Level 3 Communications, LLCDownload PDFPatent Trials and Appeals BoardOct 15, 20212020001939 (P.T.A.B. Oct. 15, 2021) Copy Citation 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. 15/056,650 02/29/2016 Steve R. Wakumoto 0531-US-01 7456 83579 7590 10/15/2021 LEVEL 3 COMMUNICATIONS, LLC Attn: Patent Docketing 1025 Eldorado Blvd. Broomfield, CO 80021 EXAMINER HARPER, KEVIN C ART UNIT PAPER NUMBER 2462 NOTIFICATION DATE DELIVERY MODE 10/15/2021 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): patent.docketing@centurylink.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte STEVE R. WAKUMOTO, ANDREW S. GERBER, and JOHN D. CLOUATRE Appeal 2020-001939 Application 15/056,650 Technology Center 2400 Before MAHSHID D. SAADAT, MICHAEL J. STRAUSS, and MICHAEL J. ENGLE, Administrative Patent Judges. SAADAT, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1–13 and 15–20. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Pursuant to our authority under 37 C.F.R. § 41.50(b), we also set forth new grounds of rejection infra, for obviousness. 1 An oral hearing was held for this appeal on September 23, 2021. 2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Level 3 Communications, LLC. Appeal Br. 2. Appeal 2020-001939 Application 15/056,650 2 CLAIMED SUBJECT MATTER The claims are directed to methods for obtaining and normalizing routing information included in a routing table “so that the routing information may be presented to a user in a manner that is easy to comprehend, and may in some cases, provide for troubleshooting of the route by generally untrained personnel, such as call center personnel who may not be specifically trained to diagnose network failures.” Spec. ¶ 25. Claim 1, reproduced below, illustrates the claimed subject matter: 1. A data network analysis system comprising: a computing system including at least one processor and at least one tangible memory for storing instructions that are executed by the at least one processor to: obtain service account information associated with a route provided to a customer through a data communication network comprising a plurality of network elements; using the service account information, identify a termination port that terminates the route to a customer premises equipment of the customer; identify at least one target port of the route; identify a subset of the network elements that are assigned to convey the route through one or more of the network elements; obtain the routing information for the route from each of the network elements that are assigned to convey the route; and normalize the obtained routing information from each of the network elements. Appeal Br. 10 (Claims App.). REFERENCES The prior art relied upon by the Examiner is: Appeal 2020-001939 Application 15/056,650 3 Name Reference Date Choudhury US 2007/0230361 A1 Oct. 4, 2007 Nandy US 2009/0316602 A1 Dec. 24, 2009 REJECTIONS Claims 1–3, 5–10, 12, 13, 15–17, 19, and 20 stand rejected under 35 U.S.C. § 102(a)(2) as being anticipated by Choudhury. Final Act. 3–4. Claims 4, 11, and 18 stand rejected under 35 U.S.C. § 103 as obvious in view of Choudhury and Nandy. Final Act. 5. OPINION Rejection under 35 U.S.C. § 102 of Claims 1–3, 5–10, 12, 13, 15–17, 19, and 20 Rejection and Contentions With respect to claim 1, Appellant contends the Examiner’s rejection is in error because “Choudhury does not disclose ‘normalize the obtained routing information from each of the network elements [(‘NEs’)].’” Appeal Br. 5. Appellant asserts that the Examiner’s interpretation of the claim term “normalize” based on Appellant’s disclosure in paragraphs 26 and 34 is improper and instead, should be based on the disclosure of how module 218 “normalizes route information obtained from each of the NEs to have a standardized common format for view by the user” in paragraph 34 of the instant Specification. Id. at 6. Appellant argues that the cited disclosure in paragraphs 60 and 63 of Choudhury “merely discloses visualizing a network path, rather than converting format of routing information into a standardized common format.” Id. at 7. The Examiner relies on paragraphs 60 and 63 of Choudhury, stating the recited “normalize the obtained routing information from each of the Appeal 2020-001939 Application 15/056,650 4 network elements” is taught by “(paras. 