Ex Parte Jacobus

Patent Trial and Appeal Board

Nov 15, 2012

09785385 (P.T.A.B. Nov. 15, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE

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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte CHARLES J. JACOBUS
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Appeal 2011-004680
Application 09/785,385
Technology Center 2400
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Before JEAN R. HOMERE, ST. JOHN COURTENAY III, and
CARLA M. KRIVAK, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-004680
Application 09/785,385

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STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s final rejection of claims 1-23. We have jurisdiction under
35 U.S.C. § 6(b). An oral hearing on this appeal was conducted on Nov. 7,
2012.
We Reverse.

THE INVENTION
Appellant's invention relates generally to network computing.
More particularly, Appellant's invention relates to a distributed environment
that supports massive groupware streaming and peer-to-peer packetized
communications. (See Spec. 1).
Claim 1 is illustrative:
A distributed network computing environment, comprising:

a plurality of clients communicating within a multicast cloud
distributed network using content specific data within messages to
implement data routing and message culling in a groupware
application; and
one or more network routing modules or router-embedded
applets operative, in addition to normal packet-routing, to permit or
inhibit the distribution of a particular message based upon the content
of the message.

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PRIOR ART
The Examiner relies upon the following references as evidence in
support of the rejections:
McCanne US 6,611,872 B1 Aug. 26, 2003
Lambright US 6,015,348 Jan. 18, 2000
Engstrom US 6,463,078 B1 Oct. 8, 2002
Bayrakeri US 6,185,602 B1 Feb. 6, 2001

THE REJECTIONS
1. The Examiner rejected claims 1, 3, 4, 6-8, 10, 11, 14-20, 22, and 23
under 35 U.S.C. § 102(e) as being anticipated by McCanne.
2. The Examiner rejected claims 2, 12, and 13 under 35 U.S.C. § 103(a)
as being unpatentable over the combination of McCanne and
Lambright.
3. The Examiner rejected claims 5 and 21 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of McCanne and Engstrom.
4. The Examiner rejected claims 9 and 19 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of McCanne and Bayrakeri.

PRIOR APPEALS
1. Ex parte Jacobus, Appeal No. 2006-2763, Application No.
09/785,383, decided on January 31, 2007 (Examiner affirmed).
2. Ex parte Jacobus, Appeal No. 2009-000997, Application No.
09/785,383, decided on July 16, 2009 (Examiner reversed).

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CONTENTIONS
Appellant contends that McCanne does not teach or suggest routing
based upon the content of the message, as claimed:
On page 3 of the Final OA, the Examiner notes that
McCanne is directed to providing "application-level control to
be applied to transferred data." This is true. However, the
control is applied to the data. In the case of Appellant,
essentially the opposite is true: rather than application level
control being applied to transferred data, the transferred data
itself i.e., the content), is applied to the control.
Appellant disagrees with the Examiner's argument that
"[O]ne of ordinary skill in the art would clearly understand that
'application-level control' entails looking at the content of the
message." But even if this were the case, it doesn't require
specific data content in a message to trigger content-based
routing, as set forth in the previous Board decision.
. . .
McCanne does not "provide other examples of
application-level routing by looking at the content of a
message." (Final OA, toward the bottom of page 2). The
Examiner points to 6:60-62 of McCanne, which states that "the
Packets are dropped by the overlay network if the setup mint is
not present, including the time during which the setup mint is in
transit." According to the Examiner, a "setup mint" refers to
identifier within a database that is carded within the packet,"
citing 6:37-44 of McCanne. (Emphasis Added). The Examiner
is incorrect on this point. The relevant passage of McCanne
reads as follows:
"Using MINT, senders can attach named values to an
overlay multicast group which is published into and across the
overlay network, allowing other group members as well as
network entities to query this "database" of state. Each tuple in
the database, called a "mint", is identified by its owner (the
OMN sender) and name (and implicitly the group)."
(App. Br. 3-4, emphasis added).
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As the Board will see, McCanne does not disclose a
database "that is carried within the packet," as suggested by the
Examiner. Rather, the setup mint is published into and across
the overlay network as a separate database to be queried by
other group members and network entities. If the database was
carried within a packet, clearly it would not be so freely
accessible. This example of McCanne does not teach that
packets are inhibited from being distributed because they lack
certain identifier within the packet itself (Final OA, top of page
3).
"As another example," the Examiner points to 19:51-59
of McCanne, which discusses transit addresses. According to
the Examiner, "[b]ecause the application-level information is
stored in a packet, it is properly interpreted as 'content' of the
message." Appellant respectfully disagrees. Just as the previous
Board confirmed that the mere type of content (e.g., audio or
video) would be insufficient to trigger the claimed content-
based routing, a peer's IP address is not content. Here the
Examiner is confusing the address on a letter with the contents
inside the envelope.
(App. Br. 4).

