Ex Parte Niven-Jenkins et al

Patent Trial and Appeal Board

Apr 24, 2017

13058434 (P.T.A.B. Apr. 24, 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.
13/058,434 02/10/2011 Benjamin P. Niven-Jenkins RYM-36-2359 1213
23117 7590 04/26/2017
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
HWANG, JOON H
ART UNIT PAPER NUMBER
2447
NOTIFICATION DATE DELIVERY MODE
04/26/2017 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 BENJAMIN P. NIVEN-JENKINS and PAUL W. BURKE
Appeal 2015-005834
Application 13/058,434
Technology Center 2400
Before JOHN A. EVANS, LINZY T. McCARTNEY, and JOYCE CRAIG,
Administrative Patent Judges.
EVANS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 seek our review under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of Claims \—A. App. Br. 16 (Claims App’x).
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.2
1 The Appeal Brief identifies British Telecommunications pic, as the real
party in interest. App. Br. 3.
2 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed May 27, 2014, “App. Br.”), the Reply Brief
(filed May 18, 2015, Reply Br.”), the Examiner’s Answer (mailed March 17,
2015, “Ans.”), the Final Action (mailed Sept. 30, 2013, “Final Act.”), and
the Specification (filed Feb. 10, 2011, “Spec.”) for their respective details.
Appeal 2015-005834
Application 13/058,434
STATEMENT OF THE CASE
The present patent application concerns the operation of content
distribution networks. Spec. 1:3.
Claims 1 and 3 are independent. An understanding of the invention
can be derived from a reading of exemplary Claim 1, which is reproduced
below with some formatting added:
1. A network comprising:
access servers arranged to share access to a plurality of
content servers whereby content can be retrieved by a
requesting entity, each of said content servers having an
identical IP address, each said access server being located in a
respective routeably isolated subnetwork in which said each
access server is associated with one or more of said content
servers from which said each access server may retrieve data,
the access servers comprising detection means for
detecting a predetermined content delivery condition, and
means responsive to the detection means to direct data packets
addressed to the IP address common to the content servers to a
content server associated with another of said access servers in
the network in the event of the predetermined content delivery
condition being met.
1. Claims 1 and 3 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rozen and Slocombe. Final Act. 13—17.
INVENTION
References and Rejections
The Examiner relies upon the prior art as follows:
Rozen
Slocombe et al.
Wu
US 2002/0091760 Al July 11, 2002
US 2003/0079027 Al Apr. 24, 2003
US 2008/0082642 Al Apr. 3, 2008
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2. Claims 2 and 4 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rozen, Slocombe, and Wu. Final Act. 17—20.
ANALYSIS
We have reviewed the rejections of Claims \—A in light of Appellants’
arguments that the Examiner erred. We have considered in this Decision
only those arguments Appellants actually raised in the Briefs. Any other
arguments which Appellants could have made but chose not to make in the
Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv). We are
not persuaded that Appellants identity reversible error. Upon consideration
of the arguments presented in the Appeal Brief and Reply Brief, we agree
with the Examiner that all the pending claims are unpatentable. We adopt as
our own the findings and reasons set forth in the rejection from which this
appeal is taken and in the Examiner’s Answer, to the extent consistent with
our analysis below. We provide the following explanation to highlight and
address specific arguments and findings primarily for emphasis. We
consider Appellants’ arguments seriatim, as they are presented in the Appeal
Brief, pages 7—14.
Claims 1 and 3: Obviousness over Rozen and Slocombe
Appellants argue these claims as a group and contend they are each
patentable in view of the limitations of Claim 1. App. Br. 7.
Routeably isolated subnetwork
The Examiner finds that each of Rozen and Slocombe teaches all the
limitations recited in Claims 1 and 3. Final Act. 8.
Appellants contend that the Rozen-Slocombe combination fails to
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teach “each said access server being located in a respective routeably
isolated subnetwork,” as recited in Claim 1 and as commensurately recited
in Claim 3. App. Br. 7.
