Ex Parte Sankaran et al

Patent Trial and Appeal Board

Feb 29, 2016

12608520 (P.T.A.B. Feb. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/608,520 10/29/2009 Balaji Sankaran
56436 7590 03/02/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82250006 6617
EXAMINER
HUQ, OBAIDUL
ART UNIT PAPER NUMBER
2473
NOTIFICATION DATE DELIVERY MODE
03/02/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BALAJI SANKARAN and NUNE VENKA TA CHALAP ATHI
Appeal2013-004010
Application 12/608,520
Technology Center 2400
Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM,
Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-14. Claim 15 has been canceled. We have jurisdiction under 35
U.S.C. § 6(b). We reverse.
Exemplary Claims
Exemplary claims 1, 6, and 11 under appeal, with emphases added,
read as follows:
1. A method for locating a fault in a communications
network, comprising:
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Application 12/608,520
modifying a time-to-live value in an Internet protocol
header of an application data packet to define a first modified
time-to-live value, in which the first modified time-to-live value
equals the number of routing elements between a transmitting
server and a destination server in the communications network;
transmitting, by the transmitting server, the application
data packet through the communications network;
receiving a time-to-live-exceeded message from the one of
the routing elements in the communications network; and
modifYing the time-to-live value in the Internet protocol
header of the application data packet to define a second modified
time-to-live value, in which the second modified time-to-live
value equals the number of hops from the transmitting server to
a routing element in the communications network.
6. A computer program product for locating a fault in a
communications network, comprising:
a non-transitory computer readable medium comprising
computer usable program code embodied therewith, the
computer usable program code comprising:
computer usable program code that, when executed by a
processor, receives data packets from a software application
other than a network diagnostic tool;
computer usable program code that, when executed by a
processor, increases or decreases a time-to-live value in an
Internet protocol header of the data packets received from the
software application;
computer usable program code that, when executed by a
processor, receives a time-to-live-exceeded message from a
routing element in the communications network; and
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computer usable program code that, when executed by a
processor, identifies a faulty routing element in the
communications network based on the received time-to-live-
exceeded message.
11. A computer that determines the location of a fault in
a communications network, comprising:
a processor to execute a time-to-live (TTL) engme, m
which the time-to-live (TTL) engine:
modifies a time-to-live value m an Internet protocol
header of an application data packet;
determines if a time-to-live-exceeded message has been
received from a routing element in the communications network;
increments the time-to-live value in the Internet protocol
header of the application data packet when the time-to-live-
exceeded message has been received, and;
decrements the time-to-live value in the Internet protocol
header of the application data packet when the time-to-live-
exceeded message has not been received, in which the time-to-
live (TTL) engine initially sets the time-to-live value to
correspond to the number of routing elements between the
transmitting and the destination server.
Examiner's Rejections
(1) The Examiner rejected claim 6 under 35 U.S.C. § 112, first
paragraph, for failing to comply with the written description requirement.
Final Act. 2; Ans. 2.
(2) The Examiner rejected claims 1 and 6 under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which Appellants regard as the invention
(i.e., the claims are indefinite). Final Act. 3; Ans. 3.
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(3) The Examiner rejected claims 1 and 2 as being unpatentable under
35 U.S.C. § 103(a) over the combination of Lebrun et al. (US 2008/0198767
Al; published Aug. 21, 2008) ("Lebrun") and Bejerano et al. (US
2005/0081116 Al; published Apr. 14, 2005) ("Bejerano"). Final Act. 3-7;
Ans. 3---6.
(4) The Examiner rejected claims 3 and 4 as being unpatentable under
35 U.S.C. § 103(a) over the combination of Lebrun, Bejerano, and
McElligott (US 200710115998 Al; published May 24, 2007). Final Act. 7-
8; Ans. 6-7.
(5) The Examiner rejected claim 5 as being unpatentable under
35 U.S.C. § 103(a) over the combination of Lebrun, Bejerano, McElligott,
and Krishnamurthy et al. (US 2001/0033556 Al; published Oct. 25, 2001)
("Krishnamurthy"). Final Act. 8-9; Ans. 8.
(6) The Examiner rejected claims 6 and 7 as being unpatentable under
35 U.S.C. § 103(a) over the combination of Lebrun and Adhikari et al. (US
2005/0207410 Al; published Sept. 22, 2005) ("Adhikari"). Final Act. 9-12;
Ans. 8-11.
(7) The Examiner rejected claims 8 and 9 as being unpatentable under
35 U.S.C. § 103(a) over the combination of Lebrun, Adhikari, and
McElligott. Final Act. 12-16; Ans. 11-15.
(8) The Examiner rejected claim 10 as being unpatentable under
35 U.S.C. § 103(a) over the combination of Lebrun, Adhikari, and Karstens
(US 2008/0148360 Al; published June 19, 2008). Final Act. 16-17; Ans.
15-16.
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(9) The Examiner rejected claims 11 and 14 as being unpatentable
under 35 U.S.C. § 103(a) over the combination of Lebrun, McElligott, and
Bejerano. Final Act. 17-21; Ans. 16-19.
