Ex Parte Vu

Board of Patent Appeals and Interferences

Aug 26, 2011

11047264 (B.P.A.I. Aug. 26, 2011)

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.
11/047,264 01/31/2005 Joe Quang Vu 1497/17 6265
25297 7590 08/26/2011
JENKINS, WILSON, TAYLOR & HUNT, P. A.
3100 Tower Blvd.
Suite 1200
DURHAM, NC 27707
EXAMINER
DECKER, CASSANDRA L
ART UNIT PAPER NUMBER
2466
MAIL DATE DELIVERY MODE
08/26/2011 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOE QUANG VU
____________

Appeal 2009-010975
Application 11/047,264
Technology Center 2400
____________

Before JOSEPH F. RUGGIERO, ROBERT E. NAPPI, and
BRADLEY W. BAUMEISTER, Administrative Patent Judges.

RUGGIERO, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1-13, 15-30, and 32-35. Claims 14 and 31 have been indicated to
be allowable by the Examiner. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Rather than reiterate the arguments of Appellant and the Examiner,
reference is made to the Appeal Brief (filed Dec. 9, 2008), the Answer
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Application 11/047,264

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(mailed Feb. 17, 2009), and the Reply Brief (filed Apr. 17, 2009). Only
those arguments actually made by Appellant have been considered in this
decision. Arguments which Appellant could have made but chose not to
make in the Briefs have not been considered and are deemed to be waived
(see 37 C.F.R. § 41.37(c)(1)(vii)).

Appellant’s Invention
Appellant’s invention relates to dynamic load balancing between call
processors in which the call processing load of each call processor is
monitored to determine whether call processing load imbalance exists. If
load imbalance exists, call processing tasks are moved from a first call
processor to a second call processor which has a lower call processing load
than the first call processor. See generally Spec. 4:9-17.
Claim 1 is illustrative of the invention and reads as follows:
1. A method for dynamic load balancing between a plurality of call
processors, the method comprising:
(a) determining a call processing load of each of the plurality of
call processors;
(b) determining whether a call processing load imbalance exists
between the plurality of call processors; and
(c) in response to determining that the call processing load
imbalance exists, moving call processing tasks relating to active calls from
at least a first call processor of the plurality of call processors to at least a
second call processor of the plurality of call processors having a lower call
processing load than the first call processor.
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The Examiner’s Rejections
The Examiner relies on the following prior art references to show
unpatentability:
Kung US 6,570,855 B1 May 27, 2003
Haglund US 2004/0087311 A1 May 6, 2004
Bessis US 2004/0240389 A1 Dec. 2, 2004
Chan US 2005/0221839 A1 Oct. 6, 2005
(filed Mar. 31, 2004)
Heaton US 2005/0238154 A1 Oct. 27, 2005
(filed Apr. 27, 2004)
Qi US 2005/0265283 A1 Dec. 1, 2005
(filed May 12, 2004)
Tu US 2006/0188079 A1 Aug. 24, 2006
(filed Dec. 23, 2003)
Schopf US 2007/0230437 A1 Oct. 4, 2007
(filed Aug. 17, 2004)

Claims 1, 2, 10, 12, 13, 18, 19, 27, 29, 30, and 35 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Kung.
Claims 3, 4, 6, 9, 21, and 26 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Kung in view of Chan.
Claims 20 and 25 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kung in view of Chan and Tu.
Claims 22 and 23 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kung in view of Schopf.
Claims 5 and 7 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kung in view of Chan and Schopf.
Claims 15, 24, and 32 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Kung in view of Heaton.
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Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kung in view of Chan and Heaton.
Claims 11 and 28 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kung in view of Qi.
Claims 16 and 33 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kung in view of Haglund.
Claims 17 and 34 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kung in view of Bessis.

ANALYSIS
35 U.S.C. § 102(b) REJECTION
Appellant argues, with respect to independent claims 1, 18, and 35,
that Kung does not disclose the determination of a load imbalance between a
plurality of call processors as claimed. According to Appellant (App. Br. 9-
15; Reply Br. 1-6), Kung merely discloses that a processing load on a call
processor can be ameliorated when the processing load exceeds a
predetermined load. In Appellant’s view (id.), processing loads in Kung are
measured against an absolute value, i.e., a threshold value, while the claimed
determination of a load imbalance is a measure of the relative processing
loads among call processors.
We are not persuaded by Appellant’s arguments as we find ample
evidence within the disclosure of Kung to support the Examiner’s stated
position (Ans. 4-8 and 23-25). As recognized and argued by Appellant,
Kung’s Automatic Call Manager Traffic Gate Feature (ACMTGF) module
M1 determines when a call manager’s load exceeds a threshold load level
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(Fig. 9, Step S1; col. 30, l. 66-col. 31, l. 2). Kung further discloses,
however, that the module M1, which determines that a call manager is
overloaded, also includes logic to send a request for capacity reports to the
M1 modules of other call managers, logic to receive the reports, and logic to
choose an alternative load manager based on the reported available capacity
of alternative load managers (Fig. 10, Steps S11-S13; col. 66, ll. 5-10). In
other words, Kung’s determination (Fig. 9, Step S1) of an overloaded call
manager includes the performance of steps S11-S13 (Fig. 10).
The performance of steps S1 and S11-S13 results in a detection of an
overloaded call processor as well as the detection of alternative call
processors with available call processing capacity, thereby providing a
determination of load imbalance among call processors as claimed. Kung’s
system responds to the load imbalance determination by transferring calls
from the overloaded call processor to an alternative call processor with
available call processing capacity (Fig. 9, Steps S2-S3; col. 31, ll. 11-17).
We also find unpersuasive Appellant’s further arguments (App. Br.
10-11; Reply Br. 3-4) that load imbalances will continue to exist in Kung
even after transfer of calls from overloaded call processor to an alternative
call processor as such arguments are not commensurate with the scope of the
claims. Independent claims 1, 18, and 35 require only the transfer of calls to
a second processor having a lower call processing load than a first call
processor upon a determination of a load imbalance. In other words, there is
no claimed requirement that a call processing load balance be achieved, let
alone any requirement of an even distribution of processing loads among call
processors as argued by Appellant.
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In view of the above discussion, we find that the Examiner did not err
in concluding that all of the limitations of independent claims 1, 18, and 35
are present in the disclosure of Kung. Accordingly, the Examiner’s
35 U.S.C. § 102(b) rejection of independent claims 1, 18, and 35, as well as
dependent claims 2, 10, 12, 13, 19, 27, 29, and 30, not separately argued by
Appellant, is sustained.

