LINDO, Jonathan et al.

Patent Trials and Appeals Board

Dec 15, 2020

2019004201 (P.T.A.B. Dec. 15, 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.
14/267,181 05/01/2014 Jonathan LINDO 122293-7233 7569
107592 7590 12/15/2020
Morgan, Lewis & Bockius LLP (Broadcom)
600 Anton Boulevard
Suite 1800
Costa Mesa, CA 92626
EXAMINER
KIM, CHONG G
ART UNIT PAPER NUMBER
2457
NOTIFICATION DATE DELIVERY MODE
12/15/2020 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):
OCIPDocketing@morganlewis.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JONATHAN LINDO, VAMSEE LAKAMSANI,
VIKAS KRISHNA, and NAGI PRABHU
Appeal 2019-004201
Application 14/267,181
Technology Center 2400
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENNETT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–8 and 10–21. Claim 9 is cancelled.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm in part.

1 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 CA,
Inc. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The claims are directed to a system and method for intelligent
infrastructure capacity management of internet connected devices. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method comprising:
receiving first data regarding a first plurality of devices in
a network, the first data including:
an amount of utilization of a first plurality of
resources in the network by each device of the first
plurality of devices; and
characteristic data of each device of the first
plurality of devices;
receiving second data regarding a second plurality of
devices;
wherein the second plurality of devices comprise a
plurality of mobile devices and the second data includes
respective real-time location data of the mobile devices;
using the real-time location data to identify a subset of the
plurality of mobile devices that are within range of a particular
server of the second plurality of devices;
determining a predictive model for utilization of each
resource of a second plurality of resources in the network based
on the first data, the second plurality of resources to be utilized
by the plurality of mobile devices;
predicting an amount of utilization of each resource of the
second plurality of resources by a second plurality of devices
using the predictive model;
allocating each resource of the second plurality of
resources based on the predicted amount of utilization of such
resource by the second plurality of devices; and
wherein allocating each resource includes allocating
specific resources to the particular server based at least in part
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upon the density of the plurality of mobile devices that are within
range of the particular server.
Appeal Br. 15 (Claims Appendix).
REFERENCE2
The prior art relied upon by the Examiner as evidence is:
Name Reference Date
Wang US 2012/0157106 A1 June 21, 2012
REJECTION
Claims 1–8 and 10–21 stand rejected under 35 U.S.C. § 102(a)(2) as
being anticipated by Wang. Final Act. 6.
ANALYSIS
Throughout this opinion, we give the contested claim limitations the
broadest reasonable interpretation (BRI) consistent with the Specification.
See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
The Examiner’s Finding of Anticipation
The Examiner rejects all the pending claims as anticipated by Wang.
Final Act. 6–20.
Appellant’s Contentions
Appellant argues the Examiner erred in rejecting claim 1 because
[T]here is no disclosure, teaching or suggestion in Wang, that
“real-time location data is used to identify a subset of a plurality
of mobile device that are within range of a particular server. At
most, Wang merely discloses the identification of "an unusually
high number of smart phone devices in a particular cell or other
geographic area. Identifying an unusually high number of