The Examiner finds Slocombe teaches the Internet is made up of
many private “routing networks,” where each of the private “routing
networks” teaches the claimed “subnetwork.” Ans. 17 (citing Slocombe 1
29). The Examiner finds Slocombe’s nodes 76a, 76b, and 76c are connected
to entry point routers 74c, 74b, and 74d, respectively, and thus teach the
claimed “respective . . . subnetwork.” Id. (citing Slocombe 130). In as
much as each subnetwork can be identified or distinguished as a separate
entity or group, the Examiner finds that each subnetwork is “isolated,” as
claimed. Id. Moreover, the Examiner finds each of Slocombe's entry point
routers 74c, 74b and 74d teaches “routeably isolated,” and thus, each
subnetwork in Slocombe teaches “a respective routeably isolated
subnetwork,” as recited in Claims 1 and 3. Id.
Appellants’ Reply Brief contrasts their disclosed network architecture
with that of Rozen. See Reply Br. 2—5 (contrasting Spec. 4; Fig. 1 with
Rozen, Fig. 2).
Appellants’ argument invites us to compare the network architecture
disclosed in the Specification with that disclosed by Rozen. We decline.
Claim terms are to be given their broadest reasonable interpretation as they
would have been understood by one of ordinary skill in the art, taking into
account whatever enlightenment may be provided by the Specification. In
re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). However, limitations may
not be imported into the claims from the Specification. See SuperGuide
Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). The
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proper comparison is not of Appellants’ disclosure versus that of the prior
art. Rather, the proper comparison is the claimed limitations against the
teachings of the prior art. In the absence of such a comparison, we are not
persuaded the Examiner errs.
Individual access servers
Appellants contend the prior art fails to teach that an access server
“direct[s] data packets addressed to the IP address common to the content
servers to a content server associated with another access server in that
network in the event of the predetermined content delivery condition being
met,” as recited in Claim 1 and as commensurately recited in Claim 3. App.
Br. 7. Appellants characterize Rozen as disclosing a plurality of server
farms comprising content servers and associated client servers and BGP
(border gateway protocol) servers associated with each server farm. Id.
Appellants argue the BGP servers are disclosed as maintaining a routing
table to identify the locations of the content servers. Thus, re-routing is
intrinsic because routing tables are periodically updated. Appellants argue
Slocombe teaches a method wherein traffic is addressed to the closest server
that is currently advertising its presence. Under failure conditions, the
affected server ceases to advertise its DNS address, thus other nodes no
longer recognize it and so no longer route to it. Id. Appellants contend that
neither Rozen, nor Slocombe, teaches the “individual access servers
themselves direct data to a content server associated with another access
server in response to the delivery conditions,'’'’ as required by independent
Claims 1 and 3. Id.
The Examiner finds Rosen teaches these limitations. Ans. 20 (citing
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Rosen, 111). The Examiner finds Rosen teaches “the routers that
interconnect autonomous systems on the internet already cooperate among
themselves to identify the best path from one autonomous system to
another.” Id. The Examiner further finds Rosen teaches “[tjhese routers
periodically communicate with each other to identify trouble-spots along
each path and to update the best path to circumvent those trouble spots.” Id.
Moreover, the Examiner finds Rosen teaches “[b]y allowing the routers to
collectively choose the client’s closest available content server, the content
delivery system of the invention avoids having to acquire the network
specific knowledge that the routers have already accumulated in the course
of their operation.” Id.
Appellants’ Reply Brief does not persuasively address this aspect of
the Examiner’s Answer. We are not persuaded the Examiner errs.
Each access server itself detecting content delivery conditions.
Appellants contend that Rozen requires routing tables to be updated
by co-operation between the routers, rather than by each access server itself
detecting content delivery conditions and directing data packets accordingly.
Appellants further contend that Slocombe teaches requests are simply
directed to whichever nodes are currently advertising their availability. In
either case, the access servers do not actively redirect data requests, but
simply respond to routing instructions generated elsewhere. App. Br. 8.