35 U.S.C. § 103(a) REJECTIONS
Claims 3, 4, 6, 9, 21, and 26
The Examiner’s obviousness rejection of claims 3, 4, 6, 9, 21, and 26
based on the combination of Kung and Chan is sustained as well.
Appellant challenges (App. Br. 15-16; Reply 6-7) the Examiner’s proposed
combination of Kung and Chan by contending that Chan has no teaching or
suggestion of determining load imbalance among call processors for active
calls as claimed. As pointed out by the Examiner (Ans. 25), however, it is
Kung, not Chan, that is relied upon for providing a determination of load
imbalance among call processors as discussed supra. Further, we agree with
the Examiner (Ans. 26) that the termination of call processing feature,
argued by Appellant as allegedly missing from Chan, is not recited in the
rejected claims.

Claims 20 and 25
We also sustain the Examiner’s obviousness rejection of dependent
claims 20 and 25 based on the combination of Kung, Chan, and Tu. We find
no error in the Examiner’s application of the call processing volume
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comparison teachings of Tu to the combination of Kung and Chan. Contrary
to Appellant’s contention (App. Br. 16-17; Reply Br. 8), we agree with the
Examiner (Ans. 26) that Tu teaches the determination of whether added
traffic load is beyond the maximum threshold (para. [0031]).

Claims 5, 7, 22, and 23
We also find no error in the Examiner’s application (Ans. 27) of the
data traffic rate teachings of Schopf (paras. [0019] and [0054]) to the
disclosure of Kung (claims 22 and 23) as well as the application of Schopf’s
teachings to the combination of Kung and Chan (claims 5 and 7).
Accordingly, the Examiner’s obviousness rejection of dependent claims 5, 7,
22, and 23 is sustained.

Claims 15, 24, and 32
We also sustain the Examiner’s obviousness rejection of dependent
claims 15, 24, and 32 based on the combination of Kung and Heaton. We
find no error in the Examiner’s application of the call threshold time
duration teachings of Heaton to the disclosure of Kung. Contrary to
Appellant’s contention (App. Br. 18-19; Reply Br. 10-11), we agree with the
Examiner (Ans. 28) that Heaton teaches the use of a call threshold time
duration feature as a criteria for call processing management (para. [0008]).

Claims 8, 11, and 28
We also sustain the Examiner’s obviousness rejection (Ans. 28) of
dependent claim 8, in which the call threshold time duration teachings of
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Heaton are applied to the combination of Kung and Chan, as well as the
obviousness rejection (Ans. 29) of claims 11 and 28, in which the call
processing threshold value teachings of Qi are applied to Kung. Appellant’s
arguments (App. Br. 19-20; Reply Br. 11-12) rely on those asserted against
independent claims 1 and 18, which arguments we found unpersuasive as
discussed supra.

Claims 16 and 33
We also sustain the Examiner’s obviousness rejection of dependent
claims 16 and 33 based on the combination of Kung and Haglund. We find
no error in the Examiner’s application of the load distribution maintaining
teachings of Haglund to the disclosure of Kung. Contrary to Appellant’s
contention (App. Br. 21-22; Reply Br. 13), we agree with the Examiner
(Ans. 29) that Haglund teaches the moving of call processing tasks without
changing the distribution of calls (para. [0018]).

Claims 17 and 34
We also find no error in the Examiner’s application (Ans. 30) of the
call relative call loading equalization teachings of Bessis (paras. [0033] and
[0037]) to the disclosure of Kung. Accordingly, the Examiner’s obviousness
rejection of dependent claims 17 and 34 is sustained.

CONCLUSION
Based on the analysis above, we conclude that the Examiner did not
err in rejecting claims 1, 2, 10, 12, 13, 18, 19, 27, 29, 30, and 35 for
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anticipation under 35 U.S.C. § 102(b), and rejecting claims 3-9, 11, 15-17,
20-26, 28, and 32-34 for obviousness under 35 U.S.C. § 103(a).

DECISION
The Examiner’s decision rejecting claims 1-13, 15-30, and 32-35 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)(iv).

AFFIRMED

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