The Examiner disagrees. As an initial matter of claim construction,
the Examiner more broadly interprets the disputed limitation:
The phrase "routing based upon the content of the
message" is deceiving because the specific claim language is
"to permit or inhibit the distribution of a particular message
based upon the content of the message." While content-based
routing implies that the destination or next-hop of the packet is
determined based upon the content, the actual claim language
merely requires a decision as to whether to allow the
distribution of the message.
(Ans. 10, emphasis added).
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Given the aforementioned claim interpretation, the Examiner
reads the disputed claim language on the McCanne reference as
follows:
McCanne discloses at least examples of permitting or
inhibiting distribution based upon content of the message. For
example, McCanne discloses a situation where a router only
forwards (i.e., permits or inhibits) a packet "if it arrives from
one of its peers" by looking at the "peer's IP address [which]
appears explicitly in the packet." Col. 19, 11. 54-59 (emphasis
added). Stating that the peer's IP address is "in the packet" is a
clear indicator that the IP's address is part of the content of the
packet. Therefore, the routing is based on the content of the
packet. Moreover, McCanne considers the IP address to be
content in specifying that a "content-aware redirection server
can be used to map an IP address, for instance, to a nearby
overlay router." Col. 14.,11. 6-8 (emphasis added).
(Ans. 10-11, emphasis added).
McCanne also discloses that the purpose of his invention
is to extend routers "with application-level knowledge to carry
out semantically-aware transformations conditioned on
bandwidth constraints specified by external policies." Col. 4, 1.
66 to col. 5, 1. 3. In further explaining this feature, McCanne
discloses a MediaBridge that "can make decisions as to
whether, and where to route the packets." Col. 28, 11. 54-55.
These decisions include "a control mechanism for restricting,
managing, or modifying the relayed information." Col. 28, 11.
57-58.
One example of this control mechanism is the ability of
the MediaBridge to determine whether bandwidth requirements
of streaming the content would be too high and then taking
restricting the bandwidth of streaming content by "reducing the
image size, resolution, frame rate, color depth." Col. 29, 11. 5-
7. The MediaBridge must look to the content of the streaming
content to determine its original image size, resolution, etc., in
order to determine whether or not to permit distribution of the
content.
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In other words, the MediaBridge would inhibit the
distribution of the streaming content unless its contents were
modified consistent [with] application-specific bandwidth
policies. By basing its decision on the content (i.e., content's
image size, resolution, frame rate, color depth), McCanne's
MediaBridge performs the limitation as claimed.
(Ans. 11, emphasis added).

Appellant further responds in the Reply Brief:

McCanne discloses only what amounts to normal packet
routing, and clearly does not teach or suggest content-based
routing as disclosed and claimed by Appellants. [sic] The
Examiner raises a couple of new arguments in this regard. At
the top of page 11 of the Examiner's Answer, the Examiner
states that "McCanne considers the IP address to be content ... "
citing 14:6-8 of McCanne. This misses the mark and falls short
of reading on Appellant's claimed subject matter.
In claim 1, Appellant defines "content" in the context of
"content-specific data within messages to implement data
routing and message culling in a groupware application."
Appellants' [sic] invention further includes one or more routing
modules which, in addition to normal packet routing, permit or
inhibit the distribution of a particular message based upon the
content of the message. Given all of Appellant's qualifiers,
McCanne's use of the word "content" fails to establish prima
facie anticipation.
Apart from McCanne's use of the term "content-aware,"
Appellant's claim specifically states that the content-specific
data are within messages. To a person of skill in the art, in
packet communications, an IP address and a message itself are
clearly distinctly different. McCanne does not use content-
specific data within messages to implement data routing or
message culling. Nor does McCanne use modules or applets to
permit or inhibit the distribution of a particular message based
upon the content of a message. Rather, according to McCanne,
redirection can be used (as in http [normal packet routing]) to
redirect a given client away from the origin server that
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advertises screening content, say, to a nearby overlay router."
(McCanne; 14:3-6). Thus, it appears that McCanne uses normal
packet routing to permit the redirection of a single message, and
not permit or inhibit the distribution of a particular message,
certainly not based upon the content of the message.
Beginning toward the middle of page 11 of the
examiner's Answer, the Examiner argues that McCanne
discusses "semantically-aware transformations conditioned on
bandwidth constraints, including a control mechanism for
restricting, managing, or modifying the relayed information."
The example that the Examiner gives is the ability of
"MediaBridge" to determine whether bandwidth requirements
may be too high. According to the Examiner (and not
McCanne) "The MediaBridge must look to the content of the
streaming content to determine its original image size,
resolution, etc. in order to determine whether or not to permit
distribution of the content." Again, the Examiner is misguided
in concluding that size, resolution, etc. is the same as content
itself.
Even if McCanne looked at "how big" a particular packet
is, that is not the same as using the content itself to permit or
inhibit the distribution of a message in addition to normal
packet routing. The Examiner's argument here is similar to the
one made in the past which was reversed on appeal regarding
the Examiner's reliance on DeSimone to determine whether a
packet contained audio or video. Again this misses the point. In
Appellants' [sic] invention, it is the data within the message
itself that determines distribution in a multicast cloud, and not
"how big it is." In summary, the size, resolution, frame rate, or
color depth of an image is not the same as "content," and
McCanne does not anticipate.
(Reply Brief 2-3, emphasis added).

