Ex Parte Loher

Patent Trial and Appeal Board

Nov 3, 2016

14043683 (P.T.A.B. Nov. 3, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/043,683 10/01/2013
83579 7590 11/07/2016
LEVEL 3 COMMUNICATIONS, LLC
Attn: Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
FIRST NAMED INVENTOR
Darren P. Loher
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.
0045-US-Cl 2820
EXAMINER
RENNER, BRANDON M
ART UNIT PAPER NUMBER
2478
NOTIFICATION DATE DELIVERY MODE
11/07/2016 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@level3.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DARREN P. LO HER
Appeal2015-007202
Application 14/043,683 1
Technology Center 2400
Before THU A. DANG, LARRY J. HUME, and SCOTT B. HOW ARD,
Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1-18. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 According to Appellant, the real party in interest is Level 3
Communications, LLC. Br. 2.
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Application 14/043,683
STATEMENT OF THE CASE2
The Invention
Appellant's disclosed and claimed invention relates to systems,
methods, and computer program products for
determining packet quality on an Internet protocol-based (IP-
based) network [that] includes a packet test device that traces
multiple paths on the IP-based network to obtain node
identifiers corresponding to nodes on each path, and an Internet
quality monitor (IQM) that associates a quality metric with each
path, and associates an identified link between nodes in a path
with one of the quality metrics.
Abstract.
Exemplary Claims
Claims 1, 5, 9, and 14, reproduced below, are representative of the
subject matter on appeal (emphases added to contested limitations):
1 A t. ,..l -C " " 1" -C ,..l i. £""\. metuou ior momtormg qua11ty 01 uata
transmission on an Internet protocol (IP)-based network, the
method comprising:
deriving a network topology corresponding to at least a
portion of the IP-based network, wherein the network topology
includes one or more paths in the IP-based network;
determining a quality metric associated with each of the
one or more paths in the network topology;
2 Our Decision relies upon Appellant's Appeal Brief ("Br.," filed
Feb. 3, 2015); Examiner's Answer ("Ans.," mailed May 21, 2015); Final
Office Action ("Final Act.," mailed Sept. 4, 2014); and the original
Specification ("Spec.," filed Oct. 1, 2013). We note Appellants did not file a
Reply Brief in response to the factual findings and legal conclusions in the
Examiner's Answer.
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deriving two or more links associated with each of the
one or more paths, wherein each link includes two or more
nodes in an associated path;
determining a quality metric associated with each of the
two or more links based on the quality metrics associated with
the one or more paths; and
analyzing the quality metrics for the two or more links
related to different paths to identify sources of reduced quality.
5. A method as recited in claim 1, wherein
determining a quality metric comprises:
receiving looped back data packets; and
measuring one or more of packet loss, jitter, and latency
associated with the looped back data packets.
9. A computer-program product having computer-
executable instructions on a non-transitory computer readable
medium, which, when executed, cause a computer to perform a
process for determining quality of data communicated on an
Internet protocol-based (IP-based) network, the process
compnsmg:
determining a quality metric associated with each of one
or more destination nodes in the IP-based network, wherein
determining a quality metric comprises:
transmitting one or more data packets to one of the
destination nodes;
receiving the data packets after the data packets have
been looped backfrom the destination node; and
measuring the quality metric based on the looped back
data packets;
tracing a path associated with each destination node
using a Session Initiation Protocol (SIP) - based traceroute
function to determine node identifiers (IDs) corresponding to
nodes on each path; and
associating a quality metric with each path.
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14. A system for determining packet quality on an
Internet protocol-based (IP-based) network, the system
compnsmg:
a packet test device tracing multiple paths on the IP-
based network to obtain node identifiers corresponding to
nodes on each path, each path terminating at an associated
destination node; and
an Internet quality monitor (IQM) associating a quality
metric with each path, determining one or more links in each
path, and associating each of the one or more links with one of
the quality metrics, wherein a quality metric is determining by:
transmitting one or more data packets to one of the
destination nodes;
receiving the data packets after the data packets have
been looped backfrom the destination node; and
measuring the quality metric based on the looped back
data packets. 3
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Klinker et al. ("Klinker") US 2006/0182034 Al Aug. 17, 2006
Adhikari et al. ("Adhikari") US 7,352,705 Bl Apr. 1, 2008
3 The bold portions of claim 14 indicates the contested limitations under
§ 112, second paragraph, Rejection RI.
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Re} ections on Appea/4
RI. Claims 14--18 stand rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite. Ans. 2; Final Act. 2.
