Ex Parte Peles

Patent Trial and Appeal Board

Oct 14, 2016

12104820 (P.T.A.B. Oct. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/104,820 04/17/2008 Amir Peles
122066 7590 10/18/2016
M&B IP Analysts, LLC
500 Headquarters Plaza
Morristown, NJ 07960-7070
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.
RADWP0058 4549
EXAMINER
MACILWINEN, JOHN MOORE JAIN
ART UNIT PAPER NUMBER
2442
NOTIFICATION DATE DELIVERY MODE
10/18/2016 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):
pair@mb-ip.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AMIR PELES
Appeal2015-005666
Application 12/104,820
Technology Center 2400
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
JOHN P. PINKERTON, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
Non-Final Rejection of claims 1, 3-12, and 32. Claims 2 and 33 are
canceled, and claims 13-31 are withdrawn. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies RADW ARE, LTD. as the real party in interest. App.
Br. 3.
Appeal2015-005666
Application 12/104,820
STATEivIENT OF THE CASE
Introduction
Appellant's disclosed and claimed invention is generally directed to
load balancing over a cluster of authentication, authorization, and accounting
(AAA) servers. Spec. i19.2
Claim 1 is representative and reproduced below (with the disputed
limitation emphasized):
1. A method for load balancing over a cluster of
authentication, authorization and accounting (AAA) servers,
compnsmg:
receiving an AAA connection establishment request from
an AAA client;
forwarding the AAA connection establishment request,
received from the AAA client, to more than one AAA server in
the cluster of AAA servers, wherein the AAA servers are any of
LDAP servers and Diameter servers;
receiving an AAA connection establishment answer from
one or more of the i11i11i11 seP1ers, \x1herein the i11i11i11 connection
establishment answer indicates that an active AAA connection
has been established with the respective AAA server;
responding to the AAA client with a received AAA
connection establishment answer; and
forwarding an AAA request received from the AAA
client to one of the AAA servers, having an active AAA
connection with the AAA client, over the active AAA
connection.
2 Our Decision refers to the Non-Final Office Action mailed Apr. 17, 2014
("Non-Final Act."); Appellant's Appeal Brief filed Dec. 16, 2014 ("App.
Br.") and Reply Brief filed May 11, 2015 ("Reply Br."); the Examiner's
Answer mailed Mar. 11, 2015 ("Ans."); and, the original Specification filed
Apr. 17, 2008 ("Spec.").
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Application 12/104,820
Rejections on Appeal
Claims 1, 3-5, 9-12, and 32 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Kikuchi et al. (US 2003/0195962 Al; published
Oct. 16, 2003) ("Kikuchi") and Brendel (US 6,182,139 Bl; issued
Jan. 30, 2001). Non-Final Act. 2-7.
Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kikuchi, Brendel, Chauffour et al. (US 2005/0005006 Al;
published Jan. 6, 2005) ("Chauffour"), and Monjas-Llorente et al. (US
2004/0105431 Al; published June 3, 2004) ("Monjas-Llorente"). Non-Final
Act. 7-9.
Claims 7 and 8 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kikuchi, Brendel, and P. Calhoun et al., RFC 3588
Diameter Base Protocol (Sept. 2003) ("Calhoun"). Final Act. 9-10.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments in the Briefs and are not persuaded the Examiner has erred.
Unless otherwise noted, we adopt as our own the findings and reasons set
forth by the Examiner in the Office Action from which this appeal is taken
(Non-Final Act. 2-10) and in the Examiner's Answer (Ans. 2-11), and we
concur with the conclusions reached by the Examiner. For emphasis, we
consider and highlight specific arguments as presented in the Briefs.
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Application 12/104,820
T"tl. • , • r F"'f-i • -. :z -, " -. n,.,, / \ KBJectzon of ctazm r unaer s JU5(a)
At the outset, we tum to Appellant's Specification for context. We
note Appellant's "Background of the Invention" section broadly describes:
"Authentication, authorization and accounting (AAA) functions refer to the
functions of processing authentication, authorization and accounting of
subscribers. AAA functions are often required when a subscriber wants to
receive a predetermined service through a network." (Spec. i-f 2).
Appellant contends Brendel does not teach or suggest "at least the
claimed forwarding the AAA connection establishment request, received
from the AAA client." App. Br. 7. In particular, Appellant argues Brendel
teaches the client machine itself generates multiple SYN packets and sends
them to multiple servers, but does not suggest "forwarding the AAA
connection establishment request, received from the AAA client," as recited
in claim 1. Id. 7-9. Appellant also argues there is nothing that suggests the
combination of Brendel and Kikuchi or "anything that would suggest how
Brendel should or even could modify Kikuchi in order to arrive at the
features of claim 1." Id. 9-10. According to Appellant, the Examiner's
rejection is conclusory and does not explain how the combination teaches
"the claimed features of forwarding the AAA connection establishment
request, received from the AAA client, rather than Brendel' s client machine
simply generating multiple copies of the SYN packet and sending to
different servers." Id. at 10.
