NOKIA SOLUTIONS AND NETWORKS MANAGEMENT INTERNATIONAL GMBH

Patent Trials and Appeals Board

Aug 26, 2021

2020003094 (P.T.A.B. Aug. 26, 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.
15/533,081 06/05/2017 Hans-Jochen MORPER 089229.01389 6650
11051 7590 08/26/2021
SQUIRE PB (Nokia)
Nokia Technologies Oy
ATTN: IP Department
2550 M Street, NW
Washington, DC 20037
EXAMINER
ROY, SANJOY K
ART UNIT PAPER NUMBER
2457
NOTIFICATION DATE DELIVERY MODE
08/26/2021 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):
IP-Squire@SquirePB.com
sonia.whitney@squirepb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HANS-JOCHEN MORPER and MICHAEL JARSCHEL
____________

Appeal 2020-003094
Application 15/533,081
Technology Center 2400
____________

Before JAMES B. ARPIN, HUNG H. BUI, and MICHAEL J. ENGLE,
Administrative Patent Judges.

ARPIN, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) the Examiner’s final
rejection of claims 21–35, all of the pending claims. Final Act. 2.2
Claims 1–20 are canceled. Appeal Br. 20 (Claims App.). We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 Appellant refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party-in-interest as Nokia Solutions and Networks GMBH
& Co. KG. Appeal Br. 1–2.
2 In this Decision, we refer to Appellant’s Appeal Brief (“Appeal Br.,” filed
September 23, 2019) and Reply Brief (“Reply Br.,” filed March 19 2020);
the Final Office Action (“Final Act.,” mailed March 8, 2019) and the
Examiner’s Second Answer (“2nd Ans.,” mailed January 24, 2020); and the
Specification (“Spec.,” filed June 5, 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
Appellant’s claimed methods and apparatus
generally relate[] to steering of virtualized resources which are
applicable e.g. in wired and wireless communication networks,
and more specifically relates to a method, apparatus, system and
computer program product for providing an improved
management solution for the configuration of virtual software
defined networking-enabled transport network elements and the
assignment of software defined networking controllers to them
for the purpose of interconnecting cloud applications and
providing network functions in conjunction with a cloud
management system.
Spec., 1:11–17.
As noted above, claims 21–35 are pending. Claims 21 and 28 are
independent. Appeal Br. 20 (claim 21), 22 (claim 28) (Claims App.).
Claims 22–27 and 35 depend directly or indirectly from claim 21, and
claims 29–34 depend directly or indirectly from claim 28. Id. at 21, 23–24.
Claim 21, reproduced below with a disputed element emphasized, is
representative.
21. A processor implemented method for controlling
virtualized resources, comprising:
receiving a request to implement a network service at a
network element;
looking up key parameters of the network service;
selecting at least one compute resource according to the
network service;
deploying at least one application as required to fulfill the
network service;
selecting at least one transport resource to interconnect the
network element with the at least one application;
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instructing an access control conductor that a transport
access manager has exclusive access to at least part of the
network element’s resources; and
instructing the transport access manager to establish a
transport path at the network element.
Id. at 20 (emphasis added). Claim 28 recites an element corresponding to
the disputed element of claim 21. Id. at 22; see Final Act. 5.
REFERENCE AND REJECTION
The Examiner relies upon the following reference:
Name3 Reference Published Filed
Chastain US 2016/0085576 A1 Mar. 24, 2016 Sept. 23, 2014
The Examiner rejects claims 21–35 as anticipated under 35 U.S.C.
§ 102(a)(2) by Chastain. Final Act. 5–10.
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). Appellant and the Examiner focus their contentions and
findings, respectively, on claim 21, so we do as well. See Appeal Br. 15;
2nd Ans. 12–13. Because we determine that reversal of the rejection of
independent claim 21, as well as of independent claim 28, is dispositive,
except for our ultimate decision, we do not discuss the merits of the rejection
of claims 22–27 and 29–35 further herein. We address the rejection below.

