Ex Parte Perkuhn et alDownload PDFPatent Trials and Appeals BoardApr 1, 201914125976 - (D) (P.T.A.B. Apr. 1, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/125,976 01/23/2014 Reiko Perkuhn 24112 7590 04/02/2019 COATS & BENNETT, PLLC 1400 Crescent Green, Suite 300 Cary, NC 27518 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. 4015-8781 / P34731-US2 1030 EXAMINER CUNNINGHAM, KEVIN M ART UNIT PAPER NUMBER 2461 MAIL DATE DELIVERY MODE 04/02/2019 PAPER 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. PTOL-90A (Rev. 04/07) UNITED ST ATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte REIKO PERKUHN, MARKUS KAMPMANN, andRENEREMBARZ 1 Appeal 2018-001915 Application 14/125,976 Technology Center 2400 Before HUNG H. BUI, KARA L. SZPONDOWSKI, and DAVID J. CUTITTAII, Administrative Patent Judges. CUT ITT A, Administrative Pa tent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) from the Final Rejection of claims 24--48, all the pending claims in the present application. See Appeal Br. 2. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 Appellants name Telefonaktiebolaget L M Ericsson as the real party in interest. See Appeal Br. 2. Appeal 2018-001915 Application 14/125,976 STATEMENT OF THE CASE Invention Appellants' invention "relates to methods of controlling content delivery to clients of a mobile communication network" in which"[ a] controlling entity, located outside the mobile communication network, can control the content delivery to adapt content delivery for clients of the mobile communication network in a particular region." Spec. 1 :8-9, 11: 14-- 12:2. 2 Exemplary Claims Claims 24, 33, and 42 are independent claims. Claims 24, 28, 29, and 32 are exemplary and are reproduced below with limitations at issue emphasized: 24. A method of controlling content delivery to plural clients of a mobile communication network, the content being delivered to the plural clients over a radio access network of the mobile communication network, the method comprising: collecting geo information of the plural clients by a network entity associated with the mobile communication network; evaluating, by the network entity, the collected geo information of the plural clients based on a rule: to determine whether the content delivery is to be adapted; and 2 This Decision refers to: (1) Appellants' Specification ("Spec.") filed December 13, 2013; (2) the Final Office Action ("Final Act.") mailed March 17, 2017; (3)the Appeal Brief("Appeal Br.") filed September 1, 2017; ( 4) the Examiner's Answer ("Ans.") mailed October 17, 2017; and ( 5) the Reply Brief ("Reply Br.") filed December 11, 2017. 2 Appeal 2018-001915 Application 14/125,976 to identify a region for which the content delivery is to be adapted; selectively outputting, by the network entity, a message to a controlling enti "ty outside the mobile communication network in response to it being determined that the content delivery is to be adapted; [ and] controlling, by the controlling enti"ty, the content delivery in response to receiving the message, so as to adapt the content delivery for clients located in the identified region. 28. Themethodofclaim 26: wherein the controlling entity transmits the control message to an execution point; wherein, in response to receiving the control message, the execution point directs a request for content coming from a client located in the identified region to a content server of the content source which is associated with the selected content delivery rate. 29. Themethodofclaim 26: wherein the controlling entity sends the control message to the clients located in the identified region; wherein, in response to receiving the control message, the clients located in the identified region request the content from a content server of the content source which is associated with the selected content delivery rate. 32. The method of claim 31, further comprising: receiving, by the controlling entity, quality reports from the plural clients to which the content is delivered; wherein the controlling entity modifies the rule based on the received quality reports. Appeal Br. 25-27. 