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ISSUE
Based upon our review of the administrative record, we have
determined that the following issue is dispositive in this appeal:
Under § 102, has the Examiner erred in finding that the
McCanne reference discloses or describes content-based
routing in addition to normal packet routing (i.e., “one or more
network routing modules or router-embedded applets operative,
in addition to normal packet-routing, to permit or inhibit the
distribution of a particular message based upon the content of
the message,” as claimed)?
(See independent claims 1 and 11, emphasis added).

ANALYSIS
We begin our analysis by noting that the plain language of each
independent claim on appeal requires: (1) one or more network routing
modules, or (2) router-embedded applets that are operative to permit or
inhibit the distribution of a particular message based upon the content of the
message. (Claims 1 and 11).
In particular, we focus our attention on the further requirement of
claims 1 and 11 that the one or more network routing modules or router-
embedded applets are operative to perform the aforementioned content-
based routing function in addition to normal packet-routing.
We conclude that under a broad but reasonable interpretation, the
positively recited limitation of “in addition to normal packet-routing”
precludes Appellants’ claims from being anticipated by a reference that only
discloses or describes conventional packet-routing methodologies (e.g.,
TCP/IP) that rely on a packet address to direct packets of data (datagrams)
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from source to destination by sending them to the next network node (i.e.,
router) that is closer to the final destination.
We particularly observe that the Examiner relies, inter alia, on packet
address routing in McCanne to support the anticipation rejection:
McCanne considers the IP address to be content in
specifying that a "content-aware redirection server can be used
to map an IP address, for instance, to a nearby overlay router."
Col. 14., ll. 6-8 (emphasis added).
(Ans. 11).

Contrary to the Examiner’s findings regarding McCanne (id.), we find
the use of such conventional packet routing (e.g., based upon IP addresses)
is merely an example of normal packet-routing, within the meaning of
Appellants’ independent claims 1 and 11.
The claims before us are unusual in that the scope of claims 1 and 11
additionally requires the use of “content specific data within messages to
implement data routing and message culling in a groupware application”
where
one or more network routing modules or router-
embedded applets [are] operative, in addition to normal packet-
routing, to permit or inhibit the distribution of a particular
message based upon the content of the message.
(Claims 1 and 11, emphasis added).
Consistent with Appellant’s Specification,1 we conclude that the
scope of the claimed “content of the message” covers content that is

1 See, e.g., Appellant’s Spec. 36, ll. 9-19: “Another example of an
application which fits this model is distribution of user customizable video,
audio, or other digitized information (like medical data). The user controlled

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considered by the USPTO to be non-functional descriptive material, such as
audio, video, and textual messages intended for human perception. Such
non-functional descriptive material is not accorded patentable weight if the
informational content of the data does not change or affect a machine or
computer function. See Ex parte Nehls, 88 USPQ2d 1883, 1887-90 (BPAI
2008) (precedential); Ex parte Curry, 84 USPQ2d 1272 (BPAI 2005)
(informative) (Federal Circuit Appeal No. 2006-1003, aff’d, Rule 36 (June
12, 2006)); Ex parte Mathias, 84 USPQ2d 1276 (BPAI 2005) (informative),
aff’d, 191 Fed. Appx. 959 (Fed. Cir. 2006). See also MPEP §2111.05,
Eighth Edition, Rev. 9, Aug. 2012).
Here, because Appellant’s claims “permit or inhibit the distribution of
a particular message based upon the content of the message,” we conclude
that Appellant’s claimed messages containing, e.g., audio, video, data, and
textual content, effectively become functional descriptive material which
triggers a routing decision (permitting or inhibiting the distribution of a
particular message) based upon the content of the message, within the

