CenturyLink Intellectual Property LLCDownload PDFPatent Trials and Appeals BoardJun 30, 20212020001445 (P.T.A.B. Jun. 30, 2021) Copy Citation 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. 14/562,097 12/05/2014 Kevin M. McBride 1405-US-U3 6761 83809 7590 06/30/2021 CenturyLink Intellectual Property LLC Patent Docketing 1025 Eldorado Blvd. Broomfield, CO 80021 EXAMINER WON, MICHAEL YOUNG ART UNIT PAPER NUMBER 2449 NOTIFICATION DATE DELIVERY MODE 06/30/2021 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 KEVIN M. MCBRIDE, STEVEN M. CASEY, THOMAS SCHWENGLER, and FELIPE CASTRO Appeal 2020-001445 Application 14/562,097 Technology Center 2400 ____________ Before ST. JOHN COURTENAY III, JOHNNY A. KUMAR, and CARL L. SILVERMAN, Administrative Patent Judges. SILVERMAN, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–21, which constitute all pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Century Link Intellectual Property LLC. Appeal Br. 3. Appeal 2020-001445 Application 14/562,097 2 STATEMENT OF THE CASE Appellant’s disclosure is directed to service provider cloud services marketplace, including service providers network resources to offer cloud services to customers and provisioning cloud resources to provide the cloud services to customers. Abstract; Spec. ¶¶ 11, 13, 20, 21; Figs. 1, 10. Claim 1 is representative2 of the invention and reads as follows (emphasis added): 1. An apparatus for providing a service provider cloud services marketplace, the apparatus comprising: one or more processors; a non-transitory computer readable medium having encoded thereon computer software comprising a set of instructions executable by the one or more processors to cause the apparatus to perform one or more operations, the set of instructions comprising: instructions for providing a service provider cloud services marketplace having an index of service offerings, the index of service offerings including at least one cloud service for selection, each of the at least one cloud service in the index of service offerings including a respective qualifier, wherein the at least one cloud service invokes an at least one virtualized network function based on the respective qualifier, wherein the index of service offerings is configured to allow selection of the at least one cloud service, and the respective qualifier is configured to cause the at least one virtualized network function, required by the at least one cloud service, to be provisioned; instructions for provisioning the at least one virtualized network function associated with the at least one selected cloud 2 Appellant’s arguments are directed toward independent claim 1. See Appeal Br. 23. We select claim 1 as representative and the remaining other claims stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2020-001445 Application 14/562,097 3 services to a receiving network device at a customer premises, based on the respective qualifier, wherein provisioning the at least one virtualized network function includes allocating network resources to provision the at least one virtualized network function to the receiving network device at the customer premises, wherein the at least one selected cloud service is associated with a first service provider, wherein a first virtualized network function of the at least one virtualized network function is provided by a second service provider, wherein the network resources allocated to provision the first virtualized network function are provided by the second service provider; and instructions for communicating with a marketplace database, the marketplace database comprising current cloud services to be listed in the index of service offerings. Appeal Br. 25–26 (Claims Appendix). REFERENCES AND REJECTIONS The prior art relied upon by the Examiner: Name Reference Date Iyoob et al. US 2014/0279201 A1 Sept. 18, 2014 Jackson US 2011/0016214 A1 Jan. 20, 2011 Claims 1–21 stand rejected under 35 U.S.C. § 103 as unpatentable over Iyoob and Jackson. Final Act. 4–18. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s contentions in the Appeal Brief and the Reply Brief that the Examiner has erred, as well as the Examiner’s response to Appellant’s arguments in the Appeal Brief. We are not persuaded by Appellant’s arguments that the Appeal 2020-001445 Application 14/562,097 4 Examiner erred. Consistent with the discussion herein, we adopt as our own the findings and reasons set forth in the rejection from which the appeal is taken and in the Examiner’s Answer.3 In our analysis below, we highlight and address specific findings and arguments for emphasis. Appellant argues the Examiner errs in the rejection of claim 1 because neither Iyoob nor Jackson teaches the following claim 1 limitation (also referred to as “disputed limitation”). wherein the at least one selected cloud service is associated with a first service provider, wherein a first virtualized network function of the at least one virtualized network function is provided by a second service provider, wherein the network resources allocated to provision the first virtualized network function are provided by the second service provider. (Emphasis added) Appeal Br. 20–23; Reply Br. 4–5. In the Final Action, the Examiner finds, under § 103, the combination4 of Iyoob and Jackson teaches the limitations of claim 1. Final Act. 4–7. The Examiner presents detailed findings and finds Iyoob teaches most of the claim limitations, including much of the disputed limitation. Id. (citing Iyoob ¶¶ 6, 9, 11, 14, 16, 19, 25, 73, 76, 77, 79, 81–84. 