Ex Parte Synnestvedt et al

Board of Patent Appeals and Interferences

Feb 18, 2009

10263300 (B.P.A.I. Feb. 18, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROBERT GLENN SYNNESTVEDT
and TSU-PHONG WU
____________

Appeal 2008-2740
Application 10/263,300
Technology Center 2400
____________

Decided:1 February 18, 2009
____________
Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and
STEPHEN C. SIU, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Data (electronic delivery).

Appeal 2008-2740
Application 10/263,300

This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s rejection of claims 1, 4-8, 11-14, 17 and 20. Claims 2, 3, 9, 10,
15, 16, 18, and 19 are cancelled. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
THE INVENTION
The disclosed invention relates generally to policy systems. More
particularly, the present invention relates to interactions between policy
systems and call admission control systems. (Spec., ll. 5-6).
Independent claim 1 is illustrative:
1. A network device, comprising:

a port to receive a pre-authentication request associated
with a call,

a status memory to store system status information,
wherein the system status information includes a number of
active ports allowed, a number of users allowed for a customer,
and a service level for a predetermined number of users
associated with the customer;

and

a processor to:

determine if the pre-authentication request can be
granted based upon the system status information;

identify an optimal receiving circuit for the call
based upon the system status information; and

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throttle call traffic associated with the call based
upon the system status information.

THE REFERENCES
The Examiner relies upon the following references as evidence in
support of the obviousness rejection:
Anderson US 6,522,629 B1 Feb. 18, 2003
(filed Oct. 10, 2000)
Pirot US 6,856,676 B1 Feb. 15, 2005
(filed Oct. 14, 1999)

THE REJECTIONS
1. The Examiner rejected claims 17 and 20 under 35 U.S.C.
§ 101.
2. The Examiner rejected claims 1, 4-8, 11-14, 17 and 20 under
35 U.S.C. § 103(a), as being unpatentable over Anderson in
view of Pirot.
“[T]he examiner bears the initial burden on review of the prior art or
on any other ground, of presenting a prima facie case of unpatentability. If
that burden is met, the burden of coming forward with evidence or argument
shifts to the applicant.” In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
Therefore, we look to Appellants’ Briefs to show error in the
proffered prima facie case.

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Only those arguments actually made by Appellants have been
considered in this decision. Arguments which Appellants could have made
but chose not to make in the Briefs have not been considered and are
deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).

35 U.S.C. § 101
We consider the Examiner’s rejection of claims 17 and 20 under
35 U.S.C. § 101 as being directed to non-statutory subject matter.
Appellants have not presented any arguments in rebuttal of the Examiner’s
rejection. "Silence implies assent." Harper & Row Publishers, Inc. v.
Nation Enters., 471 U.S. 539, 572 (1985)). Therefore, we summarily affirm
the Examiner’s rejection of claims 17 and 20 under 35 U.S.C. § 101.

Obviousness under 35 U.S.C. § 103
PRINCIPLES OF LAW
In rejecting claims under 35 U.S.C. § 103, “[w]hat matters is the
objective reach of the claim. If the claim extends to what is obvious, it is
invalid under § 103.” KSR Int’l Co. v. Teleflex, Inc., 127 S. Ct. 1727, 1742
(2007). To be nonobvious, an improvement must be “more than the
predictable use of prior art elements according to their established
functions.” Id. at 1740.

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Claims 1, 5, 6, 8, 12-14, 17 and 202
We next consider the Examiner’s rejection of claims 1, 5, 6, 8, 12-14,
17 and 20 under 35 U.S.C. § 103(a) as being unpatentable over Anderson in
view of Pirot. Since Appellants’ arguments have treated these claims as a
single group which stand or fall together, we select claim 1 as the
representative claim for this group. See 37 C.F.R. § 41.37(c)(1)(vii).

Appellants’ Contentions
1. Appellants contend that the cited references do not teach a
system status memory. (App. Br. 7).
2. Appellants contend that the cited references do not teach system
information including a number of users allowed for a
customer. (App. Br. 8).
3. Appellants contend that the cited references do not teach
throttling call traffic associated with a call. (App. Br. 9).