client application might provide controls for selection of different channels
from one or many different sources (Figure 12). Only a single feed need be
forwarded through the repeater router based on the router's understanding of
the controls settings made by the user's player application. For instance,
assume ten (10) video capture servers code video streams from ten alternate
viewing locations at a sporting event. The user selects at his/her viewing
station which stream(s) are relevant to him/her. All streams are sent to a
router for distribution (because different users may select views from any of
the streams), but because the router knows which views are relevant to
which viewers, only some data is forwarded through the router to each user
client” (emphasis added).
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meaning of Appellant’s independent claims 1 and 11.2 Thus, within the
scope of Appellant’s claims, we conclude that the contents within the
claimed message changes or affects a machine or computer (routing)
function and therefore must be accorded weight. (Claims 1 and 11). This is
an important distinction over the prior art of record that does not appear to
have been fully appreciated by the Examiner. (See Ans. 10-11).
We note that during the oral hearing on this appeal that was conducted
on Nov. 7, 2012, Appellant provided a specific (non-limiting) example of
such a message-based content trigger (to the routing modules or router-
embedded applets) that would permit or inhibit the distribution of a
particular message: e.g., a movie title embedded within the message content.
We also concur with the broad but reasonable claim construction of the
previous Board panel which concluded that the mere type of content (e.g.,
audio or video) would be insufficient to trigger the claimed content-based
routing.3
Thus, under our construction, dynamically adjusting available
bandwidth on a network (i.e., adjusting Quality of Service) based only upon
the type of message content (e.g., VOIP audio, or real-time video) would fall

2 Cf. Functional descriptive material consists of data structures and computer
programs which impart functionality when employed as a computer
component. See Interim Guidelines for Examination of Patent Applications
for Patent Subject Matter Eligibility (“Guidelines”), 1300 Off. Gaz. Pat.
Office 142 (November 22, 2005), especially pages 151-152. (The Manual of
Patent Examining Procedure includes substantively the same guidance. See
also MPEP §2111.05 Eight Edition, Revision 9, Aug. 2012.)
3 Ex parte Jacobus, 2009 WL 2137370 *5, Appeal 2009-000997, July 16,
2009 (Examiner reversed).
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outside the scope of Appellant’s claims. More is required to meet
Appellant’s claims: e.g., messages of audio, video, data, and/or textual
content that also operate effectively as functional descriptive material to
trigger a routing decision that permits or inhibits4 the distribution of the
message based on the content of the message, this being performed in
addition to normal packet routing, e.g., using a packet address. (See
independent claims 1 and 11). Consistent with our construction which
excludes media type from triggering a routing decision,5 we also agree with
Appellant that the size, resolution, frame rate, or color depth of an image is
not the same as “content” within the message itself, within the meaning of
Appellant’s independent claims, and thus McCanne does not anticipate. (See
Reply Brief 2-3).
Therefore, for essentially the same reasons argued by Appellant in the
Briefs (as discussed above), we reverse the Examiner’s anticipation rejection
of independent claims 1 and 11, and associated dependent claims 3, 4, 6-8,
10, 14-20, 22, and 23.
Regarding the remaining obviousness rejections, we do not find, nor
has the Examiner established, that the cited secondary references
(Lambright, Engstrom, and Bayrakeri) overcome the deficiencies of
McCanne, as discussed supra. Thus, after considering the totality of the
record before us, we find the weight of the evidence supports the Appellant’s

4 e.g., using message culling and/or Quality of Service bandwidth
constraints.
5 See n.3 supra.
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position that the Examiner has erred. Accordingly, reverse the Examiner’s
rejections of all claims on appeal.

CONCLUSION
Based on the facts and analysis above, Appellant has established that
the Examiner erred in finding that McCanne discloses or describes: content-
based routing in addition to normal packet routing (i.e., “one or more
network routing modules or router-embedded applets operative, in addition
to normal packet-routing, to permit or inhibit the distribution of a particular
message based upon the content of the message,” as claimed). (See
independent claims 1 and 11).

DECISION

We reverse the Examiner’s decision rejecting claims 1, 3, 4, 6-8, 10,
11, 14-20, 22, and 23 under 35 U.S.C. § 102(e).
We reverse the Examiner’s decision rejecting claims 2, 5, 9, 12, 13,
19, and 21 under 35 U.S.C. §103(a).

ORDER
REVERSED

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