Mack Denzil. Greene

Patent Trials and Appeals Board

Jan 30, 2020

13896158 - (D) (P.T.A.B. Jan. 30, 2020)

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.
13/896,158 05/16/2013 Mack Denzil Greene 0429-US-U1 1012
83579 7590 01/30/2020
LEVEL 3 COMMUNICATIONS, LLC
Attn: Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
EXAMINER
MAK, RODRICK
ART UNIT PAPER NUMBER
2416
NOTIFICATION DATE DELIVERY MODE
01/30/2020 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 MACK DENZIL GREENE
____________

Appeal 2018-003265
Application 13/896,158
Technology Center 2400
____________

Before CAROLYN D. THOMAS, JASON V. MORGAN, and
PHILLIP A. BENNETT, Administrative Patent Judges.

THOMAS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–5 and 7–21. We have jurisdiction
over the appeal 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. Appellant identifies the real party in interest as Level 3
Communications, LLC. Appeal Br. 3.
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Application 13/896,158

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The present invention relates generally to differentiating a portion of
network traffic having an Internet Protocol-based attribute with reasonable
certainty. Spec., Abstract.
Claims 1 and 8 are illustrative:
1. A method comprising:
identifying one or more origination attributes of a
communication based on one or more characteristics of a network
from which the communication originated;
identifying one or more termination attributes of the
communication based on one or more characteristics of a destination
end of the communication, the termination attributes being identified
when the one or more origination attributes include at least one
Internet Protocol-based attribute;
characterizing a type of the communication, using a
processor, based on a correlation of the one or more origination
attributes and the one or more termination attributes, the correlation
determining whether the one or more origination attributes and the
one or more termination attributes include the at least one Internet
Protocol-based attribute; and
delivering the communication to the destination end
based on the at least one Internet Protocol-based attribute.

8. A method comprising:
receiving data corresponding to a delivery of network
traffic across a communications network, a portion of the network
traffic having an Internet Protocol-based attribute;
applying a first filter to obtain a first subset of the data
based on one or more characteristics of originating access traffic, the
first subset including network traffic known to originate with the
Internet Protocol-based attribute;
applying a second filter to data excluded from the first
subset, the second filter being applied based on one or more
characteristics of terminating access traffic to obtain a second subset
of the data, the second subset including network traffic known to
terminate with the Internet Protocol-based attribute;
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correlating the first subset with the second subset, using a
processor, to identify the portion of network traffic having the Internet
Protocol-based attribute;
characterizing a type of the network traffic having the
Internet Protocol-based attribute; and
delivering data associated with the network traffic to a
destination based on the Internet Protocol-based attribute.

Appellant appeals the following rejections:
R1. Claims 1–5 and 7 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jungck (US 1020/0103837 A1, Apr. 29, 2010) and
Homan-Muise (US 2008/0243725 A1, Oct. 2, 2008);
R2. Claims 8–11 and 13–202 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Jungck, Homan-Muise, and Swander (US
2005/0114704 A1, May 26, 2005);
R3. Claim 12 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jungck, Homan-Muise, Swander, and Mundra (US
2006/0072548 A1, Apr. 6, 2006); and
R4. Claim 21 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jungck, Homan-Muise, Swander, and Jedwab (Jonathan
Jedwab et al., Traffic estimation for the largest sources on a network, using
packet sampling with limited storage, Hewlett Packard (1992)).
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).

2 Although claims 15–20 are not listed in the heading of the rejection (see
Final Action 8), claims 15–20 are discussed in the body of the rejection (id.
at 12–17). Therefore, we shall treat this rejection as including all of claims
8–11 and 13–20.
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Application 13/896,158

