Ex Parte Seed et al

Patent Trial and Appeal Board

Oct 8, 2014

11980672 (P.T.A.B. Oct. 8, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte STEVEN L. SEED, KEVIN HOBBS, SHANE M. GLYNN,
ISAAC W. FORAKER, PETER J. JONES, and HOMER H. CHEN
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Appeal 2012-001524
Application 11/980,672
Technology Center 2400
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Before ROBERT E. NAPPI, DANIEL N. FISHMAN, and J. JOHN LEE,
Administrative Patent Judges.

LEE, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellants1 appeal under 35 U.S.C. § 134 from the Final Rejection of
claims 1, 3–7, 9–12, 14–16, 18–23, and 25–28, which constitute all of the
pending claims. Claims 2, 8, 13, 17, and 24 have been cancelled. Oral
arguments were heard on September 16, 2014. We have jurisdiction over
the appeal under 35 U.S.C. § 6(b).
We affirm.

CLAIMED SUBJECT MATTER
Independent claim 1 is exemplary of the claims on appeal and recites:
1. A method in a distributed computing environment having
a plurality of edge servers and at least one parent server,
wherein the edge servers are arranged in hierarchical fashion
relative to the at least one parent server, the plurality of edge
content servers and the at least one parent server forming a
content delivery network (CDN), the method comprising:
directing a request by a client for an object to a first edge
server in the CDN; and
if a copy of the requested object is stored on the first
edge server, serving the requested object to the client from the
first edge server; and,
if a copy of the requested object is not stored on the first
edge server, directing the client to a parent server in the CDN
associated with the first edge server for delivery of the
requested object therefrom and determining whether to replicate
at least a portion of the requested object on the first edge server
for use in serving future client requests based on a dynamic
measure of popularity of the requested object; and

1 Appellants identify Level 3 Communications, LLC as the real party in
interest. (App. Br. 3.)
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replicating at least a portion of the requested object on
the first edge server when the measure of popularity of the
requested object exceeds a dynamic popularity threshold.

REJECTIONS
Claims 1, 3–7, 9–12, 14–16, 18–23, and 25–28 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Jungck (US 2005/0021863 A1; Jan.
27, 2005) and Sim (US 2003/0031176 A1; Feb. 13, 2003).
Claims 15 and 16 stand further rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite.

