Ex Parte Datta et alDownload PDFPatent Trial and Appeal BoardMay 30, 201411680593 (P.T.A.B. May. 30, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SANCHAITA DATTA, BHASKAR RAGULA, and PADMANABAN BALASUBRAMANIAM ____________ Appeal 2011-012477 Application 11/680,593 Technology Center 2400 ____________ Before JASON V. MORGAN, JOHN A. EVANS, and LINZY T. McCARTNEY, Administrative Patent Judges. EVANS, Administrative Patent Judge. DECISION ON APPEAL Appellants1 seek our review2 under 35 U.S.C. § 134(a) of the Examiner’s final rejection of Claims 1-203 as obvious. We have jurisdiction under 35 U.S.C. § 6(b). 1 The Real Party in Interest is FatPipe Networks. 2 We have considered in this decision only those arguments Appellants actually raised in the Briefs. Any other arguments which Appellants could have made but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii) (2010). 3 App. Br. 3-4. Appeal 2011-012477 Application 11/680,593 2 We AFFIRM.4 STATEMENT OF THE CASE The claims relate to methods for voice over internet protocol (VoIP) communications, using a VoIP telecommunication device which has no link failover functionality. Spec. 2, ll. 9-12. Claims 1, 17, and 19 are independent. An understanding of the invention can be derived from a reading of exemplary Claim 1, which is reproduced below with disputed limitations italicized: 1. A communications method, comprising: receiving a user request to initiate a telephonic connection from a local site, using a VoIP telecommunication device which has by itself no link failover functionality; establishing over wide area network links at least two tunnels between a controller at the local site and another controller; and transmitting VoIP traffic over at least one of the tunnels from the controller at the local site to the other controller. 4 Our decision refers to Appellants’ Appeal Brief filed March 31, 2011 (“App. Br.”); Reply Brief filed July 12, 2011 (“Reply Br.”); Examiner’s Answer mailed July 11, 2011 (“Ans.”); Office Action mailed March 24, 2011 (“Rej.”); and the original Specification filed February 28, 2007 (“Spec.”). Appeal 2011-012477 Application 11/680,593 3 REFERENCES The Examiner relies upon the prior art as follows: Fangman et al. U.S. 6,687,245 B2 Pub. Feb. 3, 2004 Park et al. U.S. 2005/0076207 A1 Pub. Apr. 7, 2005 Yu et al. U.S. 7,010,716 B2 Pub. Mar. 7, 2006 Peleg et al. U.S. 2006/0262789 Al Pub. Nov. 23, 2006 Lubbers et al. U.S. 7,149,769 B2 Pub. Dec. 12, 2006 Beck et al. U.S. 7,436,820 B2 Pub. Oct. 14, 2008 Walter et al. U.S. 7,738,368 B2 Pub. Jun. 15, 2010 The claims stand rejected as follows5: 1. Claims 1, 8, 15, 16, and 19 stand rejected under 35 U.S.C. § 103(a) as obvious over Walter and Beck. Ans. 4-5. 2. Claims 2-6, 17, and 20 stand rejected under 35 U.S.C. § 103(a) as obvious over Walter, Beck, and Park. Ans. 5-8. 3. Claim 7 stands rejected under 35 U.S.C. § 103(a) as obvious over Walter, Beck, and Yu. Ans. 8. 4. Claim 9 stands rejected under 35 U.S.C. § 103(a) as obvious over Walter, Beck, and Lubbers. Ans. 8-9. 5. Claims 10-13, and 18 stand rejected under 35 U.S.C. § 103(a) as obvious over Walter, Beck, and Peleg. Ans. 9-11. 5 Based on Appellants’ arguments in the Appeal Brief, we will decide the appeal on the basis of claims as set forth below. See 37 C.F.R. § 41.37(c)(1)(vii) (2010). Appeal 2011-012477 Application 11/680,593 4 6. Claim 14 stands rejected under 35 U.S.C. § 103(a) as obvious over Walter, Beck, and Fangman. Ans. 11-12. ANALYSIS I. CLAIMS 1, 8, 9, 15, 16, AND 19: WALTER AND BECK We have reviewed the Examiner’s rejections of Claims 1, 8, 9, 15, 16, and 19 in light of Appellants’ arguments that the Examiner has erred. We disagree with Appellants’ conclusions. Regarding Claim 1, Appellants contend the Examiner has misinterpreted the claim language of the VoIP telecommunication device which “has by itself no link failover functionality.” App. Br. 8. Appellants argue that the Specification defines the meaning of “no link failover functionality,” and that the application of Walter in view of Beck is inconsistent with this definition. Id. Appellants further argue the combination of Walter in view of Beck is inoperable, requires improper modification, and is motivated only by hindsight. App. Br. 5. Appellants contend that Walter teaches a VoIP phone that does have link failover functionality, in that the phone can renegotiate a call using a lower bandwidth codec if the primary WAN fails. App. Br. 9. Appellants further argue that Beck teaches the VoIP phones to have no service failover (e.g., no call forwarding, call logging or voicemail failover), but Beck does not address a lack of link failover in the VoIP device, as required by the claims. App Br. 10. Appellants contend that Walter and Beck make mutually incompatible