Ex Parte Strulo et al

Patent Trial and Appeal Board

Feb 21, 2017

12935389 (P.T.A.B. Feb. 21, 2017)

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.
12/935,389 09/29/2010 Ben Strulo RYM-36-2345 3967
23117 7590 02/23/2017
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
CEHIC, KENAN
ART UNIT PAPER NUMBER
2479
NOTIFICATION DATE DELIVERY MODE
02/23/2017 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 BEN STRULO, MARC WENNINK,
and GABRIELE CORLIANO
Appeal 2016-000915
Application 12/93 5,3 891
Technology Center 2400
Before JAMES R. HUGHES, LINZY T. McCARTNEY, and
JOYCE CRAIG, Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—17. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is British
Telecommunications pic. App. Br. 3.
Appeal 2016-000915
Application 12/935,389
INVENTION
Appellants’ application relates to admission control in a packet
network. Abstract. Claim 1 is illustrative of the appealed subject matter and
reads as follows:
1. A method of operating a packet communications network,
comprising the steps:
maintaining, for different types of packet flows, a
respective value measure for each type of flow representing the
value to the network operator of admitting a flow of each type to
the network;
determining, for each of a plurality of paths across the
network from an ingress node to an egress node, a congestion
measure relating to congestion on the paths caused by existing
admitted packet flows; and
admitting a new packet flow to the network in dependence
on the maintained value for the type of the new packet flow and
the congestion measures determined for the paths across the
network;
wherein congestion information is passed downstream
along a path towards an egress node, and the congestion
measures are determined at an egress node by accumulating the
congestion information passed along each path terminating at the
egress node.
REJECTIONS
Claims 1—3, 6, 9-12, and 15 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over the combination of Kirby et al. (US 2002/0120768 Al;
published Aug. 29, 2002) (“Kirby”), Chamy et al. (US 2007/0291643 Al;
published Dec. 20, 2007) (“Chamy”), and Babiarz et al. (US 2007/0041326
Al; issued Feb. 22, 2007) (“Babiarz”).
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Claims 4 and 13 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Kirby, Chamy, Babiarz, and Rainer et
al. (EP 0 777 362 Al; published June 4, 1997) (“Rainer”).
Claims 5, 7, 8, 14, 16, and 17 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over the combination of Kirby, Chamy, Babiarz, and
Kobayashi et al. (US 2003/0048750 Al; published Mar. 13, 2003)
(“Kobayashi”).
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions that the Examiner has erred. We disagree with Appellants’
contentions. Except as noted below, we adopt as our own: (1) the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken and (2) the reasons set forth by the Examiner in the Examiner’s
Answer in response to Appellants’ Appeal Brief. We concur with the
conclusions reached by the Examiner. We highlight the following additional
points.
In rejecting claim 1, the Examiner found that Kirby teaches or
suggests all of the recited limitations, except “wherein congestion
information is passed downstream along a path towards an egress node, and
the congestion measures are determined at an egress node by accumulating
the congestion information passed along each path terminating at the egress
node,” for which the Examiner relied on Chamy, and “each of a plurality of
paths,” for which the Examiner relied on Babiarz. Final Act. 3—6 (citing
Kirby 10, 13, 23, 29, 46, claim 1; Chamy Fig. 6, 38—39; Babiarz | 6).
The Examiner also provided an articulated reasoning for an artisan of
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ordinary skill to have modified the features of Kirby with the teachings of
Chamy (id. at 5 (citing Chamy || 8, 16)), and to modify the features of
Kirby and Chamy with the teachings of Babiarz (id. at 7 (citing Babiarz 13).
Appellants contend the cited portions of Kirby, Chamy, and Babiarz
fail to teach or suggest the limitation “wherein congestion information is
passed downstream along a path towards an egress node, and the congestion
measures are determined at an egress node by accumulating the congestion
information passed along each path terminating at the egress node,” recited
in claim 1. App. Br. 8. Appellants argue that “to determine each individual
congestion measure (of the plurality of congestion measures that must be
determined), a particular egress node in question must accumulate
congestion information passed along each path which terminates at that
particular egress node.” Id.', Reply Br. 2. Appellants argue that “there is no
teaching or suggestion in Chamy that any egress node accumulates
congestion information passed along each path terminating at that egress
node in order to determine even one congestion measure, let alone any
suggestion that plural congestion measures are each so determined . . . .” Id.
at 9. Appellants further contend that, even if the teachings of Babiarz were
combined with those of Kirby and Chamy, the resulting combination would
still fail to teach or suggest the disputed limitation. Id. at 10.
Appellants’ arguments do not persuade us of Examiner error. We
agree with the Examiner that the broadest, reasonable interpretation of claim
1 merely requires that the plurality of congestion measures is determined by
accumulating congestion information along each path terminating at the
egress. See Ans. 4; see also In re Am. Acad, of Sci. Tech. Ctr., 367 F.3d
1359, 1369 (Fed. Cir. 2004): “[T]he PTO is obligated to give claims their
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Application 12/935,389
broadest reasonable interpretation during examination.”). The Specification
describes that “the congestion measure of the present invention may be any
function of the loads and/or capacities of the link and/or paths in the
network.” Spec. 19—20. Moreover, in the Summary of Claimed Subject
Matter portion of their Appeal Brief, Appellants cite page 5, lines 31—34, of
the Specification as describing the disputed limitation. App. Br. 5.
Additionally, Appellants describe the “determining” step recited in claim 1.