ISSUES
Have Appellants shown the Examiner erred in determining that the
cited references teach the limitation of a system status memory?
Have Appellants shown the Examiner erred in determining that the
cited references teach that the system information includes a number of users
allowed for a customer?

2 We note that claim 13 depends from cancelled claim 9. Thus, claim 13
will rise or fall with claim 1.
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Have Appellants shown the Examiner erred in determining that the
cited references teach throttling call traffic associated with a call?

FINDINGS OF FACTS
The following findings of facts (FF) are supported by a preponderance
of the evidence.

Anderson
1. Anderson teaches Erlang and Poisson-type traffic loading tables. (See
Col. 11, l. 66 – Col. 12, l. 3).
2. Anderson teaches that the traffic loading tables are based on real-time
empirical data gathered from testing and are continuously updated with
traffic loading data from real-time network operation. (Id. at ll. 5-7).
3. Anderson teaches a connection admission control (CAC). The CAC
computes the bandwidth value for a circuit based upon the traffic
parameters. (Col. 16, ll. 23-26).
4. Anderson teaches that the CAC algorithms may be customized to
permit custom allocations of bandwidth. (Id. at ll. 28-30).

Pirot
5. Pirot teaches port allocation management by monitoring the number
of access ports per VPN used by the network. (Col. 11, ll. 61-65).
6. Pirot teaches a service management subsystem that optimizes the
number of IP addresses per customer. (Col. 12, ll. 11-13).
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7. Pirot teaches both a minimum access ports per VPN, and a maximum
access ports per VPN may be imposed to guarantee access to a VPN.
(Col. 11, ll. 63- Col. 12, l. 1).

Appellants’ Specification
8. Appellants’ Specification defines “system status information” as
information about the current capability of the entire system under
policy control. (Spec. 4, ll. 18-19).

ANALYSIS
Claim Construction
“[T]he PTO gives claims their ‘broadest reasonable interpretation.’”
In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004) (quoting In re Hyatt, 211
F.3d 1367, 1372 (Fed. Cir. 2000)).
Appellants have not identified that the Specification attaches any
special definition to the term “throttle.” From our review, we do not find any
specialized meaning. Therefore, we broadly but reasonably interpret the
limitation “throttle call traffic,” as any regulation of the call traffic.
As discussed above, Appellants contend that the cited references, in
particular Anderson, fail to teach a system status memory. We disagree for
the reasons discussed infra.
Anderson teaches loading tables that store real-time empirical data.
(FF 1-2). We find that the empirical data stored in the loading tables
includes information about the current (real-time) capabilities of the system.
Therefore, it is our reasoned view that Anderson teaches the
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limitation of a status memory (loading tables) to store system status
information (i.e., empirical data including information about the current
capabilities of the system).
Appellants further contend that the cited references fail to teach that
the system information includes a number of users allowed for a customer.
We disagree.
The Examiner relied upon Pirot to teach the aforementioned
limitation. (Ans. 6-7). We agree with the Examiner’s determination that
Pirot teaches a service management subsystem that optimizes the number of
IP addresses per customer (users per customer). (FF 6). Thus, it is our
reasoned view that Pirot evidences that information regarding the number of
users allowed for a customer was well-known in the art for the control of
network elements. (See Pirot Col. 12, ll. 9-13). We find Appellants have
not shown the Examiner erred in determining that the cited references teach
and/or suggest system information that includes a number of users allowed
for a customer.
Appellants further contend that the cited references fail to teach the
limitation of throttling call traffic associated with a call. We disagree.
As discussed above, we interpret the term “throttling” as
encompassing any regulation of call traffic. We find that Anderson teaches
a connection admission control (CAC) that may be customized to permit
custom allocations of bandwidth. (FF 3-4). As admitted by Appellants,
Anderson teaches that the bandwidth allocated by the CAC (regulation) is
based on the connection request (call). (See App. Br. 9). Thus, it is our
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reasoned view that Anderson teaches that the allocated bandwidth is
associated with the connection request.
Based on the record before us, we find Appellants have not shown the
Examiner erred in rejecting claim 1. Accordingly, we affirm the Examiner’s
rejection of claim 1, and claims 5, 6, 8, 12-14, 17, and 20 which fall
therewith, as being unpatentable over the combination of Anderson and
Pirot.