3 We decide the rejection of claims 1, 4, 5, 9-12, and 32, which are rejected
under the first-stated ground of rejection, on the basis of representative
claim 1. See 37 C.F.R.§ 41.37(c)(l)(iv).
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We are not persuaded by Appellant's arguments the Examiner erred.
First, Appellant's argument that Brendel does not teach the disputed
limitation is not persuasive because, as the Examiner finds, it relies "on a
piecemeal consideration of the cited prior art," whereas the Examiner's
rejection is based on the combined teachings of Kikuchi and Brendel.
Ans. 4. "Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references." In re Merck & Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986). The relevant inquiry is whether the claimed subject matter
would have been obvious to those of ordinary skill in the art in light of the
combined teachings of the references. See In re Keller, 642 F.2d 413, 425
(CCPA 1981).
Here, the Examiner finds, and we agree, Kikuchi teaches the claimed
"AAA connection establishment request, received from the AAA client,"
because Kikuchi teaches the reception of an LDAP BIND request from a
client that leads to an LDAP connection. Ans. 2, 4 (citing Kikuchi
i-fi-169, 72). The Examiner also finds, and we agree, Brendel teaches
forwarding of a received request to multiple servers because Brendel shows
CLIENT APP & TCP /IP 21 creating a request in the form of a TCP SYN
packet, labelled SYN(O), which is passed to the CLIENT-SIDE
DISPATCHER 20, that subsequently forwards the packet to three servers.
Id. at 3 (citing Brendel Figure 8). As the Examiner also finds, "[t]he
'CLIENT APP 21' of Brendel is comparable to the client of Kikuchi; in both
references the client is attempting to establish a communication session with
a remote server." Id. at 5.
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We are not persuaded by Appellant's argument that the Examiner fails
to explain how Brendel could modify Kikuchi to obtain the features of
claim 1 because "[i]t is well-established that a determination of obviousness
based on teachings from multiple references does not require an actual,
physical substitution of elements." In re Mouttet, 686 F. 3d 1322, 1332
(Fed. Cir. 2012) (citing In re Keller, 642 F.2d at 425 ("The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference.")).
Second, we are not persuaded by Appellant's arguments that there is
nothing to suggest the combination of Brendel and Kikuchi, and that the
obviousness rejection is conclusory. App. Br. 9-10. In that regard, the
Examiner finds a person of ordinary skill in the art would have been
motivated "to modify the load balancing teachings of Kikuchi with the
connection establishment message multicasting of Brendel in order to utilize
Kikuchi's support for client authentication while lowering overall network
traffic." Ans. 5---6 (citing Brendel col. 14, 11. 44--54; Kikuchi i-f 72). We find
the Examiner provides sufficient articulated reasoning having a rational
underpinning, such that a person of ordinary skill in the art would have been
motivated to combine the teachings of Kikuchi and Brendel, so as to render
obvious the claimed subject matter. See KSR Int'! Co. v. Teleflex Co., 550
U.S. 398, 418 (2007). Although Appellant argues there is no support for the
Examiner's finding regarding Brendel teaching "increased efficiency of the
resulting communication session" (see Reply Br. 4--5), we agree with the
Examiner's finding because Brendel teaches "traffic can actually be
reduced since a closer server is chosen." Ans. 6 (citing Brendel col. 14, 11.
51-54).
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We note Appellant argues in the Reply Brief that Kikuchi "teaches
away" from Brendel forwarding the connection establishment request
received from the client to more than one server. See Reply Br. 3-5.
Appellant further argues in the Reply Brief that the "[p]roposed
modification of Kikuchi both renders Kikuchi unsatisfactory for its
intended purpose and changes the principals of operation." See id. at 5-
6. Because these arguments are raised by Appellant for the first time in the
Reply Brief, not in response to a shift in the Examiner's position, or without
otherwise showing good cause, they are waived. See 37 C.F.R. §
41.41(b)(2) (2012); see also Ex parte Borden, 93 USPQ2d 1473, 1474
(BP AI 2010) (informative) ("[T]he reply brief [is not] an opportunity to
make arguments that could have been made in the principal brief on appeal
to rebut the Examiner's rejections, but were not.").
For the aforementioned reasons, and based upon a preponderance of
the evidence, we are not persuaded the Examiner erred in ( 1) finding the
combined teachings of Kikuchi and Brendel teach or suggest the limitation
"forwarding the AAA connection establishment request, received from the
AAA client," to more than one AAA server, and (2) concluding that the
combination of Kikuchi and Brendel renders the subject matter of claim 1
obvious under 35 U.S.C. § 103(a).