166; Fig. 1. The 3 See Icon Health and Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1042 (Fed. Cir. 2017) (“As an initial matter, the PTAB was authorized to incorporate the Examiner’s findings.”); see also In re Brana, 51 F.3d 1560, 1564 n.13 (Fed. Cir. 1995) (upholding the PTAB’s findings, although it “did not expressly make any independent factual determinations or legal conclusions,” because it had expressly adopted the examiner’s findings). 4 The Examiner notes claim 1 was rejected as being anticipated by Iyoob and Appellant’s arguments are persuasive. Final Act. 2. The Examiner then cites Jackson in combination with Iyoob in the § 103 rejection before us. Id. Appeal 2020-001445 Application 14/562,097 5 Examiner relies on the teachings of Jackson for the remainder of the disputed limitation that recites “wherein the network resources allocated to provision the first virtualized network function are provided by the second service provider (also referred to as “remainder of the disputed limitation”).” Id. at 7. The Examiner finds: Jackson teaches wherein the network resources allocated to provision the first function are provided by the second service provider (see Jackson, [0046]: “requester 312 may include in their SLA requirement that is enforced by the broker 310, a requirement that if its workload is being processed in cloud 308, that if their performance level drops below a threshold or there is a failure of services from cloud 308, that the broker 310 can intelligently apply those policies that can then migrate 320 workload to another cloud 306 with the beneficial result of providing business continuity for its computing requirements. In this respect, the present disclosure provides control of the SLA to be with the consumer. The broker 310 may only need to engage in a consumer agreement with various cloud providers and utilize that consumer agreement amongst multiple clouds in order to successfully act as a broker for third party requesters”). Id. at 7–8. In the Appeal Brief, Appellant argues Jackson “Merely Teaches a Brokering Service that does not Provision Network Resources for the Service being Brokered.” Appeal Br. 20–23. According to Appellant, Jackson teaches that the brokering service acts as an interface through which a workload may be submitted by a customer to the brokering service to be handled by cloud resources across multiple cloud platforms. Id. at 20 (citing Jackson ¶ 12). Appellant argues this is in contrast with the disputed limitation in which the provisioning of a cloud service selected by the customer through the service provider cloud services marketplace by “provisioning the at least one virtualized network function associated with Appeal 2020-001445 Application 14/562,097 6 the at least one selected cloud services to a receiving network device at a customer premises.” Id. Appellant argues Jackson teaches a brokering service in which the specific cloud platform providers providing the cloud resources (or cloud service) may be opaque to the customer, whereas claim 1 recites a marketplace configured to provision a service specifically selected by the customer and provisioning resources in order to provide the selected service to the customer. Id. Appellant argues Jackson, paragraph 46, teaches broker system switching between the requestor and multiple cloud platforms. Id. at 22. According to Appellant, the Jackson broker system merely determines which cloud platform is utilized to handler a requestor’s workload. Id. Appellant argues migration of a workload to be serviced by a different cloud is unrelated to the provisioning of network resources to provide a selected cloud service, “wherein the network resources allocated to provision the first virtualized network function are provided by the second service provider.” Id. Appellant argues, like Iyoob, Jackson is silent regarding provisioning at least one selected cloud service “wherein the at least one selected cloud service is associated with a first service provider, wherein a first virtualized network function of the at least one virtualized network function is provided by a second service provider, wherein the network resources allocated to provision the first virtualized network function are provided by the second service provider.” Id. at 23. In the Answer, the Examiner reiterates that the disputed limitation is taught by the combination of Iyoob and Jackson, and finds Jackson teaches “wherein the network resources allocated to provision the first function are provided by the second service provider” (remainder of the disputed Appeal 2020-001445 Application 14/562,097 7 limitation). Ans. 5 (citing Jackson ¶ 46; Final Act 6). The Examiner finds the broker can migrate workload to different clouds. Id. The Examiner finds “[c]learly one of ordinary skill in the art would concur the migration to another cloud inherently requires provisioning and/or reprovisioning, since the workload remains unchanged.” Id. The Examiner additionally describes details of the Jackson brokering service, including resource capabilities such as “a need for provisioning of particular software or operating system.” Id. at 6–7 (citing ¶ ¶ 12, 36, 45, 50). In the Reply Brief, Appellant argues Jackson merely teaches 1) the modification of a workload to better suit a cloud environment; or 2) modification of the environment to handle a submitted workload, but both of these examples fails to teach or suggest provisioning of a VNF (Virtual Network Function) for providing a selected cloud service, where the VNF is provided by a second service provider, in which “the network