3 Appeal 2018-001915 Application 14/125,976 REFERENCES The Examiner relies upon the following prior art 3 in rejecting the claims on appeal: Goldschmidt Anglin Ishii Henocq Aybay Komamura Gopalakrishnan us 2006/0013136 Al US 2006/0023656 Al US 2010/0296449 Al US 2011/0013538 Al US 2011/0154132 Al US 2011/0158187 Al US 8,341,255 B2 REJECTIONS Jan. 19, 2006 Feb.02,2006 Nov. 25, 2010 Jan. 20, 2011 June 23, 2011 June 30, 2011 Dec. 25, 2012 Claims 24--31, 33--40, 42--46, and48 stand rejected under 35 U.S.C. § 103( a) as being unpatentable over the combination of Gopalakrishnan, Aybay, Ishii, Komamura, and Anglin. Final Act. 2-11. Claim 47 standsrejectedunder35 U.S.C. § 103(a)as being unpatentable over the combination of Gopalakrishnan, Aybay, Ishii, Komamura, Anglin, and Goldschmidt. Final Act. 11-12. Claims 32 and41 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Gopalakrishnan, Aybay, Ishii, Komamura,Anglin, andHenocq. FinalAct. 12-13. Our review in this appeal is limited to the above rejections and the issues raised by Appellants. Arguments not made in the Appeal Brief are waived. See 37 C.F.R. § 4I.37(c)(l)(iv) (2016). 3 All citations to the references use the frrst-named inventor only. 4 Appeal 2018-001915 Application 14/125,976 ANALYSIS Claim 24 Issue: Does the Examiner err in fmding the cited combination of references teaches or suggests "selectively outputting, by the network entity, a message to a controlling entity outside the mobile communication network in response to it being determined that the content delivery is to be adapted" and "controlling, by the controlling entity, the content delivery in response to receiving the message, so as to adapt the content delivery for clients located in the identified region," as recited in independent claim 24? The Examiner fmds Gopalakrishnan' s "intermediate device/ data flow controller/data module" teaches "controlling, by the controlling entity, the content delivery ... so as to adapt the content delivery for clients located in the identified region." Final Act. 2 (citing Gopalakrishnan 26:15-30, emphasis omitted). Appellants dispute the Examiner's factual fmdings. Appellants argue the "flow rate control in Gopalakrishnan is implemented based on" a per- client or "individual client basis, rather than on a regional basis" and"[ t ]hat does not mean that all clients within a region (e.g., a cell) will have the same adaption of content delivery." Appeal Br. 12 ( citing Gopalakrishnan 26: 15- 30 ). The Examiner responds that "applicant argues over embodiments not cited by the Examiner" because '"in an embodiment, flow rate control can be implemented on a per client basis' but further 'in other embodiments, flow rate control can be implemented based on other criteria including ... cell ID."' Ans. 2 (citing Gopalakrishnan26:33-38. We fmd Appellants' argument unpersuasive because the Examiner's fmdings are supported by substantial evidence. The embodiment of 5 Appeal 2018-001915 Application 14/125,976 Gopalakrishnan relied upon by the Examiner discusses that flow rate control can be implemented based on other criteria, including, for example ... subscriberlocation, [and] cell ID." Gopalakrishnan26:35-38. Appellants fail to persuasively address this embodiment, and thus fail to explain why Gopalakrishnan' s controlling of data flow rate for a subscriber location or a cell ID fails to teach or suggest controlling ... content delivery ... for clients located in the identified region," as recited in claim 24. Also, Appellants' argument that Gopalakrishnan's flow control does not teach "that all clients within a region (e.g., a cell) will have the same adaption of content delivery" is unpersuasive because the argument relies on features not recited in the claim, i.e., the claim does not recite adapting the content delivery for all clients located in the identified region. Appeal Br. 12; see id. 25 (Emphasis added). Next, the Examiner fmds the combination of Gopalakrishnan and Aybay teaches or suggests the "controlling entity outside the mobile communication network," as recited in claim 24. Specifically, the Examiner fmds "Gopalakrishnan discloses the traffic manager (in the intermediation module) is configured to provide traffic management in the network including regulating the flow of content traffic between the elements in the system ... [ and] Aybay discloses a flow module that can be disposed outside of a network." Final Act. 3 ( citing Aybay ,r 28). The Examiner fmds Aybay's flow module is equivalent to Gopalakrishnan's traffic manager because they both teach entities controlling data flow. See id. The Examiner determines that, in view of Aybay, "it is just an obvious variation to one with ordinary skill in the art to move the functionality of the traffic manager to a different location inside or outside the network" and "[i]t 6 Appeal 2018-001915 Application 14/125,976 would have been obvious to one of ordinary skill in the art, at the time of the invention to