Ex Parte Meghani et al

Patent Trial and Appeal Board

Dec 13, 2017

13728143 (P.T.A.B. Dec. 13, 2017)

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.
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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.
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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
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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
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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.
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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
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