resources allocated to provision the first virtualized network function are provided by the second provider.” Reply Br. 4–5 (citing Jackson ¶ 12). According to Appellant, Jackson does not teach that resources are provisioned or allocated to provision a selected service, but rather that workloads are submitted to cloud environments as determined by the broker, and that those cloud environments may be configured by the broker to better suit the workload. Id. at 5. As discussed below, on the record before us, we are not persuaded by Appellant’s arguments because the Examiner provides sufficient evidence to support the findings that the combination of Iyoob and Jackson teaches the disputed limitation. Appeal 2020-001445 Application 14/562,097 8 During prosecution, claims must be given their broadest reasonable interpretation when reading claim language in light of the Specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Although we interpret claims broadly but reasonably in light of the Specification, we nonetheless must not import limitations from the Specification into the claims. See In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). Our reviewing court states that “the words of a claim ‘are generally given their ordinary and customary meaning.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (citations omitted). However, the broadest reasonable interpretation differs from the broadest possible interpretation. In re Smith Int’l, Inc., 871 F.3d 1375, 1383 (Fed. Cir. 2017). The correct inquiry in giving a claim term its broadest reasonable interpretation in light of the specification is “an interpretation that corresponds with what and how the inventor describes his invention in the specification, i.e., an interpretation that is ‘consistent with the specification.’” Id. at 1382–83 (quoting In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997)). Along with unreasonably narrow claim interpretations, Appellant also argues an overly demanding standard of obviousness. However, we note: [t]he test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (1981). Appeal 2020-001445 Application 14/562,097 9 As stated by the Supreme Court, the Examiner’s obviousness rejection must be based on: [S]ome articulated reasoning with some rational underpinning to support the legal conclusion of obviousness. . . . [H]owever, 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’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). We note much of Appellant’s arguments are unsupported by factual evidence. Mere attorney arguments and conclusory statements that are unsupported by factual evidence are entitled to little probative value. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blouse, 736 F.2d 699, 705 (Fed. Cir. 1984); Ex parte Belinne, Appeal 2009-004693, 2009 WL 2477843, at *3–4 (BPAI Aug. 10, 2009) (informative). Here, the terms “provisioning” and “provision” are not argued by Appellant as being defined terms and Appellant does not persuasively argue the Specification limits these terms. Both Iyoob and Jackson utilize these terms, e.g., see Iyoob ¶¶ 9, 16, 19, 21; Jackson ¶¶ 7, 10, 12, 30, 31, 50; Fig. 6. Appellant’s argument that Jackson’s cloud service may be “opaque” to the customer is not persuasive as the claim does not recite the term “opaque.” Appeal Br. 21. Iyoob describes cloud services in detail and teaches the limitations of claim 1, including much of the disputed limitation. Iyoob ¶¶ 6, 9, 11, 14, 16, 19, 25, 73, 76, 77, 79, 81–84. 166; Fig. 1. Appellant does not persuasively argue the findings of the Examiner regarding the teachings of Iyoob. Appeal 2020-001445 Application 14/562,097 10 Jackson describes brokering cloud computing resources and teaches the remainder of the disputed limitation. Jackson ¶¶ 12, 36, 45, 46, 50. In particular, we agree with the Examiner’s finding that the Jackson migration to different clouds includes provisioning and/or reprovisioning. Jackson ¶ 46; Ans. 5. The Examiner’s finding in the Answer uses the term “inherently” and Appellant does not rebut this statement in the Reply Brief. Reply Br. 3–7. To establish inherency, the Examiner must show that the missing subject matter is necessarily present in the Jackson migration to different clouds. See PAR Pharmaceutical, Inc. v TWI Pharmaceuticals, Inc. 773 F.3d 1186, 1195 (Fed Cir. 2014) (“[t]he mere fact that a certain thing may result from a given set of circumstances is not sufficient. If, however, the disclosure is sufficient to show that the natural result flowing from the operation as taught would result in the performance of the questioned function, it seems to be well settled that the disclosure should be regarded as sufficient.”). After the PTO establishes a prima facie case based upon inherency, “the burden shifts to Appellant to ‘prove that the subject matter shown to be in the prior art does not possess the characteristic relied on.’” In re King, 801 F.2d 1324, 1327 (Fed. Cir. 1986) (quoting In re Swinehart, 439 F.2d 210, 212-13 (CCPA 1971)). In view of the above, on the record before us, we are not persuaded of Examiner error in rejecting representative independent claim 1. Grouped independent claims 12 and 20, and dependent claims 2–11, 13–19, and 21 (not separately argued) fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2020-001445 Application 14/562,097 11 CONCLUSION For the reasons stated above, we sustain the obviousness rejection of claims 1–21. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–21 103 Iyoob, Jackson 1–21 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation