Nederlandse Organisatie voor toegepast-natuurweten schappelijk onderzoek TNO

Patent Trials and Appeals Board

Apr 14, 2021

2020000290 (P.T.A.B. Apr. 14, 2021)

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.
15/039,963 05/27/2016 Pieter Jan MEULENHOFF K379-012206 2287
164 7590 04/14/2021
KINNEY & LANGE, P.A.
312 SOUTH THIRD STREET
MINNEAPOLIS, MN 55415-1002
EXAMINER
PEARSON, DAVID J
ART UNIT PAPER NUMBER
2438
NOTIFICATION DATE DELIVERY MODE
04/14/2021 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):
dabulmer@kinney.com
uspatdocket@kinney.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte PIETER JAN MEULENHOFF and
RUDOLF JOSEPH STRIJKERS
____________________

Appeal 2020-000290
Application 15/039,963
Technology Center 2400
____________________

Before JOHN A. EVANS, BARBARA A. BENOIT, and
JOHN D. HAMANN, Administrative Patent Judges.

HAMANN, Administrative Patent Judge.

DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1, 3, 4, 6–9, 13, and 14. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Our Decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed
June 28, 2019), Reply Brief (“Reply Br.,” filed Oct. 14, 2019), and
Specification (“Spec.,” filed May 27, 2016), as well as the Examiner’s
Answer (“Ans.,” mailed Aug. 14, 2019) and the Final Office Action (“Final
Act.,” mailed Aug. 28, 2018).
2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Nederlandse
Organisatie voor toegepastnatuurwetenschappelijk onderzoek TNO. Appeal
Br. 3.
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Application 15/039,963
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THE CLAIMED INVENTION
Appellant’s claimed invention relates to defending against a
distributed denial of service (“DDos”) attack and protecting devices
connected to a network from such an attack via that network. Spec. 1:5–7.
Claim 1 is illustrative of subject matter on appeal and is reproduced below.
1. A method for handling server overload, comprising:
providing a part of the functionality of a server application
by a server function; said server function comprising one or more
offloadable server functions that provide a part of the server
application, and which may be loaded on other resources;
providing resource providers able to provide resources for
hosting said offloadable server functions;
detecting a server load by a load detection function
constructed to determine if the server function is in or close to an
overload situation; and
redirect detected client requests to the offloaded server
function on a selected resource in response to a load detection
function detecting an overload situation
wherein the server further comprises a resource provider
lookup function to select a resource from said resource providers,
the method further comprising
retrieving addresses of communication devices that are
close to attack sources at the upstream;
transmitting the offloaded server function to a resource
provider in a defence position at the upstream.

REJECTION ON APPEAL
The Examiner rejected claims 1, 3, 4, 6–9, 13, and 14 under 35 U.S.C.
§ 103 as being unpatentable over the combination of Carney
(US 2014/0181966 A1; published June 26, 2014) and Callon
(US 2011/0197274 A1; published Aug. 11, 2011). Final Act. 3–10.

ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellant’s
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Application 15/039,963
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contentions that the Examiner erred. For the reasons that follow, we affirm
the Examiner’s rejection of claims 1, 3, 4, 6–9, 13, and 14.
Appellant argues that the combination of Carney and Callon fails to
teach or suggest “transmitting the offloaded server function to a resource
provider in a defence position at the upstream,” as recited in independent
claims 1 and 14. Appeal Br. 11–15; Reply Br. 2–4. More specifically,
Appellant argues that Carney “does not teach the concept of there being a
particular advantageous defense position for the offload server function,”
and especially “provides no suggestion to offload to a resource provider in a
defense position at the upstream.” Appeal Br. 13. Appellant argues that
Carney instead teaches “generating ‘virtual front end systems’ in response to
a number of Transmission Control Protocol (TCP) requests per second.” Id.
(citing Carney ¶ 69). According to Appellant, Carney teaches “no active
strategy to counter a DDos attack, other than to reset the Domain Name
Server (DNS) entry associated with the customer front end and reset a
routing instance to cease routing traffic to a virtual system manager and/or
virtual front end system.” Id. (citing Carney ¶ 76). Appellant argues that
“[w]hile Carney teaches . . . that ‘load balancing may be performed across
multiple cloud centers . . . that may be multihomed’ there is not a hint or
suggestion . . . that directing the virtual front end systems to specific
directions in the network could be advantageous or even useful.” Id.
(quoting Carney ¶ 71).
As to Callon, Appellant argues that Callon teaches “creating attack
information and sending the attack information to routers B,[]C, and D in
control packets . . . [and to] ingress routers from which the attack is arriving
at the network.” Id. (citing Callon ¶ 47). Appellant argues that “this
disclosure is directed merely to installing firewall filters in the network, but
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not at all to ‘transmitting the offloaded server function to a resource provider
in a defense position at the upstream’ as required by independent claim 1.”
Id. Appellant adds that “Callon merely attempts to filter out malicious
content in a network,” while “methods according to the present invention
additionally provide an improved offloaded function for the unaffected parts
of the network, which thereby improves the server load.” Id. at 14 (citing
Callon ¶ 47); Reply Br. 3.
In addition, Appellant argues that “[w]hile . . . Callon’s mentioning of
moving attack information (which is quite different from, and incomparable
with, offloadable server functions) to the upstream, may be recognized for
filtering malicious packets, it does not make any sense, and is not simply
applicable, in the context of offloadable server functions.” Reply Br. 4.
Appellant argues thus “the combination that the Examiner makes and the
analogy that is drawn between filtering packets and creating offloadable
server functions, is based purely on a hindsight reconstruction of the claimed
invention, which is improper and therefore cannot form the present basis for
a finding of obviousness.” Id.
We are not persuaded that the Examiner errs. Rather, we agree with
the Examiner that the combined teachings of Carney and Callon teach the
disputed limitation, and we adopt the Examiner’s findings for this disputed
limitation. Final Act. 3–5; Ans. 4–7. First, we agree with the Examiner that
Carney teaches “the generation of ‘virtual front end servers’ in response to a
detected denial of service attack.” Ans. 4 (citing Carney ¶¶ 59, 61). More
specifically, we agree with the Examiner and find that Carney teaches
generating virtual front end servers in one or more cloud centers (resource
providers), and offloading particular front end server functions to the cloud
centers in an effort to distribute the traffic load during an attack. Id. (citing
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Carney ¶¶ 38, 44, 58, 64, 71). For example, Carney teaches that “[v]irtual
system generator 310 may . . . generate virtual front end systems 126 for the
customer in response to a DD[os] event,” and “may generate additional
virtual front end systems 126 as resources of the generated virtual front end
systems 126 are exhausted.” Carney ¶ 38. Put differently, we find that
Carney teaches transmitting offloaded server functions to a resource
provider (virtual front ends at cloud centers) in the event of a DDos attack.
See Carney ¶¶ 38, 44, 58, 64, 71.
Second, we agree with the Examiner that Callon teaches “detecting a
denial of service attack and in response, determining addresses of
communication devices that are close to the attack and transmitting attack
defense filtering to a router in a defense position at the upstream.” Ans. 4
(citing Callon ¶ 47). In other words, Callon discloses moving a function
(i.e., attack filtering) to an upstream location closer to the attack. See Callon
¶¶ 19, 46–47; see also Ans. 6 (citing same).
Third, we agree with the Examiner that the combination of these
teachings from Carney and Callon teach the disputed limitation. Final Act.
3–5; Ans. 4–7. In particular, we find that the combination of Callon’s
teachings (Callon ¶ 47) of moving functions upstream closer to the attack
and Carney’s teachings (Carney ¶¶ 38, 44, 58, 64, 71) of offloading server
functions to a cloud center teaches the disputed limitation. Appellant’s
arguments incorrectly focus on the references’ individual teachings rather
than what their combined teachings would have conveyed to one of ordinary
skill in the art. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986) (“Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references”). For example, Appellant argues (Appeal Br. 13)
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that Carney does not teach upstream defense positions, but the Examiner
relies on Callon for teaching moving functions upstream to a defense
position closer to the attack. Final Act. 4–5 (citing Callon ¶ 47); Ans. 4
(citing same). Similarly, Appellant argues (Appeal Br. 14) that Callon does
not teach improving the server load by offloading functions, but the
Examiner relies on Carney for teaching offloading server functions. Final
Act. 3 (citing Carney ¶¶ 18, 38, 48, 66, 68); Ans. 4 (citing Carney ¶¶ 38, 44,
58, 64, 71). Accordingly, we are not persuaded by Appellant’s arguments.
Fourth, we find that the Examiner provides sufficient reasoning for
combining the teachings. In particular, the Examiner finds that one of
ordinary skill in the art would have been motivated to combine Callon’s
teachings of moving functions upstream with Carney’s teachings of
offloading functions to reduce the amount of processing a server would have
to perform. Final Act. 4–5 (citing Callon ¶¶ 19, 46); see also Callon ¶¶ 19,
46 (teaching that local resources need to carry additional traffic, which
wastes resources, if the filtering is not moved closer to the attack). Put
differently, the Examiner finds that one of ordinary skill in the art would
have been motivated to combine these teachings to improve the attack
response, which Carney and Callon are both directed. See Ans. 6–7.
Accordingly, we find that the Examiner provides “articulated reasoning with
some rational underpinning to support the legal conclusion of obviousness.”
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
We are not persuaded by Appellant’s arguments that moving attack
information to the upstream is “quite different from, and incomparable with,
offloadable server functions,” and “it does not make any sense, and is not
simply applicable, in the context of offloadable server functions.” Reply Br.
4. Appellant provides no evidence to support these arguments. See In re
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Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (“Attorney’s argument in a
brief cannot take the place of evidence.”).
Lastly, we are not persuaded by Appellant’s argument that the
Examiner uses impermissible hindsight. Reply Br. 4. Appellant does not
provide specific arguments as to why the Examiner’s offered reasoning for
combining the references is error. See id. Rather, Appellant’s argument is
premised on an alleged lack of articulated reasoning to combine the
references. We find this argument unpersuasive because, as we discuss
above, the Examiner provides sufficient reasoning to support a finding of
obviousness. See supra; Final Act. 4–5; Ans. 6–7.
Accordingly, we sustain the Examiner’s rejection of independent
claims 1 and 14. Appellant does not provide separate arguments for the
patentability of dependent claims 3, 4, 6–9, and 13, and thus, we also sustain
the Examiner’s rejection of these claims.
CONCLUSION
Based on our findings and reasoning above, we sustain the
Examiner’s § 103 rejection of claims 1, 3, 4, 6–9, 13, and 14.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 4, 6–9,
13, 14
103 Carney, Callon 1, 3, 4, 6–9,
13, 14

Overall
Outcome
1, 3, 4, 6–9,
13, 14

Appeal 2020-000290
Application 15/039,963
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TIME PERIOD FOR RESPONSE
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).
AFFIRMED