Kotecha, Lalit R. et al.

Patent Trials and Appeals Board

May 1, 2020

14051419 - (D) (P.T.A.B. May. 1, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
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Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/051,419 10/10/2013 Lalit R. Kotecha 20130700 2551
25537 7590 05/01/2020
VERIZON
PATENT MANAGEMENT GROUP
1300 I STREET NW
SUITE 500 EAST
WASHINGTON, DC 20005
EXAMINER
HUYNH, NAM TRUNG
ART UNIT PAPER NUMBER
2647
NOTIFICATION DATE DELIVERY MODE
05/01/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
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Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
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PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte LALIT R. KOTECHA and
RAKESH H CHANDWANI
____________________

Appeal 2019-000234
Application 14/051,419
Technology Center 2600
____________________

Before LARRY J. HUME, SCOTT E. BAIN, and
JULIET MITCHELL DIRBA, Administrative Patent Judges.

DIRBA, Administrative Patent Judge.

DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 seeks review of the
Examiner’s rejection of claims 1, 3–9, 11–16, 21, 23, and 24. We have
jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

1 This Decision uses the following abbreviations: “Spec.” for the original
Specification, filed October 10, 2013; “Final Act.” for the Final Office
Action, mailed November 13, 2017; “Appeal Br.” for Appellant’s Appeal
Brief, filed May 14, 2018; “Ans.” for Examiner’s Answer, mailed
August 15, 2018; and “Reply Br.” for Appellant’s Reply Brief, filed
October 8, 2018.
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, the real party in interest is
Verizon Communications Inc. and its subsidiaries. Appeal Br. 2.
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BACKGROUND
Appellant’s disclosed embodiments and claimed invention relate to
optimizing the delivery of traffic to mobile devices based on information
received from the mobile devices. Spec. ¶¶ 1–2, Abstr. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A method comprising:
receiving, by one or more computing devices and from mobile
devices attached to a wireless network, a plurality of parameters
that describe performance of traffic flows associated with
applications executing at the mobile devices, wherein values of
the parameters are determined based on a monitoring of
execution of the applications at the mobile devices, wherein the
parameters are determined on a per-application type basis, the
application types including at least:
a video streaming application type that is associated with
a first set of parameters of the plurality of parameters, the
first set of parameters including parameters associated
with bandwidth and latency, and
an audio streaming application type that is associated
with a second set of parameters of the plurality of
parameters, the second set of parameters including
parameters associated with latency and jitter, and
a gaming application type that is associated with a third
set of parameters of the plurality of parameters,
the first, second, and third sets of parameters being
different from one another;
receiving, by the one or more computing devices and from
network elements in the wireless network, information relating
to a state of the wireless network; and
determining, by the one or more computing devices, based on
the values for the parameters associated with the applications
and based on the information relating to the state of the wireless
network, modifications to an operation of the wireless network
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to optimize transmission of the traffic flows in the wireless
network with respect to the applications; and
controlling, by the one or more computing devices, one or more
of the network elements in the wireless network to implement
the determined modifications to the operation of the wireless
network.
Appeal Br. 14 (Claims App.).
REJECTIONS
R1. Claims 1, 3, 5–6, 9, 11, 13–14, 21, and 23 stand rejected3 under
35 U.S.C. § 103 as obvious over Parker (US 2012/0250570 A1, published
Oct. 4, 2012) and Fok (US 2006/0198359 A1, published Sept. 7, 2006).
Final Act. 3–7.
R2. Claims 4 and 12 stand rejected under 35 U.S.C. § 103 as
obvious over Parker, Fok, and Chang (US 2014/0228017 A1, published
Aug. 14, 2014). Final Act. 7–8.
R3. Claims 7–8, 15–16, and 24 stand rejected under 35 U.S.C.
§ 103 as obvious over Parker, Fok, and Ahmad (US 2014/0022904 A1,
published Jan. 23, 2014). Final Act. 8–9.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
To the extent Appellant has not advanced separate, substantive arguments