(10) The Examiner rejected claim 12 as being unpatentable under
35 U.S.C. § 103(a) over the combination of Lebrun, McElligott, Bejerano,
and Govindarajan et al. (US 2002/0143905 Al; published Oct. 3, 2002)
("Govindarajan"). Final Act. 21-22; Ans. 19-20.
(11) The Examiner rejected claim 13 as being unpatentable under
35 U.S.C. § 103(a) over the combination of Lebrun, McElligott, Bejerano,
and Karstens. Final Act. 22-24; Ans. 21-22.
Issues on Appeal1
Based on Appellants' arguments in the Appeal Brief (App. Br. 14--29)
and the Reply Brief (Reply Br. 5-17), the following issues are presented on
appeal:
(1) Did the Examiner err in rejecting claim 6 under 35 U.S.C. § 112,
first paragraph, for failing to comply with the written description
requirement?
1 With regard to the obvious rejections under 35 U.S.C. § 103(a), Appellants
present arguments as to (i) claims 1-5 as a group with independent claim 1
as representative of the group (App. Br. 19-22; Reply Br. 8-12); (ii) claims
6-10 as a group with independent claim 6 as representative of the group
(App. Br. 22-25; Reply Br. 12-15); and (iii) claims 11-14 as a group with
independent claim 11 as representative of the group (App. Br. 25-29; Reply
Br. 15-17). Because (i) claims 2-5 contain the same limitations as claim 1
by way of their ultimate dependency upon claim 1; (ii) claims 7-10 contain
the same limitations as claim 6 by way of their ultimate dependency upon
claim 6; and (iii) claims 12-14 contain the same limitations as claim 11 by
way of their ultimate dependency upon claim 11, we will only address
independent claims 1, 6, and 11 in our analysis herein.
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(2) Did the Examiner err in rejecting claim 1 under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which Appellants regard as the invention?
(3) Did the Examiner err in rejecting claim 6 under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which Appellants regard as the invention?
(4) Did the Examiner err in rejecting claims 1-5 as being obvious
because the base combination of Lebrun and Bejerano fails to disclose "the
first modified time-to-live value equals the number of routing elements
between a transmitting server and a destination server in the
communications network" and "modifying the time-to-live value in the
Internet protocol header of the application data packet to define a second
modified time-to-live value, in which the second modified time-to-live value
equals the number of hops from the transmitting server to a routing element
in the communications network," as set forth in representative claim 1, and
as similarly recited in dependent claims 2-5?
(5) Did the Examiner err in rejecting claims 6-10 as being obvious
because the base combination of Lebrun and Adhikari fails to disclose
"computer usable program code that ... receives data packets from a
software application other than a network diagnostic tool," as set forth in
representative claim 6, and as similarly recited in dependent claims 7-1 O?
(6) Did the Examiner err in rejecting claims 11-14 as being obvious
because the base combination of Lebrun, McElligott, and Bejerano fails to
disclose "in which the time-to-live (TTL) engine initially sets the time-to-
live value to correspond to the number of routing elements between the
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transmitting and the destination server," as set forth in representative claim
11, and as similarly recited in dependent claims 12-14?
ANALYSIS
We have reviewed the Examiner's rejections and response (Final Act.
2-24; Ans. 2-33) in light of Appellants' contentions in the Appeal Brief
(App. Br. 14--29) and Reply Brief (Reply Br. 5-17) that the Examiner has
erred.
35 U.S.C. § 112, first paragraph
Claim 6
(1) We agree with Appellants' arguments and conclusions (App. Br.
14--15; Reply Br. 5) with regard to the 35 U.S.C. § 112, first paragraph,
rejection of independent claim 6. Specifically, we find that the Specification
(i-f 23) satisfies the written description requirement for "receiv[ing] data
packets from a software application other than a network diagnostic tool," as
recited in independent claim 6. The Specification (id.) refers to the prior art
(where data packets from a testing tool are used) and contrasts that with the
method used by Appellants (using data packets from the "actual
application"). Read in context, it is clear that Appellants, by using the term
"actual application," are referring to data packets from a software
application other than a network diagnostic tool. Accordingly, we do not
sustain the Examiner's rejection of claim 6 for failing to satisfy the written
description requirement of§ 112, first paragraph.
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35 U.S.C. § 112, second paragraph
Claim 1
(2) We agree with Appellants' arguments and conclusions (App. Br.
15-17; Reply Br. 6-7) that the Examiner erred in rejecting independent
claim 1 as being indefinite for failing to particularly point out and distinctly
claim the subject matter which the Appellants regard as his invention, as
required by§ 112, second paragraph. The test for definiteness under 35
U.S.C. § 112, second paragraph, is whether "those skilled in the art would
understand what is claimed when the claim is read in light of the
specification." Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d
1565, 1576 (Fed. Cir. 1986) (citations omitted).
We agree that a person having ordinary skill in the art would have
understood that "a routing element in the communications network" as used
in independent claim 1 refers to a single routing element of the plurality of
routing elements recited earlier in the claim. Therefore, we do not sustain
the Examiner's rejection of claim 1 as being indefinite under§ 112, second
paragraph.
Claim 6
(3) We agree with Appellants' arguments and conclusions (App. Br.
17-18; Reply Br. 7-8) with regard to the§ 112, second paragraph, rejection
of independent claim 6. As discussed supra with regard to the § 112, second
paragraph, rejection of claim 6, the Specification (i-f 23) sufficiently
describes "receiv[ing] data packets from a software application other than a
network diagnostic tool," as recited in in independent claim 6. Accordingly,
we do not sustain the Examiner's rejection of claim 6 as being indefinite
under§ 112, second paragraph.
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Application 12/608,520
35 U.S.C. § 103(a)
Claims 1-52
(4) We agree with Appellant's arguments and conclusions (App. Br.
19-20) with regard to independent claim 1 that the combination of Lebrun
and Bejerano fails to disclose the modified time-to-live (TTL) value equals
the number of routing elements between a transmitting server and a
destination server. Bejerano (i-f 70), which the Examiner alleges to teach the
disputed limitation, discloses modifying the TTL value to a maximum
number of hops that the packet is allowed to traverse. However, Bejerano
does not teach or suggest that the maximum number of hops is equal to the
number of hops from the transmitting server to a destination server. Because
Bejerano does not teach or suggest what the Examiner alleges, the
combination of Lebrun and Bejerano fails to disclose Appellants' invention
as claimed in independent claim 1. We, therefore, do not sustain the
Examiner's obviousness rejections of claims 1-5.
Claims 6--10
(5) We agree with Appellants' arguments and conclusions (App. Br.
22-25; Reply Br. 12-14) with regard to independent claim 6 that the
combination of Lebrun and Adhikari fails to disclose "receiv[ing] data
packets from a software application other than a network diagnostic tool."
2 Because we agree with Appellants' first argument (App. Br. 19-20)
concerning the Examiner's obviousness rejection of independent claim 1, we
will not address or decide Appellants' remaining arguments (App. Br. 20-
22) with regard to the obviousness rejections of claims 1-5 (i.e., whether the
combination of Lebrun and Bejerano discloses two separate modifications of
a TTL value; whether the combination of Lebrun and Bejerano discloses an
"application data packet").
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The Examiner relies (Ans. 10-11, 28-30; Final Act. 11-12) on Adhikari (ifif
8, 30) to teach or suggest the disputed limitation. However, Adhikari
discloses using TraceRoute, a well-known network diagnostic tool. Because
Adhikari does not teach or suggest what the Examiner alleges, the
combination of Lebrun and Adhikari fails to disclose Appellants' invention
as claimed in independent claim 6. Accordingly, we do not sustain the
Examiner's obviousness rejections of claims 6-10.
Claims 11-143
(6) Appellants present similar arguments (App. Br. 25-27; Reply Br.
15-16, and 17) regarding the obviousness rejection of independent claim 11
that were presented earlier (App. Br. 19-20) regarding the obviousness
rejection of independent claim 1. For the same reasons discussed regarding
independent claim 1 supra, we do not sustain the Examiner's obviousness
rejections of claims 11-14 over the base combination of Lebrun, McElligott,
and Bejerano.
CONCLUSIONS
(1) The Examiner erred in rejecting claim 6 under 35 U.S.C. § 112,
first paragraph, for failing to comply with the written description
requirement.
3 Because we agree with Appellants' argument (App. Br. 25-27; Reply Br.
15-16, and 17) concerning the Examiner's obviousness rejection of
independent claim 11, we will not address or decide Appellants' arguments
(App. Br. 28-29; Reply Br. 16) with regard to the obviousness rejection of
dependent claim 12.
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(2) The Examiner erred in rejecting claim 1 under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which Appellants regard as the invention.
(3) The Examiner erred in rejecting claim 6 under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which Appellants regard as the invention.
(4) The Examiner erred in rejecting claims 1-5 as being obvious
because the base combination of Lebrun and Bejerano fails to disclose "the
first modified time-to-live value equals the number of routing elements
between a transmitting server and a destination server in the
communications network" and "the second modified time-to-live value
equals the number of hops from the transmitting server to a routing element
in the communications network," as set forth in representative claim 1, and
as similarly recited in dependent claims 2-5.
(5) The Examiner erred in rejecting claims 6-10 as being obvious
because the base combination of Lebrun and Adhikari fails to disclose
"computer usable program code that ... receives data packets from a
software application other than a network diagnostic tool," as set forth in
representative claim 6, and as similarly recited in dependent claims 7-10.
(6) The Examiner erred in rejecting claims 11-14 as being obvious
because the base combination of Lebrun, McElligott, and Bejerano fails to
disclose "in which the time-to-live (TTL) engine initially sets the time-to-
live value to correspond to the number of routing elements between the
transmitting and the destination server," as set forth in representative claim
11, and as similarly recited in dependent claims 12-14.
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DECISION
The Examiner's rejection of claim 6 under 35 U.S.C. § 112, first
paragraph is reversed.
The Examiner's rejection of claims 1 and 6 under 35 U.S.C. § 112,
second paragraph, is reversed.
The Examiner's obviousness rejections of claims 1-14 under
35 U.S.C. § 103(a) are reversed.
REVERSED
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