Ex Parte AKHTAR et al

Patent Trial and Appeal BoardFeb 26, 2019

14577039 (P.T.A.B. Feb. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/577,039 12/19/2014 30594 7590 02/28/2019 HARNESS, DICKEY & PIERCE, P.L.C. P.O. BOX 8910 RESTON, VA 20195 FIRST NAMED INVENTOR Shahid AKHTAR 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 29250-002761-US-Ol 4901 EXAMINER MCADAMS, BRAD ART UNIT PAPER NUMBER 2456 NOTIFICATION DATE DELIVERY MODE 02/28/2019 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): dcmailroom@hdp.com Nokia.IPR@nokia.com jhill@hdp.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SHAHID AKHTAR, ANDRE BECK, ROB MURRAY, and IVICA RIMAC Appeal2018-006748 Application 14/577,039 1 Technology Center 2400 Before ROBERT E. NAPPI, ERIC S. FRAHM, and MICHAEL T. CYGAN, Administrative Patent Judges. CYGAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE Introduction Appellants appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1-16. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 According to Appellants, the real party in interest is Alcatel-Lucent. App. Br. 2. Appeal2018-006748 Application 14/577,039 Disclosed Invention and Exemplary Claim The disclosed invention relates to caching media. Spec. ,r 1. Online video and the prevalence of limited-write-cycle media have caused new requirements to be added to traditional caching algorithms. Spec. ,r 3. The disclosed invention determines whether to cache an asset ( such as an online video) at a first cache device based upon a comparison between the frequency of requests for the asset and the retention characteristics of the first cache device. Spec. ,r 5. The frequency of requests for the asset is measured as an average inter-arrival time, which is based on an exponentially weighted moving average of periods of time between consecutive receipts of requests for that asset. Spec. ,r 7. The retention characteristic of the first cache device is determined as the average period of time between lasts requests for assets at that device and the eviction of assets of that device. Spec. ,r 6. Independent claim 1 is exemplary of the disclosed invention, and reads as follows: 1. A method comprising: receiving, at a first cache device, a request to send a first asset to a second device; determining whether the first asset is stored at the first cache device; when the determining whether the first asset is stored at the first cache device indicates that first asset is not stored at the first cache device, obtaining, at the first cache device, the first asset, performing a comparison operation based on an average inter-arrival time of the first asset with respect to the first cache device and a characteristic time of the first cache device, the average inter-arrival time being based on exponentially weighted moving average of periods of time 2 Appeal2018-006748 Application 14/577,039 between consecutive receipts of requests, at the first cache device, to send the first asset to another device, the characteristic time of the first cache device being an average period of time between receipt of last requests for, and eviction of, assets cached at the first cache device, and determining whether or not to cache the obtained first asset at the first cache device based on the comparison operation; and sending the obtained first asset to the second device. Independent claims 8, 15 and 16 recite limitations commensurate with the above-emphasized limitations recited in claim 1. Dependent claims 2-7 and 9-14 each incorporate the limitations of the independent claims from which they depend. Examiner's Rejection The Examiner rejects claims 1-16 under 35 U.S.C. Â§ 103 as being obvious over the combination of Lipstone (US 2014/0223017, published Aug. 7, 2014) and Massoulie (US 2011/0185031, published July 28, 2011) Final Act. 3. ANALYSIS We have reviewed the Examiner's rejection (Final Act. 2-10) in light of Appellants' contentions that the Examiner has erred (App. Br. 10-21; Reply Br. 2-7). Further, we have reviewed the Examiner's response to Appellants' contentions (Ans. 10). We are not persuaded by Appellants' arguments of error in the Examiner's rejection. Appellants assign error to the Examiner's rejection of claims 1-16 under pre-AIA 35 U.S.C. Â§ 103(a) as being obvious over the combination of Lipstone and Massoulie for failing to teach or suggest the claimed invention. 