Fastly, Inc.

Patent Trials and Appeals Board

Dec 10, 2021

2020006061 (P.T.A.B. Dec. 10, 2021)

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.
15/428,713 02/09/2017 Devon H. O'Dell 683.0078 9392
76444 7590 12/10/2021
Setter Roche LLP
1860 Blake Street
Suite 100
Denver, CO 80202
EXAMINER
WOLDEMARIAM, AYELE F
ART UNIT PAPER NUMBER
2447
NOTIFICATION DATE DELIVERY MODE
12/10/2021 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):
uspto@setterroche.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DEVON H. O’DELL
___________

Appeal 2020-006061
Application 15/428,713
Technology Center 2400
____________

Before JAMES B. ARPIN, HUNG H. BUI, and
DAVID J. CUTITTA II, Administrative Patent Judges.

ARPIN, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–20, all of the pending claims. Final Act. 2.2 We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42 (2012).
Appellant identifies the real party-in-interest as Fastly, Inc. Appeal Br. 2
2 In this Decision, we refer to Appellant’s Appeal Brief (“Appeal Br.,” filed
April 28, 2020) and Reply Brief (“Reply Br.,” filed August 24, 2020); the
Final Office Action (“Final Act.,” mailed November 29, 2019) and the
Examiner’s Answer (“Ans.,” mailed June 22, 2020); and the Specification
(“Spec.,” filed February 9, 2017). Rather than repeat the Examiner’s
findings and Appellant’s contentions in their entirety, we refer to these
documents.
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STATEMENT OF THE CASE
The claimed methods and apparatus relate to “operating a content
delivery network to purge data objects from cache nodes of the content
delivery network.” Spec., Abstr.
As noted above, claims 1–20 are pending. Claims 1 and 12 are
independent. Appeal Br. 11 (claim 1), 12–13 (claim 12) (Claims App.).
Claims 2–11 depend directly or indirectly from claim 1, and claims 13–20
depend directly or indirectly from claim 12. Id. at 11–14.
Claims 1 and 2, reproduced below with disputed limitations
emphasized, are illustrative.
1. A method of operating a cache node in a content
delivery network, the method comprising:
caching data objects in the cache node on behalf of at least
one origin server;
receiving a set of content-based purge messages, wherein
each content-based purge message in the set of content-based
purge messages comprises a rule that specifies at least one
content attribute that describes content to be purged from the
cache node;
applying the rule to the content of the data objects to
identify which subset of the data objects have the content
described by the content attribute specified in the rule; and
purging the subset of the data objects from the cache node.
Appeal Br. 11 (emphases added).
2. The method of claim 1 wherein the at least one content
attribute that describes content comprises at least one of text
content, title information, author information, or subject
information for the subset of the data objects.
Id. (emphasis added). Independent claim 12 recites limitations
corresponding to the disputed limitations of claim 1, and dependent claim 13
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recites a limitation corresponding to the disputed limitation of claim 2. Id. at
12–13.
REFERENCES AND REJECTION
The Examiner relies upon the following references:
Name3 Reference Published Filed
Whyte US 2012/0159558 A1 June 21, 2012 Dec. 20, 2010
Rash US 2014/0310470 A1 Oct. 16, 2014 Apr. 16, 2013
The Examiner rejects claims 1–20 under 35 U.S.C. § 103 as obvious
over the combined teachings of Whyte and Rash. Final Act. 3–7.
We review the appealed rejection for error based upon the issues
identified by Appellant, and in light of the contentions and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential). The Examiner and Appellant focus their findings and
contentions, respectively, on claims 1 and 2; so we do as well. See Appeal
Br. 6, 8; Ans. 9–10. Arguments not made are forfeited.4 Unless otherwise
indicated, we adopt the Examiner’s findings in the Final Office Action and
the Answer as our own and add any additional findings of fact for emphasis.
We address the rejection below.

