Ex Parte Wood et al

Patent Trial and Appeal Board

Feb 27, 2019

15408967 (P.T.A.B. Feb. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/408,967 01/18/2017
67559 7590 02/27/2019
Parsons Behle & Latimer
Attn: Docketing
800 W. Main Street, Suite 1300
Boise, ID 83702
FIRST NAMED INVENTOR
Steven Wood
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.
19987.012US02 9987
EXAMINER
CHO, HONG SOL
ART UNIT PAPER NUMBER
2467
MAIL DATE DELIVERY MODE
02/27/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVEN WOOD, PATRICK SEWALL, and
DAVID A. JOHNSON
Appeal2018-006324
Application 15/408,967
Technology Center 2400
Before ERIC S. FRAHM, LINZY T. McCARTNEY, and JOYCE CRAIG,
Administrative Patent Judges.
McCARTNEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek review under 35 U.S.C. § 134 of the Examiner's final
rejection of claims 1-5, 7-13, and 15-19. We have jurisdiction under
35 U.S.C. § 6(b ).
We affirm.
Appeal2018-006324
Application 15/408,967
BACKGROUND
The present patent application concerns "automatically select[ing] a
data path for routing data communications between a router device and a
wide area network." Specification ,r 6, filed January 18, 2017 ("Spec.").
Claims 1, 9, and 17 are independent. Claim 1 illustrates the claimed subject
matter:
1. A method for selecting a data path, comprising:
identifying a plurality of data paths between a router
device and a wide area network, the plurality of data paths
including a first data path and a second data path, the first data
path having a first remote link that interconnects a first service
provider and a first data exchanger, the second data path having
a second remote link that interconnects a second service provider
and a second data exchanger, the first data exchanger and the
second data exchanger each having a device link with the router
device;
obtaining path selection data for each of the plurality of
data paths, the path selection data including client tier
information for each of the plurality of clients, the plurality of
clients including a first client and a second client [the "obtaining"
limitation];
receiving a plurality of data communications to the router
device from the plurality of clients through at least one local link,
the plurality of data communications including a first data
communication and a second data communication, the first data
communication being received from the first client and the
second data communication being received from the second
client;
processing path selection rules with the path selection
data, data communications of the plurality of data
communications received to the router device from the first client
having a first tier and data communications of the plurality of
data communications received to the router device from the
second client having a second tier [the "processing" limitation];
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Application 15/408,967
selecting, according to the processing of path selection
rules, one of the plurality of data paths for each of the plurality
of data communications on an individual basis, wherein the first
data path is selected for data communications having the first
tier, and the second data path is selected for data communications
having the second tier [ the "selecting" limitation]; and
routing each of the plurality of data communications
between the router device and the wide area network according
to the selected data path for that data communication, wherein
the first data communication is routed via the first remote link
that follows the first data path and the second data
communication is routed via the second remote link that follows
the second data path [ the "routing" limitation].
Appeal Brief 23-24, filed February 15, 2018 ("App. Br.").
REJECTIONS
1, 4, 5, 9, 12, 13, 17
§ 103
and 19
2 and 10 § 103
3 and 11 § 103
7 and 15 § 103
8 and 16 § 103
18 § 103
1 Zisapel et al. (US 2003/0195984 Al; Oct. 16, 2003).
2 Casey (US 2005/0271048 Al; Dec. 8, 2005).
3 Maurya (US 6,160,808; Dec. 12, 2000).
4 Shiga et al. (US 2005/0188109 Al; Aug. 25, 2005).
Zisapel 1 and Casey2
Zisapel, Casey, and
Maur a3
Zisapel, Casey, and
Shi a4
Zisapel, Casey, and
Mahmood5
Zisapel, Casey, and
Yamamoto 6
Zisapel, Casey, and
Traina7
5 Mahmood et al. (US 2004/0213198 Al; Oct. 28, 2004).
6 Yamamoto et al. (US 2005/0240986 Al; Oct. 27, 2005).
7 Traina et al. (US 9,032,095 Bl; May 12, 2015).
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Application 15/408,967
DISCUSSION
We have reviewed the Examiner's rejections and Appellants'
arguments, and we disagree with Appellants that the Examiner erred. As
consistent with the discussion below, we adopt the Examiner's findings,
conclusions, and reasoning in the Final Office Action mailed October 24,
2017 ("Final Act.") and the Answer mailed March 30, 2018 ("Ans."). We
address Appellants' arguments in tum.
