Level 3 Communications, LLC

Patent Trials and Appeals Board

Aug 7, 2020

15299224 - (D) (P.T.A.B. Aug. 7, 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.
15/299,224 10/20/2016 Joelle T. Maslak 0520-US-U1 8369
83579 7590 08/07/2020
LEVEL 3 COMMUNICATIONS, LLC
Attn: Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
EXAMINER
ZUNIGA ABAD, JACKIE
ART UNIT PAPER NUMBER
2469
NOTIFICATION DATE DELIVERY MODE
08/07/2020 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):
patent.docketing@centurylink.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JOELLE T. MASLAK
____________________

Appeal 2019-005694
Application 15/299,224
Technology Center 2400
____________________

Before ROBERT E. NAPPI, JEAN R. HOMERE, and
JAMES B. ARPIN, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1 through 20. Oral arguments were heard on July
30, 2020. A transcript of the hearing will be added to the record in due
course. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). According to Appellant, Level 3 Communications, LLC, a
subsidiary of CenturyLink, Inc., is the real party-in-interest. Appeal Br. 3.
Appeal 2019-005694
Application 15/299,224

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CLAIMED SUBJECT MATTER
The claims relate generally to a method for use in a
telecommunications network where capacity is estimated for egress ports.
Spec. ¶ 6. The estimated capacity is used to adjust network configuration.
Id. Claim 1 is reproduced below.
1. A method for providing data from a
telecommunications network, the method comprising:
obtaining traffic flow information for the
telecommunications network, the traffic flow information
comprising an estimated bytes of data transmitted from the
telecommunications network through a plurality of egress ports
to a plurality of end user networks in communication with the
telecommunications network, wherein each egress port of the
plurality of egress ports is associated with at least one of the
plurality of end user networks;
receiving an indication of available capacity for each of
the plurality of egress ports;
storing the traffic flow information and the indication of
available capacity for each of the plurality of egress ports in a
database;
calculating an estimated capacity for each of a set of the
plurality of egress ports; and
adjusting a network configuration based at least on the
calculated estimated capacity for each of a set of the plurality of
egress ports to provide a requested network service to a
plurality of end users of the telecommunications network.

Appeal 2019-005694
Application 15/299,224

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EXAMINER’S REJECTIONS2
The Examiner rejects claims 1, 10, 11, and 20 under 35 U.S.C. § 103
as unpatentable over the combined teachings of Mahop (US 2009/0116404
A1, pub. May 7, 2009) and Greenberg (US 2010/0306408 A1, pub. Dec. 2,
2010). Final Act. 7–14.
The Examiner rejects claims 2 through 9, and 12 through 19 under 35
U.S.C. § 103 as unpatentable over the combined teachings of Mahop,
Greenberg, and Hlibiciuc (US 2008/0239950 A1, Oct. 2, 2008). Final Act.
14–28.
ANALYSIS
We have reviewed Appellant’s arguments in the Appeal Brief, the
Examiner’s rejections, and the Examiner’s response to Appellant’s
arguments. Appellant’s arguments have persuaded us of error in the
Examiner’s rejection of all of the claims under 35 U.S.C. § 103.
Appellant argues the Examiner’s obviousness rejection is in error
because the combination of Mahop and Greenberg does not teach or suggest
the limitation of calculating an estimated capacity for each of a set of the
plurality of egress ports and using the calculated estimated capacity to adjust
a network configuration, as recited in independent claims 1 and 11. Appeal
Br. 6–13. Appellant argues the paragraphs Mahop cited by the Examiner as
teaching this limitation are silent with regard to calculating capacity. Id.
at 7. Appellant asserts that Mahop teaches a system, in which each node

2 Throughout this Decision we refer to the Appeal Brief filed January 28,
2019 (“Appeal Br.”); Reply Brief filed July 11, 2019 (“Reply Br.”); Final
Office Action mailed October 5, 2018 (“Final Act.”); and the Examiner’s
Answer mailed May 24, 2019 (“Ans.”).
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transmits its identity and capacity information to neighboring nodes, but that
the use of the capacity information is different than recited in claim 1. Id.
at 9. Appellant states:
Mahop discloses that each node in a network shares its capacity
information with neighboring nodes, but it fails to mention or
even infer that any node and/or system in Mahop ever
“calculat[es] an estimated capacity for each of a set of the
plurality of egress ports,” as required by claim 1. Simply put,
the protocol in Mahop never uses capacity information from
more than one port (or even more than one node) to calculate an
estimate capacity for the network. Thus, Mahop never
discloses calculating an estimated capacity for each of a set of
the plurality of egress ports.