3 The reference citation is to the first named inventor only.
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ANALYSIS
1. Anticipation of Claim 21 by Chastain
As noted above, the Examiner rejects independent claim 21 as
anticipated by Chastain. Final Act. 5–8. “A claim is anticipated only if each
and every element as set forth in the claim is found, either expressly or
inherently described, in a single prior art reference.” Verdegaal Bros., Inc.
v. Union Oil Co., 814 F.2d 628, 631 (Fed. Cir. 1987). The elements must be
arranged as required by the claim, but this is not an ipsissimis verbis test.
See In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990).
Nevertheless,
unless a reference discloses within the four corners of the
document not only all of the limitations claimed but also all of
the limitations arranged or combined in the same way as recited
in the claim, it cannot be said to prove prior invention of the thing
claimed and, thus, cannot anticipate under 35 U.S.C. § 102.
Net MoneyIN, Inc. v. VeriSign, Inc., 1371 (Fed. Cir. 2008); accord In re
Arkley, 455 F.2d 586 (CCPA 1972). For the reasons given below, we do not
sustain the Examiner’s anticipation rejection of claim 21.
The Examiner finds that Chastain discloses each and every element of
claim 21. Final Act. 5–8. In particular, the Examiner finds Chastain
discloses the step of “instructing an access control conductor that a transport
access manager has exclusive access to at least part of the network element’s
resources.” Id. at 4 (citing Chastain ¶¶ 40–45, 83–85); Appeal Br. 20
(Claims App.) (emphases added); see 2nd Ans. 7 (citing Chastain ¶¶ 97–98).
Specifically, the Examiner finds,
the network control 118 can request the infrastructure
control 112 to allocate one or more virtual machines (“VMs”)
and load an image with an embedded [virtual networking
function (VNF)] 120 to the VM. The network control 118 also
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can receive requests via [a software defined network (SDN)]
[application programming interface (API)] 116 from
infrastructure control 112 to create, modify, and/or terminate
transport; as shown in fig. [2] operation 228 at operation 222, the
network control 118 can update the network level inventory and
the inventory 110, operations 220-222 can include the network
control 118 updating the inventory 110 as instructing the other
access controller 106, 112 and 122 that instantiated VNFs has
exclusive access to the resources used by the VNFs in the [SDN]
(Chastain see paragraphs 0040-0045 and 0083-0085).
Final Act. 4 (emphases added).
Moreover, the Examiner finds:
In the specification of the application (para 0080) the Transport
[SDN] controller is given exclusive access to the [network
element (NE)] (para 0102) to establish appropriate transport path
by modifying the flow tables of the affected NE, where the NE.
Chastain teaches the access control conductor as the
infrastructure control 112 [to] send instructions to the network
control 118 (in step 318) to establish transport between the VMs
and/or [virtual service functions (VSFs)] 124 created in
operation 316, as well as transport between the VMs and VSFs
and the service control 122 created in operation 308. By creating
the VNFs the network control 118 as the transport access
manager is provided exclusive access to the VNF resources use
to establish [communication] for the [VSFs] (Chastain see para
0097-0098).
2nd Ans. 7 (emphases added). Thus, the Examiner finds that Chastain’s
infrastructure control 112 discloses the recited “access control conductor,”
and Chastain’s network control 118 discloses the recited “transport access
manager” (id.), and that “the network control 118 can request the
infrastructure control 112 to allocate one or more virtual machines (‘VMs’)
and load an image with an embedded VNF 120 to the VM” (Final Act. 4
(emphases added)).
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Appellant contends the Examiner errs in finding Chastain teaches the
disputed element. Appeal Br. 9–10; Reply Br. 7. For the reasons given
below, we agree with Appellant.
First, Appellant contends,
claim 21 recites that instruction is given to an access control
conductor that a transport access manager has exclusive access
to at least part of the network element’s resources. Chastain,
however, merely describes updating network level inventory, but
is silent as to providing any type of instruction to an access
control conductor that a transport access manager has exclusive
access to a network element’s resources.
Appeal Br. 9–10 (emphases added).
The Examiner responds that Appellant fails to explain “what the claim
term ‘exclusive access’ means and how it differ[s] from the teaching of
Chastain.” 2nd Ans. 7. However, here, the term “exclusive access” requires
no special construction. The term’s plain and ordinary meaning read in the
context of the claim as a whole provides its meaning, namely, that only the
transport access manager has the ability or right to use “at least part of the
network element’s resources.”
Second, Appellant contends:
Additionally, it is respectfully submitted that paragraph
