Laurence R. Lipstone et al.

Patent Trials and Appeals Board

Feb 13, 2020

13715466 - (D) (P.T.A.B. Feb. 13, 2020)

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.
13/715,466 12/14/2012 Laurence R. Lipstone 0447-US-U15 6290
21398 7590 02/13/2020
Level 3 Communications, LLC
Attn: Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
EXAMINER
VU, VIET D
ART UNIT PAPER NUMBER
2448
NOTIFICATION DATE DELIVERY MODE
02/13/2020 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):
patent.docketing@level3.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LAURENCE R. LIPSTONE, WILLIAM CROWDER,
ANDREW SWART, CHRISTOPHER NEWTON, and
LEWIS ROBERT VARNEY
Appeal 2018-000424
Application 13/715,466
Technology Center 2400
Before CARL W. WHITEHEAD JR., IRVIN E. BRANCH, and
MICHAEL M. BARRY, Administrative Patent Judges.
BRANCH, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2018-000424
Application 13/715,466
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STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–40. See Final Act. 1. An oral
hearing was held on July 3, 2019. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM IN PART.
CLAIMED SUBJECT MATTER
The claims are directed to devices and methods supporting content
delivery with adaptation services with feedback from health service. Claim
1, reproduced below with disputed limitations emphasized in italics, is
illustrative of the claimed subject matter:
1. A device, operable in a system comprising a plurality of
computers, each computer comprising hardware including
memory and at least one processor, each computer configured to
run at least two content delivery (CD) services of a plurality of
CD services, wherein said CD services include: adaptation
services, collector services, and control services, and wherein at
least some of said plurality of computers run control services,
and at least some of said computers run collector services,
said device comprising hardware including memory and at
least one processor and:
(a) a first CD service, said first CD service being
configured:
(a)(l) to monitor aspects of the device; and

1 We refer to the Specification, filed December 14, 2012 (“Spec.”); Final
Office Action, mailed January 5, 2017 (“Final Act.”); Appeal Brief, filed
July 5, 2017 (“Appeal Br.”); and Examiner’s Answer, mailed August 18,
2018 (“Ans.”).

