Intel Corporation

Patent Trials and Appeals Board

Dec 31, 2020

2019004631 (P.T.A.B. Dec. 31, 2020)

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.
14/978,316 12/22/2015 John Brady P90705 (884.T89US1) 7000
45457 7590 12/31/2020
SCHWEGMAN LUNDBERG & WOESSNER/Intel
P.O. Box 2938
MINNEAPOLIS, MN 55402
EXAMINER
WILLIAMS, TONY
ART UNIT PAPER NUMBER
2454
NOTIFICATION DATE DELIVERY MODE
12/31/2020 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):
SLW@blackhillsip.com
uspto@slwip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JOHN BRADY, WAEL GUIBENE,
KEITH NOLAN, MICHAEL NOLAN,
and MARK KELLY
____________________

Appeal 2019-004631
Application 14/978,3161
Technology Center 2400
____________________

Before JOSEPH L. DIXON, DAVID M. KOHUT, and
JON M. JURGOVAN, Administrative Patent Judges.

JURGOVAN, Administrative Patent Judge.

DECISION ON APPEAL

Appellant seeks review under 35 U.S.C. § 134(a) from a Final
Rejection of claims 1, 3–9, 11–17, and 19–21, which are all the claims
pending in the application. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.2

1 We use the word “Appellant” to refer to “applicant(s)” as defined in
37 C.F.R. § 1.42. The real party in interest is Intel Corporation. (Appeal Br.
2.)
2 Our Decision refers to the Specification (“Spec.”) filed December 22,
2015, the Final Office Action (“Final Act.”) mailed July 26, 2018, the
Appeal Brief (“Appeal Br.”) filed November 26, 2018, the Examiner’s
Answer (“Ans.”) mailed March 21, 2019, and the Reply Brief (“Reply Br.”)
Appeal 2019-004631
Application 14/978,316

2
CLAIMED INVENTION
The claims are directed to a method and device for “adaptive selection
of application-layer communication protocols” and “automatic selection of
an application-layer communication protocol based upon one or more
communication characteristics of [a] sending application and one or more
characteristics of the network connection between the sending device and
the recipient.” (Spec. ¶ 2; Abstract.)
Claims 1, 9, and 17 are independent. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A method for communicating with a remote device, the
method comprising:
using a computer processor and a network interface:
discovering, by communicating with the remote device, a
set of at least two supported application-layer communications
protocols of the remote device;
receiving a message from a source application executing
on the computer processor;
selecting a first application-layer communications
protocol from the set of supported application-layer
communications protocols for transmission of the message, the
selection based upon a characteristic of a computer network used
to communicate with the remote device and a communication
characteristic of the source application of the message;
constructing the message according to the first
application-layer communications protocol;
transmitting the message to the remote device over the
computer network using the first application-layer
communications protocol and the network interface; and
subsequent to transmitting the message:

filed May 21, 2019.
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Application 14/978,316

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selecting a second application-layer communications
protocol from the set of supported application-layer
communications protocols, the second application-layer
communications protocol different from the first application-
layer communications protocol;
constructing a second message from the source application
according to the second application-layer communications
protocol; and
transmitting the second message to the remote device over
the computer network using the second application-layer
communications protocol.

(Appeal Br. 25–30 (Claims App.).)

REJECTIONS3 & REFERENCES
Claims 1, 4, 9, 12, 17, and 20 stand rejected under 35 U.S.C. § 103
based on Patel et al. (US 2008/0025230 A1, published Jan. 31, 2008)
(“Patel”) and Ho et al. (US 2006/0129650 A1, published June 15, 2006)
(“Ho”). (Final Act. 5–12.)
Claims 3, 11, and 19 stand rejected under 35 U.S.C. § 103 based on
Patel, Ho, and Wang et al. (US 2014/0067902 A1, published Mar. 6, 2014)
(“Wang”). (Final Act. 12–14.)
Claims 5–8, 13–16, and 21 stand rejected under 35 U.S.C. § 103
based on Patel, Ho, and Kozisek et al. (US 2008/0049630 A1, published
Feb. 28, 2008) (“Kozisek”). (Final Act. 14–22.)