incorporate the teachings of Aybay into the teachings of Gopalakrisnan in order to improve traffic analyzers by better detecting anomalies." Final Act. 3 ( emphasis omitted). Appellants argue the combination fails to teach the controlling entity outside the mobile communication network "because Aybay's flow module merely observes and labels flow behavior; it is not itself controlling flow behavior. For instance Aybay's flow module does not block or throttle content distribution to manage content delivery." Appeal Br. 13. We are unpersuaded because ( 1) Appellants' arguments are not responsive to the Examiner's fmdings and (2) Aybay teaches that flow module 100 can include a "switch/router" that controls data flow. Aybay ,r 30; see also Ans. 6. Appellants attack Aybay alone when the rejection is based on the combination of Gopalakrisnan and Aybay. That is, the Examiner fmds both references teach "a controlling entity," as recited in claim 24. The Examiner relies on Gopalakrisnan to teach a controlling entity controlling content delivery by controlling data flow and on Aybay to teach locating the controlling entity outside the network. See Final Act. 2-3. Accordingly, we fmd this argument unpersuasive of error. Next, Appellants argue the combination of Gopalakrishnan and Aybay is improper because "the Office appears to rely on a mere allegation that Gopalakrishnan's intermediate network device is equivalent to Aybay's flow module" and "these devices are not equivalent." Appeal Br. 14. As discussed above, we disagree with Appellants' premise that Aybay's flow module fails to teach a controlling entity and thus Appellants' argument that the combination is not obvious because the devices of 7 Appeal 2018-001915 Application 14/125,976 Gopalakrishnan and Aybay are not equivalent is unpersuasive. We agree with the Examiner's fmdings that both references teach "a controlling entity," as claimed, and therefore Appellants fail to show error in the Examiner's obviousness determination. Appellants further argue "[ t ]he Office has not provided any other reasoning for its allegation that modify[ing] Gopalakrishnan to move the traffic manager out of the mobile communication network would be 'an obvious design engineering choice."' Appeal Br. 14. We fmd this argument unpersuasive, noting the Examiner provides a motivation to modify Gopalakrishnan based on Aybay. See Final Act. 3; Ans. 6. In the Reply, Appellants then argue "[i]f Gopalakrishnan's traffic manager is moved outside a mobile communication network into the Internet, Gopalakrishnan could not ensure that the traffic manager would be in the data pathway to both receive the request for data and throttle/block/ delay the response. Reply Br. 4 ( citing Gopalakrishnan 5 :20-30). We are not persuaded by Appellants' argument, which is premised on a "physical" or "bodily" incorporation of limitations of one reference into the other. This is not the standard. See In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983) ("[I]t is notnecessarythatthe inventions of the references be physically combinable to render obvious the invention under review."). The relevant inquiry is whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of those references. See In re Keller, 642 F.2d 413,425 (CCP A 1981 ). "Combining the teachings of references does not involve an ability to combine their specific structures." In re Nievelt, 482 F.2d 965, 968 ( CCP A 1973 ). Rather than express obviousness as the physical 8 Appeal 2018-001915 Application 14/125,976 incorporation of a structure from one reference into the structure of another reference, the prior art should be viewed as a combination of select teachings from different sources, and the use of those teachings by one of ordinary skill in the art. See KSR!nt'l Co. v. Teleflex, Inc., 550 U.S. 398,418 (2007) ( the conclusion of obviousness can be based on the interrelated teachings of multiple patents, the effects of demands known to the design community or present in the marketplace, and the background knowledge possessed by a person having ordinary skill in the art.). We, therefore, fmd unpersuasive Appellants' argument requiring the bodily incorporation of Aybay' s flow module disposed outside of a network into Gopalakrishnan. See Reply Br. 4. Next, Appellants argue the cited combination fails to teach the method as claimed because "[t]he Office integrates teachings from a variety of different network entities with defmed and well-known roles without any explanation as to why or how it would be obvious to integrate