Level 3 Communications, LLC

Patent Trials and Appeals Board

Jan 20, 2022

2021004912 (P.T.A.B. Jan. 20, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/364,036 11/29/2016 Christopher Newton 0576-US-01 1097 83579 7590 01/20/2022 LEVEL 3 COMMUNICATIONS, LLC Attn: Patent Docketing 1025 Eldorado Blvd. Broomfield, CO 80021 EXAMINER PATEL, HITESHKUMAR R ART UNIT PAPER NUMBER 2419 NOTIFICATION DATE DELIVERY MODE 01/20/2022 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@lumen.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte CHRISTOPHER NEWTON, LAURENCE R. LIPSTONE and HONG ZHU ____________________ Appeal 2021-004912 Application 15/364,036 Technology Center 2400 ____________________ Before MAHSHID D. SAADAT, ROBERT E. NAPPI, and BETH Z. SHAW, Administrative Patent Judges. NAPPI, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1 through 26, 28 through 31, and 33 through 38. Oral arguments were heard on January 6, 2022. A transcript of the hearing will be added to the record in due course. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). According to Appellant, Level 3 Communications, LLC, subsidiary of Lumen Technologies, Inc., is the real party in interest. Appeal Br. 2. Appeal 2021-004912 Application 15/364,036 2 CLAIMED SUBJECT MATTER Appellant’s invention is directed to a content delivery network to efficiently deliver content on behalf of content providers. Spec. ¶ 24. Claim 1 is reproduced below. 1. A computer-implemented method, operable on a first server in a content delivery network (CDN), wherein said CDN delivers content on behalf of at least one content provider, said first server implementing a content delivery (CD) service, the computer-implemented method comprising, by said CD service on said first server: (A) receiving, by said first server, a request from a client device for particular content on a particular client connection; applying a hash function that maps to servers in the second cluster and implements a responsibility function, wherein the responsibility function results in a designation of a second server as the responsible server to handle said request; (B) determining, by said first server, the second server in said CDN is suited to handle said request based on a proximity to the client device by a measure of network cost before migrating said request to the second server, wherein said first server being in a first cluster and said second server being in a second cluster distinct from said first cluster, and wherein said first server is converted to a routing device for said particular client connection, wherein the second server is determined to be suited to handle said request without having the particular content at a first time of the request, and wherein the second server serves the particular content at a second time; (C) migrating, by said first server, said request to said second server; Appeal 2021-004912 Application 15/364,036 3 (D) providing, by said first server, said second server with network traffic associated with said request from said client device, said second server to deliver said particular content to said client device; (E) receiving, by said first server, from said client device an acknowledgment, wherein said acknowledgment is in response to said particular content being delivered from said second server to said client device; and (F) sending, by said first server, said acknowledgment to said second server. REJECTIONS2 The Examiner rejected claims 1 through 15, 17 through 23, 25, 26, 28 through 31, 33, 34, 37, and 38 under 35 U.S.C. § 103 for being unpatentable over Newton (US 2014/0172970 A1, published June 19, 2014), Fliam (US 2013/0204961 A1, published Aug. 8, 2013), Chow (US 6,711,632 B1, issued Mar. 23, 2004), Peuziat (US 2011/0295943 A1, published Dec. 1, 2011), and Pinto (US 2013/0041970 A1, published Feb. 14, 2013). Final Act. 3-24. The Examiner rejected claim 16 under 35 U.S.C. § 103 for being unpatentable over Newton, Fliam, Chow, Peuziat, Pinto, and Yevmenkin (US 2009/0276842 A1, published Nov. 5, 2009). Final Act. 3-24. The Examiner rejected claim 24 under 35 U.S.C. § 103 for being unpatentable over Newton, Maslak (US 2016/0119279 A1, published Apr. 2 Throughout this Decision we refer to the Appeal Brief filed May 28, 2021 (“Appeal Br.”); Reply Brief filed August 16, 2021 (“Reply Br.”); Appellant’s Specification (“Spec.”) filed November 29, 2016; Final Office Action mailed January 14, 2021 (“Final Act.”); and the Examiner’s Answer mailed June 23, 2021 (“Ans.”). Appeal 2021-004912 Application 15/364,036 4 28, 2016), Chow, Peuziat, Pinto, and Weihl (US 2013/0232249 A1, published Sept. 5, 2013). Final Act. 25-26 The Examiner rejected claims 35 and 36 under 35 U.S.C. § 103 for being unpatentable over Newton, Fliam, Chow, Peuziat, Pinto, and Zhu (US 7,447,775 B1, issued Nov. 4, 2008). Final Act. 26-34. ANALYSIS We have reviewed Appellant’s arguments in the Appeal Brief, the Examiner’s rejections, and the Examiner’s response to Appellant’s arguments. Appellant’s arguments have not persuaded us of error in the Examiner’s rejection of claims 1 through 26, 28 through 31, 33, 34, 37 and 38 under 35 U.S.C. § 103. However Appellant’s arguments have persuaded us of error in the Examiner’s rejection of claims 35 and 36 under 35 U.S.C. § 103. Rejection of Claim 1 Appellant argues that the Examiner’s rejection of claim 1 is in error as the combination of Pinto and Fliam renders Fliam unsatisfactory for its intended purpose. Appeal Br. 2-4, Reply Br. 2-4. Appellant states that the Examiner relies upon Fliam to teach a server, which selects another server suitable to handle a request from