3 Claims 1, 3–9, 11–17, and 19–21 were rejected under 35 U.S.C. § 101 as
directed to non-statutory subject matter. (Final Act. 4–5.) However, this
rejection was withdrawn in the Examiner’s Answer and is no longer pending
on appeal. (Ans. 3.)
Appeal 2019-004631
Application 14/978,316

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ANALYSIS
With respect to claim 1, the Examiner finds Patel teaches and suggests
the claimed “discovering” and “selecting a first application-layer
communications protocol.” (Final Act. 5–6; Ans. 3–4.) In particular, the
Examiner asserts “Patel discloses at least a version of discovering, by
communicating with the remote device, a set of at least two supported
application-layer communications protocols of the remote device” because
Patel describes a variety of application layer protocols used in node-to-node
communication. (Ans. 3–4 (citing Patel ¶¶ 187, 291, 298, 377); Final Act. 5
(citing Patel ¶¶ 214, 317, 372).) The Examiner further asserts “Patel
discloses at least a version of the selection based upon a characteristic of a
computer network used to communicate with the remote device and a
communication characteristic of the source application of the message”
because Patel describes message classification rules that specify values,
attributes, or character patterns in an application-layer message sent to a
remote computer. (Ans. 4 (citing Patel ¶¶ 114, 203, 291, 355, 357); Final
Act. 5–6 (citing Patel ¶¶ 220, 225).) We do not agree.
We agree with Appellant that the Examiner has not made a showing
that Patel teaches the claimed “discovering” and “selecting a first
application-layer communications protocol.” (Appeal Br. 18–21; Reply Br.
3–10.) Rather, the Examiner’s rejection reproduces portions of multiple
paragraphs from Patel, inviting the reader to sift through the numerous
citations in search of an analysis or teaching of the claimed limitations. (See
Final Act. 5–6; Ans. 3–4.) Furthermore, the Examiner’s conclusions that
“Patel discloses at least a version” of the claimed “discovering” and
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“selecting” (see Ans. 3–4) are based on speculation and conclusory
assertions. For example, the Examiner finds,
Patel discloses in para 0187, 0291, 298 and 0377 a variety of
protocols, including HTTP, SMTP, and FTP with node-to-node
Communication with dynamic discovery and the use [of] a
remote computer. Therefore Patel’s teachings of different
application layer protocols during discovery protocol and
communications with a remote computer.