R2. Claims 1, 2, 4--8, 14, 16, and 18 stand rejected under 35 U.S.C.
§ 102( e) as being anticipated by Klinker. Ans. 2; Final Act. 4.
R3. Claims 3, 9-13, and 17 stand rejected under 35 U.S.C. § 103(a)
as being obvious over the combination of Klinker and Adhikari. Ans. 2;
Final Act. 8.
4 In the event of further prosecution of this application, we invite the
Examiner's attention to the question of whether method claims 1-8 are
patent-eligible under 35 U.S.C. § 101 in light of the preliminary examination
instructions on patent eligible subject matter. See 2014 Interim Guidance on
Patent Subject Matter Eligibility, USPTO (Dec. 16, 2014). Abstract ideas
have been identified by the courts by way of example, including
fundamental economic practices, certain methods of organizing human
activities, an idea '11 ••• of itself ... , '11 and mathematical
relationships/formulae. Alice Corp. Pty. Ltd. v. CLS Bank Int'!, 134 S. Ct.
2347, 2355-56 (2014) (internal citation omitted). Claim 1 only recites a
"method" without reliance upon a computer or other hardware to carry out
the method such that a question arises as to whether a person would also be
capable of performing the acts of the claimed method as mental steps, or
with the aid of pen and paper. See CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1375 (Fed. Cir. 2011) ("That purely mental processes
can be unpatentable, even when performed by a computer, was precisely the
holding of the Supreme Court in Gottschalk v. Benson"). Our reviewing
court further guides that "a method that can be performed by human thought
alone is merely an abstract idea and is not patent-eligible under § 101."
CyberSource, 654 F.3d at 1373. We leave further consideration of this
§ 101 issue to the Examiner. Although the Board is authorized to reject
claims under 37 C.F.R. § 41.50(b), no inference should be drawn when the
Board elects not to do so. See Manual of Patent Examining Procedure
(MPEP) § 1213.02 (9th ed., Rev. 07.2015, Nov. 2015).
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R4. Claim I5 stands rejected under 35 U.S.C. § I03(a) as being
obvious over Klinker. Ans. 2; Final Act. I2.
CLAIM GROUPING
Based on Appellant's arguments (Br. 4-I2), we decide the appeal of
anticipation Rejection R2 of claims I, 2, 4, and 6-8 on the basis of
representative claim I; we decide the appeal of anticipation Rejection R2 of
claims I 4, I 6, and I 8 on the basis of representative claim I 4; and we decide
the appeal of obviousness Rejection R3 of claims 3, 9-I3, and I 7 on the
basis of representative claim 9.
We decide the appeal of separately argued indefiniteness Rejection RI
of claims I4-I8 and anticipation Rejection R2 of separately argued claim 5,
infra. Remaining claim I5 in Rejection R4, not argued separately or
substantively with specificity, stands or falls with independent claim I 4 from
which it depends. 5
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. We do not consider arguments that
Appellant could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
We agree with particular arguments advanced by Appellant
concerning indefiniteness Rejection RI of claims I4-I8. However, we
disagree with Appellant's arguments with respect to prior art Rejections R2
5 "Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately." 37 C.F.R. § 41.37(c)(l)(iv).
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through R4 of claims I-I8, and we incorporate herein and adopt as our own:
(1) the findings and reasons set forth by the Examiner in the Final Office
Action from which this appeal is taken, and (2) the reasons and rebuttals set
forth in the Examiner's Answer in response to Appellant's arguments. We
incorporate such findings, reasons, and rebuttals herein by reference unless
otherwise noted. However, we highlight and address specific findings and
arguments regarding claims I, 5, 9, and I4 for emphasis as follows.
1. § I I2, ,-r 2, Rejection RI of Claims I4-I8
Issue 1
Appellant argues (Br. 5) the Examiner's rejection of claim I4 under 35
U.S.C. § I I2, second paragraph, is in error. These contentions present us
with the following issue:
Did the Examiner err in interpreting the limitations in claim I 4 of "an
Internet quality monitor (IQM)," and "a packet test device" as "means-plus-
function" limitations under 35 U.S.C. § I I2, sixth paragraph, and, if such
interpretation is correct, did the Examiner err in rejecting claim I 4 and
claims depending therefrom under§ I I2, second paragraph, as being
indefinite for not having sufficient structural support in the Specification?
