Artur Bergman

Patent Trials and Appeals Board

Sep 28, 2020

14485087 - (D) (P.T.A.B. Sep. 28, 2020)

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.
14/485,087 09/12/2014 Artur Bergman 683.0021 5042
76444 7590 09/28/2020
Setter Roche LLP
1860 Blake Street
Suite 100
Denver, CO 80202
EXAMINER
HUANG, KAYLEE J
ART UNIT PAPER NUMBER
2447
NOTIFICATION DATE DELIVERY MODE
09/28/2020 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):
uspto@setterroche.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte ARTUR BERGMAN
____________________

Appeal 2018-009181
Application 14/485,087
Technology Center 2400
____________________

Before MAHSHID D. SAADAT, JOHN P. PINKERTON, and
STEVEN M. AMUNDSON, Administrative Patent Judges.

PINKERTON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1, 3–6, and 8–10, which are all of the claims
pending in the application. Claims 2 and 7 are canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Fastly, Inc. as the real party in
interest. Appeal Br. 2.
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STATEMENT OF THE CASE
Introduction
Appellant generally describes the disclosed and claimed invention as
follows:
Systems, methods, apparatuses, and software that select
network addresses of a network content server are provided
herein. In one example, a method of operating a control node to
perform network address selection that selects between different
communication service providers according to network
characteristics is presented. The control node receives a domain
name lookup request from an end user device to reach a network
content server. The control node processes network
characteristics and the domain name lookup request to select a
network address that corresponds to one of the communication
service providers. The end user device can use the selected
network address to reach the network content server over the
selected communication service provider.

Abstract.2
Claims 1 and 6 are independent. Claim 1 is illustrative of the subject
matter on appeal and is reproduced below:
1. A control node for selecting a network address for an end
user device to reach a network content server, wherein the
network content server is addressable via a plurality of network
addresses each associated with a unique communication service
provider of a plurality of communication service providers, the
control node comprising:

2 Our Decision refers to the Final Office Action mailed Oct. 11, 2017
(“Final Act.”); the Appeal Brief filed Apr. 16, 2018 (“Appeal Br.”); the
Reply Brief filed Sept. 24, 2018 (“Reply Br.”); the Examiner’s Answer
mailed July 24, 2018 (“Ans.”); and the original Specification filed Sept. 12,
2014 (“Spec.”).

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a communication interface configured to receive a domain
name lookup request transferred by an end user device;
a processing system configured to identify network
characteristics related to the end user device and the plurality of
communication service providers associated with the network
content server, wherein the network characteristics are derived at
least from performance data of network communications
between the network content server and a second end user device
routed through at least one of the plurality of communication
service providers, and process the network characteristics and the
domain name lookup request to identify a selected network
address from the plurality of network addresses for the network
content server that corresponds to at least a domain name
indicated by the domain name lookup request; and
the communication interface configured to transfer the
selected network address for delivery to the end user device.
Appeal Br. 12 (Claims App.).
References
Name Patent or Publication
Number
Date
Moran et al. (“Moran”) US 2002/0177448 A1 Nov. 28, 2002
Klinker US 2004/0249971 A1 Dec. 9, 2004
Wong US 2011/0066607 A1 Mar. 17, 2011
Zhang US 2011/0173339 A1 July 14, 2011