3 Appeal2018-006748 Application 14/577,039 The issues raised by Appellants are ( 1) whether the combination of Lipstone and Massoulie teaches or suggests an "average inter-arrival time being based on exponentially weighted moving average of periods of time between consecutive receipts of requests [for a particular asset], at the first cache device," as set forth in claim 1, and (2) whether the Examiner articulates reasoning sufficient to support the legal conclusion of obviousness. The Examiner finds Lipstone to teach or suggest a method for determining whether or not an asset should be cached at a first cache. Ans. 3--4. The Examiner finds Lipstone to teach or suggest a "time-to-implication (TTI)," which is "the average time from time of arrival till the time of action on the assets" ( emphasis omitted). Id. The Examiner finds Lipstone to compare the TTI of the asset to an average time that assets exist in the cache before being evicted from the cache. Id. The Examiner finds this comparison is used to determine whether incoming assets should be cached or not. Id. The Examiner finds Lipstone to teach or suggest all of the claimed limitations except for the claimed average inter-arrival time being based on exponentially weighted moving average periods of time. Ans. 4. The Examiner finds Massoulie to teach or suggest a method for determining whether an asset should be cached. Id. ( citing Massoulie ,r,r 52- 63). Massoulie tracks the requests and encounters concerning a particular asset at a cache device, using that information to create an exponentially weighted moving average (EWMA) for the asset. Massoulie ,r,r 59, 61. Massoulie explains the workings of the EWMA in the following manner: Between requests or encounters with other peers PjÂ·, VPj,w(t) decays exponentially . . . . Whenever peer Pj receives a report, 4 Appeal2018-006748 Application 14/577,039 VPj,w(t) is incremented by the value in this report (i.e. repPJj,w(t) is added to VPJ,w(tJ). Id. Here, the EWMA is represented by the "vote vector" variable VPj,w(t), where Pj represents the cache device, w represents the specific asset or content, and t represents time. Id. The assets having the highest EWMA are stored in the cache device. Massoulie ,r 63. With respect to whether the combination of Lipstone and Massoulie teaches or suggests the claimed "average inter-arrival time being based on exponentially weighted moving average of periods of time between consecutive receipts of requests [for a particular asset], at the first cache device," as set forth in claim 1, Appellants' contentions are unpersuasive. Appellants contend that the TTI of Lipstone, by itself, does not teach or suggest the claimed "average inter-arrival time." App. Br. 13-15. However, the Examiner's rejection is based upon what the combination of Lipstone and Massoulie would teach or suggest to one having ordinary skill in the art. One cannot show nonobviousness by attacking references individually where the rejection- is based on combinations of references. In re Keller, 642 F.2d 413 (CCPA 1981); In re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986). Therefore, the fact that Lipstone fails to teach the claimed "average inter-arrival time," which the Examiner has admitted, does not show error in the rejection based upon the combination of Lipstone and Massoulie. Appellants further contend that the Examiner does not identify elements in Massoulie that teach or suggest the "average inter-arrival time," which is claimed as "based on exponentially weighted moving average of periods of time between consecutive receipts of requests [ for a particular 5 Appeal2018-006748 Application 14/577,039 asset], at the first cache device. App. Br. 15; Reply Br. 2--4. Appellants equate Massoulie' s teaching or suggestion of keeping track of the number of time slots between encounters with other devices, in the form of variable T Pj,w, as the feature being used to meet the claimed limitations. App. Br. 16; Reply Br. 3. Appellants allege that this value does not meet the claimed limitations because it neither represents "periods of time" nor is it an "exponentially weighted moving average" that is based upon receipt of requests for content. App. Br. 16-17; Reply Br. 3--4. However, the Examiner relies not only on a teaching or suggestion of keeping track of a number of time slots, but on the entirety of Massoulie's teaching or suggestion of using a "vote vector" that is calculated as an exponentially weighted moving average of reports generated by the first cache device and its peers. Final Act. 4, citing Massoulie ,r,r 52---63. The vote vector the Examiner relies upon is represented by VPj,w(t), which includes, as part of a larger overall