Analysis
We note particular arguments made by Appellant in connection with
indefiniteness Rejection RI of claims I4-I8, and Appellant's admission that
these claims should be construed under the means-plus-function provisions
of 35 U.S.C. § I I2, sixth paragraph, i.e.,
Appellant respectfully traverses this assertion. Appellant
does intent [sic] to invoke the sixth paragraph or (f) of§ 112.
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The specification clearly states that both the packet test device
130 and internet quality monitor 128 may be implemented in a
number of ways, including, but not limited to, general purpose
computers, database servers, or special purpose computers.
Br. 5 (emphasis added).
In contrast, the Examiner's findings (Ans. 3) assert Appellant has only
cited to disclosure of a general purpose computer, and finds "[t]he [I]ntemet
quality monitor and packet test device are performing functions which
would require special programming and because no algorithm is disclosed,
these claimed terms are indefinite and properly stand rejected under 112
2nd." Ans. 4 (emphasis added).
Our reviewing court guides, for a computer-implemented claim
limitation interpreted under§ 112, sixth paragraph, the corresponding
structure must include the algorithm needed to transform the general purpose
computer or processor disclosed in the specification into the special purpose
computer programmed to perform the disclosed algorithm. Aristocrat Techs.
Australia Pty Ltd. v. Int'! Game Techs., Inc., 521F.3d1328, 1333 (Fed. Cir.
2008); see also Function Media, L.L. C. v. Google, Inc., 708 F .3d 1310, 1318
(Fed. Cir. 2013). Thus, the specification must sufficiently disclose an
algorithm to transform the general purpose computer or processor to a
special purpose processor programmed to perform the disclosed algorithm.
Aristocrat, 521 F.3d at 1338. An algorithm is defined, for example, as "a
finite sequence of steps for solving a logical or mathematical problem or
performing a task." MICROSOFT COMPUTER DICTIONARY 23 (5th ed.
2002). An applicant may express the algorithm in any understandable terms
including as a mathematical formula, in prose, in a flow chart, or "in any
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other manner that provides sutlicient structure." Finisar Corp. v. DirecTV
Group, Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008).
An indefiniteness rejection under§ 112, second paragraph, is
appropriate if the specification discloses no corresponding algorithm
associated with a computer or processor. Aristocrat, 521 F.3d at 1337-38.
Mere reference to a general purpose computer or processor with appropriate
programming without providing an explanation of the appropriate
programming or to "software" without providing detail about the means to
accomplish the software function is not an adequate disclosure. Id. at 1334;
Finisar, 523 F.3d at 1340-41. In addition, simply reciting the claimed
function in the specification, while saying nothing about how the computer
or processor ensures that those functions are performed, is not a sufficient
disclosure for an algorithm which, by definition, must contain a sequence of
steps. Blackboard, Inc. v. Desire2Learn, Inc., 574 F.3d 1371, 1384 (Fed.
Cir. 2009).
If the specification explicitly discloses an algorithm, the sufficiency of
the disclosure must be determined in light of the level of ordinary skill in the
art. Aristocrat, 521 F.3d at 1337. The specification must sufficiently
disclose an algorithm to transform a general purpose processor to a special
purpose processor so that a person of ordinary skill in the art can implement
the disclosed algorithm to achieve the claimed function. Id. at 1338.
In this case, contrary to the Examiner's findings, we find Appellant's
Figures 4 and 5 disclose algorithms which, in conjunction with the disclosed
programmed special purpose computer (Spec. i-f 29), appear to provide
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sufficient structural support for the claimed "Internet quality monitor" and
"packet test device."
Therefore, based upon the findings above, on this record, we are
persuaded of at least one error in the Examiner's findings regarding
structural support for the § 112, sixth paragraph, limitations at issue such
that we cannot sustain the Examiner's indefiniteness rejection of independent
claim 14, and claims 15-18 which depend therefrom.
2. § 102(e) Rejection R2 of Claims 1, 2, 4, and 6-8
Issue 2
Appellant argues (Br. 6-7) the Examiner's rejection of claim 1 under
35 U.S.C. § 102(e) as being anticipated by Klinker is in error. These
contentions present us with the following issue:
Did the Examiner err in finding the cited prior art discloses a "method
for monitoring quality of data transmission on an Internet protocol (IP)-
based network" that includes, inter alia, the steps of:
deriving two or more links associated with each of the
one or more paths, wherein each link includes two or more
nodes in an associated path; [and]
determining a quality metric associated with each of the
two or more links based on the quality metrics associated with
the one or more paths;
as recited in claim 1?