3 All reference citations are to the first named inventor only.
4 See In re Google Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020)
(“Because Google failed to present these claim construction arguments to
the Board, Google forfeited both arguments.”); 37 C.F.R. § 41.37(c)(1)(iv)
(2013) (“Except as provided for in §§ 41.41, 41.47 and 41.52, any arguments
or authorities not included in the appeal brief will be refused consideration
by the Board for purposes of the present appeal.”).
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ANALYSIS
Obviousness over Whyte and Rash
1. Claim 1
The Examiner rejects claims 1–20 as obvious over the combined
teachings of Whyte and Rash. Final Act. 3–7. With respect to claim 1, the
Examiner finds Whyte teaches or suggests,
A method of operating a cache node in a content delivery
network, the method comprising:
caching data objects in the cache node on behalf of at least
one origin server;
receiving a set of content-based purge messages . . . and
purging the subset of the data objects from the cache node,
as recited in claim 1. Final Act. 3–4 (citing Whyte ¶¶ 6, 29, 46, 81).
Nevertheless, the Examiner finds,
Whyte does not explicitly disclose wherein each content-based
purge message comprises a rule that specifies at least one
content attribute that describe the to be purged from the cache
node; applying the rule to the content of the data objects to
identify which subset of the data objects have the content
described by the content attribute specified in the rule.
Id. at 4 (emphases added).
The Examiner finds, however, Rash teaches or suggests these
limitations. Final Act. 4 (citing Rash, Abstr., ¶ 47). In particular, Rash
discloses, “The disclosed method includes purging data from the cache
based on predefined eviction policies that are influenced by the predicted
queries.” Rash, Abstr. (emphasis added). Further, Rash discloses:
The predefined eviction policy includes purging the data based
on at least one of (a) a weighted least recently used basis, (b) a
determination of whether the data in the cache will be requested
by future queries, (c) access pattern of data over a predefined
duration, and ([d]) low inter-reference recency set. . . . The
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predefined eviction policy can include various other policies that
can help in managing cache 235 efficiently.
Id. ¶ 47 (emphases added); cf. Spec. ¶¶ 4 (“Cache nodes usually cache only a
portion of the original source content rather than caching all content or data
associated with an original content source. The cache nodes can thus
maintain only recently accessed and most popular content as cached from
the original content sources.” (emphasis added)), 5 (“In some
implementations, it may become necessary to purge or remove content that
is cached by the nodes of the content delivery network. These purges may
come when content becomes out of date, when undesirable information is
included in the content, or for any other similar purpose.” (emphases
added)). Thus, the Examiner finds Rash teaches or suggests content-based
purge messages including a rule that specifies “at least one content attribute
that describes content to be purged from the cache node” and applying such
a rule to the content to identify content to be purged. Final Act. 2, 4.
Further, the Examiner finds a person of ordinary skill in the relevant art
would have had reason to combine the teachings of Whyte and Rash “in
order to increase efficiency of cache management of Whyte system” and,
thereby, to achieve the methods of claim 1. Id.
Appellant contends the Examiner errs in rejecting claim 1 for four
reasons. See Appeal Br. 6–8. As discussed below, Appellant does not
persuaded us the Examiner errs.
First, with respect to the “receiving a set of content-based purge
messages” limitation, Appellant contends, “Paragraph 46 of Whyte, cited by
[the Examiner] for this point, presents no teaching of any purge requests
being ‘content-based.’ Further, [the Examiner] presents no discussion or
indication of why one of ordinary skill in the art would understand Whyte to
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teach ‘receiving a set of content-based purge messages.’” Appeal Br. 6.
Instead, Appellant contends Whyte merely discloses receiving “requests to
remove stored assets.” Id. We disagree with Appellant.
Although the Examiner finds, “Whyte teaches receiving a set of
content-based purge messages, ([0046], requests to remove stored assets)”
(Ans. 9; see Final Act. 2, 4), Whyte discloses:
For example, a cache size for an edge cache device in a [video
on demand (VOD) content distribution network (CDN)] may be
based on the bandwidth availability serving the edge cache
device within the CDN, title dispersion data determined by an
analysis of the user requests for video content at the edge cache
device or within a larger [portion] of the CDN, and a maximum
cache memory size of the edge cache device.
Whyte ¶ 6; see Final Act. 3; see also Whyte ¶ 1 (“Therefore, it is desirable
for the local caches to store the most popular video content, the content most
likely to be requested by the users of the local caches in the near future.