calculational scheme, the number of time slots represented by T Pj,w. Id.; Ans. 10. The calculation of the vote vector is also based upon reports and encounters from other cache device peers, which are generating requests for content and transmitting those requests to each other peer that they encounter. See Massoulie ,r,r 37, 54---63. Therefore, Appellants' contention that keeping track of the number of time slots does not meet the claimed limitation is not persuasive as it does not take into account the entirety of the teaching of Massoulie that the Examiner has relied upon to teach or suggest the claimed limitation. Accordingly, Appellants have not shown error in the Examiner's finding that Massoulie teaches or discloses a caching method based on an exponentially 6 Appeal2018-006748 Application 14/577,039 weighted moving average of periods of time between consecutive receipts of requests for a particular asset. With respect to whether the Examiner articulates reasoning sufficient to support the legal conclusion of obviousness, Appellants' contentions are unpersuasive. Appellants contend the Examiner does not identify which element in Massoulie is being interpreted as teaching the average inter- arrival time, and which modification or combination in view of Lipstone would result in the claimed invention such that a person of ordinary skill in the art would be motivated to combine the teachings of Lipstone and Massoulie in that manner. We do not find this contention persuasive. The Examiner has provided detailed explanation of the features from each reference and the manner by which one having ordinary skill in the art would combine those teachings or suggestions to result in the claimed invention. The Examiner has found Lipstone to teach or suggest a comparison of the TTI of a particular asset with the average time assets exist in the cache before being evicted, and using the comparison "to determine whether incoming assets should be cached or not to keep the cache fresh" (emphasis omitted). Final Act. 4. The Examiner finds Lipstone's TTI to be based on the average time between the arrival of the asset and action on the asset. Id. The Examiner finds Massoulie to teach or suggest a different method of determining the desirability of an incoming asset; rather than Lipstone' s time between arrival and action on an asset, Massoulie teaches or suggests a voting method based in part on the frequency of requests for that asset. Id. The Examiner finds that one having ordinary skill would be motivated to use the exponentially weighted moving average-based voting method of Massoulie in the cache maintenance method of Lipstone, since 7 Appeal2018-006748 Application 14/577,039 this would "optimize the use of cache storage capacity." Final Act. 4; Ans. 10. The benefit identified by the Examiner, of optimizing storage capacity, is taught or suggested by Massoulie to flow from the use of the vote-based caching policy. Massoulie ,r 63. The person of ordinary skill in the art is "a person of ordinary creativity, not an automaton." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). Accordingly, we are not persuaded that the Examiner has failed to provide sufficient identification of which elements of Lipstone and Massoulie would be combined, and the manner of such combination, such one having ordinary skill in the art would not have found the combination to render obvious the claimed invention. We conclude the Examiner did not err in finding the combination of Lipstone and Massoulie to teach or suggest the claimed invention, and to be motivated for the stated reason of optimizing the use of storage capacity that Massoulie attaches to the use of the vote-based caching policy. For the above-mentioned reasons, we sustain the Examiner's rejection of claim 1. Appellants do not present separate patentability arguments for independent claims 8, 15 and 16, or for dependent claims 2-7 and 9-14, other than those raised for independent claim 1. Therefore, we sustain the Examiner's obviousness rejection of claims 2-16. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). Accordingly, we sustain the Examiner's obviousness rejection of claims 1-16. 8 Appeal2018-006748 Application 14/577,039 CONCLUSION We conclude that Appellants have not shown that the Examiner has erred in rejecting claims 1-16 under 35 U.S.C. Â§ 103 as being obvious over the combination of Lipstone and Massoulie. DECISION We AFFIRM the Examiner's rejection of claims 1-16 under 35 U.S.C. Â§ 103. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 9