Ex Parte so

Patent Trial and Appeal Board

Jun 7, 2016

12961688 (P.T.A.B. Jun. 7, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/961,688 12/07/2010
25537 7590 06/09/2016
VERIZON
PA TENT MANAGEMENT GROUP
1320 North Court House Road
9th Floor
ARLINGTON, VA 22201-2909
FIRST NAMED INVENTOR
NingSO
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.
20070455Cl 9620
EXAMINER
PHUNG,LUAT
ART UNIT PAPER NUMBER
2468
NOTIFICATION DATE DELIVERY MODE
06/09/2016 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):
patents@verizon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NING SO
Appeal2014-002523
Application 12/961,688
Technology Center 2400
Before CARL W. WHITEHEAD JR., JEFFREY S. SMITH, and
JOHN F. HORVATH, Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant is appealing the Final Rejection of claims 1-20 under 35
U.S.C. § 134(a). Appeal Brief 1. We have jurisdiction under 35 U.S.C.
§ 6(b) (2012).
We affirm.
Introduction
The invention is directed to multilayered interworking (the ability for
two or more protocols, systems virtual layers to operate with one another).
Specification, paragraph 1.
Appeal2014-002523
Application 12/961,688
Representative Claim (disputed limitations emphasized)
1. A method comprising:
assigning a traffic path to a first transport trail if the first
transport trail is determined to be suitable for assignment,
wherein the traffic path is associated with traffic path parameter
information;
preempting the assignment of the traffic path to the first
transport trail in response to a change in at least one of a
transport trail bandwidth parameter, a transport trail
reservation threshold parameter, and a transport trail
administrative cost parameter associated with the first transport
trail;
selecting a second transport trail based on associated
transport trail parameter information; and
assigning the traffic path to the second transport trail if the
second transport trail is determined to be suitable for assignment.
Rejections on Appeal
Claims 1--4, 6-15, and 17-20 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Doverspike (US Patent Application Publication
Number 2002/0097671 Al; published July 25, 2002). Final Rejection 3-15.
Claim 5 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Doverspike and Madhwaraj (US Patent Number
7,532,574 Bl; issued May 12, 2006). Final Rejection 15.
Claim 16 stands rejected under 35 U.S.C. §103(a) as being
unpatentable over Doverspike and Gilmartin (US Patent Application
Publication Number 2008/0037553 Al; issued February 14, 2008). Final
Rejection 15-16.
ANALYSIS
Rather than reiterate the arguments of Appellants and the Examiner,
we refer to the Appeal Brief (filed June 26, 2013), the Reply Brief (filed
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Application 12/961,688
December 11, 2013), the Answer (mailed October 15, 2013) and the Final
Rejection (mailed March 6, 2013) for the respective details. We have
considered in this decision only those arguments Appellants actually raised
in the Briefs.
We have reviewed the Examiner's rejections in light of Appellant's
arguments that the Examiner has erred. We adopt as our own (1) the
findings and reasons set forth by the Examiner in the Action from which this
appeal is taken and (2) the reasons set forth by the Examiner in the
Examiner's Answer in response to Appellant's Appeal Brief, except where
noted.
Appellant argues that "Doverspike never discloses changed
parameters or preempting the assignment of a traffic path to a transport trail
based on changes to the parameters in the current transport trail, because the
service paths and restoration paths are pre-computed ahead of time, and then
stored at the nodes for later use." Appeal Br. 10 (citing Doverspike
paragraph 38 ("describing the process whereby the restoration path is
computed and the restoration path information is stored in the destination
node of the service path")). Appellant further argues, "[n]either the
restoration path nor the service path are computed or re-assigned based on a
change in any parameters associated with the transport trail." Appeal Br.
10-11 (citing Doverspike paragraphs 18-22). Appellant states that
"Doverspike fails to teach or suggest preempting the assignment of the
traffic path to the first transport trail in response to a change in as least one
parameter" as required in claim 1. Appeal Br. 9-10.
The Examiner finds:
Doverspike does not specifically disclose preempting the
assignment of the traffic path to the first transport trail in
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Application 12/961,688
response to a change in at least one of a transport trail
bandwidth parameter, a transport trail reservation threshold
parameter, and a transport trail administrative cost parameter
associated with the first transport trail. However Doverspike
discloses shortest path algorithm excludes links not meeting cost
or size/bandwidth requirements from being assigned to service
path (para. 21 ). Thus it would have been obvious to one of
ordinary skill in the art at the time of the invention to implement
the shortest path algorithm as disclosed by Doverspike such that
a link not meeting requirements will be excluded, i.e., preempted,
from the solutions, thus ensuring delivery of quality service.
Final Rejection 4-5.
We do not find Appellant's arguments persuasive. Claim 1 requires
preemption to transpire in response to a change in at least one of several
parameters wherein one of the parameters is cost based. Doverspike selects
a service path in response to a communication request and computes a path
