Ex Parte Meghani et alDownload PDFPatent Trial and Appeal BoardDec 13, 201713728143 (P.T.A.B. Dec. 13, 2017) 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. 13/728,143 12/27/2012 JAYA MEGHANI 5524-129 4457 96355 7590 12/15/2017 NIXON & VANDERHYE, P.C. / Vonage 901 NORTH GLEBE ROAD, 11TH FLOOR ARLINGTON, VA 22203 EXAMINER PHAM, TITO Q ART UNIT PAPER NUMBER 2466 NOTIFICATION DATE DELIVERY MODE 12/15/2017 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 JAYA MEGHANI, BARUCH STERMAN, and ARTHUR WILTON, Appeal 2017-003932 Application 13/728,1431 Technology Center 2400 Before HUNG H. BUI, NABEEL U. KHAN, and MICHAEL M. BARRY, Administrative Patent Judges. KHAN, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of claims 1—29. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify Vonage American, Inc., as the real party in interest. App. Br. 3. Appeal 2017-003932 Application 13/728,143 STATEMENT OF THE CASE The Invention Appellants’ invention relates to: an IP telephony device or an element of an IP telephony system masking] the data contained in data packets bearing the media of an IP telephony communication to prevent an Internet service provider from identifying the data packets as carrying the media of an IP telephony communication. The systems and methods can also modify the size of data packets and/or modify the data transfer rate of a stream of data packets bearing the media of an IP telephony communication to prevent an Internet service provider from identifying the stream of data packets as bearing the media of an IP telephony communication. Abstract. Exemplary independent claim 1 is reproduced below. 1. A method of modifying data contained in one or more data packets bearing the media of an IP telephony communication, comprising: receiving a data packet bearing the media of an IP telephony communication, the data packet conforming to a standard used for IP telephony communications; and modifying the data packet in such a manner that the modified data packet does not resemble data packets that conform to the standard used for IP telephony communications. App. Br. 33 (Claims App’x). Examiner’s Rejections & References 1. Claims 1, 9, 10, 12, 19, 20, 22, 24, 26, and 28 stand rejected under 35 U.S.C. § 102(e) as anticipated by Detienne (US 2014/0115325 Al; Apr. 24, 2014). Final Act. 2—7. 2 Appeal 2017-003932 Application 13/728,143 2. Claims 2, 3, 11, 13, 14, and 21 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Detienne and Park (US 2010/008506 Al; Jan. 14,2010). Final Act. 8-9. 3. Claims 4 and 15 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Detienne and Bell Jr. (US 2012/0002812 Al; Jan. 5, 2012). Final Act. 9. 4. Claims 5 and 16 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Detienne and Suzuki (US 2008/0235522 Al; Sept. 25, 2008). Final Act. 10. 5. Claim 6 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Detienne and Bukshpun (US 2012/0250863 Al; Oct. 4, 2012). Final Act. 10-11. 6. Claim 7 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Detienne and Sako (US 2004/0028231 Al; Feb. 12, 2004). Final Act. 11. 7. Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Detienne and Alten (US 2009/0060184 Al; Mar. 5, 2009). Final Act. 11—12. 8. Claim 17 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Detienne, Park, and Bukshpun. Final Act. 12—13. 9. Claim 18 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Detienne, Park, and Sako. Final Act. 13. 10 Claims 23, 25, 27, and 29 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Detienne and Jong (US 2010/0182947 Al; July 22, 2010). Final Act. 13—14. 3 Appeal 2017-003932 Application 13/728,143 ANALYSIS Claim 1 Claim 1 recites “modifying the data packet in such a manner that the modified data packet does not resemble data packets that conform to the standard used for IP telephony communications.” The Examiner finds Detienne discloses this disputed limitation by teaching that received VoIP packets are modified by being encrypted and by the addition of certain fields (such as a forwarding label, VPN label, packet IP header etc.) to the original packet. Ans. 18 (citing Detienne Tflf 53, 54, 63—71, Fig. 4). In particular, the Examiner finds that because the VoIP packets have been modified with additional fields, the encrypted packets do not resemble data packets that conform to the standard used for IP telephony communication. Ans. 18. Appellants contend “Detienne does not concern and is not relevant to a problem addressed by applicants: avoidance of detection and throttling of IP telephony communications data packets by an Internet