Accordingly, we sustain the Examiner's rejections of claims 1, 12,
and 32, as well as dependent claims 4, 5, and 9-11, which are not argued
separately. See App. Br. 11-12.
Rejection of Claim 3 under§ 103(a)
Appellant contends Kikuchi does not teach or suggest "saving in a
connection table an identifier of each AAA server having an active AAA
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connection with the AAA client," as recited in claim 3. App. Br. 10-11;
Reply Br. 6-7. Appellant argues Kikuchi tracks the number of connections
a server has, whereas claim 3 recites an identifier of each server connected
to a AAA client. Id. at 11. The Examiner finds Kikuchi in view of Brendel
shows establishing the AAA connection further comprises saving in a
connection table an identifier of each AAA server having an active
connection with the AAA client. Non-Final Act. 4 (citing Kikuchi Figure 2,
item 12; i-fi-130-31, 34, 69). The Examiner also finds Kikuchi's connection
table is not limited to a number of established connections, but includes a
variety of information, including such identifiers as the "server connection
handle." Ans. 7 (citing Kikuchi Figure 2, item 12).
We are not persuaded by Appellant's arguments. As found by the
Examiner, Kikuchi teaches saving an identifier of a server having an active
AAA connection with the AAA client (Kikuchi Figure 2, element 12, and
i1 31 ), and Kikuchi in view of Brendel teaches saving in a connection table
an identifier of each AAA server having an active connection with the AAA
client (Kikuchi i-fi-134, 38, 39, 72; Brendel Figure 8 and 14:44--54). See Non-
Final Act. 3--4. The Supreme Court guides: the "combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results." KSR, 550 U.S. at 416. The skilled
artisan would "be able to fit the teachings of multiple patents together like
pieces of a puzzle" because the skilled artisan is "a person of ordinary
creativity, not an automaton." KSR, 550 U.S. at 420-21.
This reasoning is applicable here. Thus, we find a preponderance of
the evidence supports the Examiner's finding that the combined teachings of
Kikuchi and Brendel would have taught or suggested the disputed limitation
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of claim 3. Because we are not persuaded of error regarding the Examiner's
legal conclusion of obviousness, we sustain the Examiner's rejection of
claim 3.
Rejection of Claim 6 under§ 103(a)
Appellant contends the Examiner erred in rejecting claim 6 under
§ 103(a) as unpatentable over Kikuchi, Brendel, Chauffour, and Monjas-
Llorente because Chauffour and Monjas-Llorente do not teach the following
limitations of claim 6:
identifying a session identifier (ID) in the AAA request;
searching for the session ID in a session-tracking table;
forwarding the request to an AAA server associated with the
session ID in the session-tracking table; and
when the session ID is not found in the session-tracking table
selecting one of the AAA servers designated in the connection
table;
updating the tracking table to include the ID and the selected
server; and
forwarding the request to the selected server.
App. Br. 12-15.
Appellant argues Chauffour' s forwarding decision method is based on
the MAC address of a received IP datagram and that a MAC address is not a
session-ID. Id. at 13. Appellant also argues the methods disclosed by
Chauffour and Monjas-Llorente operate at different layers defined in the
OSI model and, therefore, cannot be combined for the purpose of identifying
a session identifier (ID) in the AAA request, searching for the session ID in
a session-tracking table, and forwarding the request to an AAA server
associated with the session ID in the session-tracking table, as recited in
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claim 6. Id. at 14. Appellant further argues the obviousness rejection of
claim 6 is based on conclusory statements, rather than some articulated
reasoning with some rational underpinning. Id. In the Reply Brief,
Appellant argues the Non-Final Office Action finds Chauffour teaches the
limitations of claim 6, notes the Examiner "states the MAC is just a general
ID," and "notes that Chauffour states the connection table stores the MAC
address (see paragraph 209)." Reply Br. 7. Appellant further argues
Chauffour, however, fails to teach or suggest the limitation "when the
session ID is not found in the session-tracking table selecting one of the
AAA servers designated in the connection table," as recited in claim 6. Id.
at 7-8. In particular, Appellant argues that Chauffour does not select one of
the servers designated in the connection table, but looks to the IP address to
find a cluster and, from the cluster, determines which network server can
support the request. Id. at 8 (citing Chauffour i-f 211 ).
