discloses “a data server based on an SNMP
protocol” and “a program defining a protocol for communication between an
SNMP server and an OPC client.” Putting it more succinctly, Abidi and
Toure disclose an SNMP agent and an SNMP server.
In our view, the prior art disclosure of an SNMP agent and an SNMP
server is insufficient as evidence that “it is old and well known that network
[equipment] such as [routers], gateways or switches receives commands that
conform to SNMP, or via API or via MIB.” Ans. 7 (emphasis added). The
question is not whether it would have been obvious to include an SNMP
agent or an SNMP server but whether it would have been obvious to include
“dedicated policy rules [that] are transmitted to the network equipment
element directly in the form of commands which conform to a simple
network management protocol (SNMP), or via an application programming
interface (API), or via the management information base (MIB)” (claim 1,
emphasis added). There is insufficient evidence that directly transmitting
commands conforming to SNMP, or via API or MIB, as claimed was well
known in the art.
Notwithstanding that Abidi and Toure provide insufficient supporting
evidence for the finding that it was well known for network equipment to
receives commands that conform to SNMP, or via API or via MIB, the
Examiner further states that “the SNMP has the advantage of simple design
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and implementation whereby users can easily program variables that [they]
want. Also using the SNMP protocol for example, increases the system's
expansibility since the protocol can be updated to meet future needs.” Ans.
7. But, again, the question is not whether it would have been obvious to
include an SNMP protocol but whether it would have been obvious to
include “dedicated policy rules [that] are transmitted to the network
equipment element directly in the form of commands which conform to a
simple network management protocol (SNMP), or via an application
programming interface (API), or via the management information base
(MIB)” (claim 1). Claim 1 does not call for SNMP agents, servers, or
protocols. Claim1 calls for directly transmitting dedicated policy rules to
network equipment in the form of commands which conform to an SNMP
protocol, or via API or via MIB.
For the foregoing reasons, we do not find that a prima facie case of
obviousness has been made out for the subject matter of claim in the first
instance by a preponderance of the evidence. We reach the same conclusion
as to claim 13 which also includes the limitation at issue and was rejected
for the same reasons. We reach the same conclusion as to dependent claims
2-4, 8, 9, 11, 12, 14, 16, and 17. Cf. In re Fritch, 972 F.2d 1260, 1266 (Fed.
Cir. 1992) ("[D]ependent claims are nonobvious if the independent claims
from which they depend are nonobvious.").

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The rejection of claims 5 and 15 under 35 U.S.C. §103(a) as being
unpatentable over Saari, Tubinis, Thomas, Official Notice, and Crosskey.

The rejection of claim 6 under 35 U.S.C. §103(a) as being unpatentable over
Saari, Tubinis, Thomas, Official Notice, and Naslund.

The rejection of claim 10 under 35 U.S.C. §103(a) as being unpatentable
over Saari, Tubinis, Thomas, Official Notice, and Clayton.

These rejections are directed to claims dependent on claims 1 and 13,
whose rejection we have reversed above. For the same reasons, we will not
sustain the rejections of claims 5, 6, 10, and 15] over the cited prior art.
Ibid.

CONCLUSIONS
The rejection of claims 1-4, 8, 9, 11-14, 16, and 17 under 35 U.S.C.
§103(a) as being unpatentable over Saari, Tubinis, Thomas, and Official
Notice is not sustained.
The rejection of claims 5 and 15 under 35 U.S.C. §103(a) as being
unpatentable over Saari, Tubinis, Thomas, Official Notice, and Crosskey is
not sustained.
The rejection of claim 6 under 35 U.S.C. §103(a) as being
unpatentable over Saari, Tubinis, Thomas, Official Notice, and Naslund is
not sustained.
The rejection of claim 10 under 35 U.S.C. §103(a) as being
unpatentable over Saari, Tubinis, Thomas, Official Notice, and Clayton is
not sustained.

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Application 10/932,053

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DECISION
The decision of the Examiner to reject claims 1-6 and 8-15 is
reversed.

REVERSED

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