Ex Parte Slocombe et al

Patent Trial and Appeal Board

Dec 13, 2016

09982721 (P.T.A.B. Dec. 13, 2016)

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.
09/982,721 10/18/2001 Michael Slocombe 0023-US-01 8719
83579 7590 12/15/2016
LEVEL 3 COMMUNICATIONS, LLC
Attn: Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
EXAMINER
TIV, BACKHEAN
ART UNIT PAPER NUMBER
2451
NOTIFICATION DATE DELIVERY MODE
12/15/2016 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):
patent, docketing @ leve!3. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL SLOCOMBE, MATTHEW MILLER,
CASEY AJALAT, and VINCENT A. FULLER III
Appeal 2015-0002571
Application 09/982,7212
Technology Center 2400
Before MAHSHID D. SAADAT, CHARLES J. BOUDREAU, and
ADAM J. PYONIN, Administrative Patent Judges.
SAADAT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—7, 9, 14, 16, 17, 30, 31, 33—35, 37—39, and 41—
51, which are all the claims pending in this application. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 An oral hearing was held in this appeal on August 8, 2016.
2 According to Appellant, the real party in interest is Level 3
Communications, LLC (App. Br. 2).
Appeal 2015-000257
Application 09/982,721
STATEMENT OF THE CASE
Introduction
Appellants’ invention relates to “hosting and distributing content on a
content delivery network such as the Internet” (Spec. 1:6—7).
Exemplary claim 1 under appeal reads as follows:
1. A method of content delivery in a network,
comprising:
associating each of a plurality of devices in a Domain
Name System (DNS) with at least one cache server system;
assigning to the DNS devices a common address;
advertising, by each of the DNS devices, the common
address within the network, wherein the common address is
transmitted within the network in association with Border
Gateway Patrol (BGP) messages;
monitoring one or more load characteristics of one or more
of the cache server systems in the network;
determining if one or more of the load characteristics
exceeds a predefined overload metric; and
discontinuing advertising of the common address by each
DNS device associated with a cache server system determined to
have a load characteristic that exceeds the predefined overload
metric.
The Examiner’s Rejections
Claims 1—7, 14, 16, 17, 30, 31, 33—35, 37—39, and 41—51 stand
rejected under 35 U.S.C. § 103(a) as unpatentable over McCanne (US
6,785,704 Bl; iss. Aug. 31, 2004), Kalmanek (US 6,711,152 Bl; iss.
Mar. 23, 2004), and Rochberger (US 6,614,757 Bl; iss. Sept. 2, 2003) (see
Final Act. 3—7).
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Application 09/982,721
Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
McCanne, Kalmanek, Rochberger, and Goldszmidt (US 6,195,680 Bl; iss.
Feb. 27, 2001) (see Final Act. 7—8).
ANALYSIS
Claim 1
The Examiner finds McCanne discloses a method of content delivery
in a network including monitoring one or more load characteristics and
determining if they exceed a predefined overload metric, as recited in
claim 1 (Final Act. 3 (citing McCanne cols. 13 and 17—19)). The Examiner
finds McCanne does not disclose “discontinuing advertising of the common
address by each DNS device associated with a cache server system
determined to have a load characteristic that exceeds the predefined overload
metric,” for which the Examiner relies on Kalmanek (Final Act. 3—4).
Additionally, the Examiner finds Rochberger discloses the process of
“restarting advertising of the common address after the load characteristics
decreases,” as recited in claim 41 {id. at 4). The Examiner further finds it
would have been obvious to combine the teachings of McCanne with
Kalmanek and Rochberger “in order to provide load balancing between the
nodes and ensure that certain nodes are not overloaded” {id.).
Appellants argue Kalmanek does not teach or suggest “discontinuing
advertising of the common address by each DNS device associated with a
cache server system determined to have a load characteristic that exceeds the
predefined overload metric” and instead, stops advertising when R3-D is no
longer a valid shortcut (App. Br. 6). Referring to the proposed combination
of McCanne with Kalmanek and Rochberger, Appellants assert neither
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Application 09/982,721
Kalmanek nor Rochberger teaches the disputed limitation of claim 1, which
the Examiner found to be missing in McCanne {id. at 7).
We understand the Examiner’s rejection to be based on McCanne’s
teaching that each DNS device advertises the common address within the
network (Final Act. 3; Ans. 4 (citing McCanne col. 15,11. 2-4; col. 16,1.
25)) and that a determination is made of whether a load exceeds a threshold
(Ans. 4 (citing McCanne col. 18,1. 56-col. 19,1. 3; 11. 58—67)). The
Examiner further explains how Kalmanek’s teaching of stopping
advertisement of an address (see col. 16,11. 34—35) is applied to McCanne’s
situations wherein the load characteristics exceed a predefined overload
metric (Ans. 4). In other words, Kalmanek suggests discontinuing the
advertising when a load characteristic in McCanne exceeds the predefined
threshold, which is properly characterized by the Examiner as an invalid
link.
We are not persuaded by Appellants’ contentions that the Examiner
erred because the rejection is based on the combination of the references.
Appellants attempt to individually distinguish McCanne and Kalmanek,
rather than addressing the combined teachings of the references {see App.
Br. 9—13). Each reference must be read, not in isolation, but for what it
fairly teaches in combination with the prior art as a whole. See In re Keller,
642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness is not. . . that
the claimed invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of the references
would have suggested to those of ordinary skill in the art.”). In KSR, the
Supreme Court criticized a rigid approach to determining obviousness based
on the disclosures of individual prior art references, with little recourse to
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Application 09/982,721
the knowledge, creativity, and common sense that a skilled artisan would
have brought to bear when considering combinations or modifications. See
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 415—22 (2007); see also
RandallMfg. v. Rea, 733 F.3d 1355, 1362 (Fed. Cir. 2013).
Accordingly, Appellants’ arguments have not persuaded us that the
Examiner erred in finding the combination of McCanne and Kalmanek
teaches or suggests the disputed limitations of claim 1. We therefore sustain
the 35 U.S.C. § 103(a) rejection of claim 1.
Remaining Claims
Appellants contend the patentability of the remaining claims based on
arguments similar to those presented for claim 1 (App. Br. 7—18). The
Examiner has provided sufficient findings and comprehensive response to
the arguments raised for each claim, which we agree with and adopt as our
own (see Final Act. 3—8; Ans. 2—5). Accordingly, we are not persuaded by
Appellants’ arguments that the Examiner erred in finding the combination of
McCanne and Kalmanek with Rochberger or Goldszmidt teaches or suggests
the recited features of these claims and sustain their rejections under
35 U.S.C. § 103(a).
DECISION
We affirm the decision of the Examiner to reject claims 1—7, 9, 14, 16,
17, 30, 31, 33-35, 37-39, and 41-51.
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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