these different functionalities." Appeal Br. 15. We also fmd this argument unpersuasive because the Examiner provides reasoning for modifying Gopalakrishnan based on each of the cited references and Appellants do not address the Examiner's stated reasoning. See Final Act. 3--4 (modifying Gopalakrishnan and Aybay with the teachings of Ishii, Komamura, and Anglin "in order to improve call admission control processes when a cell is congested, reduce interference by automatically changing a threshold for determining a congestion level and to better dynamically allocate bandwidth"); see also Ans. 7. Appellants further argue Gopalakrishnan's "SGSN is not involved in any way with the adaptation of content delivery." Appeal Br. 15. We are unpersuaded because Gopalakrishnan' s "intermediate device/ data flow 9 Appeal 2018-001915 Application 14/125,976 controller/data module" ( controlling entity) adapts content delivery by controlling data flow to clients based on a subscriber location or cell ID. Final Act. 2. (citing Gopalakrishnan26:15-30). Next, Appellants argue "[t]he workflow engine is never described by Gopalakrishnan as outputting a message to the traffic manager." Appeal Br. 16. In response, the Examiner states "Gopalakrishnan does not mention a specific message but it is stated the workflow engine makes control decisions for the traffic manager so there has to be a signal/message transmitted from the workflow engine to the traffic manager." Ans. 8 ( citing Gopalakrishnan 20:40-48). We agree with the Examiner's fmding that Gopalakrishnan teaches the workflow engine controls how content is processed including making "routing/caching/control decisions" by communicating with other modules such as the traffic manager and thus teaches, or at least suggests, transmitting a control message from the workflow engine to the traffic manager. See id. Appellants further argue "the control decisions the workflow engine makes is whether/where to cache content and decide how best to retrieve content" and " [ t ]hat has nothing to do with whether the traffic manager throttles or delays received content." Reply Br. 6. We fmd this argument unpersuasive because claim 24 does not require that the message output by the network entity to the control entity result in "throttles or delays [in] received content." Appellants' argument is, thus, not commensurate with the scope of the claim. Lastly, Appellants argue "[t]he Office mashes into the combination a variety of teachings by other references that do not relate to a SGSN or Gopalakrishnan's intermediate device in order to create a Frankenstein network entity" and "none of these teachings suggest an entity with 10 Appeal 2018-001915 Application 14/125,976 particular functionality that can be integrated with the Patent Office's SGSN/intermediate device hybrid." Appeal Br. 16-17. This argument, however, is not supported by evidence found in the record and is, instead, supported only by attorney argument which "cannot take the place of evidence." In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Moreover, Appellants' "Frankenstein network entity" argument inappropriately requires the bodily incorporation of features not relied upon by the Examiner from the secondary references. "The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference. . . . Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art." Keller, 642 F.2d at 425. See also Nievelt, 482 F.2d at 968 ("Combining the teachings of references does not involve an ability to combine their specific structures."). Rather, "if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill." KSR, 550 U.S. 398 at 417. Here, Appellants have not demonstrated that combining the teachings of the cited references would have been beyond the skill of a person of ordinary skill in the art. For these reasons, we sustain the Examiner's 35 U.S.C. § 103(a) rejection of claim 24, and similarly, claims 33 and 42, which are only nominally argued separately from claim 24. See Appeal Br. 23. Dependent claims 25-27, 30, 31, 34--41, and 43--48 are not argued separately with respect to the disputed limitation and fall with their respective independent claims. See Appeal Br. 20-24. 