Damola, Ayodele et al.

Patent Trials and Appeals Board

Jan 24, 2020

14356926 - (D) (P.T.A.B. Jan. 24, 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.
14/356,926 05/08/2014 Ayodele Damola 0111-100/P36183 US2 4978
113648 7590 01/24/2020
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404-7999
EXAMINER
VANG, MENG
ART UNIT PAPER NUMBER
2457
NOTIFICATION DATE DELIVERY MODE
01/24/2020 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AYODELE DAMOLA and KRISTER SVANBRO
Appeal 2019-001709
Application 14/356,926
Technology Center 2400
Before BRYAN F. MOORE, BETH Z. SHAW, and
CARL L. SILVERMAN, Administrative Patent Judges.
SHAW, Administrative Patent Judge.
DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3, 4, 7–14, 16, 17, 19 and 21–28.
See Final Act. 1. 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 the real party in interest as
TELEFONAKTIEBOLAGET L M ERICSSON. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims are directed to a devices and methods using network load
data in mobile cloud accelerator context to optimize network usage by
selectively deferring content delivery. Claims 19 and 26, reproduced below,
are illustrative of the claimed subject matter:
19. A method performed by a network device, the method
comprising:
receiving a request for a content delivery from a wireless client
device in the network;
sending a query to a smart pipe controller as to whether to
proceed with delivering the content depending on a network load;
receiving a response from the smart pipe controller as to
whether to proceed with delivering the content depending on the
network load;
determining whether to defer the request depending on the
response received from the smart pipe controller;
sending a first message to the wireless client device if the
request is not deferred, the first message including information
enabling the content delivery; and
sending a second message to the client if the request is deferred,
wherein the network device is a mobile edge server operating as
a cache server.