The Examiner finds Slocombe’s “predefined overload threshold”
teaches the claimed “predetermined content delivery condition.” Ans. 18
(citing Slocombe 140). The Examiner further finds that Slocombe’s
“software to monitor the load in various parts of the node cache System”
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teaches the claimed “detection means for detecting a predetermined content
delivery condition.” Id. at 8—9. The Examiner finds Slocombe describes the
monitoring software as being contained in the CDN node(s), but that it
would have been obvious to alternatively place the software in the router(s),
because the software and the router(s) are disclosed in the same reference,
and placement of the software in the router(s) or node(s) would have been
merely a matter of engineering design choice, and placement of the software
in the router(s) would enable faster communication by the software to the
router(s). Thus, the proposed combination teaches the claimed “access
servers comprising detection means for detecting a predetermined content
delivery condition.” Id. The Examiner further finds Rozen discloses
“routers [which] periodically communicate with each other to identify
trouble-spots.” Ans. 20 (quoting Rozen, 111). The Examiner finds Rozen
further discloses “routers [which] periodically communicate with each other
. .. to update the best path to circumvent those trouble spots.” Id. The
Examiner finds Rozen thus teaches “the access servers comprising detection
means for detecting a predetermined content delivery condition,” as claimed.
Appellants’ Reply Brief does not persuasively address this aspect of
the Examiner’s Answer. We are not persuaded the Examiner errs.
Teaching away.
Appellants’ contention that Slocombe teaches away from the claimed
invention (see App. Br. 8) is not persuasive because Appellants fail to allege
that Slocombe criticizes, discredits or otherwise disparages the claimed
solution. See PNY Techs., Inc., v. Phison Electronics Corp., IPR2013-00472
(PTAB, Feb. 4, 2015) (concluding that the preferences in the reference did
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not amount to teaching away because they did not criticize, discredit or
otherwise disparage the claimed solution). “A reference may be said to
teach away when a person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was taken by the
applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).
Claims 2 and 4: Obviousness over Rozen, Slocombe, and Wu
Claim 2, dependent from Claim 1, recites “wherein each access server
comprises means for tunnelling data requests to a second access server for
delivery to one of said content servers associated with the second access
server.” App. Br. 16 (Claims App’x). Claim 4, dependent from Claim 3,
recites, inter alia, “in which in the event of detection by said first access
server of the predetermined condition, a content request delivered to the first
access server is tunnelled to a second of said access servers.” Id. at 16—17.
The Examiner finds that Wu teaches those limitations recited in
Claims 2 and 4 that are not taught by the combination of Slocombe and
Rozen. In particular, the Examiner finds Wu discloses that the networks
may contain a network element or functionality that aids in managing the
mobile stations (MS) by tunneling packets to other agents in other networks,
advertising care-of addresses (CoA) that may serve as the termination point
of the tunnel, maintaining current location information for the MS, and/or
routing messages between the MS and the dynamic host configuration
protocol (DHCP) proxy. Final Act. 11. The Examiner finds that Wu thus
teaches each of the claimed “other agents in other networks” and the claimed
“a second access server.” Id. The Examiner further finds that any of the
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MS and the DHCP proxy teaches the claimed “one of said content servers
associated with the second access server.” Id. The Examiner finds Wu
discloses “[t]he agent 103 may . . . aid[] in . . . routing messages between
the MS 109 and the DHCP proxy 112” which teaches “data requests to a
second access server for delivery to one of said content servers associated
with the second access server.” Id. (citing Wu 125; Fig. 1). The Examiner
makes the related finding that Wu discloses agent 103 may “aid[] in . . .
tunneling packets to other agents in other networks” which teaches the
claimed “wherein each access server comprises means for tunnelling data
requests to a second access server.” Id.
Appellants limit their traversal to a critique of the alleged
shortcomings of Wu and fail to address the Examiner’s combination of the
three references. See App. Br. 14. “[0]ne cannot show non-obviousness by
attacking references individually where ... the rejections are based on
combinations of references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981).
Appellants’ Reply Brief does not address the rejection of Claims 2
and 4.
We are not persuaded the Examiner errs.
DECISION
The rejection of Claims 1^4 under 35 U.S.C. § 103 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)(l)(iv).
AFFIRMED
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