3 The Final Office Action also rejected claims 2, 10, and 22 (Final Act. 1,
3), but these claims were canceled by Appellant in a response filed on
January 11, 2018, after the Final Office Action.
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for particular claims, or other issues, such arguments are waived. 37 C.F.R.
§ 41.37(c)(1)(iv).
We have considered all of Appellant’s arguments and any evidence
presented. We highlight and address specific findings and arguments for
emphasis in our analysis below.
Obviousness Rejection R1 of Claims 1, 3, 5–6, 9, 11, 13–14, 21, and 23
Claims 1, 3, 5–6, 9, 11, 13–14, 21, and 23 stand rejected under 35
U.S.C. § 103 as obvious over Parker and Fok. Final Act. 3–7. Appellant
argues these claims as a group. See Appeal Br. 8–12. Therefore, consistent
with the provisions of 37 C.F.R. § 41.37(c)(1)(iv), we limit our discussion to
claim 1. Independent claims 9 and 21 and dependent claims 3, 5–6, 11, 13–
14, and 23 stand or fall with claim 1.
The Receiving Limitation
Claim 1 recites: “receiving . . . a plurality of parameters that describe
performance of traffic flows associated with applications executing at the
mobile devices, wherein values of the parameters are determined based on a
monitoring of execution of the applications at the mobile devices, wherein
the parameters are determined on a per-application type basis.” Appeal
Br. 14 (Claims App.) (referred to in this Decision as the “receiving
limitation”).
The Examiner points to Parker and Fok for the receiving limitation.
Final Act. 3–5. In particular, the Examiner finds that Parker teaches
receiving a plurality of parameters that describe performance of traffic
flows, and “Fok teaches monitoring of execution of the applications at the
mobile devices, wherein the parameters are determined on a per-application
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type basis (voice call application performance, video application
performance, application performance).” Id. (citing Parker ¶¶ 13–14, 20–21,
41–42, 45, Fig. 4, item 430; Fok ¶¶ 23, 27).
Appellant contends that the Examiner’s findings regarding Fok are in
error. Appeal Br. 9–10. In particular, Appellant argues that Fok “relates to
the monitoring of the performance of a device, not to the performance of
traffic flows associated with applications executing at a mobile device.” Id.
at 9. According to Appellant, Fok’s performance data “corresponds to
general performance categories (e.g., voice and video) not performance data
associated with applications executing at the mobile device.” Id. Appellant
submits that “analyzing data to determine the performance of an application
(e.g., a voice call application), as described by Fok, is not reasonably related
to” the receiving limitation recited by claim 1. Id. at 10.
In the Answer, the Examiner finds that Fok’s “performance data
includes information and/or performance of applications” and “may be
classified or categorized by the type of application.” Ans. 3–4 (citing Fok
¶¶ 22, 27). The Examiner also finds Fok’s “performance data may include
signal strength, frame error rate, latency, fading, signal-to-noise ratio, and
data throughput measurements[,] all of which are a measure of a signal or of
a ‘traffic flow’ received by the device.” Id. at 4 (citing Fok ¶ 23). Appellant
does not respond to these findings in the Reply Brief.
Appellant’s arguments do not persuade us of Examiner error. The
Examiner found Fok’s performance data 28 teaches the “parameters” recited
in claim 1. Final Act. 4–5; Ans. 3–5. The Examiner further found
performance data 28 describes “performance of traffic flows associated with
applications executing at the mobile devices,” as required by claim 1. Id.
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Appellant does not identify any error in these findings. See Appeal Br. 9–
10; see generally Reply Br.
In particular, we do not agree with Appellant’s argument that Fok fails
to teach “performance data associated with applications executing at the
mobile device” (Appeal Br. 9)—Fok’s performance data can be used to
analyze performance of particular applications, e.g., “voice call application
performance” and “video application performance” (Fok ¶ 27 (utilizing data
log 52); see id. ¶ 23 (explaining that data log 52 stores performance data);
see also Appeal Br. 10 (acknowledging that Fok “analyz[es] data to
determine the performance of an application”)). The fact that Fok’s
performance data can also be associated with the “overall data throughput of
the respective device” does not diminish Fok’s other teachings. See Appeal
Br. 9 (citing Fok ¶ 23). In addition, we do not agree with Appellant’s
argument that Fok fails to disclose parameters that describe “performance of
traffic flows associated with applications” (id. (some emphasis removed))—
to the contrary, Fok teaches that its performance data may include latency
and data throughput measurements (Fok ¶ 23 (cited by Ans. 4)).
Moreover, the Examiner’s findings are supported by the reference. In
particular, Fok states that performance data 28 includes: “information on the
applications that make the voice and/or data calls” (Fok ¶ 22); “data
processing performance-related information such as . . . data throughput
measurements of one or more components of the respective device . . . [and]
latency (such as in video conferencing applications)” (id. ¶ 23); and “voice
processing performance-related information such as . . . latency . . . and any
information relating to a measure of the voice quality” (id.). Fok uses this
information to analyze “the voice and/or data processing performance of the
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respective device, including but not limited to: voice call application
performance . . . , video application performance, [and] multimedia
application performance.” Id. ¶ 27.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner’s reliance on the cited prior art
combination to teach or suggest the receiving limitation of claim 1.
Application Types Limitations
Claim 1 also identifies three specific application types:
a video streaming application type that is associated with
a first set of parameters of the plurality of parameters, the first
set of parameters including parameters associated with
bandwidth and latency, and
an audio streaming application type that is associated
with a second set of parameters of the plurality of parameters,
the second set of parameters including parameters associated
with latency and jitter, and
a gaming application type that is associated with a third
set of parameters of the plurality of parameters.
Appeal Br. 14 (Claims App.) (collectively, the “application types
limitations”).
For these limitations, the Examiner points to the previously cited
paragraphs of Fok. Final Act. 4–6 (citing Fok ¶¶ 23, 27); see also id. at 12
(further explaining findings).4 Appellant primarily argues that Fok fails to