See Ans. 3. However, we find that the cited paragraphs of Patel merely
describe: a “message [that] may be carried according to any of a variety of
protocols, including HTTP, SMTP, and FTP. Thus, within the payload
portions of the data packets, protocol headers used by such protocols may
precede the message” (¶ 187); AONS (Application-Oriented Network
Systems) that “works primarily at the message rather than at the packet
level,” “inspect[s] the full message, including the ‘payload’ as well as all
headers” and “understands and assists with popular application-level
protocols such as HTTP, FTP, SMTP and de facto standard middleware
protocols” (¶ 214); “message processing within AONS cloud 1010 can be
understood via the following perspectives: Request/Response Message
Flow, One-Way Message Flow, Message Flow with Reliable Delivery, and
Node-to-Node Communication” (¶ 291); “AONS [that] may conduct route
and node discovery via static configuration (next hop) and/or via dynamic
discovery and route advertising (‘lazy’ discovery)” (¶ 298); and “computer
readable media [that] may be involved in carrying one or more sequences of
one or more instructions to processor 504 for execution” (¶ 377). (See Patel
¶¶ 187, 214, 291, 298, 0377.) We agree with Appellant that nowhere in
these paragraphs is there any description of “discovering, by communicating
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with the remote device, a set of at least two supported application-layer
communications protocols of the remote device” as claimed. (Appeal Br.
18–20; Reply Br. 4–6.) We find the claimed “discovering” requires a
proactive contact, polling, or request directed to the remote device to obtain
therefrom a list of supported protocols. (See Spec. ¶¶ 20, 33.) Such is
absent from the cited portions of Patel. For additional emphasis, we note
that Patel’s “route and node discovery via static configuration (next hop)
and/or via dynamic discovery and route advertising (‘lazy’ discovery)”
(¶ 298, cited by Examiner apparently because it has the word “discovery”)
does not teach or suggest discovering protocols supported by a remote
device; instead, paragraph 298 describes discovery of nodes and routes in a
network. (See Appeal Br. 18; Reply Br. 5.) Further, we agree that Patel’s
disclosure of an “AONS [that] also understands and assists with popular
application-level protocols such as HTTP, FTP, SMTP and de facto standard
middleware protocols” (¶ 214) does not provide details regarding a protocol
discovery function or polling of a remote device for supported protocols.
(Appeal Br. 20.)
With respect to the claimed “selecting a first application-layer
communications protocol,” we note that requires a selection, from the
discovered set of protocols, of one application-layer communications
protocol based upon two factors (1) a characteristic of a computer network
used to communicate with the remote device; and (2) a communication
characteristic of the source application of the message. (Appeal Br. 25
(claim 1).) We find that a selection of one protocol from a set of protocols,
based on the two factors, is not taught or suggested by the Examiner’s
collected paragraphs from Patel. (Appeal Br. 20–21; Reply Br. 3, 6–10.)
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Rather, the Examiner’s compiled paragraphs from Patel merely disclose
determining a protocol by which a message was already transmitted (¶ 203);
including information (a source IP address, a destination IP address, a TCP
source port, and a TCP destination port) in a message header (¶ 203);
mapping information that maps an application layer protocol (FTP) to a first
combination of IP addresses or TCP ports, and maps another application
layer protocol (HTTP) to a second combination of IP addresses or TCP ports
(¶ 203); computer networks, such as a local area network and a wide area
network (¶ 114); a message flow with reliable delivery (¶ 291); placing a
message in a prioritized outbox queue (¶ 355); and editing properties
associated with a message type, the properties including a name, a Quality of
Service (QoS) value, and a rule such as a parameter rule, header rule, or
content rule (¶¶ 357–358 and Fig. 28). (See Patel ¶¶ 114, 203, 291, 355,
357–358, Fig. 28.) Although a QoS value may pertain to a communication
characteristic of a source application of a message (e.g., by indicating a
characteristic of a delay-sensitive or high priority communicator, see Patel
¶¶ 6–9), we agree with Appellant that Patel’s application of QoS values to
messages of particular message types (see ¶¶ 352–358) does not teach or
suggest selection of an application-layer communications protocol from a
retrieved protocol set, based on both factors recited in claim 1 (i.e., a
characteristic of a computer network used to communicate with the remote
device, together with a communication characteristic of the message’s
source). (Reply Br. 3, 8–10; Appeal Br. 21.)
The Examiner also has not shown that the additional teachings of Ho,
Wang, and Kozisek make up for the above-noted deficiencies of Patel.
Thus, for the reasons set forth above, we do not sustain the Examiner’s
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obviousness rejection of independent claim 1 and claims 3–8 dependent
therefrom. We also do not sustain the Examiner’s obviousness rejection of
independent claims 9 and 17 (reciting similar protocol discovery and
selection limitations, and argued for substantially the same reasons as claim
1), and claims 11–16 and 19–21 dependent therefrom. (Appeal Br. 23;
Reply Br. 12–13.) Because the above-discussed issues are dispositive as to
the obviousness rejections of all claims on appeal, we do not reach
additional issues raised by Appellant’s arguments (Appeal Br. 21–22, Reply
Br. 11–12) as to the rejections of claims 1, 9, and 17.

CONCLUSION
The Examiner’s rejection of claims 1, 3–9, 11–17, and 19–21 under
35 U.S.C. § 103 is REVERSED.

In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 4, 9, 12,
17, 20
103 Patel, Ho 1, 4, 9, 12,
17, 20
3, 11, 19 103 Patel, Ho, Wang 3, 11, 19
5–8, 13–16,
21
103 Patel, Ho, Kozisek 5–8, 13–16,
21
Overall
Outcome
1, 3–9,
11–17,
19–21

REVERSED