Ex Parte Karthikeyan et al

Patent Trial and Appeal Board

Jul 27, 2018

14389554 (P.T.A.B. Jul. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/389,554 09/30/2014
23117 7590 07/31/2018
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Vidhyalakshmi Karthikeyan
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
RYM-36-2511 7148
EXAMINER
KHAN, HASSAN ABDUR-RAHMAN
ART UNIT PAPER NUMBER
2456
NOTIFICATION DATE DELIVERY MODE
07/31/2018 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VIDHYALAKSHMI KARTHIKEYAN and DETLEF DANIEL
NAUCK
Appeal2018-005064
Application 14/389,554
Technology Center 2400
Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and
JOHN P. PINKERTON, Administrative Patent Judges.
SAADAT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-11. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is British
Telecommunications. App. Br. 3.
Appeal2018-005064
Application 14/389,554
STATEMENT OF THE CASE
Appellants' invention relates to a method of controlling an admission
of sessions into, and across, a communications network. Spec. 1 :4--5.
Exemplary claim 1 under appeal reads as follows:
1. A method of operating a communications network, the
method comprising the steps of:
receiving a request to admit a session to the network, the
session being routed between a first network node and a second
network node;
selecting a route through the network from the first
network node to the second network node, the route comprising
a plurality of communications links;
selecting a communication link which is most likely to
fail;
for that selected communications link:
a) determining the expected performance of that link for
the duration of the requested session;
b) determining the impact of admitting the requested
session to the sessions already supported by the selected
communications link; and
c) evaluating the historical performance of the selected
communications link; and
accepting the request to admit a session to the network if
the admitted session can be supported throughout the duration of
the session without impacting presently supported sessions.
REFERENCES and REJECTION
Claims 1-11 stand rejected under 35 U.S.C. § I03(a) as unpatentable
over Bolt et al. (US 2009/0285093 Al; published Nov. 19, 2009) ("Bolt"),
Morrill et al. (US 2012/0321052 Al; published Dec. 20, 2012 ("Morrill"),
2
Appeal2018-005064
Application 14/389,554
and Khanka et al. (US 8,223,711 Bl; issued July 17, 2012) ("Khanka"). See
Final Act. 3-12.
PRINCIPLES OF LAW
"The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference; nor is it that the claimed invention must be expressly suggested in
any one or all of the references. Rather, the test is what the combined
teachings of those references would have suggested to those of ordinary skill
in the art." In re Keller, 642 F.2d 413,425 (CCPA 1981) (citations
omitted). Indeed, the Supreme Court made clear that when considering
obviousness, "the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007).
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments in Appellants' Appeal Brief and Reply Brief that the Examiner
has erred. We are unpersuaded by Appellants' contentions and concur with
the findings and conclusions reached by the Examiner as explained below.
Independent Claims 1 and 6
Appellants contend the combination of cited references fails to teach
or suggest, "for [a] selected communications link [ which is most likely to
fail]: a) determining the expected performance of that link for the duration of
3
Appeal2018-005064
Application 14/389,554
[a] requested session; b) determining the impact of admitting the requested
session to [sessions] already supported by the selected communications link;
and c) evaluating the historical performance of the selected communications
link," as recited in independent claim 1, and similarly recited in independent
claim 6. See App. Br. 8. More specifically, Appellants contend Khanka
merely discloses "'determining a weakest of the plurality of the forward
links"' but fails to teach or suggest "performing claimed steps a }-c) for that
determined weakest forward link." App. Br. 9; see also Reply Br. 4--5.
Appellants further argue the combination of Bolt and Morrill also fails to
teach or suggest performing claimed steps a }-c) for communication link
selected as most likely to fail because neither Bolt nor Morrill disclose
selecting a communication link which is more likely to fail, as admitted in
the Final Office Action. See App. Br. 8-9. Thus, according to Appellants,
the combination of Bolt, Morrill, and Khanka fails to teach or suggest
performing claimed steps a}-c) for a selected communication link. See App.
Br. 8.
Appellants' contentions are not persuasive. Consistent with the
Examiner's findings: Bolt teaches displaying expected performance
parameters for a selected path/route, where the performance parameters
includes information on network performance that is expected to change in
response to a routing change involving the selected path/route; Morrill
teaches collecting historical network performance information regarding
performance of communication paths (i.e., node segments) and utilizing the
collected information to alter operation of a network; and Khanka teaches
determining a weakest of a set of communication links. See Final Act. 3--4,
6 (citing Bolt ,r,r 24, 33-34; Morrill ,r,r 117, 120, 123; Khanka at Fig. 2); see
4
Appeal2018-005064
Application 14/389,554
also Ans. 4--5 (citing Khanka 3:1-2). Further, Khanka also teaches that a
weakest communication link is selected so that user content can be added to
the weakest link and so that the quality of an existing communication
session is not affected. See Ans. 4; see also Khanka 5:35-52. In light of
these teachings, we agree with the Examiner that it would have been obvious
to a person of ordinary skill in the art, at the time the claimed invention was
made, to combine the teachings of Bolt, Morrill, and Khanka. The proposed
combination would have applied Bolt's determination of the expected
performance parameters, including expected network performance
modifications, and Morrill' s evaluation of historical network performance
information to Khanka's selection of a communication link as the weakest
link. See Final Act. 5-6. Such a combination is merely a combination of
familiar elements according to known methods yielding no more than
predictable results. See KSR, 550 U.S. at 416.
Appellants also contend Bolt fails to teach or suggest, "a) determining