4 In an amendment filed January 11, 2018 (after the Final Office Action),
Appellant added the limitations of dependent claim 2 to independent claim 1
and canceled dependent claim 2. (The added limitations are part of the
application types limitations.) Accordingly, we also consider the
Examiner’s rejection of dependent claim 2. See Final Act. 6, 12.
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expressly teach the specific application types and specific parameters recited
in the application types limitations of claim 1. Appeal Br. 10–12. However,
the Examiner found many of these limitations to be taught or suggested by
Fok, and the Examiner provided rationale explaining those findings. Final
Act. 4–6, 12; Ans. 6–8; see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421
(2007) (“A person of ordinary skill is also a person of ordinary creativity,
not an automaton.”). Because Appellant fails to identify error in the
Examiner’s findings or rationale, Appellant fails to persuade us of error in
the Examiner’s rejection. We specifically address each limitation in turn.
First, Appellant argues that Fok does not describe “bandwidth and
latency parameters” for a video streaming application type. Appeal Br. 11–
12. The Examiner finds that Fok discloses that “performance data may
include video application performance” and “may include data throughput
measurements, or ‘bandwidth’, and latency.” Ans. 6 (citing Fok ¶¶ 23, 27);
see Final Act. 12. Appellant contends that Fok’s “data throughput
measurements” alone do not teach or suggest these claim limitations (Appeal
Br. 12); however, Appellant fails to address the Examiner’s finding that Fok
discloses latency, and Appellant fails to explain why the Examiner’s
findings are in error. See id.; Reply Br. (not addressing limitation). We
perceive no error in the Examiner’s findings.
Second, Appellant argues that “Fok does not mention a gaming type
application.” Appeal Br. 11. In the Answer, the Examiner finds that that
Fok’s paragraph 27 suggests the claimed “gaming application type.” Ans. 7.
In particular, the Examiner finds: Fok describes “data call application
performance” and “multimedia application performance,” and an ordinary
artisan would recognize the claimed gaming application to be a data or
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multimedia application. Id. (citing Fok ¶ 27). Appellant does not address
these findings (see generally Reply Br.) and, consequently, fails to show
error in them.
Finally, Appellant argues that Fok does not describe “latency and
jitter” for an audio streaming application type. Appeal Br. 11–12.
According to Appellant, “the Examiner acknowledges that Fok does not
disclose jitter, but contends that ‘jitter is known to be a metric of voice
quality.’” Id. at 12 (quoting Final Act. 12). Appellant asserts that, “even
assuming, for the sake of argument, that jitter is known to be a measure of
voice quality, . . . nothing in Fok reasonably discloses or suggests that
latency and jitter are two parameters, in particular, that are monitored for an
audio streaming application type.” Id.
In the Answer, the Examiner responds that Fok specifically discloses
that performance data may include latency, and Fok uses its performance
data to analyze “voice call application performance.” Ans. 6 (citing Fok
¶¶ 23, 27). As for “jitter,” the Examiner states that one of ordinary skill in
the art “would recognize that jitter is a measure of the quality of a signal
received by the device,” so jitter “would be an obvious addition to the other
signal quality measurements disclosed.” Id. at 6–7.5 Appellant replies that
the rejection is in error because the Examiner fails to identify a reference