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ANALYSIS
Claims 1–5 and 7
Over Jungck and Homan-Muise
We start by noting that the Examiner relies upon Jungck to teach
identifying origination and termination attributes (see Final Act. 4), and
imports Homan-Muise to teach characterizing a type of communication
based on a correlation of IP service use (see Final Act. 5).
However, Appellant contends Homan-Muise “simply discloses
performing a consumption analysis of IP services that are used by a
particular user.” Appeal Br. 10. Appellant further contends that Homan-
Muise’s “tracking the activity of the workstation to determine abnormal
behavior or to determine misconduct is not equivalent to characterizing the
communication as required by claim 1.” Appeal Br. 11. As such, Appellant
contends that “[n]either Jungck nor Homan . . . disclose or suggest
characterizing a communication using one or more origination attributes and
one or more destination attributes as claimed.” Id. at 12. We agree with
Appellant.
We agree with Appellant that Homan-Muise’s “correlation of IP
service use” is distinguishable from the claimed “correlation of . . .
origination attributes and . . . termination attributes,” as the former regards
what the workstations are being used for, e.g., to send/receive emails, while
the latter regards examining the communication’s origin and destination
attributes. Appeal Br. 10–11.
Furthermore, the Examiner has not shown that the cited combination
of references illustrate a nexus between Jungck’s identifying origination and
termination attributes and Homan-Muise’s correlation of IP service use.
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Here, claim 1 requires “a correlation of . . . origination attributes and . . .
termination attributes.” See claim 1. Because the Examiner has merely
shown that Homan-Muise teaches correlating of IP service use, we see no
causal link between Homan-Muise’s correlation and Jungck’s
origination/termination attributes. As such, we agree with Appellant that
neither Jungck nor Homan-Muise teach or suggest the aforementioned
limitation.
Thus, we disagree with the Examiner’s finding that the combined
teaching of Jungck and Homan-Muise teach a correlation of origination and
termination attributes, as recited in independent claim 1. Accordingly, we
will not sustain the Examiner’s obviousness rejection of claims 1–5 and 7.

Claims 8–11 and 13–20
Over Jungck, Homan-Muise, and Swander
Here the Examiner brings in a third reference, Swander, and now
relies upon Swander to teach “network traffic known to originate with the
Internet Protocol-based attribute . . . network traffic known to terminate with
the Internet Protocol-based attribute . . . and correlating the first subset with
the second subset . . . to identify the portion of network traffic having the
Internet Protocol-based attribute” (see Final Act. 9–10), Jungck to teach
“network traffic having the Internet Protocol-based attribute” (see Final Act.
8), and Homan-Muise to merely teach “characterizing a type of the network
traffic” (see Final Act. 10).
We find that Appellant’s contentions regarding the aforementioned
findings unavailing. Specifically, Appellant’s argument against Jungck
separately from Swander and/or Homan-Muise does not persuasively rebut
the combination made by the Examiner. See Appeal Br. 12–13. One cannot
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show non-obviousness by attacking references individually, where the
rejections are based on combinations of references. In re Merck & Co., Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986).
Here, Appellant’s arguments do not take into account what the
collective teachings of the prior art would have suggested to one of ordinary
skill in the art and are therefore ineffective to rebut the Examiner’s prima
facie case of obviousness. See In re Keller, 642 F.2d 413, 425 (CCPA 1981)
(“The test for obviousness is not whether . . . the claimed invention must be
expressly suggested in any one or all of the references. Rather, the test is
what the combined teachings of the references would have suggested to
those of ordinary skill in the art.”) (citations omitted). This reasoning is
applicable here because Appellant’s argument is based on the notion that the
entire claim invention must be expressly suggested in any one or all of the
references, as opposed to rebutting what the combined teachings suggest.
Accordingly, we sustain the Examiner’s rejection of claims 8–11 and
13–20.

Claim 12
Over Jungck, Swander, Homan-Muise, and Mundra
Appellant has not presented separate arguments for dependent claim
12. Therefore, claim 12 falls with independent claim 8. See 37 C.F.R.
§ 41.37(c)(1)(iv).
Claim 21
Over Jungck, Swander, Homan-Muise, and Jedwab
Appellant has not presented separate arguments for dependent claim
21. Therefore, claim 21 falls with independent claim 8. See 37 C.F.R.
§ 41.37(c)(1)(iv).
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Application 13/896,158

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CONCLUSION
Appellant has demonstrated that the Examiner erred in rejecting
claims 1–5 and 7 as being unpatentable under 35 U.S.C. § 103 over Jungck
and Homan-Muise.
However, the Examiner’s rejections of claims 8–21 as being
unpatentable under 35 U.S.C. § 103 over Jungck, Homan-Muise, Swander,
and various other references are affirmed.
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–5, 7 103 Jungck,
Homan-Muise
1–5, 7
8–11, 13–20 103 Jungck,
Homan-Muise,
Swander
8–11,
13–20

12 103 Jungck,
Homan-Muise,
Swander, Mundra
12
21 103 Jungck,
Homan-Muise,
Swander, Jedwab
21
Overall
Outcome
8–21 1–5, 7

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED IN PART