assumptions about VoIP device failover: Walter implements link failover with a change in codec, while Beck implements Appeal 2011-012477 Application 11/680,593 5 service failover in a non-functioning VoIP device using a network server until the VoIP device beings functioning again. App. Br. 11. Appellants argue that improper modification of Walter would be required for Walter in view of Beck to arrive at the claimed invention, in that the codec (link failover) of Walter would have to be removed from Walter’s VoIP devices. App. Br. 12. The Examiner finds Walter to teach a call control gatekeeper, and not a VoIP telephone, can be configured to detect when the primary WAN becomes inoperative; once the VoIP telephones have been informed that the primary WAN is inoperative, the VoIP telephones will negotiate the telephone call using a lower bandwidth codec. Ans. 13. The Examiner finds this teaching of Walter to be analogous to the claimed “no link failover functionality” of a VoIP phone, since the decision on whether the “link” is operative or not is made by the call control gatekeeper and not the VoIP telephone. Id. The Examiner further cited Beck to bolster the position that the VoIP telephone does not need “link failover functionality” with respect to detecting how the primary WAN is inoperative: Beck discloses VoIP devices which do not participate or have link failover functionality. Ans. 14. The Examiner finds the resulting combination of Walter in view of Beck to disclose failover functionality to be detected by the control gatekeeper, voice traffic switched to backup WAN with limited bandwidth, and the calls could be dropped if there is not enough bandwidth. Id. Appellants reply that Walters does, in fact, have some link failover functionality, when the VoIP telephones negotiate the telephone call using a lower bandwidth codec after a WAN link fails. Reply Br. 1. Thus, Appeal 2011-012477 Application 11/680,593 6 Appellants contend, whether or not any control gatekeepers are also involved in failover does not change the expressly stated failover functionality of Walter’s VoIP telephones. Reply Br. 1-2. Appellants further reiterate their arguments that the combination of Walter in view of Beck is inoperable and requires improper modification. Reply Br. 2-3. We disagree with the Appellants’ contentions. The portions of the Specification cited by Appellants (Spec. 12-14) describe “link failover” as providing “redundancy/failover ‘on call’ (during a call)” and failover capability “relies primarily or solely on the controller, not on the phone” (emphasis added). A reasonable definition in light of the Specification of a “VoIP telecommunication device which has by itself no link failover functionality” includes a “VoIP phone that relies primarily on the controller to provide on-call redundancy.” We find Walter to disclose a VoIP phone that, by itself, cannot detect when the primary WAN is inoperative, but rather relies solely on the gatekeeper to inform the phone of the link failure; i.e., the VoIP phone, “by itself,” has “no link failover functionality.” Walter, col. 4, ll. 47-55 (embodiment where gatekeeper detects primary WAN failure). The fact that the VoIP phone of Walter negotiates the call with a lower bandwidth codec after being informed of the link failure does not change the fact that VoIP phone relied primarily on the gatekeeper to inform the phone of the link failure; i.e., failover would not have occurred by the phone itself, without the gatekeeper’s notification. In such an event the VoIP phone merely acts as an agent of the gatekeeper in negotiating a lower bandwidth codec as part of the gatekeeper’s link failover functionality. Ans. 13–14. Appeal 2011-012477 Application 11/680,593 7 Furthermore, we find the combination of Beck with Walter to be operative without any modification. Beck teaches that VoIP phones conventionally do not have any failover functionality, including link failover functionality in the case of being out of range (i.e., disconnected from the network). Beck, col. 5, ll. 7-13. Beck also teaches that negotiations occur between two VoIP phones to determine audio stream quality (Beck, col. 3, ll. 38-42), which is similar to the codec sampling rate negotiation of Walter (Walter, col. 3, ll. 1-6). Therefore, we find the Examiner did not err in combining Walter in view of Beck to reach the claim limitation of “a VoIP telecommunication device which has by itself no link failover functionality.” Ans. 4-5. Regarding Claims 1 and 8, Appellants further contend that the WANs of Walter are not equivalent to the claimed “tunnels.” App. Br. 18-19. The Examiner finds the broadest reasonable interpretation of “tunnels” to include the primary and secondary WAN connections of Walter. Ans. 25. We