60 and 63; note: correlating path performance metrics to display/visualize routing information along the path of network elements).” Final Act. 4. In the Answer, the Examiner asserts “the claims do not recite the routing information as having different formats and normalizing the routing data having different formats into a standardized common format,” and instead “simply state ‘obtain the routing information [ . . . ] and normalize the obtained routing information from each of the network elements.’” Ans. 3. To interpret the recited “normalize” according to Appellant’s disclosure, the Examiner relies on paragraphs 26, 34, and 44 of the Specification providing relevant descriptions for the disputed claim term as: “normalize the obtained route information to ease analysis by the user,” Spec. ¶ 26; “normalizes route information obtained from each of the NEs to have a standardized common format for view by the user,” Spec. ¶ 34; and “translate the obtained routing information from one or more of the NEs to a common lexicographical format,” Spec. ¶ 44. Ans. 3–4. Referring to paragraph 63 of Choudhury, the Examiner finds: Based on the broadest reasonable interpretation of “normalize” Choudhury does normalize obtained routing information from network elements by translating or converting the routing information (i.e., general throughput, loss, jitter, etc.) to a standardized common format (i.e., throughput for a call, utilization at an interface, packet loss correlated with topology information, alarms, etc.) for analysis by a user as noted in paragraph 63. Id. at 4. The Examiner further explains that In Choudhury, a network manager and other network management nodes perform normalizing of obtained routing information into a common standardized format (figs. 5–6, especially steps 103, 105-110 and 121; para. 63, especially sixth through eleventh sentences) such that a user can determine Appeal 2020-001939 Application 15/056,650 5 faults in a network from the routing information (paras. 1 and 8–9). Id. at 5. Claim Construction “Claim construction is a question of law that may involve underlying factual questions.” Amgen Inc. v. Amneal Pharm. LLC, 945 F.3d 1368, 1375 (Fed. Cir. 2020) (citing Teva Pharm. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 332 (2015)). Claim terms in a patent application are given the broadest reasonable interpretation consistent with the Specification, as understood by one of ordinary skill in the art. In re Crish, 393 F.3d 1253, 1256 (Fed. Cir. 2004). Our reviewing court states that “the words of a claim ‘are generally given their ordinary and customary meaning.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (citations omitted). However, the broadest reasonable interpretation differs from the broadest possible interpretation. In re Smith Int’l, Inc., 871 F.3d 1375, 1383 (Fed. Cir. 2017). The correct inquiry in giving a claim term its broadest reasonable interpretation in light of the specification is “an interpretation that corresponds with what and how the inventor describes his invention in the specification, i.e., an interpretation that is ‘consistent with the specification.’” Id. at 1382–83 (quoting In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997)). A review of Appellant’s Specification shows that “converting information from different network equipment (NE) in different formats into a standardized common format” is one example of how the routing information is modified to help the user analysis, not a specific definition of “normalize” as asserted by Appellant (Appeal Br. 6). See Spec. ¶ 34 (“For Appeal 2020-001939 Application 15/056,650 6 example, the NE of one vendor may identify an IP address as ‘IP addr: xxx.xxx.xxx.xxx’, while the NE from another vendor may identify an IP address as ‘network address: xxx.xxx.xxx.xxx’. In such a case, the route information normalization module 218 may translate the information . . .”). As explained by the Examiner, Ans. 3–4, other examples of normalizing the routing information are disclosed as changing the lexicographical format, which encompasses an interpretation of the term “normalize” that is broader than the example of standardizing the IP address format, as argued by Appellant. We therefore agree with the Examiner that the recited normalizing the routing information in not limited to converting into a standardized common format for the IP address. See Ans. 3. Additionally, the disputed claim term is also described as “translating routing information from one lexicographical format to another” or any conversion of the routing information to a common terminology for view/analysis by a user. See id. at 3–4; Spec. ¶¶ 26, 34, 44. That is, in addition to Appellant’s example of IP address format, normalizing the routing information encompasses standardized lexicographical format, terminology, or other representation to help the user view and analyze the routing information. Prior Art Discussion Choudhury discloses a process for path analysis related to a VoIP-call, which involves presenting specific information about the quality of service for the communication along several paths. See Choudhury ¶ 63 (“Network performance is monitored for transport of RTP/RTCP packets in the connections which are indicated as dotted lines and which are also referred to as media paths.”). Similar to the claimed routing information, Choudhury Appeal 2020-001939 Application 15/056,650 7 is concerned with analyzing path information and discloses how a user may perform path analysis by visualizing the related network path and the related information such as its throughput. See Choudhury ¶ 63 (“Throughput at each interface could give a measure of throughput of the VoIP media traffic in the presence of other traffic.” and “A user can visualize