Ex Parte McGuigan et al

Patent Trial and Appeal Board

Feb 26, 2019

14613295 (P.T.A.B. Feb. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/613,295 02/03/2015
83579 7590 02/28/2019
LEVEL 3 COMMUNICATIONS, LLC
Attn: Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
FIRST NAMED INVENTOR
David Frederick McGuigan
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.
0030-US-Dl 6815
EXAMINER
MILLS, DONALD L
ART UNIT PAPER NUMBER
2462
NOTIFICATION DATE DELIVERY MODE
02/28/2019 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):
patent.docketing@level3.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID FREDERICK MCGUIGAN,
HARRY EDWARD MUSSMAN, JOHN JOSEPH MCCABE,
ROBERT KELLAR ISRAEL, and ERIC RICHARD SPOREL
Appeal2018-003528
Application 14/613,295
Technology Center 2400
Before JOSEPH L. DIXON, CHARLES J. BOUDREAU, and
MATTHEW J. McNEILL, Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2018-003528
Application 14/613,295
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § I34(a) from a rejection of claims
1-11. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The claims are directed to an alternate routing of communications in a
packet-based network. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A method for performing alternate routing comprising:
receiving a request to initiate a session for communicating
data;
m response,
selecting a route from a list of possible routes by querying
a resource management gatekeeper to determine availability of
outbound gateway resources associated with the selected route
based on outbound gateway resource availability reported to the
resource management gatekeeper;
if a route is available, sending a response to the received
request indicating the selected route; and
if a route is not available, sending a response to the
received request indicating that the request cannot be completed.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Haga
MeLampy et al.
Kaczmarczyk et al.
US 6,366,576 Bl
US 6,606,668 B 1
US 6,775,269 Bl
2
Apr. 2, 2002
Aug. 12, 2003
Aug. 10, 2004
Appeal2018-003528
Application 14/613,295
REJECTIONS
The Examiner made the following rejections:
Claims 1, 2, and 4--11 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Haga in view of MeLampy.
Claim 3 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Haga in view of MeLampy in view of Kaczmarczyk.
ANALYSIS
Appellants do not set forth separate arguments for patentability with
respect to claims 1, 2, and 4--11. (Br. 11-14). Therefore, we select
independent claim 1 as the representative claim and will address Appellants'
arguments thereto. See 37 C.F.R. § 4I.37(c)(l)(iv). We do not consider
arguments that Appellants could have made but chose not to make in the
Brief so we deem any such arguments as waived. 37 C.F.R.
§ 4I.37(c)(l)(iv). We further note that Appellants did not file a Reply Brief
to respond to the Examiner's clarifications in the Examiner's Answer.
With respect to representative independent claim 1, Appellants set
forth a discussion of "nonexclusive examples" of the present invention. (Br.
11-12). Appellants contend Haga teaches accessing a gateway-table to
select a gateway, wherein the selection may also be based on port
availability information stored by the gateway-table and "the claimed subject
matter relates to selecting a route from a routing table and requesting
gateway resource availability information associated with the selected route
from a resource management gatekeeper." (Br. 12).
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Appeal2018-003528
Application 14/613,295
The Examiner responds that Appellants are arguing the references
individually and not arguing the rejection as stated by the Examiner. (Ans.
11-12). We agree with the Examiner because the Examiner relies on the
combination of MeLampy and Haga, not Haga alone, for these limitations.
With respect to the MeLampy reference, Appellants contend
MeLampy fails to teach or suggest the claimed "selecting a route from a list
of possible routes by querying a resource management gatekeeper to
determine availability of outbound gateway resources associated with the
selected route based on outbound gateway resource availability reported to
the resource management gatekeeper." (Br. 13). Appellants further contend
"the claimed subject matter relates to a distributed network, wherein the
availability of outbound gateway resources is determined by querying a
resource management gatekeeper that receives availability information from
gateway resources."
The Examiner finds that the "distributed network" is not recited in the
claim. (Ans. 13-14). We agree with the Examiner that Appellants'
arguments are not commensurate in scope with the language of independent
claim 1, and, accordingly, those arguments fail. See In re Self, 671 F.2d
1344, 1348 (CCPA 1982) ("[A]ppellant's arguments fail from the outset
because ... they are not based on limitations appearing in the claims."); see
also In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) ("[The]
proffered facts . . . are not commensurate with the claim scope and are
therefore unpersuasive."). As a result, Appellants' arguments do not show
error in the Examiner's factual findings or conclusion of obviousness of
representative independent claim 1 and dependent claims 2 and 4--11 not
separately argued.
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Appeal2018-003528
Application 14/613,295
With respect to dependent claim 3, Appellants "submit that
Kaczmarczyk also fails to teach the distributed routing system disclosed in
the present application." (Br. 14). Because we found no error with respect
to representative independent claim 1, we similarly find Appellants'
argument does not show error in the Examiner's factual findings or
conclusion of obviousness of dependent claim 3.
CONCLUSION
The Examiner did not err in rejecting claims 1-11 based upon
obviousness under pre-AIA 35 U.S.C. § 103(a).
DECISION
For the above reasons, we sustain the Examiner's obviousness
rejection of claims 1-11 under pre-AIA 35 U.S.C. § 103(a).
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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