Ex Parte Cuervo et al

Patent Trial and Appeal Board

Mar 18, 2013

10639677 (P.T.A.B. Mar. 18, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte FERNANDO CUERVO and MICHEL SIM ____________ Appeal 2010-011494 Application 10/639,677 Technology Center 2400 ____________ Before ALLEN R. MacDONALD, DEBRA K. STEPHENS, and PATRICK M. BOUCHER, Administrative Patent Judges. BOUCHER, Administrative Patent Judge DECISION ON APPEAL Appeal 2010-011494 Application 10/639,677 2 STATEMENT OF THE CASE Introduction Appellants appeal under 35 U.S.C. §134(a) from a final rejection of claims 1, 2, 6, 8, 9, 11-13, and 17-20. We have jurisdiction under 35 U.S.C. §6(b). Illustrative Claim Appellants’ disclosure relates to communications networks having multiple domains, particularly for effecting policies on policy-enabled resources in such networks (see Spec. ¶1). Independent claim 1 is illustrative and is reproduced below: 1. An apparatus that establishes services that utilize policy-enabled resources in a communications network, comprising: a first policy enforcement point (PEP) residing on a network element of the communications network that performs identification of policy-enabled resources that are available and allocates requested policy-enabled resources to services; a first network resource controller (NRC) within a domain on the communications network that makes requests, from available policy-enabled resources, of any policy-enabled resources within a first domain required to establish a particular service, the requests from the available policy-enabled resources being separate from the identification of the policy-enabled resources; and a first resource policy layer (RPL) that establishes the particular service and provisions the policy-enabled resources allocated to the particular service, said first resource policy layer including a first policy decision point (PDP), wherein: said first NRC acts as a trusted entity that initiates a dynamic, trusted, policy association between said first PEP and said first PDP, Appeal 2010-011494 Application 10/639,677 3 said first PDP provides said first PEP with policies upon establishment of said dynamic, trusted, policy association between said first PEP and first PDP, and when said first NRC requires resources from a second domain outside the first domain, said first NRC signals a request to a second NRC in said second domain, which acts as the trusted entity that initiates a dynamic, trusted, policy association between a second PEP in said second domain and said first PDP, said first PDP providing said second PEP with the policies upon establishment of said dynamic, trusted, policy association between said second PEP and said first PDP. Rejections The Examiner rejected claims 1, 6, and 9 under 35 U.S.C. §102(e) as anticipated by Marchand (U.S. Pat. No. 6,714,515); rejected claims 2, 11- 13, and 17-20 under 35 U.S.C. §103(a) as unpatentable over Marchand in view of Williams (U.S. Pat. No. 7,246,165); and rejected claim 8 under 35 U.S.C. §103(a) as unpatentable over Marchand in view of Chan (RFC 3084 COPS Usage for Policy Provisioning (COPS-PR) by Network Working Group).1 1 Separate patentability is not argued for dependent claims 2, 6, 8, 11-13, 17, and 18. Although each of these claims is presented under a separate heading, Appellants merely reference the arguments presented for one of independent claims 1, 9, 19, or 20 without presenting any additional arguments to establish separate patentability. We accordingly treat independent claim 1 as representative for dependent claims 2, 6, and 8, and we treat independent claim 9 as representative for dependent claims 11-13, 17, and 18. Except for our ultimate decision, those dependent claims are not discussed further herein. Appeal 2010-011494 Application 10/639,677 4 Appellants’ Contentions 1. Appellants contend that the Examiner erred in rejecting claims 1 and 9 under 35 U.S.C. §102(e) because the references of record do not disclose a “dynamic, trusted, policy association,” asserting that “the specification defines these terms … as involving separation of the management of policies from the management of policy enabled resources” (App. Br. 11). 2. Appellants contend that the Examiner erred in rejecting claims 1 and 9 under 35 U.S.C. §102(e) because the rejection “does not show the recited association between the recited first PEP and first PDP in Marchand” (App. Br. 11-12). 3. Appellants contend that the Examiner erred in rejecting claims 1 and 9 under 35 U.S.C. §102(e) because “Marchand clearly lacks a [first] NRC” (App. Br. 12). 4. Appellants contend that the Examiner erred in rejecting claims 1 and 9 under 35 U.S.C. §102(e) because the references of record do not disclose a “second domain” and a “second NRC in said second domain” (App. Br. 12). 