Rejections on Appeal3

3 The Leahy-Smith America Invents Act (“AIA”) included revisions to
35 U.S.C. § 100 et seq. effective on March 16, 2013. Because the
provisional application to which this application claims priority to was filed
on Nov. 6, 2013 (see Spec. ¶ 1), the Examiner examined the claims under
the AIA version of 35 U.S.C. § 103. Final Act. 2.
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Claims 1 and 6 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Zhang and Klinker.4
Claims 3, 4, 8, and 9 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Zhang, Klinker, and Moran.
Claims 5 and 10 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Zhang, Klinker, and Wong.
ANALYSIS
The issue raised by the arguments in Appellant’s briefs is whether the
combination of Zhang and Klinker teaches or suggests the limitation:
identify network characteristics related to the end user device and
the plurality of communication service providers associated with
the network content server, wherein the network characteristics
are derived at least from performance data of network
communications between the network content server and a
second end user device routed through at least one of the plurality
of communication service providers,
as recited in claim 1, and as similarly recited in claim 6 (hereinafter, “the
disputed limitation”).5
The Examiner rejected claim 1 under 35 U.S.C. § 103 as being
unpatentable over Zhang and Klinker. Final Act. 4–7. In the Final Action,
the Examiner finds that Zhang discloses, among other things:
A control node (access gateway equipment, FIG. 3) for selecting
a network address (IP address of the network services on ISP1

4 The Examiner also rejected claims 1, 3–6, and 8–10 under 35 U.S.C.
§ 112(a) for failing to comply with the enablement requirement, and under
35 U.S.C. § 112(b) as being indefinite. Final Act. 2–4. However, the
Examiner has withdrawn those rejections. Ans. 10.
5 Appellant argues claims 1 and 6 together, focusing on claim 1, and states it
refrains from discussing claims 3–5 and 8–10 “in view of their dependence
upon otherwise allowable independent claims.” Appeal Br. 8–10. Thus, we
select claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
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and ISP2; page 3, [0043]) for an end user device (user equipment;
page 3, [0044]) to reach a network content server (service
provider, FIG. 1), wherein the network content server is
addressable via a plurality of network addresses (IP address of
the network services on ISP1 and ISP2; page 3, [0043]) each
associated with a unique communication service provider of a
plurality of communication service providers (ISP1 and ISP2,
FIG. 1 & page 3, [0043]),
* * *
a processing system (detection unit 351, FIG. 3) configured to
process the network characteristics (page 4, [0052] & [0054]:
detect the line state of the access link of each Internet service
provider providing services) and the domain name lookup
request (domain name resolution request) to identify a selected
network address from the plurality of network addresses (page 4,
[0049], lines 12–17: IP address of the network services on ISP1
and ISP2) for the network content server that corresponds to at
least a domain name indicated by the domain name lookup
request (page 4, [0050] . . . .
Id. at 4–5.
The Examiner finds that Zhang does not teach the disputed limitation
of claim 1. Id. at 6. However, the Examiner finds that Klinker does so
because paragraph 23 of Klinker discloses:
measuring inbound traffic performance from each of the
identified sources to the destination address space through each
of the plurality of network service providers, determining an
optimal path associated with each of the sources to access the
destination address space via one of the network service
providers; and directing each of the identified source[s] to access
the destination address space via one of the network service
providers in accordance with the optimal path associated with the
source.
Id. at 6–7 (citing Klinker ¶ 23).
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Appellant makes two arguments. First, Appellant argues that Klinker
fails to teach or suggest the disputed limitation because, “while Klinker
teaches identifying performance data from sources, Klinker fails to teach
that the performance data is identified for communications with a particular
content server. Instead, Klinker teaches identifying performance data
associated with a range of destination network addresses.” Appeal Br. 9
(citing Klinker ¶ 23); Reply Br. 2. Second, Appellant argues that Klinker
fails to teach or suggest the disputed limitation because Klinker does not
“teach that the performance data from a first source (end user device) may
be used in identifying an internet service provider (or address) for a second
source (end user device).” Appeal Br. 9.
In response to Appellant’s first argument, the Examiner finds that
Klinker’s teaching of ‘“measuring inbound traffic performance from each of
the identified sources to the destination address space through each of the