Similarly, it is desirable not to cache obscure and rarely requested video
content in the VOD system, since cache space is limited and the network
cost of streaming rarely requested titles is relatively minor compared to
streaming more popular titles.” (emphases added)), Fig. 4 (item 430). A
reference “must be considered for all that it teaches to those of ordinary skill
in the art.” In re Arora, 369 F. App’x 120, 122 (Fed. Cir. 2010)); see In re
Inland Steel Co., 265 F.3d 1354, 1361 (Fed. Cir. 2001); In re Fritch, 972
F.2d 1260, 1264 (Fed. Cir. 1992). Taking into account this additional
disclosure, we are persuaded that, considered as a whole, Whyte teaches or
suggests receiving content-based cache purging messages.
Second, Appellant contends the Examiner “only summarily argues
that Whyte and Rash would be combined by one of ordinary skill in the art
in order to arrive at the teachings of the claims.” Appeal Br. 6. In
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particular, Appellant contends the Examiner “has presented no evidence at
all with regard to this conclusion of obviousness.” Id. Again, we disagree
with Appellant.
The Examiner finds:
Based on Whyte in view of Rash it would have been obvious to
[a person] of ordinary skill in the art before the effective filing
date of the claimed invention to incorporate data to be evicted
from the cache is determined based on a predefined eviction
policy to Whyte because Whyte teaches cache management
(Abstract) and Rash suggests data to be evicted from the cache
is determined based on a predefined eviction policy ([0047]).
Final Act. 4 (emphasis added); see Ans. 10.
As the U.S. Supreme Court explains,
If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability. For the same reason,
if a technique has been used to improve one device, and a person
of ordinary skill in the art would recognize that it would improve
similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Thus, we are
persuaded the Examiner adequately shows that a person of ordinary skill in
the relevant art would have had reason to modify Whyte’s cache
management teachings in view of Rash’s predefined eviction policy
teachings in order to achieve the disputed limitation. See Rash ¶ 47 (“The
predefined eviction policy can include various other policies that can help in
managing cache 235 efficiently.”); see also Rash ¶ 4 (discussing desirable
improvements).
Third, Appellant contends:
There is no teaching in Whyte of sending a rule for the cache
node to determine which assets should be purged, nor would such
a teaching make sense in Whyte. Whyte is teaching a dispatcher
managing what assets are stored where. Providing autonomy to
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the cache nodes would undermine the organization that Whyte
presents. Regardless, Whyte does not teach this method.
Rash, on the other hand, teaches a “predefined eviction
policy.” Thus, Rash teaches providing the local nodes with
autonomy, which is ruled by the pre-defined eviction policy.
Rash does not teach sending such rules in purge messages.
Appeal Br. 7 (emphases added).
Nevertheless, the Examiner relies on Whyte and Rash together to
teach or suggest this disputed limitation. Final Act. 2; Ans. 9. Appellant
cannot show nonobviousness by attacking references individually when the
rejection is based on the combined teachings of those references. See In re
Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642
F.2d 413, 426 (CCPA 1981).
Fourth, Appellant contends,
neither Whyte nor Rash, alone or in combination, teaches
“applying the rule to the content of the data objects to identify
which subset of the data objects have the content described by
the content attribute specified in the rule,” and Appellee
committed clear error in finding otherwise. Both Whyte and
Rash teach deletion or eviction of data objects based on a content
ID or similar. No review of content is necessary for purge if a
content ID is already identified.
Appeal Br. 7–8.
The Examiner finds, however, Rash teaches or suggests the
“applying” limitation. Final Act. 2, 4; Ans. 4; but see Reply Br. 2 (asserting
the Examiner fails to address Appellant’s contentions regarding the
“applying” limitation). In particular, the Examiner finds, “Data to be
evicted from the cache is determined based on a predefined eviction policy.”
E.g., Final Act. 4 (emphases added, citing Rash ¶ 47). Specifically, Rash
discloses the eviction policy may purge data based on at least one attribute.
Rash ¶ 47 (“The predefined eviction policy includes purging the data based
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on at least one of . . .”). We are persuaded that in order to apply Rash’s
eviction policy based on one or more attributes, it is necessary to “identify
which subset of the data objects have the content described by the content
attribute specified in the rule.” Appeal Br. 11 (Claims App.). Thus, we are
persuaded that Rash teaches or suggests this disputed limitation.
In view of the foregoing analysis, we are not persuaded the Examiner
errs in rejecting independent claim 1 as obvious over the combined teachings