Independent Claims 1, 9, and 1 7
Appellants argue the Examiner has not shown that the combination of
Zisapel and Casey teaches or suggests the "obtaining," "processing,"
"selecting," and "routing" limitations recited in independent claim 1 and
similar limitations recited in independent claims 9 and 17. See App. Br. 14--
18; Reply Brief 4--6, filed May 30, 2018 ("Reply Br."). Appellants assert
that these limitations require transmitting data "across multiple data paths"
and assigning tiers to data communications based on "the client from which
[the data communications] are received." App. Br. 16. Yet according to
Appellants, the Examiner found Casey suggests transmitting data only "on a
given data path" and associating "data communications with different data
types." App. Br. 16 ( emphases omitted). Appellants also contend Casey and
Zisapel, whether considered separately or together, fail to suggest selecting a
data path based on the assigned tier. App. Br. 16-17. In Appellants' view,
"[a]t most, the combination of Zisapel and Casey suggests prioritizing
communications over only one data path of Zisapel." App. Br. 17.
We find Appellants' arguments unpersuasive. First, the Examiner did
not find Casey suggests transmitting data only on a given data path as argued
by Appellants. Rather, the Examiner found Casey teaches associating tiers
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Application 15/408,967
with clients. See Final Act. 4 ("Casey discloses a plurality of clients
including a first client and a second client having a first and second tier.").
Casey adequately supports this finding. See, e.g., Casey ,r 7 ( disclosing that
"each user or group might be assigned an IPS level of priority"). The
Examiner used the words "on a given data path" when explaining why it
would have been obvious to combine the teachings of Casey and Zisapel to
arrive at the claimed invention. Final Act. 4. ( explaining that the
combination of Casey and Zisapel would "provid[ e] efficient routing of
packets by considering priority level of each user for transmission of
associated data packets on a given data path" ( emphases added)). This
reasoning is not a finding that Casey suggests transmitting data along only a
given data path.
Second, the Examiner's statement that Casey teaches "data
communications with different data types" is both supported by the record
and consistent with the claims. In response to Appellants' arguments, the
Examiner stated that Casey teaches "data communications with different
data types (tier information as claimed)." Final Act. 8 (emphasis added). We
understand the Examiner to have found that Casey teaches associating tiers
not only with clients but also with data produced by a client's applications.
Casey adequately supports this finding. See Casey ,r 7 ("[E]ach user or group
might be assigned an IPS level of priority and within each JPS level each
application type is given a respective priority level for transmission of
associated data packets." (emphasis added)). This finding tracks the claims'
requirement that data communications from first and second clients
respectively have first and second tiers. See App. Br. 23.
Third, Appellants' arguments against Casey and Zisapel individually
have not persuaded us the Examiner erred because the Examiner concluded
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it would have been obvious to combine the teachings of Casey and Zisapel to
arrive at the disputed limitations. See Final Act. 3--4; Ans. 3--4. For example,
Appellants argue that Zisapel selects data paths based on efficiency factors
instead of tiers, but the Examiner concluded it would have been obvious to
modify Zisapel so that Zisapel selects data paths based on Casey's tiers.
Compare App. Br. 16, with Final Act. 3--4, 8. "[O]ne cannot show non-
obviousness by attacking references individually where, as here, the
rejections are based on combinations of references." In re Keller, 642 F.2d
413,426 (CCPA 1981).
Fourth, as for Appellants' contention that combining Casey and
Zisapel would have led to "[a]t most ... prioritizing communications over
only one data path of Zisapel, which is selected based on ... efficiency
factors," Appellants have not provided a persuasive reason this would be the
case. See App. Br. 16-17. Appellants have not adequately explained why
incorporating Casey's user priority levels into Zisapel's selection method
must lead to prioritizing communications over a single data path. Nor have
Appellants shown the Examiner's combination would have been "uniquely
challenging or difficult for one of ordinary skill in the art" or beyond the
"inferences and creative steps that a person of ordinary skill in the art would
employ." Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162
(Fed. Cir. 2007); KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007).
