Ex Parte Sterman et al

Patent Trial and Appeal Board

Dec 20, 2016

13628999 (P.T.A.B. Dec. 20, 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.
13/628,999 09/27/2012 BARUCH STERMAN 5524-114 1780
96355 7590 12/22/2016
NIXON & VANDERHYE, P.C. / Vonage
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
SHAH, SAUMIT
ART UNIT PAPER NUMBER
2414
NOTIFICATION DATE DELIVERY MODE
12/22/2016 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BARUCH STERMAN, CHAKRAPANI GORREPATI,
TZAHI EFRATI, and YARIV TRABELSI
Appeal 2016-003095
Application 13/628,999
Technology Center 2400
Before BRUCE R. WINSOR, LINZY T. McCARTNEY, and
NATHAN A. ENGELS, Administrative Patent Judges.
PER CURIAM.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1—23. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Vonage Network,
LLC. App. Br. 3.
Appeal 2016-003095
Application 13/628,999
STATEMENT OF THE CASE
The Claims
Claims 1,12, and 13 of Appellants’ Application are independent.
Claim 1, copied below, is illustrative of the subject matter on appeal:
1. A method of modifying a communications channel
that is used to communicate data packets bearing the media of
an IP[2] telephony communication between a first telephony
device and a second telephony device, comprising:
determining requirements for a communications channel
that is used to communicate data packets bearing the media of
an IP telephony communication between a first telephony
device and a second telephony device when the
communications channel is first established;
determining, periodically, if elements of a data network
which comprise the communications channel are satisfying the
requirements; and
causing the communications channel to be modified if
the result of the determining step indicates that one of the
elements of the communications channel is no longer satisfying
the requirements for the communications channel.
App. Br. 17 (Claims App’x).
The Examiner s Rejections
Claims 1—3, 5—15, and 17—23 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Croak3 and Karacali4. See Final Act. 11—16.
2 Internet Protocol. Spec. 11.
3 Croak et al. (US 7,995,464 Bl; issued Aug. 9, 2011) (“Croak”).
4 Karacali-Akyamac et al. (US 2009/0274040 Al; published Nov. 5, 2009)
(“Karacali”).
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Application 13/628,999
Claims 4 and 16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Croak, Karacali, and West5. See Final Act. 16.
ANALYSIS
Claims 1—4, 6, 8—16, 18, and 20—23
Appellants contend the Examiner erred in finding Croak teaches or
suggests claim l’s “determining requirements for a communications
channel” limitation. See App. Br. 11—12; Reply Br. 3. Appellants argue
Croak fails to disclose or suggest setting a minimum quality requirement for
a route or checking to determine if the tested quality of a route meets a
minimum quality requirement. See Reply Br. 3; App. Br. 11—12. Instead,
according to Appellants, Crock simply selects the route with the best quality
from among the available routes by applying criteria such as least cost, least
number of hops, and/or geographical proximity. See Reply Br. 3; App. Br.
11—12. We disagree with Appellants.
As found by the Examiner (Final Act. 12 (citing Croak, col. 4,11. 19—
48; col. 5,11. 15—25); Ans. 3 (citing Croak, col. 4,11. 65—67; col. 5,11. 1—14),
5), Croak discloses “ determining] the set of alternative routes for
completing a call to a particular endpoint device based on criteria such as
least cost, least number of hops, geographical proximity, and/or the like”
(Croak, col. 4,11. 37-40 (emphasis added); accord Croak, col. 1,11. 26—29
(“Notably, call control elements in VoIP[6] networks provide a list of
alternative routes for completing calls as a function ofpre-specified criteria
such as least cost, least hops, and geographical proximity. Depending on the
5 West et al. (US 2007/0283042 Al; published Dec. 6, 2007) (“West”).
6 Voice over Internet Protocol. Croak col. 1,11. 24—26.
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active criteria, ordered routes are returned to the call control element
(emphasis added); cf App. Br. 10 (“During Croak’s method, a plurality of
different alternate routes that would be capable of carrying data packets for
the new VOIP telephone call are identified.”; “The original set of alternate
routes is then pared down using various criteria such as least cost, least
number of hops, and/or geographical proximity.”) (emphasis added)). Croak
discloses selecting the best alternative route based on its Quality of Service
(“QoS”), which includes criteria such as packet delay, jitter rates, packet
loss, and the like. Croak, col. 4,11. 46-47, col. 5,11. 8—10. Further, “[u]pon
ascertaining that a particular route(s) is demonstrating poor QoS levels (e.g.,
QoS levels that do not exceed a predefined threshold level) the routing
engine may deactivate that route.” Croak, col. 5,11. 31—35 (emphasis
added).