5 The Examiner also finds, in the alternative, that jitter is disclosed by Fok’s
latency because “[j]itter is . . . a form of latency.” Ans. 6. Appellant
persuasively argues that this finding is in error. Reply Br. 3–4 (identifying
differences between latency and jitter); see also Chang ¶ 44 (identifying
jitter as “transmission delay fluctuation”). However, the Examiner also
finds that Fok suggests jitter—and because we perceive no error in this
finding, as explained infra, we affirm the Examiner’s rejection.
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that specifically discloses “latency and jitter parameters for a voice
application.” Reply Br. 4.
We are not persuaded of error. Fok states that performance data,
which may be used to analyze “voice call application performance,” may
include “voice processing performance-related information such as . . .
latency . . . and any information relating to a measure of the voice quality.”
Fok ¶¶ 23, 27. The Examiner found that a person of ordinary skill in the art
would know jitter is a “metric of voice quality” (Final Act. 12) and “a
measure of the quality of a signal received” (Ans. 6–7). Appellant does not
explain why either finding is incorrect,6 and we perceive no error in them.
See also, e.g., Parker ¶ 14 (identifying jitter as important information for
understanding traffic flow); Chang ¶ 44 (describing quality of service (QoS)
parameters as including “a packet transmission delay, a packet loss rate, a
transmission delay fluctuation (a jitter), and the like”). Although Fok does

6 In the Reply Brief, Appellant argues that “the Examiner’s assertion that
‘jitter is known to be [a] metric of voice quality’ is erroneous” and asserts
that the Examiner failed to take Official Notice. Reply Br. 2 (citing Appeal
Br. 11–12); cf. Appeal Br. 12 (stating only that “Appellant does not concede
that jitter is a known metric for assessing audio quality” but without
explaining why the Examiner’s finding is in error). These are new
arguments that address the rejection as originally provided in the Final
Office Action, rather than new positions raised in the Answer. Because
Appellant has not shown good cause for failing to provide these arguments
in the Appeal Brief, Appellant’s argument is untimely and need not be
considered. See 37 C.F.R. § 41.41(b)(2) (“Any argument raised in the reply
brief which was not raised in the appeal brief, or is not responsive to an
argument raised in the examiner’s answer . . . will not be considered by the
Board for purposes of the present appeal, unless good cause is shown.”).
However, even if this argument had not been waived, we would not have
been persuaded of error because Appellant fails to sufficiently explain its
contentions.
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not explicitly disclose jitter, the Examiner persuasively explains that a
person of skill in the art would read Fok to suggest this claim limitation.
Appellant identifies no errors or inaccuracies in the Examiner’s rationale,
does not contend that a person of ordinary skill in the art would not have
known to use jitter to determine signal or voice quality, and does not submit
that the Examiner’s proposals are beyond the level of skill of one of ordinary
skill in the art. See, e.g., KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417
(2007) (“If a person of ordinary skill can implement a predictable variation,
§ 103 likely bars its patentability.”); Leapfrog Enters., Inc. v. Fisher-Price,
Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (noting lack of evidence that
modification “was uniquely challenging or difficult for one of ordinary skill
in the art”).
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner’s reliance on the cited prior art
combination to teach or suggest the application types limitations of claim 1.
Appellant has not alleged error in the Examiner’s rationale to combine
Parker and Fok or in the Examiner’s resulting legal conclusion of
obviousness. Accordingly, we sustain the Examiner’s obviousness rejection
of independent claim 1, and grouped claims 3, 5–6, 9, 11, 13–14, 21, and 23,
which fall therewith.
Obviousness Rejection R2 and R3 of Claims 4, 7–8, 12, 15–16, and 24
The Examiner rejects claims 4, 7–8, 12, 15–16, and 24 over the
combination of Parker, Fok, and either Chang or Ahmad. Final Act. 7–9.
For each of these dependent claims, Appellant relies on the arguments
presented with respect to the independent claims. Appeal Br. 12–13.
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Accordingly, because we affirm the rejection of the independent
claims, we also affirm the Examiner’s rejection of dependent claims 4, 7–8,
12, 15–16, and 24. See In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1, 3, 5–6, 9, 11,
13–14, 21, 23
103 Parker, Fok 1, 3, 5–6, 9, 11,
13–14, 21, 23

4, 12 103 Parker, Fok,
Chang
4, 12
7–8, 15–16, 24 103 Parker, Fok,
Ahmad
7–8, 15–16, 24
Overall
Outcome
1, 3–9, 11–16,
21, 23–24

TIME PERIOD FOR RESPONSE
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).
AFFIRMED