[0097] of Chastain describes that transport is established
between the VMs and/or VSFs, as well as between the VMs and
VSFs and the service control 122. Chastain fails to disclose or
suggest that the network control 118 has exclusive access to
resources of any of the VMs and/or VSFs.
Reply Br. 6 (emphasis added).
The Examiner finds that network control 118 creates the VNFs and,
thus, has “exclusive access” to them. 2nd Ans. 7 (“By creating the VNFs the
network control 118 as the transport access manager is provided exclusive
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access to the VNF resources use to establish [communication] for the
VSF[s].” (emphasis added); citing Chastain ¶¶ 97–98). Nevertheless, the
cited Chastain paragraphs do not disclose that network control 118 creates
the VNFs, much less the VMs of VSFs; and the Examiner relies on no other
portion of Chastain to disclose that only network control 118 has the right or
ability to use the VNFs. See Chastain ¶ 40 (“As will be explained in more
detail below, the network control 118 can be configured to create and
manage virtual networking functions (‘VNFs’) 120 within the infrastructure
114.” (emphasis added)); but see id. ¶ 54 (“By creating, allocating, and/or
instantiating the VNFs 120, the PNFs 126, the VSFs 124 and/or the [non-
virtualized service functions (NVSFs)] 128, the control system 102 can
create a service 130.” (emphases added)).
Third, as noted above, the Examiner finds that the Specification
describes the Transport SDN controller is given exclusive access to the NE
and that Chastain discloses infrastructure control 112, corresponding to the
recited “access control conductor,” sends instructions to network
control 118, corresponding to the recited “transport access manager.” 2nd
Ans. 7. Nevertheless, “[s]ending instructions is not the same as receiving
instructions,” as Appellant correctly explains. Reply Br. 5.
As Appellant further contends,
In this regard, the Examiner’s Answer took the position that the
infrastructure control 112 of Chastain corresponds to the claimed
access control conductor, and that the network control 118
corresponds to the claimed transport access manager. However,
Chastain does not disclose or suggest that the infrastructure
control 112 is instructed that the network control 118 has
exclusive access to the VNF resources. Rather, Chastain
describes that at step 318, the infrastructure control 112 sends
instructions to the network control 118 (see Chastain, paragraph
[0097]).
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Id. at 6 (emphasis added).
Specifically, Chastain discloses:
At operation 318, the infrastructure control 112 can send
instructions to the network control 118, and the network control
118 can receive the instructions from the infrastructure control
112. The instructions received and sent in operation 318 can
correspond to instructions to establish transport between the
VMs and/or VSFs 124 created in operation 316, as well as
transport between the VMs and VSFs and the service control 122
created in operation 308.
Chastain ¶ 97 (emphases added).
We are persuaded that the Examiner has not shown how Chastain’s
disclosure of infrastructure control 112 instructing network control 118
discloses the recited instructing an access control conductor, allegedly
corresponding to infrastructure control 112, that a transport access manager,
allegedly corresponding to network control 118, has “exclusive access to at
least part of the network element’s resources.” See Appeal Br. 9–10; Reply
Br. 5–6.
For the reasons given above, we agree with Appellant that the
Examiner errs in finding Chastain discloses the disputed element of
claim 21. Because these deficiencies in the Examiner’s rejection of claim 21
are dispositive, we need not reach Appellant’s other challenges to the
rejection of claim 21. Consequently, we are persuaded that the Examiner
errs in rejecting claim 21, and we do not sustain the anticipation rejection of
claim 21.
2. The Remaining Claims
As noted above, Appellant challenges the rejection of independent
claim 28 for substantially the same reasons as claim 21. Appeal Br. 11–18;
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see Final Act. 5. Thus, we also are persuaded that the Examiner errs in
rejecting claim 28 for substantially the same reasons set forth above with
respect to claim 21. Therefore, we do not sustain the anticipation rejection
of claim 28.
Each of claims 22–27 and 29–35 depends directly or indirectly from
independent claim 21 or independent claim 28. Appeal Br. 22, 23–24
(Claims App.). Because we are persuaded the Examiner errs with respect to
the anticipation rejection of claim 21, as well as of claim 28, we also do not
sustain the anticipation rejection of claims 22–27 and 29–35.
DECISION
1. The Examiner errs in rejecting claims 21–35 under 35 U.S.C.
§ 102(a)(2) as anticipated by Chastain.
2. Thus, on this record, claims 21–35 are not unpatentable.
CONCLUSION
For the above reasons, we reverse the Examiner’s decision rejecting
claims 21–35.
In summary:
Claims
Rejected
35 U.S.C.
§
References/Basis Affirmed Reversed
21–35 102(a)(2) Chastain

21–35

REVERSED