26. A method, comprising:
storing, by a network device, pairs of domain names and
Internet Protocol (IP) addresses;
receiving, by the network device from a user equipment, a
request for content delivery that includes a domain name;
determining, by the network device, whether to defer the
request depending on a network load at a time when the request is
received;
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sending, by the network device when it is determined that the
request is not deferred, a first message to the user equipment to enable
the content delivery, wherein the first message includes an IP address
corresponding to the domain name,
sending, by the network device when it is determined that
the request is deferred, a second message to be sent to the user
equipment, wherein the second message does not include the IP
address corresponding to the domain name.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Engbersen US 6,341,304 Jan. 22, 2002
Forbes US 2006/0141962 A1 Jun. 29, 2006
Brooks US 2008/0192820 A1 Aug. 14, 2008
Spatscheck US 2011/0029596 A1 Feb. 3, 2011
Venugopal US 2013/0031279 A1 Jan. 31, 2013
REJECTIONS
The Examiner withdraws the rejection of claims 1, 7–13, 16, and 26–
28 rejected under 35 U.S.C. § 101 in the Answer. Ans. 3–4.
Claims 1, 8–13, and 26 are rejected under pre–AIA 35 U.S.C.
§ 103(a) as being unpatentable over Brooks, Spatscheck, and Forbes. Final
Act. 12.
Claims 3, 4, 17, 19, 21, 23 and 25 are rejected under pre–AIA 35
U.S.C. § 103(a) as being unpatentable over Brooks, Spatscheck, and
Engbersen.
Claims 16, 27, 28 are rejected under pre–AIA 35 U.S.C. § 103(a) as
being unpatentable over Brooks, Spatscheck, Forbes, and Engbersen.
Claim 7 is rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Brooks, Spatscheck, Forbes, and Venugopal.
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Claims 14, 22, 24 are rejected under pre–AIA 35 U.S.C. § 103(a) as
being unpatentable over Brooks, Spatscheck, Engbersen, and Venugopal.
OPINION
Claims 1 and 26
Appellant argues claims 1, 8–13, and 26 together. See Appeal Br. 26.
We select independent claim 26, a method claim, as representative. 37
C.F.R. § 41.37(c)(1)(iv).
First, Appellant argues Brooks’s reference to an IP address in
paragraph 161 does not mention that the provision of the IP address is based
on network load. Appeal Br. 27. Yet, the Examiner does not rely on Brooks
alone to teach “sending, by the network device when it is determined that the
request is not deferred, a first message to the user equipment to enable the
content delivery, wherein the first message includes an IP address
corresponding to the domain name,” as recited in claim 26. Rather, the
Examiner finds that Forbes teaches “the first message includes an IP address
corresponding to the domain name.” Final Act. 15 (citing Forbes ¶ 44).
Appellant acknowledges that Forbes discusses that an IP address can
be provided identifying the server. Appeal Br. 28. Appellant argues that
Forbes does not teach providing or not providing an IP address “depending
upon network load as claimed.” Id. at 29, 30. We are not persuaded by this
argument because the Examiner relies on Forbes to teach “the first message
includes an IP address corresponding to the domain name.” The Examiner
finds that Brookes teaches “sending, by the network device when it is
determined that the request is not deferred, a first message to the user
equipment to enable the content delivery.” Final Act. 13–14 (citing Brooks,
Figs. 3–3c, ¶ 163); Ans. 5–6. We agree that Brooks teaches “sending, by the
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network device when it is determined that the request is not deferred, a first
message [content] to the user equipment to enable the content delivery.”
Ans. 6 (citing Brooks, Figs. 3–Fig. 3c; ¶ 163).
Appellant also argues that “[b]ecause the mobile device already has an
IP address in this disclosure, it would not be possible to control content
delivery by not providing the IP address to the mobile device, whereas
claims 1 and 26 recite that when content delivery is deferred, an IP address
is not included in the message sent to the user equipment.” Appeal Br. 27.
This general allegation is unsupported by the record. “An assertion of what
seems to follow from common experience is just attorney argument and not
the kind of factual evidence that is required to rebut a prima facie case of
obviousness.” In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (citing In
re Wood, 582 F.2d 638, 642 (CCPA 1978); In re Lindner, 457 F.2d 506, 508
(CCPA 1972) (“mere lawyers' arguments unsupported by factual evidence
are insufficient to establish unexpected results”)).
We agree with the Examiner’s findings that Brooks teaches “sending,
by the network device when it is determined that the request is deferred, a
second message to be sent to the user equipment, wherein the second
message does not include the IP address corresponding to the domain
name,” because Brooks teaches that network capacity is not available to
transmit the requested content and Brooks sends an estimated time for when
the content will be available in steps 325 and 326 of Figure 3b. Ans. 5. If
sufficient network capacity is available, Brooks teaches streaming delivery
in step 322. Id.; see also Brooks, ¶ 163.
In the Reply Brief, Appellant argues that “network load,” recited in
the claim, is “a much broader term than determining if bandwidth is limited
for a specific download.” Reply Br. 2. We are not persuaded by this
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argument because Brooks does not merely teach “bandwidth,” but rather,
teaches evaluating network capacity, giving bandwidth as an example: “the
network system determines if capacity (e.g., bandwidth) is available.”
Brooks ¶ 163 (also discussing “network capacity determination”); ¶ 161
(“evaluation of network capacity”). Appellant does not address these
teachings from Brooks.
Appellant additionally argues that the Examiner did not consider the
claims as a whole, and that one skilled in the art would not have combined
the references to arrive at the claimed invention. Appeal Br. 30–34. We are
not persuaded by this argument because the Examiner’s proposed
combination of the cited teachings of Brooks, Forbes, and Spatscheck is no
more than a simple arrangement of old elements with each performing the
same function it had been known to perform, yielding no more than one
would expect from such an arrangement. KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 416 (2007). The ordinarily skilled artisan, being “a person of
ordinary creativity, not an automaton,” would be able to fit the teachings of
the cited references together like pieces of a puzzle to predictably result in
the claimed method and network device. Id. at 420–21. Because Appellant
has not demonstrated that the Examiner’s proffered combination would have
been “uniquely challenging or difficult for one of ordinary skill in the art,”
we agree with the Examiner that the proposed modification would have been
within the purview of the ordinarily skilled artisan. Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550
U.S. at 418).
Accordingly, we are not persuaded of error in the Examiner’s
obviousness rejection of claim 26, or claims 1 and 8–13.

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Claims 17, 19, and 25
Appellant argues claims 17, 19, and 25 as a group. See Appeal Br. 37–
42. Claim 19 recites, in part, “wherein the network device is a mobile edge
server operating as a cache server.” The Examiner finds that Spatscheck’s
cache server teaches this element. Ans. 11 (citing Spatscheck, Fig. 1, Fig. 2,
Abstract, ¶¶ 17, 21, 44).
Appellant argues Spatscheck’s “cache server” does not teach the
claimed “mobile edge server [operating as a cache server].” Appeal Br. 37–
42. In particular, Appellant argues that based on the language of the claim,
one skilled in the art would have understood that the term “mobile edge
server” is a server that is part of a mobile network, because the term “server”
is modified by “mobile” and is at the “edge” of the network, because the
term “edge” modifies server. Appeal Br. 39. We are not persuaded that the
claim is so limited because Appellant provides insufficient evidence proving
that the Specification or claims limit “mobile edge server operating as a
cache server” in a way that, under a broad but reasonable interpretation, is
not encompassed by Spatscheck’s teaching of a cache server. As the
Examiner explains, and we agree, paragraph 4 of the Specification
merely discloses that a Mobile Edge Server (MES) 122 may
store content received from a content provider (CP) 140 and
paragraph 0058 merely discloses that a client device may be a
mobile edge server (MES) configured to store temporarily the
content. Based on the descriptions provided in paragraphs 0004
and 0058, a mobile edge server is a device that stores content.