2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Level 3
Communications, LLC. Appeal Br. 2.
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Application 13/715,466
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(a)(2) to generate first information relating to monitored
aspects of the device; and
(a)(3) to provide at least some of said first information to
at least one other CD service; and
(b) a second CD service, said second CD service being
configured to control CD services on said device in response to
service configuration information obtained by said second CD
service at said device from said control services, wherein said
second CD service controls said CD services on said device
based on service configuration information obtained by said
second CD service, wherein said service configuration
information is based on said first information provided by said
first CD service in (a)(3) relating to monitored aspects of the
device.
RELATED APPEALS
Appellant states: “Appeals have been filed or are being filed in the
following Applications that share a priority Application (Provisional
Application 61/737,072, filed December 13, 2012) with the present
Application: 13/715,590; 13/715,747; 13/802,093; 13/802,143; 13/802,335;
14/088,356; 14/088,358; 14/088,367; 14/088,542; 14/307,380; 14/307,389;
and 14/578,402.” Appeal Br. 2.
REFERENCE AND REJECTION
Claims 1–40 stand rejected under 35 U.S.C. § 102(b) as anticipated by
Weller (US 7,840,667 B2; Nov. 23, 2010). Final Act. 2–5.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments. We have considered in this Decision only those arguments
Appellant actually raised in the Briefs. Any other arguments Appellant
could have made but chose not to make in the Briefs are deemed to be
waived. See 37 C.F.R. § 41.37(c)(1)(iv).
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To the extent consistent with our analysis herein, we adopt as our own
the findings and reasons set forth by the Examiner in (1) the action from
which this appeal is taken (Final Act. 2–5) and (2) the Examiner’s Answer in
response to Appellant’s Appeal Brief (Ans. 3–8) and concur with the
conclusions reached by the Examiner. We highlight the following for
emphasis.
35 U.S.C. § 102
Claims 1, 2, 6–8, 11–14, 18–27, 30– 33, and 37–40
Appellant argues claims 1, 20, and 38 on a similar basis, namely that
Weller fails to describe first and second CD services on a common “device,”
(claim 1) or “particular computer” (claims 20 and 38). Appeal Br. 9–14; see
id. at 12–13 (“Weller does not teach or suggest that his overflow controller
process is on the same device as his monitoring agents. . . . Since Weller
does not teach or in any way suggest a device having (‘comprising’) both the
claimed first and second CD services, Weller does not and cannot anticipate
claim I or its dependents.”).
The Examiner finds as follows:
the present claims defines “the device” to be part of [a] system
comprising a plurality of computers, each computer running two
or more content delivery services. In other words, “the device”
won’t be limited to a single computer or single computer
component configured to provide one or more CD services. In
Weller, “a device” is a regional or private CDN server that
comprises one or more content or edge servers and is configured
to operate a suite of software services including at least a first
CD service (agent 109) for monitoring aspects of the device, e.g.,
network and server loads, and a second CD service (overflow
controller) that uses data (e.g., network/server loads) generated
by first CD service to generate configuration information for use
to spill traffic to another region (col 8, lines 19–52). It’s worth
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noting that CD services are part of software suite (fig. 4) which
cannot operate on their own and must be implemented within a
server such as content server. Since the claimed “device” won't
be read as single server, both NCDN and the overflow
controller/server would still be seen as part of the claimed
“device”. Thus, the examiner submits that Weller teachings meet
the alleged claim limitations.
Ans. 3–4.
We do not find a persuasive rebuttal to the Examiner’s construction of
the claimed device (claim 1) that “‘the device’ won’t be limited to a single
computer or single computer component configured to provide one or more
CD services,” and the Examiner’s determination that “[i]n Weller, ‘a device’
is a regional or private CDN server that comprises one or more content or
edge servers and is configured to operate a suite of software services.” Ans.
3; see generally Appeal Br. 9–14. Because Appellant does not persuasively
rebut these determinations, we are unpersuaded of error in the Examiner’s
rejection of claim 1.
Regarding claims 20 and 38, which recite “a particular computer,”
rather than “a device,” we note the Examiner’s finding that Weller describes
that its content delivery network (CDN) region can be implemented on a
single server. Ans. 5 (citing Weller, col. 4, ll. 1–2 (a content delivery
network (CDN) region “typically comprises a set of one or more content
servers that share a common backend”)). We understand the Examiner to
find that Weller describes an entire CDN region hosted on a single content
server, which includes all described services.
Appellant argues that Weller’s “CDN region” “is a set of ‘surrogate
origin servers,’ but does not include the overflow controller or the
monitoring agents.” Appeal Br. 12 (citing Weller, col. 3, ll. 65–67 (“A CDN
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Application 13/715,466
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service provider (CDNSP) may organize sets of surrogate origin servers as a
‘region.’”). We do not find this to be a persuasive rebuttal to the Examiner’s
finding that Weller describes a CDN region to include, on a single computer,
a content server and “and is configured to operate a suite of software
services including” the claimed first and second CD services. Ans. 3.
Thus, we are unpersuaded of error in the Examiner’s rejection of
claims 1, 20, and 38. Because Appellant argues claims 6 and 7 based on
claim 1 (Appeal Br. 16–17), we also sustain the rejection of these claims.
Appellant does not argue the remaining claims in this group with
particularity.

Claims 3 and 4
Claim 3 depends from claim 1 and recites “the second CD service is
an adaptation service.” Claim 4 depends from claim 3.
Appellant argues claim 3 on the basis that the portion of Weller cited
by the Examiner (Final Act. 4 (citing Weller, column 11, lines 46–59)) “has
no teaching or suggestion of the claimed adaptation service.” Appeal Br. 14.
The Examiner responds that Weller teaches “provisioning adaption
service for sharing bandwidth across different networks.” Ans. 5–6 (again
citing Weller, col. 11, ll. 46–59).
We have reviewed the portion of Weller cited by the Examiner and
find the Examiner has not adequately explained how the subject matter of
claim 3 is described here. Accordingly, we cannot sustain the rejection of
claims 3 and 4 on this record.
We note, however, that neither Appellant nor the Examiner direct our
attention to a construction of “adaptation service.” We have reviewed
Appellant’s Specification and note that the Specification does not appear to
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Application 13/715,466
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describe “adaptation service” beyond mentioning it in the title. See
generally Spec. Accordingly, should further prosecution ensue, the
Examiner might consider whether the subject matter of claim 3 has adequate
specification support. To whatever extent Appellant might argue that
“adaptation service” was well-known at the time of the invention (see, e.g.,
Spec. ¶ 147 (“Those of ordinary skill in the art will realize and understand,
upon reading this description, that different and/or other categorizations of
these services may be applied.”)), then the Examiner might consider whether
claim 3 is obvious over Weller in combination with that which was well-
known at the time of Appellant’s invention.