The Examiner’s findings and interpretation of claim 1 are consistent
with the claim’s plain language read in light of Appellants’ Specification,
which provides that “determining the basic requirements for a
communications channel. . . could include . . . minimum requirements with
respect to various quality measures, such as packet loss, and jitter’’ (Spec. 1
63) (emphasis added) or “the cost of connecting the call” (Spec. 1 66)
(emphasis added). Accordingly, contrary to Appellants’ arguments, we
agree with the Examiner that Croak’s disclosures satisfy “determining
requirements for a communications channel” because the disclosures teach
or suggest setting a minimum level or threshold for certain criteria (for
example, least cost, least number of hops, packet delay, packet loss, and/or
jitter) that needs to be met or exceeded in order for a particular route to be
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included in the set of alternative routes. See Croak, col. 4,11. 37-40, 46-47;
col. 5,11. 8-10.
Having considered the Examiner’s rejections in light of each of
Appellants’ arguments and the evidence of record, we are unpersuaded of
error and adopt as our own the Examiner’s findings, conclusions, and
reasoning consistent with the analysis above. See Final Act. 11—16; Ans. 2—
8. We sustain the Examiner’s rejection of claim 1, as well as claims 2, 3, 6,
8—15, 18, and 20-23, which were argued together with claim 1. See App.
Br. 10—13; Reply Br. 2—3. We also sustain the Examiner’s rejection of
claims 4 and 16, which were not argued with particularity beyond the
arguments advanced for claim 1. See App. Br. 15; Reply Br. 2—6.
Claims 5 and 17
Appellants contend Croak does not teach or suggest “receiving
information from at least one of the elements that comprise the
communications channel,” as recited in claim 5, because, Appellants argue,
in Croak, “no information is actually received from the elements that make
up the potential route” (Reply Br. 4—5). See also App. Br. 13. Instead,
according to Appellants, “the elements that make up the route merely pass
test data packets along the route until the test data packets (hopefully) arrive
back at the software application that sent them out to conduct a quality test.”
Reply Br. 5; see also App. Br. 13—14. We disagree with Appellants.
As found by the Examiner (Final Act. 13 (citing Croak, col. 4,1. 65-
col. 5,1. 14); Ans. 9), Croak teaches or suggests the “receiving” limitation of
claim 5 by disclosing that “[a] probe ... is initially transmitted to a network
component, access network, endpoint device, or any other termination point
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and subsequently receives data in return” (Croak, col. 5,11. 2—5). We agree
with the Examiner that Croak discloses the “receiving” limitation because “a
network component, access network or an endpoint device is part of a
communication channel” (Ans. 9). The Examiner’s findings are consistent
with the plain meaning of the claim language read in light of the
Specification, which discloses that elements of a communications channel
can include a wireless access point, data network interface, service provider,
media relays, proxy server, and/or a gateway. See Spec. 12.
Having considered the Examiner’s rejections in light of each of
Appellants’ arguments and the evidence of record, we are unpersuaded of
error and adopt as our own the Examiner’s findings, conclusions, and
reasoning consistent with the analysis above. See Final Act. 13; Ans. 9. We
sustain the Examiner’s rejection of claim 5, as well as claim 17, which was
argued together with claim 5. See App. Br. 13—14; Reply Br. 4—5.
Claims 7 and 19
Appellants contend the combination of Croak and Karacali does not
teach or suggest “determining whether the element properly conducted a
transcoding operation on the test data,” as recited in claim 7. See App. Br.
14—15; Reply Br. 5—6. Appellants argue that although Croak discloses
media servers, which can form part of a communications channel and
conduct transcoding operations, Croak fails to disclose or suggest
performing any sort of testing to determine if a media server is properly
conducting a transcoding operation. See App. Br. 14; Reply Br. 5.