5. Appellants contend that the Examiner erred in rejecting claims 1 and 9 under 35 U.S.C. §102(e) because “Marchand lacks … first [and second] NRC[s] because Marchand’s BB functions as a PDP, instead of as an NRC” (App. Br. 12). Appeal 2010-011494 Application 10/639,677 5 6. Appellants contend that the Examiner erred in rejecting claims 1 and 9 under 35 U.S.C. §102(e) because the communication between PDPs resulting from functionality of Marchand’s BB as a PDP would resemble the prior art disclosed in Fig. 1 of the application (App. Br. 12). 7. Appellants contend that the Examiner erred in rejecting claims 1 and 9 under 35 U.S.C. §102(e) because the Examiner “has refused to recognize that the NRC [of Marchand] has any distinction from the PDP” (App. Br. 13), contrary to a demonstration otherwise in the specification (Reply Br. 7). 8. Appellants contend that the Examiner erred in rejecting claims 1 and 9 under 35 U.S.C. §102(e) because the Examiner has ignored subject matter recited in the claims, particularly regarding separate definitions of the PDP, PEP, and NRC elements (App. Br. 13 and Reply Br. 7). 9. Appellants contend that the Examiner erred in rejecting claims 19 and 20 under 35 U.S.C. §103(a) because the virtual GGSN of Williams is not equivalent to the recited PEP (App. Br. 14). 10. Appellants contend that the Examiner erred in rejecting claims 19 and 20 under 35 U.S.C. §103(a) because “Williams does not disclose a virtual PEP that identifies policy-enabled resources and then allocates requested policy enabled resources to a particular service” (App. Br. 15). Appeal 2010-011494 Application 10/639,677 6 ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments (Appeal Brief and Reply Brief) that the Examiner has erred. We disagree with Appellants’ conclusions. Except where we explicitly state differently below, we adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief. We concur with the conclusions reached by the Examiner. As to Appellants’ contention 1, we disagree that the Examiner has erred. Appellants’ argument that the references of record fail to disclose a “dynamic, trusted, policy association” is predicated on their assertion that “the specification defines these terms … as involving separation of the management of policies from the management of policy enabled resources” (App. Br. 11). They support that assertion by citing the following: The mechanism to allow dynamic entrusted policy relation establishment between a policy enforcement point and a policy decision point as well as the hand over of the management of a part of a policy enforcement point using PEP virtualization (i.e., this is, creating a virtual PEP) to a separate PDP is provided by the present invention, a new virtualized PEP is given the information to contact its PDP. This mechanism is based on the separation of the management of policies from the management of policy enabled resources. This is shown more particularly in Figure 2 which introduces new entities, the resource policy layer (RPL) and the network resource controller. The network resource controller is the network resource management entity in charge, within its domain, of Appeal 2010-011494 Application 10/639,677 7 locating the resources needed to implement a network service on behalf of the RPL. For resources outside its domain the NRC signals a request to the NRC in the appropriate adjacent domain. The NRC also acts as the trusted entity that controls the handover of the virtual PEP to a separate PDP. (Spec. ¶17)2 “Although an inventor is indeed free to define the specific terms used to describe his or her invention, this must be done with reasonable clarity, deliberateness, and precision.” In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). We concur with the Examiner that the language cited by Appellants “fails to define the terms ‘dynamic’ and ‘trusted’ or even explain how these terms allegedly involve separation of the management of policies from the management of policy enabled resources” (Ans. 15). While Appellants point to other selected language in their Reply Brief (Reply Br. 4-5), such selections also lack sufficient “clarity, deliberateness, and precision” for us to find that the Examiner erred with respect to this contention. As to Appellants’ contention 2, we disagree that the Examiner has erred. Appellants’ assert that “Fig. 1 [of Marchand] provides for a single edge router PEP rather than a plurality of edge routers” as shown in Fig. 3 of Marchand (Reply Br. 5); but even if that assertion is correct, we discern no convincing basis in Appellants’ argument to conclude that the Examiner 2 Here, Appellants evidently cite the published version of the application, i.e. U.S. Pat. Publ. No. 2005/0038887, whose paragraph numbering differs from the application as filed. Herein, we consistently use citations to the specification as filed. Appeal 2010-011494 Application 10/639,677 8 erred in finding Marchand’s express statement