Analysis
Appellant contends, "Klinker very clearly uses only one proxy point
per path and then analyzes path performance from the source to the proxy
point," and also states "preferably the proxy point is located within the
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middle mile of the path." Br. 6 (citing Klinker Abstract, if 40). Because
Klinker allegedly "only looks at one point to source segment per path[,]
Klinker does not teach having two or more links per path." Id.
In response to the Examiner's finding that Klinger discloses deriving
two or more links associated with each path as well as metrics for those links
(Final Act. 4 (citing Klinker if 202 and Figs. 19A-D)), Appellant admits
Klinker's disclosure of the "deriving" step, and further clarifies their
argument by stating:
This is correct, however, Klinker does not determine a quality
metric associated with each of the two or more links based on
the quality metrics associated with the one or more paths.
Klinker only determines one proxy point per path and then
analyzes path performance from the source to the proxy point.
Thus, Klinker does not teach all of the claimed elements.
Id. (emphasis added). Thus, we take Appellant's admission ("[t]his is
correct") quoted above to mean Appellant agrees with the Examiner that
Klinker discloses the limitation of "deriving two or more links associated
with each of the one or more paths, wherein each link includes two or more
nodes in an associated path," as recited in claim 1, such that their contention
is essentially that Klinker does not disclose a quality metric associated with
each of the plural links.
The Examiner observes that Appellant cites (Br. 6) to portions of
Klinker (paragraphs 35, 38, and 40) in support of their argument, but notes
these paragraphs highlighted by Appellant were not invoked by the
Examiner in the rejection, such that Appellant's arguments are not
commensurate with, or relevant to the rejection, which instead relies upon
the embodiment disclosed in Klinker paragraph 202. Ans. 5---6. "Paragraph
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202 teaches candidate paths are identified by measuring the nodes along the
path and recording the flow characteristics. Therefore, if a plurality of nodes
is being measured, two or more links are measured as claimed." Ans. 5.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the disclosure of the cited
prior art to disclose the disputed limitation of claim 1, nor do we find error
in the Examiner's resulting finding of anticipation. Therefore, we sustain the
Examiner's anticipation rejection of independent claim 1, and grouped
claims 2, 4, and 6-8, which fall therewith. See Claim Grouping, supra.
3. § 102(e) Rejection R2 ofClaim 5
Issue 3
Appellant argues (Br. 8) the Examiner's rejection of claim 5 under 35
U.S.C. § 102(e) as being anticipated by Klinker is in error. These
contentions present us with the following issue:
Did the Examiner err in finding the cited prior art discloses the
method of claim 1, "wherein determining a quality metric comprises:
receiving looped back data packets; and measuring one or more of packet
loss, jitter, and latency associated with the looped back data packets," as
recited in claim 5?
Analysis
Appellant contends the Examiner erred in relying upon Klinker's
disclosure of a round trip time (R TT) calculated by correlator 652 as
disclosing the recited "looped back data packets," because the R TT "is not
the same as receiving the data packets after the data packets have been
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looped back from the destination node ... [such that] Klinker does not
anticipate claim 5." Br. 8.
In response, the Examiner finds, and we agree:
When calculating R TT in computer networks, generally
speaking the signal sent is a data packet and the round trip time
is referred to as a ping time which can be determined using a
ping command. Ping commands (i.e. ICMP echo as taught by
Klinker) send an ICMP echo request and receives an ICMP
echo reply. The echo reply MUST include the data received in
the echo request as is known in the art. Therefore one can see
that the originally sent data would be included within the
received echo reply to determine the RTT using ping.
Ans. 8. We note Appellant does not rebut the Examiner's factual findings or
finding of anticipation by filing a Reply Brief.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the disclosure of the cited
prior art to disclose the disputed limitation of claim 5, nor do we find error
in the Examiner's resulting finding of anticipation. Therefore, we sustain the
Examiner's anticipation rejection of dependent claim 5.
4. § 102(e) Rejection R2 of Claims 14, 16, and 18
Issue 4
Appellant argues (Br. 7-8) the Examiner's rejection of claim 14 under
35 U.S.C. § 102(e) as being anticipated by Klinker is in error. These
contentions present us with the following issue:
Did the Examiner err in finding the cited prior art discloses a "system
for determining packet quality on an Internet protocol-based (IP-based)
network" that includes, inter alia, "an Internet quality monitor (IQM)
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associating a quality metric with each path ... wherein a quality metric is
determin[ ed] by ... receiving the data packets after the data packets have
been looped back from the destination node," as recited in claim 14 ?6
Analysis
Appellant contends, substantially the same as in Issue 3, supra, that
calculation of an R TT "is not the same as receiving the data packets after the
data packets have been looped back from the destination node." Br. 7.