In the Reply Brief, Appellants argue the Examiner's motivation to
combine Casey and Zisapel "is divorced from what Casey is alleged to
teach" in the Answer. Reply Br. 5. Appellants assert the Examiner's
motivation to combine involves the "priority levels of users on multiple data
paths," but in the Answer, the Examiner stated that Casey discloses "each
data type with different priority levels." Reply Br. 4--5. Appellants also
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argue the Examiner "provide[ d] no reason from the prior art why" one of
ordinary skill in the art would have combined Casey and Zisapel in the
claimed manner. Reply Br. 6.
We find Appellants' arguments unpersuasive. As explained above, we
understand the Examiner to have found that Casey teaches associating tiers
with both users and data produced by the user's applications. See Final Act.
4; Answer 4. The Examiner's statement that "Casey discloses each data type
with different priority level" is in accord with this understanding. The
Examiner's statement also fits with the Examiner's motivation to combine
because the motivation is to "provid[ e] efficient routing of packets by
considering priority level of each user for transmission of associated data
packets on a given data path." Final Act. 4 ( emphasis added).
As for Appellants' contention that the Examiner's motivation to
combine does not come from the cited references, an obviousness 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, 550 U.S. at 418. The Examiner found it would have been obvious to
combine Casey and Zisapel to arrive at the claimed invention because it
would "provid[ e] efficient routing of packets by considering priority level of
each user for transmission of associated data packets on a given data path."
Final Act. 4. Appellants' argument that the Examiner did not find this
motivation explicitly disclosed in the cited references has not persuaded us
the Examiner erred.
For at least the above reasons, we sustain the Examiner's rejection of
claims 1, 9, and 1 7.
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Dependent Claims 2 and 10
Claim 2 depends from claim 1 and recites "wherein the first data
communication is routed via the first remote link simultaneously as the
second data communication is routed via the second remote link." App. Br.
24. Claim 10 depends from claim 9 and recites a similar limitation. App. Br.
27. Appellants contend the Examiner erroneously found Maurya teaches or
suggests these limitations because the Examiner ignored that Maurya
transmits multi-link point-to-point packets in a single carrier with multiple
physical links. Reply Br. 7; see also App. Br. 19-20. Appellants assert the
Examiner needed to consider all parts of Maurya, including those parts that
lead away from the claimed invention. Reply Br. 6-7 ( citing W.L. Gore &
Assoc., Inc. v. Garlock, Inc., 721 F.2d 1540, 1550 (Fed. Cir. 1983)).
Appellants contend that "[a]t most, the combination of Maurya with Zisapel
suggests routing one communication over multiple links between a data
exchanger and a service provider." App. Br. 20.
We find Appellants' arguments unpersuasive. Appellants have not
identified anything in Maurya that would have discouraged one of ordinary
skill in the art from the claimed approach. We therefore disagree that
Maurya would "lead away" from the claimed invention. See In re Gurley, 27
F.3d 551, 553 (Fed. Cir. 1994) ("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."). And
although the Examiner may have been required to consider all of Maurya,
Appellants have provided no authority for the proposition that the Examiner
had to incorporate all aspects of Maurya with the teachings of Zisapel and
Casey. The Examiner found that Maurya teaches simultaneously
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transmitting data over multiple links and provided a reason for combining
this teaching with the teachings of Zisapel and Casey to arrive at the claimed
invention. See Final Act. 5; Ans. 4. Appellants' arguments to the contrary
have not convinced us the Examiner erred.
For at least the above reasons, we sustain the Examiner's rejections of
claims 2 and 10.
Dependent Claims 8 and 16
Claim 8 depends from claim 1 and recites "wherein the path selection
data includes a security setting of each of the plurality of data paths, the
security setting of the first data path being different than the security setting
of the second data path." App. Br. 25. Claim 16 depends from claim 9 and
recites a similar limitation. App. Br. 28.