Ans. 10–11. We also note that the Specification describes content being
stored in a cache server. For example, the Specification refers to an MCA
(mobile cloud accelerator) MES (mobile exchange server) cache server 622,
and in Figure 12, depicts the “MES” as element (i.e., cache server) 622. See
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Spec. ¶¶ 67, 80. Thus, we agree with the Examiner that Spatscheck’s
teaching of a cache server teaches the claimed “mobile edge server operating
as a cache server.” Spatscheck, Abstract (“a cache server for providing
content”). The Examiner’s interpretation is consistent with the
Specification’s description of the mobile edge server for the reasons
discussed above and in the Answer. Ans. 10–11.
In the Appeal Brief, Appellant states that interpreting the “mobile
edge router” being at the edge of a mobile network would mean that
Spatscheck’s routers 204–214 “provider edge routers” are the claimed
mobile edge routers. Appeal Br. 40. In the Reply Brief, Appellant argues
that Spatscheck’s “provider edge routers,” however, do not store content and
only route traffic, and therefore cannot be the mobile edge servers. Reply Br.
4. We are not persuaded by this argument because the Examiner explains,
when referring to the provider edge routers in the Answer, under Appellant’s
proposed interpretation,2 i.e., if the mobile edge server is at the edge of a
mobile network, the provider edge routers “are also mobile edge servers.”
Ans. 11 (emphasis added).
Appellant also argues that Engbersen does not teach a “smart pipe
controller.” Appeal Br. 38–39. Appellant argues that Engbersen, like
Brooks, only considers “bandwidth” and that Engbersen therefore does not
teach that its “bandwidth monitor” determines “whether to proceed with
delivering content dependent on network load” and therefore does not teach

2 “Based on the plain language of the claim, one skilled in the art would
have understood that the term ‘mobile edge server’ is a server that is part of
a mobile network, hence the term ‘server’ being modified by ‘mobile’ and
one that is at the edge of the network, hence the term ‘edge’ modifying
server.” Appeal Br. 39.
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the claimed smart pipe controller. Appeal Br. 38; Reply Br. 4. Yet, the
Examiner does not rely on Engbersen alone to teach these elements, e.g.,
“network load,” because Brooks teaches determining “network capacity,” as
discussed above with respect to claim 26. See also Final Act. 19, 24; Brooks
Fig. 3b, ¶¶ 147, 161, 163. The Examiner explains, and we agree, that the
term “smart pipe controller” is not explained in the Specification and
paragraph 66 of the Specification merely states that “the processing unit 420
may further be configured to operate as a smart pipe controller within a
mobile cloud accelerator.” Appellant provides insufficient evidence proving
that the Specification or claims limit “smart pipe controller” in a way that,
under a broad but reasonable interpretation, is not encompassed by
Engbersen’s teachings.
Accordingly, we are not persuaded of error in the Examiner’s
rejections of claims 17, 19, and 25.
Because Appellant does not present separate patentability arguments
or reiterates substantially the same arguments as those previously discussed
for patentability above, the remaining pending claims fall for the same
reasons as claims 1, 17, 19, 25, and 26. See 37 C.F.R. § 41.37(c)(1)(iv).
CONCLUSION
The Examiner’s rejections are affirmed.
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
1, 8–13, 26

103 Brooks, Spatscheck,
Forbes
1, 8–13, 26
3, 4, 17, 19,
21, 23 and
25
103 Brooks, Spatscheck,
Engbersen

3, 4, 17,
19, 21, 23
and 25

16, 27, 28 103 Brooks, Spatscheck,
Forbes, Engbersen

16, 27, 28
7 103 Brooks, Spatscheck,
Forbes, Venugopal
7
14, 22, 24 103 Brooks, Spatscheck,
Engbersen, Venugopal
14, 22, 24
Overall
Outcome:
1, 3, 4, 7–
14, 16, 17,
19, 21–28

TIME PERIOD FOR RESPONSE
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.
§ 1.136(a)(1)(iv).
AFFIRMED