CenturyLink Intellectual Property LLC

Patent Trials and Appeals Board

Jun 30, 2021

2020001445 (P.T.A.B. Jun. 30, 2021)

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.
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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).
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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
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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.
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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
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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
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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.
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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).
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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.
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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).

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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