ANALYSIS
The Examiner rejected claims 15 and 16 as being indefinite because
claim 15 is dependent on cancelled claim 13, and claim 16 is dependent on
claim 15. Ans. 5. Appellants do not address this rejection in their Appeal
Brief. Thus, we sustain the Examiner’s rejection of claims 15 and 16 as
being indefinite.
Appellants challenge the obviousness rejection of the remaining
claims, arguing the Examiner erred in finding that the combination of
Jungck and Sim teaches or suggests each limitation of the claims.
Appellants’ primary argument is that the combination of Jungck and Sim,
and in particular Sim, fails to teach or suggest the “dynamic popularity
threshold” limitations recited in each independent claim. E.g., App. Br. 10–
11. We are not persuaded of error.
As an initial matter, we must apply the broadest reasonable
interpretation of the claims that is consistent with the specification. In re
Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Where
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an applicant has provided a clear definition of a claim term in the
specification, we must apply that definition to the term. See CCS Fitness,
Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002); MPEP
§ 2111.01(IV). Here, we note that Appellants have set forth a clear
definition of the term “replicating” in the specification:
As used herein, replication generally refers to the permanent
and/or volatile storage of an object in a server, particularly an
edge server and if applicable, a parent server. Accordingly, the
term replication will be considered synonymous to storing,
caching and copying.
Spec. ¶ 20 (emphasis added).
Claim 1 recites “replicating at least a portion of the requested object
on the first edge server when the measure of popularity of the requested
object exceeds a dynamic popularity threshold.” Appellants argue the
Examiner erred in finding that Sim teaches this limitation. App. Br. 10–12.
We agree with the Examiner.
As the Examiner found (Ans. 6–7, 11–12), Sim discloses a network
system where large files may be “selectively partition[ed] . . . into blocks
that are replicated and distributed to a plurality of distribution stations (a.k.a.
nodes) at the edge of the network.” Sim ¶ 47. Moreover, Sim teaches that
each such node is “configured to determine how much of the content to save
locally, based on information such as usage, popularity, etc.” Id. (emphases
added); see also id. ¶ 52 (“[T]he portions and amount of a large payload file
maintained at each node depends on the available storage, popularity of the
content, distribution criteria by the content provider, etc.”) (emphasis
added). Further, Sim discloses a process by which blocks on a node are
either maintained in storage or deleted (“pruned”). Id. ¶¶ 197–99.
Depending on the amount of storage available, the system deletes the least
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popular blocks (i.e., those with the lowest “popularity index”). See id.
Therefore, the popularity index of each block is compared to the popularity
indices of other blocks to determine whether its popularity index is high
enough to remain stored (i.e., “replicat[ed],” as properly construed) on the
node. We agree with the Examiner that these disclosures of Sim teach or
suggest the comparison of a “dynamic measure of popularity of [a] requested
object” (the popularity index of a block) with a “dynamic popularity
threshold” (the various popularity indices of the other blocks), as recited in
claim 1. Thus, we sustain the Examiner’s rejection of independent claim 1
as well as dependent claims 3–7, 9, and 26 not argued separately.
With respect to independent claims 10, 14, 18, and 23, Appellants
make essentially the same arguments as for claim 1 and further note that
these claims recite a dynamic popularity threshold “associated with the
requested resource” (claim 10) or “associated with the requested object”
(claims 14, 18, and 23). App. 13–17. However, as discussed above, Sim
teaches that the “blocks” of content on a particular node may be part of a
single large file. Sim ¶ 47. Thus, we agree with the Examiner that Sim
teaches or suggests “replicating at least a portion of the requested resource”
(one or more blocks) if the “dynamic measure of popularity” (popularity
index of a block) meets or exceeds a “dynamic popularity threshold
associated with the requested resource” (popularity index of other blocks of
the same large file), as recited in the claims. Accordingly, we are not
persuaded the Examiner erred, and we sustain the Examiner’s rejection of
independent claims 10, 14, 18, and 23, as well as dependent claims 11, 12,
19–22, 25, and 26 not argued separately.
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Additionally, Appellants purport to appeal the rejection of claims 15
and 16 as being unpatentable over Jungck and Sim under 35 U.S.C. § 103(a).
App. Br. 10. However, neither the Appeal Brief nor the Reply Brief presents
specific arguments regarding these claims. As a result, we also sustain the
rejection of claims 15 and 16 under 35 U.S.C. § 103(a).
Appellants separately argue the patentability of dependent claims 27
and 28. App. Br. 11–12. First, Appellants contend the Examiner erred in
finding that Sim teaches or suggests “the step of replicating replicates only
initial chunks of the object,” as recited in claim 27. Id. Appellants assert
that “nowhere does Sim teach or in any way suggest any policy for
replication at the block level,” let alone replicating only “initial” chunks. Id.
Second, Appellants argue the Examiner erred in finding that Sim teaches or
suggests “the remaining chunks of the object are selectively replicated based
at least in part on how many of the initial chunks are served to the client,” as
recited in claim 28. Id. at 12. We are not persuaded the Examiner erred.
As already discussed above, we agree with the Examiner’s finding
that Sim teaches the storing (i.e., “replicating,” as properly construed) of
blocks partitioned from a larger file. See Sim ¶ 47. As the Examiner further
found (Ans. 9, 14–17), Sim also discloses the following:
If, for example, the linear file contained a movie, the beginning
of that file would include the beginning portions of the movie.
. . . After breaking the file down to linear (i.e., track) files, the
CMS transfers the file to the distribution server it is connected
to. The distribution server further breaks the track files down to
block files, as desired for storage. . . . A file distribution
protocol (e.g., FDP) command is subsequently used to
distribute (i.e., replicate) the file, or selected portions thereof,
to other distribution server nodes within the scalable content
delivery network. For initial replication, the entire block files
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need not be stored in all nodes however a master copy may be
maintained completely in one node . . . .
Sim ¶ 89 (emphases added). Therefore, we agree with the Examiner that
Sim teaches or suggests “the step of replicating replicates only initial chunks
of the object,” as recited in claim 27.
In addition to the above disclosures, Sim describes a process for
downloading (i.e., storing or caching) additional blocks:
Different pieces of a large payload file may be available from
different nodes, however, when a user requests access to the
large payload file, for example, through an application server
(e.g., a streaming server), a virtual file control system creates an
illusion that the entire file is present at the connected node.
However, since only selective portions of the large payload file
may actually be resident at that node's storage at the time of
request, the distribution stations may download the non-resident
portions of the file as the application server is servicing the
user.
Id. ¶ 47. Thus, as the Examiner found, Sim teaches that a node serving
content (i.e., the initial blocks resident on the node) to a user downloads
additional “non-resident” blocks of that content as needed to present the
entire file to the user. We agree with the Examiner that these disclosures
teach or suggest “the remaining chunks of the object are selectively
replicated based at least in part on how many of the initial chunks are served
to the client” (i.e., whether the user has already been served the initial
chunks), as recited in claim 28. We are also not persuaded by Appellants’
argument that Sim does not teach the replication limitations of claim 28
because caching, or data “just passing through,” is not “replicating.” See
Hr’g Tr. 14:15–25. As already discussed, the proper construction of
“replicating” in light of Appellants’ clear definition in the specification
encompasses “caching.” See Spec. ¶ 20.
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Consequently, we sustain the Examiner’s rejection of claims 27 and
28 as unpatentable over Jungck and Sim.

DECISION
We AFFIRM the Examiner’s rejections of claims 1, 3–7, 9–12, 14–16,
18–23, and 25–28 under 35 U.S.C. § 103(a).
We AFFIRM the Examiner’s rejection of claims 15 and 16 under 35
U.S.C. § 112, second paragraph.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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