disagree with Appellants’ contentions. Appellants’ Specification defines “tunnel” as follows: “[a] tunnel is a path to a peer through the internet, another WAN, or another third party medium. . . . Channel and tunnel are synonyms for a path to a peer, except that a tunnel passes through a third party medium, such as the internet.” Spec. 5, ll. 14-17. In light of the broad definition of a “tunnel” being a “path or channel to a peer that passes through a WAN,” we find the paths carrying VoIP data between VoIP phone peers through the primary and secondary WANs of Walter to be synonymous with the claimed tunnels. Appeal 2011-012477 Application 11/680,593 8 Regarding Claim 9, Appellants reiterate their arguments regarding the combination of Walter and Beck, and do not make any specific arguments regarding the additional Lubbers reference. App. Br. 19. Therefore, the above findings also apply to Claim 9. Regarding Claim 19, Appellants contend that Walter in view of Beck does not teach a “two call-specific tunnels.” App. Br. 24. The Examiner finds the paths through the primary WAN and backup WAN to be the two call-specific tunnels. Ans. 4 and 31. We disagree with the Appellants’ conclusions. Appellants broadly define “call-specific tunnel” as “a tunnel which does not carry any significant amount of non-VoIP traffic,” where “a significant amount could be . . . defined by the level of dedication specified by an administrator, vendor, or user.” Spec. 4, ll. 9-16. The VoIP paths through the primary WAN or secondary WAN of Walter carries the VoIP data (Walter, col. 4, ll. 47-55), therefore, these paths through each WAN are “dedicated” to the VoIP traffic. Moreover, “a significant amount” is left to the user or administrator to define, and Walter teaches VoIP data may use much of the available bandwidth of the WAN (Walter, col. 1, ll. 17-20), therefore we find the path through the WAN (i.e., the tunnel) of Walter to be a call-specific tunnel. Therefore, we find the Examiner did not err in rejecting Claims 1, 8, 9, 15, 16, and 19 under 35 U.S.C. § 103(a) as obvious over Walter in view of Beck. Appeal 2011-012477 Application 11/680,593 9 II. CLAIMS 2-6, 17, AND 20: PARK We have reviewed the Examiner’s rejections of Claims 2-6, 17, and 20 in light of Appellants’ arguments that the Examiner has erred. We disagree with Appellants’ conclusions. Regarding Claims 2 and 17, Appellants contend that Park is not from a similar field of endeavor because the reference does not mention “VoIP,” “voice,” or “fail,” and therefore the combination of Park with Walter and Beck is not proper. App. Br. 15, 23. Appellants argue that one of skill would not logically try to review the enormous collection of art involving IP networks, when the problem at hand clearly makes most of that art irrelevant; rather, one of skill would have focused instead on the problem of VoIP link failure. Id. The Examiner finds Park to teach a method of establishing dynamic IP tunnels for IP data, which the Examiner considers to be the same field of endeavor as the claims. Ans. 19, 21. We disagree with the Appellants’ contentions. A reference is analogous art to the claimed invention if: (1) the reference is from the same field of endeavor as the claimed invention (even if it addresses a different problem); or (2) the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention). See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). Park addresses the issue of transmitting audio/video data over an IP network, using dynamic IP tunnels to do so. Park, ¶¶ [0004], [0020]. This dynamic IP tunnel can be over UDP or TCP transmission. Park, ¶ [0047]. Walter discloses the audio transmission of its system is also transmitted over UDP Appeal 2011-012477 Application 11/680,593 10 or TCP. Walter, col. 7, ll. 37-39. Therefore, we find Walter and Park to be the same field of endeavor (i.e., transmission of data over standard UDP or TCP protocols), even if Park addresses a different problem (i.e., transmitting both video and audio) than Walter (transmitting VoIP audio). Regarding Claim 3, Appellants contend that Park does not mention “transparent,” “VoIP,” “primary,” or “backup.” App. Br. 16. The Examiner finds Walter teaches the primary and backup IP addresses via the WANs, and Park teaches establishing dynamic tunnels. Ans. 22. We disagree with the Appellants’ contentions. We find Walter teaches the primary and backup channel IP address in the primary and secondary WAN connected to each router. Walter, Fig. 3. Further, we find Walter discloses a VoIP call initiation message, in that Walter uses standard transmission protocols, such as UDP and TCP, which conventionally use initiation messages to establish the IP connection. Walter, col. 7, ll. 37-39. This connection of a primary