Ex Parte Newton et al

Patent Trial and Appeal Board

Jun 8, 2018

14307399 (P.T.A.B. Jun. 8, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/307,399 06/17/2014 Christopher Newton
21398 7590 06/12/2018
Level 3 Communications, LLC
Attn: Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
0447-US-U37-Il 3649
EXAMINER
CELANI, NICHOLAS P
ART UNIT PAPER NUMBER
2449
NOTIFICATION DATE DELIVERY MODE
06/12/2018 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):
patent.docketing@level3.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER NEWTON,
LAURENCE R. LIPSTONE, WILLIAM CROWDER,
ANDREW SWART, and LEWIS ROBERT VARNEY
Appeal2018-000159
Application 14/307 ,399 1
Technology Center 2400
Before CARL W. WHITEHEAD JR., IRVINE. BRANCH, and
MICHAEL M. BARRY, Administrative Patent Judges.
BRANCH, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-32, which are all of the claims pending in the application.
We AFFIRM.
Technology
The application relates to "content delivery and content delivery
networks." Spec. i-f 4.
1 According to Appellants, the real party in interest is Level 3
Communications, LLC. Br. 2.
Appeal2018-000159
Application 14/307 ,399
Illustrative Claim
Claim 1 is illustrative and reproduced below with the limitations at
issue emphasized:
1. A computer-implemented method, operable with a content
delivery network (CDN) comprising multiple CD services
including at least one beacon service, the method comprising:
at [a] particular CD service in said CDN:
(A) obtaining at least one first request;
(B) responding to the at least one first request; and
(C) making a second request to a beacon CD
service, said second request including information about the at
least one first request, wherein at least some of said information
about the at least one first request is included in at least one of a
uniform resource locator (URL) and a request header associated
with the second request.
Rejections2
Claims 1-27 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Gagliardi (US 2012/0254421 Al; published Oct. 4, 2012) and Blumofe
(US 2012/0096106 Al; published Apr. 19, 2012). Final Act. 3-14.
Claims 28-32 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Gagliardi, Blumofe, and Lection (US 2009/0106447 Al; published
Apr. 23, 2009). Final Act. 14--15.
2 Rather than repeat the Examiner's positions and Appellants' arguments in
their entirety, we refer to the above mentioned Appeal Brief, as well as the
following documents for their respective details: the Final Action mailed
February 7, 2017 ("Final Act.") and the Examiner's Answer mailed July 28,
2017 ("Ans.").
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Appeal2018-000159
Application 14/307 ,399
RELATED PROCEEDINGS
Appellants inform us that "[a]ppeals have been filed or are being filed
in the following applications that share a priority application (Provisional
Application 61/737,072, filed December 13, 2012) with the present
application: 14/088,362; 14/307,389; 13/715,466; 14/578,402; 13/715,590;
13/715,747; 13/802,093; 13/802,143; 14/307,380; 13/802,335; 14/303,389;
14/088,358; 14/088,367; 14/088,542; and 14/088,356." Br. 2.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential).
Claims 1, 3-9, 11-19, 21-32
Claim 1 recites "making a second request to a beacon CD service ...
including information about [a] first request, wherein ... information about
the ... first request is included in [either] a uniform resource locator (URL)
[or] a request header." The Examiner finds this limitation is taught or
suggested by the combination of Gagliardi and Blumofe. Final Act. 4--5
(citing Gagliardi i-fi-149, 64, 78, 88, 95, 97-98; Blumofe i-fi-123, 35-37). The
Examiner concludes "[i]t would have been obvious to an artisan of ordinary
skill at the time of Applicant's invention to combine the method of Gagliardi
with the second request in order to push the data to the remote system." Id.
at 5.
Appellants argue that "Gagliardi does not make a second request" so
"it does not and cannot teach information in the second request 'about the at
least one first request,' let alone 'information about the at least one first
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Application 14/307 ,399
request is included in at least one of a uniform resource locator (URL) and a
request header associated with the second request'." Br. 10. Appellants also
argue, with respect to the Examiner's reasoning for combining the
references, "it is unclear what data are being pushed to what remote system
[because] [n]either Gagliardi nor Blumofe needs to push any data to any
remote system" and "this cursory and conclusory motivation finds no
support in either Gagliardi or Blumofe." Id.
Appellants' argument with respect to the shortcomings of Gagliardi is
unpersuasive because, as the Examiner correctly points out, the rejection is
based on the combined teachings of Gagliardi and Blumofe, and Appellants
do not argue the Examiner's finding that Blumofe discloses a second
request. Ans. 6-7 (citing, e.g., Blumofe i-f 36); see also Final Act. 16-17 and
Ans. 7-10 (Examiner's unrebutted findings and reasoning).
Appellants argue that the Examiner's reasoning for combining the
references is unsupported and unclear. This argument is unpersuasive for
the reasons stated by the Examiner. Ans. 9-10. We note the Examiner's
unrebutted reasoning that:
Simple substitution applies because Gagliardi teaches the claim
but-for the message being a request, and Blumofe teaches a
substitute data-transmission act in the form of a request - a HTTP
POST request. Use of a Known Technique applies because the
log transfer and URL/header storage can be applied to a HTTP
POST request for predictable results (or conversely, for that
matter, a HTTP POST request is a predictable manner of
transmitting information).
Id. at 10; see KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416 ("[W]hen a
patent claims a structure already known in the prior art that is altered by the
mere substitution of one element for another known in the field, the
combination must do more than yield a predictable result."), 417 ("if a
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Application 14/307 ,399
technique has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar devices in the
same way, using the technique is obvious unless its actual application is
beyond his or her skill.") (2007); see also Final Act. 16-17. Accordingly,
we sustain the Examiner's rejection of claim 1, and claims 3-9, 11-19, 21-
32, which Appellants solely argue are patentable for similar reasons. See Br.
10-15; 37 C.F.R. § 41.37(c)(l)(iv).
Claim 2
Claim 2 depends from claim 1 and recites "the beacon CD service is
in said CDN and [the] particular CD service is in a delegated CDN of the
CDN." Appellants argue error because "neither Gagliardi nor Blumofe,
alone or in combination, teach or suggest the notion of a delegated CDN."
Br. 12.
We are unpersuaded of error in view of the Examiner's unrebutted
response to Appellants' argument as follows:
Examiner cited to Gagliardi para. 27 to teach that the
usage tracking system (which unpacks the log, see above) is in
the CDN, thus teaching "wherein the beacon CD service is in
said CDN." Examiner cited to para. 65 and Fig. 6 to teach that
the CDN delegates functions amongst devices for scalability.
Thus Gagliardi conceptualizes both horizontal and vertical sub-
networks - One can not only segregate delivery servers among
data centers for delivery to different geographic areas (a feature
common in CDN s, see para. 2) but also segregate the delivery
functionality from the usage functionality (compare delivery
servers 636 with usage server 670 for scalability). Thus the CDN
600 is delegated both left/right (636s, 670, 632 of one sub-CDN
on the left and another on the right) but top/bottom (as multiple
delivery servers are overseen by single propagation hubs/usage
servers). Thus the services are in delegated CDNs of the CDN.
Ans. 11.
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Application 14/307 ,399
Claims 10 and 20
Appellants' arguments (Br. 12-13) do not persuade us of error in the
Examiner's rejection of claims 10 and 20 (Final Act. 8-9, 12-13) for the
reasons stated by the Examiner (Final Act. 17-18; Ans. 12-14).
DECISION
For the reasons above, we affirm the Examiner's decision rejecting
claims 1-3 2.
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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