Claim 5
Claim 5 depends from claim 1 and recites “wherein the service
configuration information obtained from the control services is generated by
said control services.”
The Examiner again cites Weller, column 11, lines 46–59. Final Act.
4. In response to Appellant’s argument that the subject matter of claim 5 is
not taught at this location, the Examiner finds “Weller teaches generating
configuration information by the control services.” Ans. 6 (citing Weller,
col. 4, ll. 17–20).
Appellant’s arguments do not include a rebuttal to this finding. See
generally Appeal Br. 16. Accordingly, we are unpersuaded of error in the
Examiner’s rejection of claim 5.

Claims 9, 10, 28, and 29
Appellant argues claims 9, 28, and 29 on the basis that “[i]f the
Examiner relies on the ‘single server in an NCDN’ argument against claim
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1, he cannot then assert that there are multiple servers when rejecting claim
9 (which depends from claim 1).” Appeal Br. 17. This argument is not
persuasive of error. Weller’s example of a single server (column 4, lines 1–
2) describes claim 1’s first and second CD services on a common “device.”
The Examiner’s reliance on this disclosure does not, however, constrain the
Examiner to Weller’s single-server embodiments.
Accordingly, we sustain the Examiner’s rejection of claims 9, 28, and
29.

Claims 15, 16, 34, and 35
Claim 15 depends from claim 11, which depends from claim 1, and
recites “wherein the second CD service is configured to instruct a CD
service on said device to be in a specific operating state.” Claim 34 includes
a similar recitation.
To the extent that the Examiner relies on the second CD service
corresponding to Weller’s ‘overflow controller’ . . . , the Examiner has not
shown . . . that ‘the second CD service [the overflow controller] is
configured to instruct a CD service on said device to be in a specific
operating state.’” Appeal Br. 19 (referring to the Examiner’s rejection of
claim 1).
The Examiner finds that “Weller teaches monitoring health
information (e.g., network conditions) by first CD service and using the
monitored information by second CD service to configure/provision other
CD services, i.e., generating mapping rules to direct user request to optimal
region/server.” Ans. 7 (citing Weller col 9, ll. 18–36 and col 12, ll. 62–67).
We have reviewed the Examiner’s finding with respect to claim 15.
We do not find that the Examiner has adequately explained how the cited
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Application 13/715,466
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portions of Weller describe the limitation of claim 15. Accordingly, on this
record, we cannot sustain the rejection. We also cannot sustain the rejection
of claim 16, which depends therefrom, and we cannot sustain the rejections
of claims 34 and 35, argued on the same basis. Whether the subject matter
of these claims would have been obvious is not before us.

Claims 17 and 36
The Examiner rejects claims 17 and 36 on the basis that the subject
matter “would have been obvious to one skilled in the art.” Final Act. 5.
We cannot sustain the rejection because these claims are rejected as
anticipated under 35 U.S.C. § 102(b) and not obviousness under 35 U.S.C.
§ 103(a).
CONCLUSION
The Examiner’s decision to reject claims 1, 2, 5–14, 18–33, and 37–
40 is affirmed and the Examiner’s decision to reject claims 3, 4, 15–17, and
34–36 is reversed.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference Affirmed Reversed
1, 2, 5–14,
18–33, 37–
40
102(b) Weller 1, 2, 5–14,
18–33, 37–
40

3, 4, 15–17,
34–36
102(b) Weller 3, 4, 15–
17, 34–36
Overall
Outcome:
1, 2, 5–14,
18–33, 37–
40
3, 4, 15–
17, 34–36

Appeal 2018-000424
Application 13/715,466
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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 IN PART