and backup address is transparent to the VoIP user, in that the control gatekeeper automatically switches from primary to backup if needed. Walter, col. 4, ll. 47-55. Regarding Claim 4, Appellants contend that Park does not disclose sending a VoIP termination message. App. Br. 16. The Examiner finds Walter teaches the VoIP call connection, and Park teaches the dynamic tunnel. Ans. 18, 22. We disagree with the Appellants’ conclusions, and find that Walter teaches the use of standard transmission protocols, such as UDP and TCP, that conventionally use termination messages to end the IP connection. Walter, col. 7, ll. 37-39. Appeal 2011-012477 Application 11/680,593 11 Regarding Claim 5, Appellants contend that Park does not discuss timing or mention a “user request,” thus does not teach “establishing a tunnel as a static tunnel before receiving the user request.” App. Br. 17. The Examiner finds Park teaches establishing a static tunnel. Ans. 7, 23. We disagree with the Appellants’ conclusions, and find that Walter teaches establishing a tunnel (paths through WANs) before the VoIP call (user request) can be made (Walter, col. 1, ll. 50-56), and Park teaches the tunnel can be static or dynamic (Park, ¶ [0065]). Therefore, we find the combination of Walter, Beck, and Park to teach or suggest the limitations of Claim 5. Regarding Claim 6, Appellants contend that Park does not mention “VoIP,” thus does not teach a “call-specific tunnel.” App. Br. 17. The Examiner finds that it would be obvious to use the tunnels of Park for the VoIP data of Walter in view of Beck. Ans. 24. We disagree with the Appellants’ conclusions. As discussed with regard to Claim 19 above, we find the paths through the primary WAN and secondary WAN of Walter to be “two call-specific tunnels.” Therefore, we find the Examiner did not err in rejecting Claims 2-6, 17, and 20 under 35 U.S.C. § 103(a) as obvious over Walter in view of Beck, further in view of Park. III. CLAIM 7: YU We have reviewed the Examiner’s rejections of Claim 7 in light of Appellants’ arguments that the Examiner has erred. We disagree with Appellants’ conclusions. Appeal 2011-012477 Application 11/680,593 12 Appellants contend Yu does not disclose two static tunnels sharing the same controller at each end of the tunnels, but instead shows the tunnels being shared only at Network Device C. App. Br. 18. The Examiner finds Walter teaches establishing two tunnels between a controller at the local site and another controller, and finds Yu teaches two physically separate tunnels of the same type (static versus dynamic). Ans. 4, 8. We disagree with the Appellants’ contentions, and find Yu was relied upon to teach the tunnels of Walter to be of a static type. Therefore, we find the Examiner did not err in rejecting Claim 7 under 35 U.S.C. § 103(a) as obvious over Walter in view of Beck, further in view of Yu. IV. CLAIM 10-13 AND 18: PELEG We have reviewed the Examiner’s rejections of Claims 10-13 and 18 in light of Appellants’ arguments that the Examiner has erred. We disagree with Appellants’ conclusions. Regarding Claim 10, Appellants contend Peleg does not mention “control packet” or “VoIP connection control packets,” thus the combination of Walter, Beck, and Peleg does not disclose the limitations of Claim 10. App. Br. 19-20. The Examiner finds Peleg teaches identifying packets in a VoIP network, and the combination of Peleg with Walter and Beck would allow a classifying system to improve the efficiency of the system. Ans. 9, 26. We disagree with the Appellants’ conclusions, and find that the VoIP system of Walter must necessarily send VoIP connection control packets through the WAN tunnel in order to establish a call, and the Examiner has Appeal 2011-012477 Application 11/680,593 13 provided sufficient motivation to combine the identifying and classifying method of Peleg, to increase network efficiency, with Walter and Beck. Regarding Claim 11, Appellants contend Walter, Beck, and Peleg do not teach sending VoIP packets into a dynamically established call-specific tunnel while excluding non-VoIP packets from the tunnel. App. Br. 20. Specifically, Appellants argue the cited portions of Peleg do not recite “excluding non-VoIP packets from the tunnel.” Id. Appellants further contend that Peleg, ¶ [0026], discusses a session, not a tunnel, does not mention “dynamically established” tunnels, and does not mention “excluding” non-VoIP packets. Id. The Examiner finds Peleg teaches identifying VoIP packets and sending them into a dynamically established call-specific tunnel while excluding non-VolP packets from the tunnel. Ans. 10. The Examiner contends that Walter teaches establishing WAN connections (i.e., tunnels), and Peleg teaches a tagging scheme to stop non- VoIP traffic if