2 All citations to the prior art are by reference to the first named inventor/
author only.
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devices in a particular cell or other geographic area does not
disclose, teach or suggest using real-time location data to identify
a subset of a plurality of mobile device that are within range of a
particular server.
Appeal Br. 10–11.
Appellant further contends Wang fails to disclose “that specific
resources are allocated to the particular server based at least in part upon the
density of the plurality of mobile devices that are within range of the
particular server,” as recited in claim 1. Appeal Br. 11. Appellant argues
“[a]t most, as the Office Action concedes, Wang merely discloses that a
particular base station may be instructed to increase its transmitting power if
the method ‘predicts that a large clustering of smart phone B devices will
persist for a period of time on a particular day.’” Appeal Br. 11 (quoting
Wang ¶ 57). According to Appellant, “[t]his does not disclose, teach or
suggest allocating specific resources to a particular server based at least in
part upon the a subset of mobile devices that were identified (using real-time
data, not predictions) as being within range of the particular server.” Id.
Appellant argues both independent claims 1 and 14 recite these disputed
limitations. Id.
Regarding dependent claim 3, Appellant argues
[D]etermining a total estimated utilization of a resource by the
devices identified as being within a particular range of such
resource. This limitation is entirely absent from Wang. Wang
merely discloses that it may observe a geographic clustering of
users of smart phones, but it does not disclose, teach or suggest
determining a total estimated utilization of a resource by the
devices identified as being within a particular range of such
resource.
Appeal Br. 12.
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Regarding dependent claim 4, Appellant argues
[It] includes the additional limitation that allocating each
resource based upon the predicted amount of utilization of such
resource by the second plurality of devices includes repurposing
the second resource to perform a function similar to the first
resource. Wang is silent with respect to this limitation. The
Office Action argues that Wang discloses that the method 200
may derive from any one or more of the models that Smart phone
A uses a greater volume of Internet streaming and smart phone
B uses a greater volume of voice calls. However, the Office
Action fails to explain how this discloses, teaches or suggests
"repurposing a second resource to perform a similar function to
the first resource.
Appeal Br. 12.
And lastly regarding independent claim 8, Appellant argues
Wang merely discloses deploying additional SMS resources
without regard to the specific device types that are driving an
increased demand. Wang does not disclose, teach or suggest
pushing out to servers of the second plurality of resources a
second application that is different than the first application, in
response to identifying the high concentration area of user
devices having the first application installed thereon.
Appeal Br. 13.
Our Review
As set forth in the discussion below, we are not persuaded of error
regarding Appellant’s arguments concerning claims 1, 3, and 14. We do,
however, find error in the Examiner’s finding of anticipation with respect to
dependent claims 4 and 8.
Claim 1 recites the limitation “using the real-time location data to
identify a subset of the plurality of mobile devices that are within range of a
particular server of the second plurality of devices.” Appeal Br. 15 (Claims
Appendix). We are not persuaded by Appellant’s first argument that Wang
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does not disclose this disputed limitation, because Wang discloses detecting
future network traffic patterns based on models created from the network
traffic data. Wang ¶ 50. In particular, Wang’s process includes detecting,
for example, data that shows geographic clustering of users of smart phones
(using real-time location data to identify a subset of mobile devices) near a
base station (within range of a particular server of the second plurality of
devices) at a particular location for more than one hour. Id. We agree with
the Examiner’s finding that this description in Wang discloses “using the
real-time location data to identify a subset of the plurality of mobile devices
that are within range of a particular server of the second plurality of
devices.”
We are also not persuaded by Appellant’s second argument that Wang
does not disclose the disputed limitation “wherein allocating each resource
includes allocating specific resources to the particular server based at least in
part upon the density of the plurality of mobile devices that are within range
of the particular server” because we find Wang’s method of adjusting
network resources in response to the traffic prediction, in which the method
predicts an increased demand for a particular time period, discloses the
disputed limitation. See Wang ¶¶ 50, 52, 55, 57. We, therefore, do not find
Appellant’s arguments persuasive of Examiner error with respect to
independent claims 1 and 14 under 35 U.S.C. § 102. We also sustain the
rejection of claims 2, 4–7, 14–20 as these claims were not separately argued.
As noted above, Appellant argues separately for the patentability of
dependent claim 3, which recites, inter alia, “determining as output from the
predictive model a total estimated utilization of such resource by the devices
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identified as being with the particular range of such resource.” Appeal
Br. 17 (Claims Appendix).
We are not persuaded of error. In the Answer (6–7), the Examiner
further explains the basis for the rejection of claim 3, and finds that Wang’s
description of observing geographic clustering for a particular time period
near a base station and predicting an increased demand at particular base
stations at particular time periods discloses the disputed limitation
“determining a total estimated utilization of a resource by the devices
identified as being within a particular range of such resource.” Ans. 6–7
(additionally cited Wang ¶¶ 50–51). Appellant does not address the
Examiner’s findings and clarifications in the Answer, as no Reply Brief was
filed. Arguments not made are forfeited. See 37 C.F.R. § 41.37(c)(1)(iv).3
Because we do not find Appellant’s Appeal Brief arguments
persuasive of Examiner error, and because Appellant has not addressed the
additional explanation set forth in the Answer (6–7), we sustain the rejection
of the claim 3 under 35 U.S.C. § 102.
We are persuaded by Appellant’s arguments with respect to dependent
claim 4. Appeal Br. 12. Specifically, we agree with Appellant that the

3 See In re Google Technology Holdings LLC, 2020 WL 6685948, slip op. at
* 3 (Fed. Cir. 2020):
It is well established that “[w]aiver is different from forfeiture.”
United States v. Olano, 507 U.S. 725, 733 (1993).[] “Whereas
forfeiture is the failure to make the timely assertion of a right,
waiver is the ‘intentional relinquishment or abandonment of a
known right.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458,
464 (1938)) (additional citations omitted). The two scenarios
can have different consequences for challenges raised on
appeal, id. at 733–34, and for that reason, it is worth attending
to which label is the right one in a particular case.
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Examiner has erred in rejecting claim 4 because the Examiner does not
explain how Wang discloses “repurposing” the second resource to perform a
function similar to the first resource. Appeal Br. 12, Final Act. 11, Ans. 7.
Put simply, we do not find a disclosure of “repurposing” in the cited sections
of Wang. See Wang ¶ 48. Therefore, we do not sustain the Examiner’s
anticipation rejection of dependent claim 4.
Regarding independent claim 8, we are also persuaded by Appellant’s
arguments that Wang does not disclose the last limitation of “in response to
identifying the high concentration area of user devices having the first
application installed thereon, pushing out to servers of the second plurality
of resources a second application that is different than the first application,”
Appeal Br. 13 (citing claim 8), because we do not find a disclosure of such a
pushing out to servers in the sections of the Wang reference cited by the
Examiner. Ans. 8, citing Wang ¶¶ 48, 52, Final Act., citing Wang ¶¶ 55–57.
Therefore, we do not sustain the Examiner’s rejection of independent claim
8. Because we have reversed independent claim 8, for the same reasons, we
reverse the anticipation rejection of claims 10–13 and 21 that depend from
claim 8.
CONCLUSIONS
We reverse the Examiner’s decision to reject claims 4, 8, 10–13, and
21. We affirm the Examiner’s decision to reject claims 1–3, 5–7, and 14–20.

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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–8, 10–21 102(a)(2) Wang 1–3, 5–7,
14–20
4, 8, 10–13,
21

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)(1)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED-IN-PART