The Examiner explains that Chauffour' s MAC address was not cited
as representing the claimed "session-ID," but as describing a more general
ID in a connection table. Ans. 8 (citing Non-Final Act. 8). The Examiner
further explains that Monjas-Llorente was relied on to show the use of a
session identifier and that Monjas-Llorente discusses the use of routing
tables which utilize session IDs to make routing decisions for AAA
messages. Id. (citing Monjas-Llorente i-f 41 ). The Examiner finds Chauffour
teaches utilizing data from the IP datagram header (such as the MAC
address and/ or IP address) and that one of ordinary skill in the art would
have found it routine to use this type of data in the RADIUS environment of
Monjas-Llorente, regardless of the OSI layer. Id. at 8-9. Regarding the
motivation to combine the references, the Examiner finds as follows:
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It would have been obvious to one of ordinary skill in the art at
the time of the invention to modify the disclosure of Kikuchi in
view of Brendel with that of Chau.ff our in order to improve
efficiency, ease maintenance and improve confzgurability
(Chauffou~ [216-221]).
* * *
It would have been obvious to one of ordinary skill in the art at
the time of the invention to modify the disclosure of Kikuchi in
view of Brendel and Chauffour with that of Monjar-Llorente
[sic] in order to improve methods of identifying sessions and
better support large numbers of users (Monjar-Llorente, [sic]
[8]).
Id. at 9-10.
We are not persuaded by Appellant's arguments the Examiner erred in
rejecting claim 6. For the reasons stated by the Examiner, we agree that the
combined teachings of Kikuchi, Brendel, Chauffour, and Monjas-Llorente
teach or suggest identifying a session identifier (ID) in the AAA request;
searching for the session ID in a session-tracking table, and forwarding the
request to an AAA server associated with the session ID in the session-
tracking table, as recited in claim 6. See Non-Final Act. 8-9 (citing
Chauffour i-fi-1204-211; Monjas-Llorente i141); Ans. 8-9. We find an artisan
would have been motivated to combine these references for the reasons
stated by the Examiner (id.), which we find provide sufficient articulated
reasoning with a rational underpinning. See KSR, 550 U.S. at 418.
Regarding Appellant's argument that Chauffour does not teach the
limitation "when the session ID is not found in the session-tracking table
selecting one of the AAA servers designated in the connection table" (the
"selecting step"), we note this is a temporal conditional limitation that is
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only required to be performed when the session ID is not found in the
session-tracking table.
Under the broadest reasonable interpretation of claim 6, we conclude
the step of selecting one of the servers designated in the connection table, as
well as the subsequent "updating" and "forwarding" steps, may never occur.
See Ex parte Schulhauser, Appeal No. 2013-007847, at *9 (PTAB,
April 28, 2016) (precedential) (holding "The Examiner did not need to
present evidence of the obviousness of the remaining method steps of
claim 1 that are not required to be performed under a broadest reasonable
interpretation of the claim (e.g., instances in which the electrocardiac signal
data is not within the threshold electrocardiac criteria such that the condition
precedent for the determining step and the remaining steps of claim 1 has not
been met."); see also Ex parte Katz, Appeal No. 2010-006083; 2011 WL
514314, at *4--5 (BPAI Jan. 27, 2011).4
Here, we apply the precedential guidance of Schulhauser. Therefore,
the Examiner need not present evidence establishing the obviousness of the
conditional selecting step, or the following steps, of claim 6, because they
are not required to be performed under a broadest reasonable interpretation
of the claim (e.g., instances when the session ID is found in the session-
4 See, also e.g., Applera Corp. v. Illumina, Inc., 375 Fed. Appx. 12, 21 (Fed.
Cir. 2010) (unpublished) (affirming a district court's interpretation of a
method claim as including a step that need not be practiced if the condition
for practicing the step is not met); Cybersettle, Inc. v. Nat 'l Arbitration
Forum, Inc., 243 Fed. Appx. 603, 607 (Fed. Cir. 2007) (unpublished) ("It is
of course true that method steps may be contingent. If the condition for
performing a contingent step is not satisfied, the performance recited by the
step need not be carried out in order for the claimed method to be
performed.").
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tracking table, such that the condition precedent for the selecting step, and
the remaining steps, of claim 6 is not met).
Therefore, we find unavailing Appellant's argument that Chauffour
fails to teach or suggest the selecting step of claim 6 because it is not
commensurate with the broadest reasonable interpretation of claim 6. See In
re Schulhauser, Appeal 2013-007847, at *9. Accordingly, we sustain the
Examiner's rejection of claim 6.
Rejection of Claims 7 and 8 under§ 103(a)
Appellant notes claims 7 and 8 depend from claim 1 and argue, in
view of the distinctions of claim 1 over the art as discussed, "at least one
claimed element is not present in the asserted combination of references,
with regard to claims 7 and 8." App. Br. 15. We are not persuaded by
Appellant's argument because, for the reasons discussed supra regarding
claim 1, the disputed limitation of claim 1 is taught or suggested by the
combined teachings of Kikuchi and Brendel. Thus, we sustain the
Examiner's rejection of clams 7 and 8.
DECISION
We affirm the Examiner's rejections of claims 1, 3-12, and 32 under
35 U.S.C. § 103(a).
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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