11 Appeal 2018-001915 Application 14/125,976 Claim 29 Issue: Does the Examiner err in fmding the cited combination of references teaches or suggests "wherein the controlling entity sends the control message to the clients located in the identified region; wherein, in response to receiving the control message, the clients located in the identified region request the content from a content server of the content source which is associated with the selected content delivery rate," as recited in claim 29? The Examiner relies on Gopalakrishnan to teach or suggest the limitation at issue in claim 29. See Final Act. 5 ( citing Gopalakrishnan 25:19-50, 26:15-30, Fig. 6); Ans. 11-12 (citing id. 19:67-20:3, 26:15-30). Appellants dispute the Examiner's factual fmdings, frrst arguing Gopalakrishnan "never teaches content servers associated with a particular content delivery rate." Appeal Br. 20. We fmd this argument unpersuasive of Examiner error. We agree with the Examiner's fmding that Gopalakrishnan' s content server 402 "has content that is offered in six different versions/bit rates, that a user can select and the selected rate is obviously 'associated' with the content source considering the content source is the one that offered the bit rate." Ans. 12 ( citing Gopalakrishnan Fig. 4). Appellants fail to persuasively demonstrate why content server 402 providing content at a particular rate is not thereby "associated with [the] particular content delivery rate," as in claim 29. Next, Appellants argue "Gopalakrishnan never teaches that the recited single control message is sent to clients located in the identified region" because "Gopalakrishnan is concerned with a single client not clients." Appeal Br. 21 ( emphasis added). 12 Appeal 2018-001915 Application 14/125,976 We are unpersuaded because Gopalakrishnan' s "disclosure is clearly applicable to multiple clients." Ans. 12; see Final Act. 2 (citing Gopalakrishnan 26: 15-30). As discussed above for independent claim 24, Appellants fail to persuasively explain why Gopalakrishnan's control of flow rate implemented based on "traffic conditions on the network, subscriber service level, subscriber location, cell ID, priority, etc." fails to teach or suggest sending control data to multiple clients. Gopalakrishnan 26:15-30. Next, Appellants argue "Gopalakrishnan does not send any sort of control message to even that single client." Appeal Br. 21. The Examiner fmds "[ t ]he intermediate device therefore sends an implicit control message to the client to select content chunks are a different bit rate by changing the rate at which content chunks are sent to the client by the intermediate device." Final Act. 11 ( citing Gopalakrishnan 24:52---62). In the Reply, Appellants argue "[t]he potential to influence a client's decision by throttling or delaying the flow rate is not the same thing as sending a control message." Reply Br. 7. We are unpersuaded of Examiner error because Appellants' argument is not supported by evidence and is, instead, supported only by attorney argument which "cannot take the place of evidence." Pearson, 494 F .2d at 1405. We, therefore, sustain the Examiner's 35 U.S.C. § 103(a) rejection of claim 29. Claim 28 Issue: Does the Examiner err in fmding the cited combination of references teaches or suggests "wherein the controlling entity transmits the 13 Appeal 2018-001915 Application 14/125,976 control message to an execution point; wherein, in response to receiving the control message, the execution point directs a request for content coming from a client located in the identified region to a content server of the content source which is associated with the selected content delivery rate," as recited in claim 28? The Examiner relies on Gopalakrishnan to teach or suggest the limitation at issue in claim 28. See Final Act. 4--5 (citing Gopalakrishnan 25:19-50, 26:15-30, Fig. 6); Ans. 12 (citing id. Figs. 2, 4). We adopt the Examiner's fmdings and conclusions for claim 28. See id. Appellants argue Gopalakrishnan "never teaches content servers associated with a particular content delivery rate." Appeal Br. 21. We fmd this argument unpersuasive of Examiner error. The Examiner fmds Gopalakrishnan' s content server 402 "has content that is offered in six different versions/bit rates, that a user can select and the selected rate is obviously 'associated' with the content source considering the content source is the one that offered the bit rate." Ans. 12 ( citing Gopalakrishnan Fig. 4). Appellants fail to persuasively demonstrate why content server 402 providing content at a particular rate is not thereby "associated with [the] particular content delivery rate," as in claim 2 8. Next, Appellants argue "Gopalakrishnan never teaches that any control message is sent to an execution point. Changing the flow rate to a client is not sending any sort of control message, much less a control message to