a client, and relies on Pinto to teach that the proxy server that handles the request does not have the content when the request is made but serves the content at a later time. Appeal Br. 2-3. Appellant argues: the proxy server of Pinto replaces the second server in Appellant’s independent claims, then the reliance on the criteria would be rendered inappropriate because the function of the proxy server of Pinto is to always be performed regardless of a Appeal 2021-004912 Application 15/364,036 5 criterion. Fliam imposes a criterion on selecting an edge server that the Examiner equates to Appellant’s second server. Reply Br. 3. Thus, the first issue presented to us by the Appellant’s arguments, with respect to the rejection of claim 1, is: does the Examiner’s combination of the teachings in Fliam and Pinto change the principal of operation of Fliam? Additionally, Appellant argues that the Examiner’s rejection is in error as the combination of the references does not teach the limitation of determining if a server is suitable to handle a request “based on a proximity to the client device by a measure of network cost before migrating said request to the second server.” Appeal Br. 4, Reply Br. 4. Specifically, Appellant states that Fliam, which the Examiner relies upon to teach this disputed feature, teaches proximity is how far the devices are from each other, whereas the claim recites a measure of “network cost.” Appeal Br. 4. Thus, the second issue presented to us by the Appellant’s arguments, with respect to the rejection of claim 1, is did the Examiner err in finding that the combination of the references teaches the claimed feature of determining the suitability of a server to handle a request based upon a “proximity to the client device by a measure of network cost” as recited in claim 1? First Issue Appellant’s arguments directed to the first issue have not persuaded us of error in the Examiner’s rejection. The Examiner finds that Fliam teaches the claim 1 limitation directed to the first server determining a second server to handle the request from a customer based upon a proximity and migrating the request to the second server. Final Act. 6-7 (Fliam ¶¶ 33-38), Ans. 4-5 (citing Fliam ¶¶ 33-37, which discusses the content router (item 304 equated Appeal 2021-004912 Application 15/364,036 6 to the claimed first server) receiving a request for content and redirecting the request to an edge cache server (item 302 a-c, equated to the second server)). Further, the Examiner finds that Pinto discloses that the second server is determined to be suitable to handle the request without having the content at the time of the request and the second server serves the content at a second time. Final Act. 10 (citing Pinto Fig. 2, ¶ 26), Ans. 5-6 (citing Pinto Fig. 2, ¶ 26). The Examiner finds that both Fliam and Pinto discuss serving the request from a proxy server and that “substituting the proxy server with the express teaching of Pinto [to] the edge cache server does not render the prior art of Fliam unsuitable for its intended purpose, especially since Fliam already teaches a[n] edge cache server functioning as a proxy server.” Ans. 6. We concur with the Examiner that modifying Fliam such that the second server does not have the content at the time of the request but provides it at a second time does not change the principal operation of Fliam. Appellant’s arguments are premised on Pinto’s proxy server always being selected and thus is not suitable to be combined with Fliam’s teaching of selecting another server. Appeal Br. 12. We are not persuaded by this argument because Pinto’s teaching of the proxy server always being selected is not the teaching relied upon in the Examiner’s rejection, and thus this is not the feature being combined with Fliam. Further, Fliam contemplates that the second server will not have the content at the time of the request (see ¶ 36 which discusses the edge cache server, equated to the claimed second server, determining whether it has the content when the request is received and acquiring the content to serve to the client if it does not (e.g., if it does Appeal 2021-004912 Application 15/364,036 7 not have the content, the content is served at a second time)).3 Thus, Fliam suggests the feature which the Examiner finds is taught by Pinto. Accordingly, Appellant’s arguments directed to the first issue have not persuaded us that the Examiner’s combination of teachings from Fliam and Pinto changes the principal of operation of Fliam. Second Issue Appellant’s arguments directed to the second issue have not persuaded us of error in the Examiner’s rejection. As discussed above with respect to the first issue, the Examiner finds that Fliam teaches the claim 1 limitation directed to the first server determining a second server to handle the request from a customer based upon a proximity to the client. The Examiner identifies that Appellant’s Specification relates the measure of network cost to proximity. Ans. 8 (citing Spec. ¶ 28). The Examiner finds that Fliam teaches this feature, stating that “Fliam disclose[s] the proximity may be, for example, network proximity (i.e. network cost), geographic proximity, or a combination of the two, where network proximity does measure the network cost i.e. latency, bandwidth etc.” Ans. 8-9 (emphasis omitted) (citing Fliam ¶¶ 34-38). Further, the Examiner notes that the 3 We note that the representative claim does not recite the determination of whether a server is suitable is based upon the server not having the content at the time of the request. Rather, the limitation it is broad enough to encompass