Id. (emphasis omitted). Further, Appellant argues that the cited paragraphs
of Mahop teach local nodes share information to updated network topology
information in a database and as such, even if the Mahop were construed to
teach calculating network capacity, it does not teach adjusting a network
configuration based upon the calculated capacity. Id. at 11–12; Reply Br. 4–
5.
The Examiner’s rejection of independent claims 1 and 11 relies on
Figure 3 and paragraphs 16, 67, and 68 to support the finding that Mahop
teaches calculating an estimated capacity for each egress ports. Final Act. 9,
12. In response to Appellant’s arguments, the Examiner, in addition to the
citations in the Final Office Action, cites to Table 2 and paragraphs 74 and
75 of Mahop and states:
Mahop discloses filtering MIB [Management Information Base]
information using an interfaces grouping process (set of egress
ports), wherein the node comprises a plurality of interfaces.
Therefore, Mahop’s disclosure of the grouping process of
a plurality of interfaces inside the node, clearly discloses the
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limitations “a set of the plurality of egress ports”.
Ans. 25–26. Further, the Examiner cites to paragraphs 77, 79, 95, and 103
as additional support to show that “Mahop discloses performing calculations
of [quality of service (QoS)] parameters of links/ports based on information
collected, and calculating a maximum bandwidth that can be reserved for
QoS traffic.” Id. at 27. The Examiner interprets the term “egress capacity”
as not limited to how much information is routed or how much information
can be routed, but as also including the ability to carry an amount of
information based upon bandwidth, data, and jitter, as discussed in Mahop’s
paragraph 79. Id. at 28. The Examiner also explains how Greenberg
discloses calculating an estimated capacity. Id. at 29–30. The Examiner
cites to Figures 3, 4, and paragraphs 46, 62, 86, 71, 83, 87, and 93 to support
the finding that Mahop teaches adjusting network configuration based upon
calculated capacity of a port as claimed. Id. at 31–33.
Appellant’s augments have not persuaded us the Examiner erred in
finding that Mahop teaches calculating an estimated capacity for each egress
ports.3 We concur with the Examiner that Mahop’s paragraph 79 discusses
calculating the parameters of a port, and Mahop’s paragraph 95 (cited by
the Examiner and not addressed by Appellant’s augments) specifically
discuses several measures of capacity including the remaining bandwidth
which is calculated as maximum bandwidth minus reserved bandwidth.4
However, we have reviewed the paragraphs of Mahop cited by the
Examiner, and we disagree with the Examiner that they disclose adjusting a

3 As we concur with the Examiner’s findings that Mahop teaches the
disputed limitation, we do not address the additional findings that Greenberg
teaches the disputed limitations which the Examiner added in the Answer.
4 Bandwidth is a measure of capacity.
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network configuration based upon the calculated capacity. The Examiner’s
finding is premised upon equating Mahop’s teaching of updating the
changes to the topography with the claimed adjusting network
configurations. We agree with the Examiner that Mahop teaches
determining network topography using gathered and calculated data (such as
capacity) and using that information to adjust routing through the network.
See, e.g., Mahop ¶¶ 46, 62, 86. However, we do not consider this to be a
teaching of changing the network configuration based upon the gathered
data such as capacity. Accordingly, we do not sustain the Examiner’s
obviousness rejection of independent claims 1 and 11 and of dependent
claims 10 and 20.
The Examiner’s rejection of claims 2 through 9, and 12 through 19,
rely upon the teachings of Mahop and Greenberg to teach the limitations of
independent claims 1 and 11. Final Act. 14. Further, the Examiner has not
shown that the teachings of Hlibiciuc make up for the deficiency noted in the
rejection of claims 1 and 11. Thus, we do not sustain the Examiner’s
rejection of claims 2 through 9 and 12 through 19 for the same reasons as
discussed with respect to claims 1 and 11.

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Application 15/299,224

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CONCLUSION
In summary:
Claim
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1, 10, 11, 20 103 Mahop,
Greenberg
1, 10, 11, 20
2–9, 12–19 103 Mahop,
Greenberg,
Hlibiciuc
2–9, 12–19
Overall
Outcome
1–20
REVERSED