an execution point." Appeal Br. 21. The Examiner fmds "[t]he execution point can be seen as merely an intermediary device between the client and server and can be any node in the path between the client and server. For example the data gateway in Fig. 2 14 Appeal 2018-001915 Application 14/125,976 of Gopalakrishnan could be the execution point." Ans. 12. In the Reply, Appellants argue "the Office has not explained how this theoretical execution point directs a request for content 'in response to receiving the control message.' Any entity within the data pathway merely forwards content requests regardless of any throttling/delay, the putative control message, by the intermediate device and certainly not in response to the throttling/delay." Reply Br. 7. We are unpersuaded of Examiner error. Appellants fail to persuasively demonstrate why Gopalakrishnan' s forwarding of content requests by data gateway 206 is not in response to flow rate control signals also forwarded by data gateway 206 from data intermediation module 220 or influencer module 702, particularly in view of Gopalakrishnan's flow rate control being implemented based on local client conditions such as "subscriber service level, subscriber location, cell ID, priority, etc." Gopalakrishnan 26:34--38; see Gopalakrishnan Fig. 2. We, therefore, sustain the Examiner's 35 U.S.C. § 103(a) rejection of claim 28. Claim 32 Issue: Does the Examiner err in fmding the cited combination of references teaches or suggests "receiving, by the controlling entity, quality reports from the plural clients to which the content is delivered; wherein the controlling entity modifies the rule based on the received quality reports," as recited in claim 32? 15 Appeal 2018-001915 Application 14/125,976 The Examiner relies on the combination of Gopalakrishnan, Aybay, Ishii, Komamura, Anglin, and Henocq to teach or suggest the limitation at issue in claim 32. See Final Act. 12-13; Ans. 13-14. Appellants dispute the Examiner's factual fmdings, frrst arguing "the combination fails to teach receiving quality reports from plural clients" because "Henocq is only concerned with a single client sending a message indicating congestion for a particular transmission to the single client" and "says nothing about plural clients sending quality reports to a controlling entity." Appeal Br. 22 (citing Henocq ,r 135). We fmd this argument unpersuasive of Examiner error. As correctly recognized by the Examiner, Henocq teaches transmitting a message from a client to a server to indicate that the client is in a stable state or in a state of congestion teaches or suggests receiving quality reports from a client. See Ans. 13 ( citing Henocq ,r 13 5). Henocq also teaches "estimating a level of use of a communication network linking a server and at least one client (implying multiple clients are possible) and the client is subscribed to a multicast session ( which indicates several client involved as well." Ans. 13 ( citing Henocq ,r,r 2, 28). Appellants, in tum, fail to rebut the Examiner's fmding that Henocq teaches or suggests multiple clients. See Reply Br. 7-8. Appellants further argue "the Office does not even identify citations to the references for a rule taught by the references. The Office appears to just make up a rule." Reply Br. 8. We fmd this argument persuasive of Examiner error. The Examiner has not shown how the cited combination teaches or suggests modifying the rule based on the quality reports, as recited in claim 32. See Ans. 13 ( citing 16 Appeal 2018-001915 Application 14/125,976 Henocq ,r 13 5). In response, the Examiner states "the [ claimed] rule isn't specifically def med" and concludes: In view of the references the intermediate module, can for example, use the number of clients in a cell (region) to determine there is no congestion by comparing to a threshold and increase the data rate to the clients but when the clients report that they are experiencing congestion, the intermediate module can reduce data rate anyway ( modify the rule). Ans. 14. The Examiner however, does not indicate where this disclosure of modifying a rule is found in the cited references. Accordingly, on this record we cannot sustain the Examiner's 35 U.S.C. § 103(a) rejection of claim 32. DECISION We affrrm the Examiner's decision to reject claims 24--31 and 33--48 under35 U.S.C. § 103(a). We reverse the Examiner's decision to reject claim 3 2 under 3 5 U.S.C. § 103(a). 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-IN-PART 17 Copy with citationCopy as parenthetical citation