of Whyte and Rash, and we sustain the Examiner’s rejection of that claim.
For the same reasons, we also are not persuaded the Examiner errs in
rejecting independent claim 12 as obvious over the combined teachings of
Whyte and Rash. See Appeal Br. 8. Appellant does not challenge the
rejection of claim 3–11 or 13–20 separately from the challenge to claims 1
and 12. Appeal Br. 8–9; see Ans. 13. Consequently, we also sustain the
rejection of those claims.
2. Claim 2
Claim 2 recites that, in the method of claim 1, “the at least one content
attribute that describes content comprises at least one of text content, title
information, author information, or subject information for the subset of the
data objects.” Appeal Br. 11 (Claims App.). The Examiner finds Whyte
discloses, “other relationships between assets may depend on the title, series,
author, or genre of the cached assets. For instance, popularity of a cached
episode of a television program may be taken into account when evaluating
the other episodes of the same program stored in the edge cache 120.”
Whyte ¶ 62 (emphasis added). Thus, the Examiner finds Whyte teaches or
suggests this additional limitation of claim 2. Ans. 10.
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Appellant contends: (1) “[w]hile Whyte does mention title and author
information, this is not mentioned as a content attribute (Appeal Br. 8), and
(2) because claim 2 depends from claim 1, “the content attribute must be 1)
specified in a rule in a content-based purge message, and 2) used to identify
which subset of the data objects have certain content” (id.). Appellant’s
contentions do not persuade us of Examiner error.
First, the Specification discloses, “These content attributes may
include titles for specific data objects, text content for specific data objects,
author information for specific data objects, subject or category information
for specific objects, or any other similar content attribute.” Spec. ¶ 18
(emphases added). Thus, we interpret the recited “content attributes” to
encompass titles, author information, and subject and category information.
Whyte need not use the term “content attribute” in order to teach or suggest
this limitation. Again, as the Court explains, “the analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR, 550 U.S. at 418.
Therefore, we are persuaded Whyte’s “title,” “series,” “author,” or “genre”
of the cached assets teaches or suggests the recited “content attributes” of
claim 2.
Second, as noted above, we are persuaded the Examiner correctly
finds that Whyte and Rash together teach or suggest,
receiving a set of content-based purge messages, wherein
each content-based purge message in the set of content-based
purge messages comprises a rule that specifies at least one
content attribute that describes content to be purged from the
cache node;
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applying the rule to the content of the data objects to
identify which subset of the data objects have the content
described by the content attribute specified in the rule,
as recited in claim 1. Appeal Br. 11 (Claims App.); see supra Section 1.
Thus, we are not persuaded the Examiner errs in rejecting claim 2 as obvious
over the combined teachings of Whyte and Rash, and we sustain that
rejection.
3. Allegedly Deficient Examiner’s Answer
Appellant further contends that, contrary to Manual of Patent
Examining Procedure (MPEP) § 1207.02,
[the Examiner] provided what appears to be a verbatim copy of
the Final office action (including the Examiner’s Response to
Arguments) of November 29, 2019. This did not address the
arguments that Appellant presented in the Appeal Brief. This
failure to address the issues presented by Appellant is
particularly relevant as Appellant has argued that [the Examiner]
has failed to support a prima facie conclusion of obviousness in
the present case. No support has been added to the [Examiner’s]
conclusion of obviousness even when directly requested and
required.
Reply Br. 2.
Because Appellant first raised this challenge in the Reply Brief, the
Examiner does not provide a response. The MPEP provides, however, that
In the event that the final rejection fully addresses the arguments
in the appeal brief, the examiner should complete an examiner’s
answer with a typical “Grounds of Rejection to be Reviewed on
Appeal” section and a simplified “Response to Arguments”
section that simply refers to the appropriate portion of the final
rejection.
MPEP 1207.02(A) (9th Ed., Rev. 10.2019, Last Rev’d June 2020)
(emphasis added). Thus, the repetition in the Examiner’s Answer of
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findings asserted in the Final Office Action is not persuasive evidence of
Examiner error.
DECISION
1. The Examiner does not err in rejecting claims 1–20 as obvious over
the combined teachings of Whyte and Rash.
2. Thus, on this record, claims 1–20 are not patentable.
CONCLUSION
We affirm the Examiner’s rejection of claims 1–20.
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/
Basis
Affirmed Reversed
1–20 103 Whyte, Rash 1–20
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) (2013).
AFFIRMED