the server determined to be suitable to serve the content also is determined to be suitable without having the content at the time of the request. See Spec. ¶ 28 (“A chosen delivery server 106 need not have the requested content at the time the request is made, even if that chosen delivery server 106 eventually serves the requested content to the requesting client.”) (cited by Appellant on page 3 of the Appeal Brief as supporting this limitation). Appeal 2021-004912 Application 15/364,036 8 Specification does not define network cost or disclose how network cost is calculated. Ans. 9. We concur with the Examiner’s claim interpretation and findings. As identified by the Examiner, Appellant’s Specification does not define or limit the claimed network costs. Nor have Appellant’s arguments provided a definition or clarification of network cost. Appellant’s argument, which relies upon the example in the Specification of directing a request from a client in Japan to a server in Los Angeles (a great geographical distance) instead of a server in Japan (a smaller geographical distance), is not pervasive of error as it is just an example and does not limit the cost function that is claimed. Appeal Br. 14 (citing Spec. ¶ 103).4 Further, Appellant’s Specification in paragraph 102 discusses that geographic location may be used to determine the appropriate server, or it alone may not be sufficient, thus suggesting that the cost function may be geographic distance alone. The Examiner finds, and we concur, that Fliam teaches that proximity is determined, by geographic location combined with network proximity.5 Ans. 5. As such, Appellant’s arguments have not persuaded us that the Examiner erred in finding the Fliam teaches determining a server’s proximity to a client based upon a measure of network cost as claimed. As Appellant’s arguments directed to the first two issues have not persuaded us of error in the Examiner’s rejection of claim 1, we sustain the 4 The Appeal Brief refers to paragraph 113 of the published application, we refer to the corresponding paragraph in the originally filed Specification for consistency in this decision. 5 We consider network proximity to relate to the amount of network resources traversed or used between the client and server in responding to the request, which can be reasonably considered a cost. Appeal 2021-004912 Application 15/364,036 9 Examiner’s rejection of claim 1 and claims 2 through 15, 17 through 23, 25, 26, 28 through 31, 33, 34, 37, and 38 grouped with claim 1 and similarly rejected 35 U.S.C. § 103 based upon Newton, Fliam, Chow, Peuziat, and Pinto. Appellant has not presented arguments directed to the Examiner’s rejections of dependent claims 16 and 24. Accordingly, we sustain the Examiner’s rejections of these claims. Rejection of Claims 35 and 36 Appellant argues that the Examiner’s rejection of independent claims 35 and 36 are in error as the combination of Newton, Fliam, Chow, Peuziat, Pinto, and Zhu does not teach the limitation of “providing said second server with network traffic associated with said request from said client device, said second server spoofing an identification of said particular server, said second server to deliver said particular content to said client device.” Appeal Br. 14-15. Specifically, Appellant argues that the teachings of Zhu, which the Examiner relies upon to teach the disputed limitations, teaches a server is spoofed such that it appears a request came from the source and not the gateway, which is different from the claim. Appeal Br. 15 (citing Zhu, col. 16, ll. 57-60). Appellant’s arguments have persuaded us of error in the Examiner’s rejection of claims 35 and 36. The Examiner finds that Zhu teaches that a server spoofs the identification of another server. Final Act. 33-34, Ans.10- 11 (citing Zhu col. 6, ll. 15-60 and col. 16, ll. 26-45). We disagree with the Examiner’s findings. Each of independent claims 35 and 36 each recite a limitation that the second server (which is determined to suited to handle a Appeal 2021-004912 Application 15/364,036 10 request from a client and which has the request is migrated to it from the particular server) spoofs the identification of the particular server when providing the content to the client (i.e., the second server makes it appear to the client that it is the particular server that is providing the content). The passages of Zhu cited by the Examiner teach that a gateway may receive a request, from a requesting source (i.e. client), and spoof the client when forwarding the request to a server. See e.g., col. 16, ll. 26-45. Thus, in Zhu, it is the requesting source’s (client’s) identity that is spoofed, (when the request is made), where as in the claims it is the server which originally received the request that has its identity spoofed when the response is sent. Thus, we do not find that the Examiner has presented sufficient evidence on this record to show that the combination of the references teach or suggest all of the limitations of independent claims 35 and 36, and we do not sustain the Examiner’s rejection of these claims Appeal 2021-004912 Application 15/364,036 11 CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-15, 17-23, 25, 26, 28- 31, 33, 34, 37, 38 103 Newton, Fliam, Chow, Peuziat, Pinto 1-15, 17-23, 25, 26, 28- 31, 33, 34, 37, 38 16 103 Newton, Fliam, Chow, Peuziat, Pinto, Yevmenkin 16 24 103 Newton, Maslak, Chow, Peuziat, Pinto, Weihl 24 35, 36 103 Newton, Fliam, Chow, Peuziat, Pinto, Zhu 35, 36 Overall Outcome 1-26, 28-31, 33, 34, 37, 38 35, 36 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv) (2018). AFFIRMED IN PART