We disagree with Appellants. Appellants acknowledge Croak’s
method includes identifying a plurality of alternate routes that would be
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capable of carrying data packets for a new VoIP call by deploying probes to
determine the likely quality a route could provide. App. Br. 10 (citing
Croak, col. 4,11. 19-48). Contrary to Appellants’ arguments that “in Croak’s
quality testing methods, no information is actually received from the
elements that make up the potential route” and “the elements that make up
the route merely pass test data packets along,” Croak’s Figure 1 and related
description teach transcoding. Reply Br. 4—5. As cited by the Examiner,
Croak’s Figure 1 and related descriptions teach an exemplary call from an IP
customer endpoint device in location A to a TDM endpoint device in
location Z, explaining media servers and border elements must perform
signaling protocol translation, such as SS7 to and from SIP, and media
format conversion, such as TDM voice format to and from IP based packet
voice format. See Ans. 10 (citing Croak, col 3,11. 55—60; col. 4,1. 65—col. 5,
1. 14); see also Croak, Fig. 1, col. 3,1. 20-col. 4,1. 5). As one of ordinary
skill in the art would understand, Croak’s example teaches that media
servers and border endpoints that must successfully code data packets to
measure a route’s likely quality and identify a given route as a candidate
route. Cf. App. Br. 10 (“During Croak’s method, a plurality of different
alternate routes that would be capable of carrying data packets for the new
VOIP telephone call are identified.”); Spec. 4 (explaining certain
functions or transformations on data packets may be necessary and that a
communications channel might fail entirely when an element of the channel
cannot handle such functions), 6 (“By testing the functionality of a
communications channel before the telephony communication begins, one
can avoid selecting a communications channel that will be inoperative
. . . .”), 64 (“The minimum requirements may also include functional
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requirements, such as the need to re-format data packets as the data packets
are transmitted between the first and second telephony devices.”) 69 (“the
minimum requirements for a communications channel may include ... a
requirement that the data in the data packets be converted from a first
CODEC to a second CODEC”); see also KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007) (explaining that an obviousness analysis can take
account of the inferences and creative steps of a person of ordinary skill in
the art); DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick
Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006) (stating that “the prior art”
includes basic principles unlikely to be restated in cited references).
Appellants also argue Croak does not teach or suggest “determining
whether an element... is satisfying the requirements for the
communications channel” because Croak’s tests performance for the overall
chain of elements together as a group instead of testing only an individual
element of the communications channel. See App. Br. 14; Reply Br. 5. We
disagree with Appellants.
Even if Appellants were correct that Croak tests the overall chain of
elements of the communications channel and not just the claimed “element,”
the cited disclosures of Croak would still satisfy the disputed limitation
because each element in the chain of elements, including the claimed
“element,” would be part of Croak’s test. See Croak, col. 4,1. 65—col. 5,1.
25. Further, claim 7 uses the open-ended transition term “comprising.”
“‘Comprising’ is a term of art used in claim language which means that the
named elements are essential, but other elements may be added and still
form a construct within the scope of the claim.” Genentech, Inc. v. Chiron
Corp., 112 F.3d 495, 501 (Fed. Cir. 1997) (citation omitted). “The word
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‘comprising’ transitioning from the preamble to the body signals that the
entire claim is presumptively open-ended.” Gillette Co. v. Energizer
Holdings, Inc., 405 F.3d 1367, 1371 (Fed. Cir. 2005) (citations omitted).
See also MPEP § 2111.03. Accordingly, although the broadest reasonable
interpretation of claim 7 (emphasis added) requires “determining whether
the element is satisfying the requirements for the communications channel,”
it does not preclude determining whether additional elements also satisfy the
requirements.
Having considered the Examiner’s rejections in light of each of
Appellants’ arguments and the evidence of record, we are unpersuaded of
error and adopt as our own the Examiner’s findings, conclusions, and
reasoning consistent with the analysis above. See Final Act. 14; Ans. 10.
We sustain the Examiner’s rejection of claim 7, as well as claim 19, which
was argued together with claim 7. See App. Br. 14—15; Reply Br. 5—6.
DECISION
The decision of the Examiner to reject claims 1—23 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
See 37 C.F.R. §§ 41.50(f), 41.52(b).
AFFIRMED
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