needed. Ans. 27. We disagree with the Appellants’ conclusions. The broadest reasonable interpretation of “establish” includes “identifying,” and “session” includes “tunnel.” Therefore, Peleg’s teaching of dynamically identifying criteria that are in turn used to identify a session (Peleg, ¶ [0026]) is analogous to the claimed “dynamically established” tunnel. Furthermore, Peleg, ¶¶ [0079]-[0080], discusses stopping packets when they are not VoIP protocol, which is analogous to excluding non-VoIP packets from the network connection (i.e., the WAN path or tunnel of Walter). Regarding Claim 12, Appellants contend Peleg’s stated goal of not reading the data in every packet suggest that the collector is for sampling Appeal 2011-012477 Application 11/680,593 14 some of the packets, which would make it unsuitable for use as a tunnel in transmitting all packets of a given call, and Peleg does not mention jitter or packet loss. App. Br. 21. The Examiner finds Peleg teaches identifying packets in a VoIP network, and transmitting the packets according to their Quality of Service (QoS) parameters. Ans. 10, 28. We disagree with the Appellants’ conclusions, and find that QoS is well-known to include parameters for minimum latency and jitter,6 and that Walter teaches minimum packet loss through codec renegotiation (Walter, col. 3, ll. 41-65). Therefore, the combination of Walter, Beck, and Peleg teaches the disputed limitations of Claim 12. Appellants also argue that Peleg does not teach dynamically established tunnels. We find Peleg’s teaching of dynamically identifying criteria that are in turn used to identify a session (Peleg, ¶ [0026]) is analogous to the claimed “dynamically established” tunnel, as discussed above with regard to Claim 11. Regarding Claim 13, Appellants’ contentions are similar to those made with regard to Claim 6 (call-specific tunnel) and Claim 12 (identify packets, improved quality of call). App. Br. 21. We disagree with Appellants’ conclusions for the same reasons as discussed above for Claim 6 and Claim 12. Regarding Claim 18, Appellants reiterate their arguments with respect to the combination of Walter, Beck, and Park as applied to independent Claim 17, and do not make any arguments specific to Claim 18 and the 6 See Fangman, U.S. 6,687,245, col. 7, ll. 2-7: QoS traffic parameters include latency and jitter. Appeal 2011-012477 Application 11/680,593 15 Peleg reference. Therefore, the above findings with regard to Claim 17 also apply to Claim 18. Therefore, we find the Examiner did not err in rejecting Claims 10-13 and 18 under 35 U.S.C. § 103(a) as obvious over Walter in view of Beck, further in view of Peleg (and Park). V. CLAIM 14: FANGMAN We have reviewed the Examiner’s rejections of Claim 14 in light of Appellants’ arguments that the Examiner has erred. We disagree with Appellants’ conclusions. Appellants contend the Examiner has not provided proper motivation to combine Fangman with Walter and Beck. App. Br. 22. Appellants argue there is no reasoning to support the motivation suggested by the Examiner, “to port mapping to tunnels,” and that Fangman teaches Network Address Port Translation (NAPT) “dynamic allocation of ports” is a firewall problem, not an advantage. App. Br. 22-23. The Examiner finds Fangman teaches performing network address translation (NAT) on packets before the controller at the local site sends them over the tunnel, such that the intermediate site sees a public IP address for the local site in the packets instead of seeing a private IP address of the local site, and combining Fangman with Walter and Beck would allow port mapping to tunnels. Ans. 11-12. We disagree with the Appellants’ contentions. We find Fangman teaches NAT technology is conventionally used in VoIP networks to allow a single public IP address to be used to support a large private IP address Appeal 2011-012477 Application 11/680,593 16 network, which is desirable because of the restrictions on the allocation of public IP addresses. Fangman, col. 1, ll. 37-57. Thus, motivation provided by the Examiner, mapping the VoIP phone ports to the IP tunnels, is supported by the background information in that Fangman teaches such NAT mapping is desirable. Furthermore, while Fangman does describe a problem with NAT if a firewall is involved (col. 14, ll. 40-54), Fangman also offers the solution in the same section: perform NAPT before encryption (col. 14, ll. 55-63). Therefore, we find the Examiner did not err in rejecting Claim 14 under 35 U.S.C. § 103(a) as obvious over Walter in view of Beck, further in view of Fangman. DECISION The rejection of Claims 1-20 under 35 U.S.C. § 103(a) is AFFIRMED. 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). AFFIRMED msc Copy with citationCopy as parenthetical citation