Claims 4 and 11
We next consider the Examiner’s rejection of claims 4 and 11 as being
unpatentable over Anderson and Pirot. Since Appellants’ arguments have
treated these claims as a single group which stand or fall together, we select
claim 4 as the representative claim for this group. See 37 C.F.R.
§ 41.37(c)(1)(vii).
Appellants contend that the Examiner did not set forth a prima facie
case for rejecting claim 4. (App. Br. 10 and Reply Br. 6-7). The Examiner
admits that the cited references do not explicitly teach information about
modems. (Ans. 8). However, the Examiner provides a detailed line of
reasoning as to why an artisan would have found it obvious to incorporate
modem information as system status information.3 (Ans. 8-9). We find the
Examiner’s line of reasoning to be reasonable. Thus, the burden shifts to
Appellants to show error in the Examiner’s prima facie case by addressing
the Examiner’s specific findings and determination of obviousness.

3 Courts should “take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR, 127 S. Ct. at 1740-
41.
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However, we find that the Examiner’s rationale was not addressed in
Appellants’ Reply Brief. Therefore, Appellants have not met their burden of
showing error in the Examiner’s prima facie case of obviousness.
Accordingly, we affirm the Examiner’s rejection of claim 4 as being
unpatentable over Anderson and Pirot and group claim 11 therewith.

Claim 7
We next consider the Examiner’s rejection of claim 7 as being
unpatentable over Anderson and Pirot. Appellants contend that the cited
references, most notably Anderson, fail to teach the limitation of setting a
modem speed allowable for the call. (App. Br. 11). The Examiner admits
that the cited references do not explicitly teach setting a modem speed
allowable for the call. (Ans. 10). However, the Examiner provides a
detailed rationale as to why an artisan would have found it obvious to
incorporate modem speed information (i.e., allowable bandwidth for the
call) as a settable parameter. (Ans. 10-11). We find the Examiner’s line of
reasoning to be reasonable. Again, we find the Examiner’s findings and
determinations were not addressed in Appellants’ Reply Brief. Therefore,
Appellants have not met their burden of showing error in the Examiner’s
prima facie case of obviousness. Accordingly, we affirm the Examiner’s
rejection of claim 7 as being unpatentable over Anderson and Pirot.

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REPLY BRIEF
We note that the Reply Brief is properly used to respond to points of
argument raised by the Examiner in the Answer and not as a means for
presenting new arguments. See Optivus Tech., Inc. v. Ion Beam Applications
S.A., 469 F.3d 978, 989 (Fed. Cir. 2006) (an issue not raised in an opening
brief is waived). While we have fully considered Appellants’ responses in
the Reply Brief, we decline to address any new arguments not originally
presented in the principal Brief. With respect to all claims before us on
appeal, arguments which Appellants could have made but chose not to make
have not been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii). See also In re Watts, 354 F.3d 1362, 1368 (Fed. Cir.
2004).

CONCLUSIONS
Based on the findings of facts and analysis above, we conclude the
following:
Appellants did not show the Examiner erred in determining that the
cited references teach “a system status memory.”
Appellants did not show the Examiner erred in determining that the
cited references teach that the system information includes a number of users
allowed for a customer.
Appellants did not show the Examiner erred in determining that the
cited references teach throttling call traffic associated with a call.
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Hence, Appellants have not established that the Examiner erred in
rejecting independent claim 1, and claims 5, 6, 8, 12-14, 17, and 20, which
fall therewith due to Appellants’ grouping, as being unpatentable over
Anderson in view of Pirot under 35 U.S.C. § 103(a).
Appellants have not established that the Examiner erred in rejecting
claims 4 and 11 as being unpatentable over Anderson in view of Pirot under
35 U.S.C. § 103(a).
Appellants have not established that the Examiner erred in rejecting
claim 7 as being unpatentable over Anderson in view of Pirot under
35 U.S.C. § 103(a).
Therefore, claims 1, 4-8, 11-14, 17 and 20 are not patentable over the
prior art of record.

DECISION
The decision of the Examiner rejecting claims 17 and 20 under
35 U.S.C. § 101 is affirmed.
The decision of the Examiner rejecting claims 1, 4-8, 11-14, 17, and
20 under 35 U.S.C. § 103(a) is affirmed.

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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

pgc

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