that “each edge router 11 at the boundary of the IP network functions as a PEP” (Marchand, Col. 5, ll. 13-14) applies equally to Fig. 3. As to Appellants’ contentions 3, 4, and 5, we disagree that the Examiner has erred. Appellants fail to set forth sufficient reasoning to support their assertion that the Examiner’s identification of the Bandwidth Broker (BB) taught by Marchand as providing both NRC and PDP functionality embraces a contradiction (App. Br. 12). In addressing contention 5, Appellants object to the Examiner’s determination that “[t]here is no requirement in the claims for the NRC and PDP to be separate physical entities that are not collocated” (Ans. 16). We find Appellants’ reasoning that “merger of the PDP and NRC into the same unit would eliminate the separate policy provisioning (PDP<-->PEP) and resource discovery lines (NRC<-->PEP)” (Reply Br. 6) unpersuasive. We discern no language in claim 1 or claim 9 that precludes the Examiner’s construction that “a PDP is … a logical entity” (Ans. 16; see also Marchand, Col. 5, l. 31). Appellants’ arguments with respect to contentions 6, 7, and 8 are similarly predicated, with Appellants asserting that “the claims require actual separation of the RPL/PDP and the NRC [and that t]he PDP is not merely a logical entity” (Reply Br. 6). Again, we find such an assertion unpersuasive because we discern no adequate identification by Appellants of specific language in the claims that demands such physical-instead of logical-separation. Appellants supplement this argument in connection Appeal 2010-011494 Application 10/639,677 9 with contentions 7 and 8 by pointing to the following disclosure in their specification (Reply Br. 7): The virtualization of the PEPs to allow a multi PDP management paradigm is illustrated generally in Figure 3. A virtual PEP is created dynamically when the NRC requests resources for a new service instance. This virtual PEP then initiates the policy association with the PDP in charge of implementing the network Service and only presents to the PDP resources needed for the service instance. Available resources are managed by the main PDP. Through the present invention there is a separation of the interfaces on the PEP. The separations include the main PEP to the NRC. The main PEP advertises resource pools to the NRC i.e. a course grain view of resources, with resource capabilities. The NRC request that some resources within these pools take on a role that will implement part of the service. This creates or triggers the creation of the virtual PEP. The second interface is the virtual PEP to the PDP. The virtual PEP only advertises resources based on their role within the service instance i.e. a fine grain view of resources. The PDP provides the policy decisions to be implemented on these resources. Finally, a resource capability information descriptor (RCI) is used between PEP to NRC, PDP to NRC and PEP to PDP to establish resource or resource pool capabilities, request resources or allocate resources. (Spec. ¶21)3 While Appellants assert that this discussion of a “separation of the interfaces” demonstrates that the PDP and NRC cannot be regarded as a single unit (Reply Br. 7), they provide no compelling reason that demands importing a requirement for physical separation of the PDP and NRC into 3 In this instance, Appellants cite directly to the Specification and not to the published application. Appeal 2010-011494 Application 10/639,677 10 the claims. “A particular embodiment appearing in the written description may not be read into a claim when the claim language is broader than the embodiment.” SuperGuide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). We are accordingly not persuaded that the Examiner erred with respect to Appellants’ contentions 6, 7, and 8. As to Appellants’ contentions 9 and 10, we disagree that the Examiner has erred. Appellants attack Williams individually when the Examiner has, in fact, relied on the combination of Marchand and Williams to support the rejection under 35 U.S.C. §103(a). The proper test for obviousness is what the combined teachings of the prior art would have suggested to the hypothetical person of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). CONCLUSIONS On the record before us, we conclude the following: (1) The Examiner has not erred in rejecting claims 1, 6, and 9 under 35 U.S.C. §102(e) as anticipated by Marchand. (2) The Examiner has not erred in rejecting claims 2, 11-13, and 17-20 under 35 U.S.C. §103(a) as unpatentable over Marchand in view of Williams. (3) The Examiner has not erred in rejecting claim 8 under 35 U.S.C. §103(a) as unpatentable over Marchand in view of Chan. Appeal 2010-011494 Application 10/639,677 11 DECISION The Examiner’s rejection of claims 1, 2, 6, 8, 9, 11-13, and 17- 20 is affirmed. 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). AFFIRMED tj