For the same reasons discussed above with respect to the rejection of
claim 5 in Issue 3, we are not persuaded of error in the Examiner's reliance
on the disclosure of the cited prior art to disclose the disputed limitation of
claim 14, nor do we find error in the Examiner's resulting finding of
anticipation. Therefore, we sustain the Examiner's anticipation rejection of
independent claim 14, and grouped claims 16 and 18 which fall therewith.
See Claim Grouping, supra.
5. § 103(a) Rejection R3 of Claims 3, 9-13, and 17
Issue 5
Appellant argues (Br. 9-11) the Examiner's rejection of claim 9 under
35 U.S.C. § 103(a) as being obvious over the combination of Klinker and
Adhikari is in error. These contentions present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a "computer program product" that performs a process that
6 Appellant also argues, "Paragraph [0027] clearly teaches away from
making such changes to Klinker." Br. 8. We note that "[t]eaching away is
irrelevant to anticipation." Seachange Int'!, Inc., v. C-Cor, Inc., 413 F.3d
1361, 1380 (Fed. Cir. 2005).
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includes, inter alia, the steps of "determining a quality metric associated
with each of one or more destination nodes in the IP-based network, wherein
determining a quality metric comprises ... receiving the data packets after
the data packets have been looped back from the destination node," as
recited in claim 9?
Analysis
Similar to arguments set forth with respect to independent claim 14
and dependent claim 5, supra, Appellant contends calculation of an R TT "is
not the same as receiving the data packets after the data packets have been
looped back from the destination node." Br. 10. We are not persuaded by
Appellant's arguments for the reasons set forth above.
Appellant further argues Klinker (paragraph 27) teaches away from
the claimed invention by favoring the use of a particular probing technique
because, allegedly, "this paragraph clearly states that [other types of
probing] techniques should not be used" by teaching that, by using probes
"to determine network degradations, additional data traffic further retards the
efficiency of particular data routes, slowing mission-critical data
applications and resulting in excessive costs." Br. 11.
In response, the Examiner finds, and we agree, "Klinker teaches
various tracing techniques in order to determine path characteristics,
however Klinker is silent with respect to using SIP-based traceroute
functions are required by claim 3 [and 9]." Ans. 9. Instead, Adhikari
"teaches a SIP-based trace route function which is used to determine the
state of the network. The reason SIP-based traceroute is used is to help
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determine a state of the network and measure characteristics of the network. 11
Id.
We agree with the Examiner because, as our reviewing court has held,
11 [a] reference may be said to teach away when a person of ordinary skill,
upon reading the reference, would be discouraged from following the path
set out in the reference, or would be led in a direction divergent from the
path that was taken by the applicant. 11 Ricoh Co., Ltd. v. Quanta Computer,
Inc., 550 F.3d 1325, 1332 (Fed. Cir. 2008) (internal quotation and citations
omitted). A reference does not teach away if it merely expresses a general
preference for an alternative invention from amongst options available to the
ordinarily skilled artisan, and the reference does not discredit or discourage
investigation into the invention claimed. In re Fulton, 391F.3d1195, 1201
(Fed. Cir. 2004). One of ordinary skill in the art would have understood
Klinker's preferred method of probing to be an alternative to other known
probing methods; such as the SIP-based traceroute of Adhikari; depending
on the application. In the absence of persuasive evidence to the contrary, we
fail to find that Klinker teaches away from the contested limitation.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 9, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 9, and grouped
claims 3, 10-13, and 17, which fall therewith. See Claim Grouping, supra.
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CONCLUSIONS
(1) The Examiner erred with respect to indefiniteness Rejection RI
of claims 14--18 under 35 U.S.C. § 112, second paragraph, and we do not
sustain the rejection.
(2) The Examiner did not err with respect to anticipation Rejection
R2 of claims 1, 2, 4--8, 14, 16, and 18 under 35 U.S.C. § 102(e) over the
cited prior art of record, and we sustain the rejection.
(3) The Examiner did not err with respect to obviousness
Rejections R3 and R4 of claims 3, 9-13, 15, and 17 under 35 U.S.C.
§ 103(a) over the cited prior art combinations of record, and we sustain the
rejections.
DECISION
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal; we affirm the Examiner's decision rejecting
claims 1-18. See 37 C.F.R. § 41.50(a)(l).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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