Appellants argue Yamamoto does not teach including a "security
setting" in "path selection data" and does not concern "different security
settings between the first and second data paths [that] are used to process
path selection rules." Reply Br. 8-9; see also App. Br. 21-22. Appellants
also contend that using a "security setting" to route data "would run contrary
to Yamamoto' s purpose of verifying security settings along paths." Reply
Br. 9; App. Br. 22. Finally, Appellants assert the Examiner's motivation to
combine Yamamoto with Zisapel "is inopposite [sic] to the teachings of
Yamamoto" and Yamamoto does not apply "to routing of data
communications." Reply Br. 9-10; App. Br. 22.
We find Appellants' arguments unpersuasive. First, the Examiner
concluded claims 8 and 16 would have been obvious over a combination of
Yamamoto, Zisapel, and Casey. See Final Act. 3--4, 6-7. Of note, the
Examiner found Zisapel teaches "path selection data" but does not teach the
recited "security settings." See Final Act. 3, 6. The Examiner found
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Yamamoto discloses "assigning different path security settings" and
concluded that, given this teaching, it would have been obvious to modify
Zisapel to arrive at the claimed inventions. Final Act. 6-7. Appellants'
argument that Yamamoto alone fails to teach or suggest the recited "path
selection data" has not persuaded us the Examiner erred. As noted above,
"one cannot show non-obviousness by attacking references individually
where, as here, the rejections are based on combinations of references."
Keller, 642 F.2d at 426.
Second, neither claim 8 nor claim 16 requires "different security
settings between the first and second data paths [that] are used to process
path selection rules" as argued by Appellants. Reply Br. 8 ( emphasis added).
Claims 8 and 16 respectively depend from claims 1 and 9, and claims 1 and
9 recite "processing path selection rules with the path selection data" and
"selecting, according to the processing of path selection rules, one of the
plurality of data paths." App. Br. 23-28. But neither claims 1 and 9 nor
claims 8 and 16 require processing the security settings in the path selection
rules to select a data path. We thus find this argument unpersuasive.
Third, for Appellants' argument that the Examiner's combination
would contradict Yamamoto 's purpose, the Examiner concluded it would
have been obvious to modify Zisapel given the cited art, not Yamamoto. See
Final Act. 6-7. For this reason alone, we find this argument unpersuasive. In
any event, Appellants contend Yamamoto' s purpose "is to verify
consistency in security settings along paths." App. Br. 22; see also Reply Br.
9. The part of Yamamoto relied on by Appellants discloses verifying path
security consistency by comparing original and replica path securities. See
Yamamoto ,r 9, quoted in App. Br. 21. Appellants have not adequately
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explained why "rout[ing] data through paths with different security levels
... would run contrary to" this purpose. Reply Br. 9; see also App. Br. 22.
Fourth, Appellants' arguments about the Examiner's motivation to
combine and Yamamoto' s applicability each rests on an inadequately
supported assertion. For the Examiner's motivation to combine, Appellants
assert that " [ i] f the 'security setting of Yamamoto' were utilized on Zisapel,
then the desire would be to ensure that all security settings were uniform."
Reply Br. 9-10. As for Yamamoto's applicability, Appellants contend that
Yamamoto's "'security settings' would only be applicable if the data paths
of Zisapel lead to volumes and their replicas, which were desired to be
consistently secured." Reply Br. 10. We see no reason why the desire must
be to ensure uniformity or why the security setting would apply only to
volumes and their replicas, and Appellants have not provided persuasive
reasoning or evidence to support these assertions. We therefore find
Appellants' arguments unpersuasive.
For at least the above reasons, we sustain the Examiner's rejections of
claims 8 and 16.
Remaining Claims
Because Appellants have not presented separate, persuasive
arguments for claims 3-5, 7, 11-13, 15, 18, and 19 we sustain the
Examiner's rejections of these claims.
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1, 4, 5, 9,
12,13,17 § 103
and 19
2 and 10 § 103
3 and 11 § 103
7 and 15 § 103
8 and 16 § 103
18 § 103
Summary
DECISION
Zisapel and
1, 4, 5, 9,
12,13,17
Casey
and 19
Zisapel, Casey,
2 and 10
and Mau a
Zisapel, Casey,
3 and 11
and Shi a
Zisapel, Casey,
7 and 15
and Mahmood
Zisapel, Casey,
8 and 16
and Yamamoto
Zisapel, Casey,
18
and Traina
1-5 7-13
' ' and 15-19
No 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)(l )(iv).
AFFIRMED
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