Avaya Inc.

Patent Trials and Appeals Board

Mar 17, 2022

2021001455 (P.T.A.B. Mar. 17, 2022)

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. 15/485,961 04/12/2017 Joel M. Ezell 648.0311 3196 93379 7590 03/17/2022 Setter Roche LLP 1860 Blake Street Suite 100 Denver, CO 80202 EXAMINER ZAIDI, SYED A ART UNIT PAPER NUMBER 2432 NOTIFICATION DATE DELIVERY MODE 03/17/2022 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_avaya@firsttofile.com sarah@setterroche.com uspto@setterroche.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JOEL M. EZELL, MANISH CHATTERJEE, and BISWAJYOTI PAL ________________ Appeal 2021-001455 Application 15/485,961 Technology Center 2400 ____________ Before ST. JOHN COURTENAY III, JASON J. CHUNG, and MATTHEW J. McNEILL, Administrative Patent Judges. McNEILL, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-7, 9-17, 19, and 20.1 The Examiner has objected to claims 8 and 18 but otherwise indicated that these claims contain allowable subject matter. Final Act. 11-12. 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 (2019). Appellant identifies the real party in interest as Avaya, Inc. Appeal Br. 2. Appeal 2021-001455 Application 15/485,961 2 STATEMENT OF THE CASE Introduction Appellant’s application relates to network edge systems that control communication traffic entering and exiting a communication network. Spec. ¶ 1. Claim 1 illustrates the appealed subject matter and reads as follows: 1. A method of routing network traffic through a specialized network edge system for a communication network, the method comprising: in an edge system controller within the communication network: identifying criteria indicating whether certain network traffic should be handled by the specialized network edge system; receiving, from a first network edge system for the communication network, first information about first network traffic entering the communication network through the first network edge system from outside the communication network; and in response to determining, based on the first information, that the first network traffic satisfies the criteria, routing the first network traffic through the specialized network edge system. The Examiner’s Rejections Claims 1-5, 9, 11-15, and 19 stand rejected under 35 U.S.C. § 103 as being anticipated by Talpade (US 2004/0148520 A1; July 29, 2004). Final Act. 3-8. Claims 6 and 16 stand rejected under 35 U.S.C. § 103 as being unpatentable over Talpade and Aton (US 2005/0138111 A1; June 23, 2005). Final Act. 8-9. Appeal 2021-001455 Application 15/485,961 3 Claims 7 and 17 stand rejected under 35 U.S.C. § 103 as being unpatentable over Talpade and Jain (US 2014/0376367 A1; Dec. 25, 2014). Final Act. 9-10. Claims 10 and 20 stand rejected under 35 U.S.C. § 103 as being unpatentable over Talpade and Robert (US 2007/0086338 A1; Apr. 19, 2007). Final Act. 10-11. ANALYSIS The Examiner finds Talpade discloses a method comprising “in an edge system controller within the communication network . . . receiving, from a first network edge system for the communication network, first information about first network traffic entering the communication network through the first network edge system,” as recited in claim 1. Final Act. 3-4; Ans. 3-5. In particular, the Examiner finds Talpade discloses an analysis engine (the claimed “edge system controller”) that receives information from sensors of customer edge network systems (the claimed “first network edge system”). Ans. 4. Appellant argues the Examiner errs because Talpade does not disclose every element of the network in the manner claimed. See Appeal Br. 3-6. In particular, Appellant argues Talpade’s analysis engine cannot be the claimed “edge system controller” that resides “within the communication network” and Talpade’s customer edge network systems cannot be the claimed “first network edge system” through which network traffic enters the communication network. See id. Appellant has persuaded us of Examiner error. Figure 2 of Talpade is reproduced below: Appeal 2021-001455 Application 15/485,961 4 Figure 2 depicts ISP Network 202, which includes Analysis Engine 232, Filter Router 230, and Edge Router 226. Figure 2 also depicts Edge/Customer Network 204, which includes Access Router 214 and Sensor 234. The Examiner finds Analysis Engine 232 discloses the claimed “edge system controller” and Edge/Customer Network 204 discloses the claimed “network edge system.” Ans. 4. But the Examiner has failed to adequately establish that these elements satisfy all of the limitations related to these claim elements. In particular, Analysis Engine 232 resides within ISP Network 202, a different network than Edge/Customer Network 204, which the Examiner finds discloses the first network edge system. If the claimed “communication network” were to include both ISP Network 202 and Edge/Customer Network 204, the first network traffic would need to enter the communication network through first network edge system, as claimed. Appeal 2021-001455 Application 15/485,961 5 But Talpade discloses that the network traffic enters Edge/Customer Network 204 from ISP Network 202 through Edge Router 226, Access Link 216, and Access Router 214. Talpade ¶ 17. Thus, if the “communication network” includes both ISP Network 202 and Edge/Customer Network 204, the network traffic enters the network through a point other than the first network edge system. Put simply, the cited portions of Talpade cannot disclose all elements of claim 1 simultaneously. That is, if the communication network includes both ISP Network 202 and Edge/Customer Network 204, the network traffic does not satisfy the “first network traffic entering the communication network through the first network edge system” limitation. If network traffic newly enters the claimed “communication network” by entering Edge/Customer Network 204 at Access Router 214, Analysis Engine 232 cannot disclose the claimed “edge system controller” because it is not “within the communication network,” as claimed. Thus, we agree with Appellant that the Examiner has not established that Talpade discloses all of the limitations of claim 1.2 On the record before us, and for these reasons, we do not sustain the anticipation rejection of independent claim 1. We also do not sustain the anticipation rejection of independent claim 11, which recites commensurate subject matter, for the same reasons.3 We also do not sustain the rejection of dependent claims 2-5, 9, 12-15, and 19 for the same reasons. 2 Because we agree with at least one of the dispositive arguments advanced by Appellant, we need not reach the merits of Appellant’s other arguments. 3 Should there be further prosecution of this application, the Examiner may wish to consider whether claim 11, which recites “one or more computer readable storage media,” is directed to non-statutory subject matter under Appeal 2021-001455 Application 15/485,961 6 Claims 6, 7, 10, 16, 17, and 20 stand rejected under 35 U.S.C. § 103 as unpatentable over Talpade and one of three additional references. Final Act. 8-11. The Examiner does not find that any of the additional references cures the above-identified deficiency. See id. Accordingly, we do not sustain the obviousness rejections of claims 6, 7, 10, 16, 17, and 20 for the same reasons. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-5, 9, 11- 15, 19 102 Talpade 1-5, 9, 11- 15, 19 6, 16 103 Talpade, Aton 6, 16 7, 17 103 Talpade, Jain 7, 17 10, 20 103 Talpade, Robert 10, 20 Overall Outcome 1-7, 9-17, 19, 20 REVERSED 35 U.S.C. § 101. See Ex Parte Mewherter, 107 USPQ2d 1857, 1864 at *7 (PTAB 2013) (precedential). Although the Board is authorized to reject claims under 37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects not to do so. See Manual of Patent Examining Procedure (MPEP) § 1213.02.