Ex Parte Datta et al

Patent Trial and Appeal Board

May 30, 2014

11680593 (P.T.A.B. May. 30, 2014)

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.
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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.”).
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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).
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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
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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,
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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.
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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.
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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.

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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
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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.
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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.
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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
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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
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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.
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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
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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

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