the network path used for the call set up and be able to pinpoint which interfaces cause the packet loss. If an end-to-end packet loss is reported, it can be correlated to the interfaces causing packet loss . . .”). Notwithstanding the broader interpretation advanced by the Examiner based on the disclosed “normalizes route information obtained from each of the NEs to have a standardized common format for view by the user” and “translate the obtained routing information from one or more of the NEs to a common lexicographical format,” Spec. ¶¶ 34, 44, we find that normalizing the routing information requires certain modifications to the path information. Although Choudhury describes path analysis in terms of a user visualizing the network path and identifying the underperforming interface, the reference includes no teaching related to translating the path information to a “common lexicographical format” or “a standardized common format for view by the user.” That is, even if we disagree with Appellant that the specific meaning of normalizing is limited to a standardized format for IP addresses and adopt the broader but reasonable interpretation advanced by the Examiner, Choudhury fails to anticipate the claimed subject matter because the reference does not specifically teach whether or how the path information is modified or captured in the visualized network path representation. In order for us to sustain the Examiner’s anticipation rejection, we would need to resort to speculation or unfounded assumptions Appeal 2020-001939 Application 15/056,650 8 to supply deficiencies in the factual basis of the rejection. In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). This, we cannot do. Accordingly, given the record before us, we are constrained to reverse the Examiner’s anticipation rejection of claim 1, independent claims 8 and 15 which recite similar limitations, and claims 2–7, 9–13, and 16–20 dependent therefrom. NEW GROUNDS OF REJECTION Under our authority pursuant to 37 C.F.R. § 41.50(b), we set forth new grounds of rejection of instant claims 1–13 and 15–20 on appeal under 35 U.S.C. § 103 as being obvious over Choudhury alone (1–3, 5–10, 12, 13, 15–17, 19, and 20) or in combination with Nandy (claims 4, 11, and 18). Claims 1–3, 5–10, 12, 13, 15–17, 19, and 20 As discussed above, Choudhury describes the path analysis in terms of a user visualizing the network path and identifying the underperforming interface, but does not disclose that such representation is based on translating the path information to a “common lexicographical format” or “a standardized common format for view by the user.” However, Choudhury provides the path information such that the user is able to visualize the network path. See Choudhury ¶ 63; see also Reply Br. 3. We find that transforming the path data to a format suitable for display or visual interpretation by a user generally would involve modifications to the path information such that the network paths could be displayed having a common format for user observation. Therefore, it would have been obvious to one of ordinary skill in the art to use a standardized format to modify the path information for display and easy view and/or analysis by a user. The modification would not have been “uniquely challenging or difficult for one Appeal 2020-001939 Application 15/056,650 9 of ordinary skill in the art.” See Leapfrog Enters., Inc. v. Fisher–Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007)). Claims 4, 11, and 18 Appellant does not present any arguments regarding the combination of Choudhury and Nandy and relies on the alleged deficiency of Choudhury that was discussed for claim 1. See Appeal Br. 8. We therefore include claims 4, 11, and 18 in the new grounds of rejection based on the Examiner’s findings with respect to Nandy. See Final Act. 5. CONCLUSION We do not sustain the Examiner’s rejection of claims 1–3, 5–10, 12, 13, 15–17, 19, and 20 as anticipated and claims 4, 11, and 18 as obvious. For the reasons discussed above, we enter new grounds of rejection for claims 1–20 as being obvious. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed New Grounds 1–3, 5– 10, 12, 13, 15– 17, 19, 20 102 Choudhury 1–3, 5– 10, 12, 13, 15– 17, 19, 20 4, 11, 18 103 Choudhury, Nandy 4, 11, 18 Appeal 2020-001939 Application 15/056,650 10 Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed New Grounds 1–3, 5– 10, 12, 13, 15– 17, 19, 20 103 Choudhury 1–3, 5– 10, 12, 13, 15– 17, 19, 20 4, 11, 18 103 Choudhury, Nandy 4, 11, 18 Overall Outcome 1–13, 15–20 1–13, 15–20 This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides that “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review” (emphasis added). Section 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should Appeal 2020-001939 Application 15/056,650 11 the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. (Emphasis added). 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). See 37 C.F.R. § 41.50(f). REVERSED; 37 C.F.R. § 41.50(b) Copy with citationCopy as parenthetical citation