App. Br. 5 (citing Spec, page 5, lines 27—29, Table 35 in Figure 3, page 9,
lines 18—26, and page 10, lines 1—17).
The cited portion of page 9 describes with regard to Figure 3 that
[a]s data flows along each path 38, at each node in the network
along the path the data packets are marked in accordance with
the current congestion level at that node. Typically this may be
done using ECN or PCN, as discussed previously. Congestion
marks are therefore generated in the network and flow to the
egress gateways 34, where they are measured.
Spec. 9,11. 15—27. Nothing in the cited paragraph or the previous discussion
of ECN and PCN describes measuring congestion signals from more than
one path when determining congestion information for a particular path. See
Spec. 2; see also Spec. 19. Moreover, the cited portion of page 10 describes,
inter alia, that “table 35 shows how for each path from the ingress node to an
egress node, identified by the egress node, a congestion cost value, based on
the received congestion information, is maintained.” Spec. 10,11. 8—10.
Although, the cited portions of page 5 describe “determining, for
substantially each path across the network from an ingress node to an egress
node, a congestion measure relating to congestion on the paths caused by
existing admitted packet flows” (emphasis added), we do not see, nor do
Appellants point out, any clear description of accumulating congestion
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information for each path to determine the congestion measure for a
particular path.
Thus, Appellants have not persuasively shown the Examiner’s
interpretation of claim 1 is overly broad, unreasonable, or inconsistent with
the Specification, and we agree with the Examiner’s reasonable
interpretation of claim 1. Because Appellants’ arguments rely on a narrower
claim interpretation than the Examiner adopted, they are unpersuasive.
Appellants further contend that the Examiner’s articulated rationale
for modifying Kirby with the teachings of Chamy “does not in fact provide
any ‘motivation’ as to why the required modification or combination would
be made at all, let alone why it would be obvious . . . .” App. Br. 10.
We disagree. The Examiner provided persuasive articulated
reasoning with rational underpinning for an artisan of ordinary skill to have
modified Kirby’s teaching of controlling traffic flow to reduce congestion
with Chamy’s teaching—to achieve call admission and preemption in a
network “configured to mark packets exceeding an admission threshold,
which does not impose restrictions in the results of preemption in a policing
system” (Final Act. 5—6 (citing Chamy || 8, 16)) and to decrease
implementation requirements on core routers and decrease the complexity
and overhead of the overall system (Reply Br. 12—13 (citing Chamy || 8,
16, 43 45)).
Moreover, in making an obviousness determination, it must be asked
“whether the improvement is more than the predictable use of prior art
elements according to their established functions.” KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 417 (2007). Appellants have not persuaded us that one
of ordinary skill in the art would not have modified Kirby’s teaching of
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reducing congestion in a network to use the PCN/ECN congestion
notification taught in Chamy, which Appellants acknowledge in their
Specification was generally known in the art. See Spec. 2, 19; Chamy 144.
Appellants further contend the Examiner erred in combining Babiarz’s
teaching of “for each of a plurality of paths” because “[t]he ‘justification for
combining’ statement in relation to Babiarz (pg. 6 of the Final Office Action
[dated June 24, 2014]) is irrelevant as to what is actually achieved by the
teachings of those references.” App. Br. 11. Appellants also argue that
Babiarz’s teaching of selecting a path for a flow “has nothing to do with
determining congestion measures relating to congestion on paths caused by
existing admitted packet flows.” Id. at 13.
We are not persuaded. As discussed above, Appellants’ arguments
rely on a narrower claim interpretation than the Examiner adopted.
Furthermore, although Appellants argue that “a different concept” is taught
in Kirby, Appellants do not persuasively explain the alleged difference. See
App. Br. 13. Moreover, the Examiner concluded it would have been
obvious to a person of ordinary skill in the art at the time of the invention to
apply Chamy’s congestion measurements method of measuring congestion
between an ingress/egress pair, wherein only one path is disclosed between
the pair, to the similar situation of where there are two (or more) paths
between an ingress and egress pair as disclosed by Babiarz. Ans. 10. The
Examiner provided persuasive articulated reasoning with rational
underpinning for an artisan of ordinary skill to have modified Kirby’s
teaching of controlling traffic flow to reduce congestion with Babiarz’s
teaching of multiple paths—
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to provide a method where multiple paths are provided between
an ingress/egress pair, wherein data can still be transmitted to a
destination even if one path is congested/failed, wherein further
packet loss and delay in real-time traffic is avoided/mitigated
by detect congestion before packets are dropped or significantly
queued and quality of service is adversely affected.
Id. at 11 (citing Babiarz 13). Appellants present no persuasive explanation
or evidence to rebut the Examiner’s findings.
For these reasons, we are not persuaded that the Examiner erred in
finding that the combination of Kirby, Chamy, and Babiarz teaches or
suggests the limitations of claim 1.
Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of
independent claim 1, as well as the 35 U.S.C. § 103(a) rejections of
independent claims 9 and 10, which Appellants argue are patentable for
similar reasons. App. Br. 8. We also sustain the Examiner’s rejections of
dependent claims 2—8, 11—17, for which Appellants make no additional
substantive arguments. Id. at 8, 14—15.
DECISION
We affirm the decision of the Examiner rejecting claims 1—17.
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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