Service Provider (see, e.g., if [0005] et seq of Applicants’ specification).” App. Br. 29. Appellants argue “[t]he subject matter of Applicants’ independent claims, on the other hand, alters the known and expected pattern or composition of the data that makes up the IP telephony communication so that it will not be detected as IP telephony communication as it passes through various network points/systems, etc.” App. Br. 29. Appellants further argue that “[t]he type of encryption in Detienne, and indeed encryption in general, does not disguise the nature of packets (e.g., so that they cannot be recognized as the type of packets that they happen to be, e.g., VoiP packets), but rather 4 Appeal 2017-003932 Application 13/728,143 protects individual content of a packet whose packet type is nevertheless recognizable.” App. Br. 30. We are unpersuaded because Appellants’ arguments are not commensurate with the scope of claim 1. Claim 1 does not explicitly require that the packets be modified so that they “wot be detected as IP telephony communication(App. Br. 29) as argued by Appellants. Appellants do not explain how the Examiner errs in finding Detienne’s modification of the standard IP telephony packets with additional fields causes the packets not to resemble data packets that conform to the standard, as recited. See Ans. 18. Appellants’ argument “that encryption per se, as in Detienne, does not mean that packets are modified so that they do not resemble data packets that conform to the standard” does not address this finding. Reply Br. 1. We agree, therefore, that Detienne discloses modifying VoIP packets so that they do not resemble VoIP packets that have not been modified, as required by claim 1. Accordingly, we sustain the Examiner’s rejection of claim 1 and of claims 9, 10, 12, 19, 20, 22, 24, 26, and 28, which were argued together with claim 1. See App. Br. 29-30. Claim 5 Claim 5 depends from claim 1 and recites “wherein modifying the data packet comprises changing a start position of data in the data packet.” Appellants argue “Suzuki, applied against these claims, does not concern VoIP, but a content playback method that uses content storage media with copyright protection function.” App. Br. 31. According to Appellants “[t]he ‘start key position 303’ of Suzuki |[0040] noted by the office action is not a start position within a data packet, but rather a start position within an entire 5 Appeal 2017-003932 Application 13/728,143 content stream for content encryption processing.” App. Br. 31 (additionally citing Suzuki | 54). We are unpersuaded by Appellants’ arguments. Each reference cited by the Examiner must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). One cannot show nonobviousness by attacking references individually when the rejection is based on a combination of references. In re Keller, 642 F.2d 413, 425 (CCPA 1981). The relevant inquiry is whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of those references. Id. The Examiner finds Detienne teaches or suggests that the “start position of a data in the data packet has changed after encryption” because of the additional header fields added to the modified packet. Ans. 20 (citing Detienne 53 and 54). The Examiner acknowledges that “Detienne does not explicitly state a start position of data” but finds Suzuki discloses encryption of the start position of data. Ans. 20—21 (citing Suzuki 142). Thus, the Examiner finds that the combination of Detienne and Suzuki teaches or suggests “modifying the data packet comprises changing a start position of data in the data packet” as recited in claim 5. Appellants’ argument does not address the Examiner’s reliance on Detienne, not Suzuki alone, as teaching the modification of the start position of data in a data packet. To the extent Appellants contend Suzuki cannot be properly combined with Detienne, Appellants have not provided sufficiently persuasive evidence or reasoning supporting such an argument. 6 Appeal 2017-003932 Application 13/728,143 Accordingly, we sustain the Examiner’s rejection of claim 5 and of claim 16 which was argued together with claim 5. See App. Br. 31. Claims 2-4, 6-8, 11, 13-15, 17, 18, 21, 23, 25, 27, and 29 Appellants do not present arguments for the separate patentability of claims 2-4, 6—8, 11, 13—15, 17, 18, 21, 23, 25, 27, and 29. We, therefore, affirm the Examiner’s rejection of these claims. DECISION The Examiner’s rejection of claims 1—29 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). See 37 C.F.R. § 41.50(f). AFFIRMED 7 Copy with citationCopy as parenthetical citation