plurality of network service providers’ corresponds to the claimed limitation
‘identify network characteristics related to the end user device and the
plurality of communication service providers associated with the network
content server.’” Ans. 11. In the Reply Brief, Appellant disputes the
Examiner’s finding and argues that “[o]ne destination address space is not
equivalent to multiple addresses for a single server.” Reply Br. 2. In this
regard, we agree with the Examiner for two reasons. First, the Examiner
relies on Zhang as teaching “a network content server . . . [that] is
addressable via a plurality of network addresses,” and Appellant’s argument
is directed at Klinker individually, rather than the Examiner’s combination
of Zhang and Klinker. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986) (“Non-obviousness cannot be established by attacking references
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individually where the rejection is based upon the teachings of a
combination of references.”). Second, Klinker teaches that its “destination
address space” can be “an online content or web site or application.” See
Klinker ¶¶ 22 (“invention . . . for controlling the inbound path to an online
content or web site or application”), 55 (“access, e.g., application 250”).
Thus, Klinker teaches or at least suggests that the “destination address
space” could be an online content such as a “network content server,” which
as discussed above, the Examiner also finds is taught by Zhang. See Final
Act. 4.
In regard to Appellant’s second argument, the Examiner finds that
Klinker teaches deriving network characteristics related to the end user
device “derived at least from performance data of network communications
between the network content server and a second end user device” because
Klinker discloses (1) “measuring inbound traffic performance from each of
the identified sources to the destination address space through each of the
plurality of network service providers” (Ans. 12 (citing Klinker ¶ 23, lines
8–11)), and (2) “source corresponds as ‘second end user device’” (id. (citing
Klinker ¶ 19, lines 12–15) (stating “a source (i.e., a user”)). The Examiner
also finds that Appellant’s second argument is not supported by claim 1
because claim 1 recites “identify network characteristics . . . to identify a
selected network address . . . for the network content server,” rather than
“identifying an internet service provider (or address) for a second source
(end user device),” as Appellant argues. Ans. 13 (emphasis added).
Once again, we are not persuaded that the Examiner has erred.
Initially, we disagree with the Examiner that Appellant’s second argument is
not commensurate with the scope of claim 1 because, when fairly considered
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in context, Appellant’s second argument is that Klinker fails to teach the
network characteristics are “derived at least from performance data of
network communications between the network content server and a second
end user device routed through at least one of the plurality of
communication service providers . . . to identify a selected network address .
. . for the network content server,” as recited in claim 1. See Appeal Br. 8–9;
Reply Br. 2–3. However, we agree with the Examiner that Klinker’s
disclosure of “measuring inbound traffic performance from each of the
identified sources to the destination address space through each of the
plurality of network service providers” and “determining an optimal path
associated with each of the sources to access the destination address space”
teaches or suggests that network characteristics are derived at least from
performance data of network communications between the network content
server6 and a second end user device (i.e., the source user device). Ans. 12–
13 (citing Klinker, ¶ 23, lines 8–11; ¶ 19, lines 12–15). Because Klinker
teaches measuring inbound traffic performance from multiple sources or end
user devices, and then determining an optimal path associated with each
source, we find Klinker teaches or suggests network characteristics derived
at least from “a second end user device.”

6 As discussed supra, the Examiner relies on Zhang as teaching a network
content server addressable by a plurality of addresses. To the extent
Appellant’s second argument is based on Klinker failing to teach a network
content server, we again find that Appellant’s attack on Klinker individually
is not persuasive because the Examiner relies on the combination of Zhang
and Klinker. See Merck, 800 F.2d at 1097.
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For these reasons, we sustain the Examiner’s rejection of claim 1
under 35 U.S.C. § 103. For the same reasons, we sustain the Examiner’s
rejection of claims 3–6 and 8–10, which are not argued separately
substantively.
DECISION
We affirm the Examiner’s rejection of claims 1, 3–6, and 8–10 under
35 U.S.C. § 103.
SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 6 103 Zhang, Klinker 1, 6
3, 4, 8, 9 103 Zhang, Klinker,
Moran
3, 4, 8, 9
5, 10 103 Zhang, Klinker,
Wong
5, 10
Overall
Outcome
1, 3–6, 8–
10

AFFIRMED