the expected performance of [a] link for the duration of [a] requested
session," as recited in claim 1, and similarly recited in claim 6, because Bolt
teaches determining performance parameters of an end-to-end path, not the
individual links which would comprise the path or route. See App. Br. 12.
This contention is not persuasive either. Consistent with the Examiner's
findings, Bolt teaches that an end-to-end path is comprised of network links
or route segments, and thus, determining performance parameters of an end-
to-end path also includes determining performance parameters for each
network link that makes up the end-to-end path. See Ans. 7 ( citing Bolt at
Fig. IA).
5
Appeal2018-005064
Application 14/389,554
Appellants additionally contend Bolt fails to teach or suggest, "b)
determining the impact of admitting the requested session to [sessions]
already supported by [a] selected communications link," as recited in claim
1, and similarly recited in claim 6. Appellants argue Bolt merely discloses
determining a change in network performance which is not the same as
determining an impact to sessions already supported by the selected
communication link. See App. Br. 13. We are not persuaded by this
contention either. A change in network performance also impacts sessions
supported by a link of the network. Thus, Bolt's determined change in
network performance also teaches or suggests a determined "impact of
admitting [a] requested session to [ a session] already supported by [a]
selected communication link," as recited in claim 1, and similarly recited in
claim 6. See Ans. 7-8. Appellants' argument does not persuasively
distinguish Bolt's determined change in network performance from the
claimed determined impact to a session. Additionally, the Examiner further
found Khanka teaches selecting a weakest link so that a concurrent
transmission of user content on the weakest link does not impact the quality
of a time-dependent voice call session. See Ans. 8; see also Khanka 5:35-
52. Appellants' argument does not address this finding, and thus, is not
persuasive.
In the Reply Brief, Appellants argue, for the first time, that a person of
ordinary skill in the art would not have been motivated to combine the
teachings of Khanka with the combined teachings of Morrill and Bolt
because both Morrill and Bolt disclose a route comprising a number of link
arranged in a series, whereas Khanka discloses two nodes connected via
parallel links. See Reply Br. 3--4. This argument is entitled to no
6
Appeal2018-005064
Application 14/389,554
consideration because it was not presented for the first time in the opening
brief, and Appellants have not shown good cause why it should be
considered, as required by our procedural rule. See 37 C.F.R. § 4I.41(b)(2)
(2012); Optivus Technology, Inc. v. Ion Beam Applications S.A., 469 F.3d
978, 989 (Fed. Cir. 2006) (argument raised for the first time in the reply
brief that could have been raised in the opening brief is waived); accord Ex
parte Borden, 93 USPQ2d 1473, 1473-74 (BPAI 2010) (informative
opinion) (absent a showing of good cause, the Board is not required to
address an argument newly presented in the reply brief that could have been
presented in the principal brief on appeal).
Nonetheless, the argument is not persuasive because the test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference; rather, the
test is what the combined teachings of those references would have
suggested to those of ordinary skill in the art. See Keller, 642 F.2d at 425.
As claims 1 and 6 do not recite, or otherwise require, a specific
configuration of communication links, Appellants' argument does not
persuasively establish that one of ordinary skill in the art would not have
been motivated to combine Khanka with Bolt and Morrill to arrive at the
claimed invention.
Thus, we agree with the Examiner that the combination of the cited
references teaches or suggests all the elements of claims 1 and 6.
Accordingly, we sustain the rejection of claims 1 and 6 under
35 U.S.C. § 103(a).
7
Appeal2018-005064
Application 14/389,554
Claims 9 and 11
Appellants further contend the combination of the cited references
fails to teach or suggest "the evaluation of the historical performance of the
selected communications link including a check if the selected
communications link has previously supported services successfully," as
recited in claim 9, and similarly recited in claim 11. See App. Br. 13-14.
More specifically, Appellants contend Morrill merely discloses collecting
historic performance information and using the collected performance
information to detect threshold closings, but fails to teach or suggest a check
if [a] selected communications link has previously supported services
successfully. See App. Br. 14; see also Reply Br. 6.
We are not persuaded by this contention either. As the Examiner
found, Morrill discloses examining collected network performance
information and whether any network performance information parameters
cross a threshold value. See Ans. 8-9 (citing Morrill ,r 146). For example,
as disclosed in Morrill, the threshold value can be a "watermark" to indicate
a condition that warrants action (such as re-routing current and/or future
calls from a node segment). See Morrill ,r 146. Such a watermark can be
considered a check that a node segment (i.e., communication link) has
previously supported services successfully, because Morrill interprets the
watermark as an indication that a corresponding node segment has failed to
perform successfully, and thus, requiring replacement of the node segment
or re-routing of current or future network traffic. See id. As such,
Appellants' argument fails to persuasively distinguish Morrill's watermark
from the claimed check that a selected communications link has previously
supported services successfully.
8
Appeal2018-005064
Application 14/389,554
Based on our analysis above, we agree with the Examiner that the
combination of cited references teaches or suggests all the elements of
claims 9 and 11. Accordingly, we also sustain the rejection of claims 9 and
11 under 35 U.S.C. § 103(a).
Remaining Claims
No separate arguments are presented for the remaining dependent
claims. See App. Br. 8-14. We therefore sustain their rejections for the
reasons stated with respect to independent claims 1 and 6.
DECISION
We affirm the Examiner's rejection of claims 1-11 under
35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
9