between the source and destination that minimizes some cost metric while
providing the required size for the connection request. See Doverspike
paragraph 21. We agree with the Examiner that an artisan would be able to
employ Doverspike' s algorithm to determine the shortest path to ensure
quality of service in the event of cost parameter changes. 1
Appellant contends that in a related patent application, the Office
conceded that Doverspike failed to teach or suggest the disputed preemptive
limitation of claim 1. Appeal Brief 11. We do not find Appellant's
1 "As our precedents make clear, however, the analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ." KSR Int'! v. Teleflex Inc.,
550 U.S. 398, 418 (2007).
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Appeal2014-002523
Application 12/961,688
argument persuasive.2 Therefore, we sustain the Examiner's rejection of
claim 1, as well as, independent claims 11 and 12 commensurate in scope.
Appellant does not separately argue with particularity the limitations
of claims 2, 4, 6, 7, 8, 9, 10, 14, 15, 17, 19, and 20 apart from merely
asserting that these claims recite further features that are not taught or
suggested by cited prior art. Appeal Brief 11-14, 16, 21-25. Such
conclusory assertions without supporting explanation or analysis particularly
pointing out errors in the Examiner's reasoning fall well short of
persuasively rebutting the Examiner's prima facie case of obviousness. See
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). We therefore sustain
the Examiner's obviousness rejection of claims 2, 4, 6, 7, 8, 9, 10, 14, 15,
17, 19, and 20. 3
Appellant argue that claim 3 is patentable over Doverspike because
"there is nothing in Doverspike that suggests that a link with more channels
2 In re Giolito, 530 F.2d 397, 400 (CCPA 1976) ("We reject appellants'
argument that the instant claims are allowable because similar claims have
been allowed in a patent. It is immaterial whether similar claims have been
allowed to others") (internal citations omitted).
3 Should there be further prosecution of this application, the Examiner may
wish to review the claims for compliance under 35 U.S.C. § 101 in light of
the preliminary examination instructions on patent eligible subject matter.
See "Preliminary Examination Instructions in view of the Supreme Court
Decision in Alice Corporation Pty. Ltd. v. CLS Bank International, et al. "
Memorandum to the Examining Corps, June 25, 2014. Claims 9 and 10
recite "a computer readable medium." The broadest reasonable interpretation
of the "computer readable medium" language of claims 9 and 10, when read
in light of Appellants' Specification (paragraph 14 ), is inclusive of transitory
propagating signals. See Ex parte Mewherter, 107 USPQ2d 1857, 1862
(PTAB 2013) (precedential).
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Application 12/961,688
would have a higher placement priority." Appeal Brief 12. Claim 3 recites
"wherein the placement priority associated with the traffic path is higher
than the placement priority associated with any other traffic paths."
Doverspike discloses in paragraph 21, "[ s ]electing a service path in response
to the communication request, accordingly, may be accomplished by
computing a path between the source and destination that minimizes some
cost metric and which has the required size for the connection request." We
do not find Appellant's argument persuasive and agree with the Examiner's
findings that Doverspike' s shortest path algorithm discloses prioritizing
traffic paths as claimed. See Final Rejection 5.
Appellant argues that claim 13 is patentable over Doverspike because
"Doverspike fails to teach or suggest preempting the assignment of the
traffic path to the first transport trail in response to a change in at least one
parameter or identified level of service parameter information. Appeal Brief
19. We do not find Appellant's arguments persuasive. Doverspike selects a
service path in response to a communication request and computes a path
between the source and destination that minimizes some cost metric while
providing the required size for the connection request. See Doverspike
paragraph 21. Thus, Doverspike discloses preempting the traffic path in
response to at least one parameter or identified service level parameter, and
as noted above, it would have been obvious for an artisan to employ
Doverspike' s algorithm to determine the shortest path to ensure quality of
service in the event of a change in the cost parameter. We sustain the
Examiner's obviousness rejection of claim 13, as well as, claim 18
commensurate in scope.
Appellant argues that claims 5 and 16 are patentable over the
combinations of Doverspike/Madhwaraj and Doverspike/Gilmartin
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Application 12/961,688
respectively, however, we do not find Appellant's arguments persuasive
because the Appellant's arguments are merely nominal. 4
DECISION
The Examiner's obviousness rejections of claims 1-20 are 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). See 37
C.F.R. § 41.50(±).
AFFIRMED
4 See 37 C.F.R. § 41.37(c)(l)(iv) ("The arguments shall explain why the
examiner erred as to each ground of rejection contested by appellant.)
(emphasis added); see also In re Baxter Travenol Labs., 952 F.2d 388, 391
(Fed. Cir. 1991) ("It is not the function of this court to examine the claims in
greater detail than argued by an appellant, looking for [patentable]
distinctions over the prior art").
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