International Business Machines Corporation

Patent Trials and Appeals Board

Mar 2, 2022

2020006775 (P.T.A.B. Mar. 2, 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. 15/368,776 12/05/2016 Kanak B. Agarwal AUS920160491US1 3418 108686 7590 03/02/2022 IBM IPLAW (GLF) c/o Garg Law Firm, PLLC 800 Bonaventure Way, suite 115 Sugar Land, TX 77479 EXAMINER CHEN, WUJI ART UNIT PAPER NUMBER 2456 NOTIFICATION DATE DELIVERY MODE 03/02/2022 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): dpandya@garglaw.com garglaw@gmail.com uspto@garglaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte KANAK B. AGARWAL, WENZHI CUI, WESLEY M. FELTER, YU GU, and ERIC J. ROZNER ____________________ Appeal 2020-006775 Application 15/368,7761 Technology Center 2400 ____________________ Before JEREMY J. CURCURI, HUNG H. BUI, and JON M. JURGOVAN, Administrative Patent Judges. JURGOVAN, Administrative Patent Judge. DECISION ON APPEAL Appellant seeks review under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1-3 and 5-20, constituting the only claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.2 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies International Business Machines Corporation as the real party in interest. Appeal Br. 2. 2 Our Decision refers to the Specification filed December 5, 2016 (“Spec.”); the Final Office Action mailed March 16, 2020 (“Final Act.”); the Appeal Brief filed August 11, 2020 (“Appeal Br.”); the Examiner’s Answer mailed September 4, 2020 (“Ans.”); and the Reply Brief filed September 29, 2020 (“Reply Br.”). Appeal 2020-006775 Application 15/368,776 2 CLAIMED INVENTION The claims are directed to intentionally delaying an acknowledgement in a communication handshake to reduce load on a system in a group managed by a load balancer. Spec. Abstract. Upon receiving a first handshake packet (e.g., a SYN packet) and a metric, the system selects a delay function corresponding to the metric from a set of delay functions. Id. ¶ 25. The system determines the delay period using the value of the metric and the selected delay function. Id. at Abstract. The system transmits a second handshake packet (e.g., a SYN/ACK packet) when the delay period expires. Id. Independent claim 1 is a method; independent claim 17 is a computer usable program product; and independent claim 20 is a computer system. The independent claims recite similar features. Claim 1, reproduced below, is representative of the claimed subject matter: 1. A method comprising: detecting receiving from a data processing system a first handshake packet at a first system, the first system participating in a load-balanced group managed by a load-balancer; obtaining a value of a metric configured in the first system; selecting, from a set of delay functions, a delay function that corresponds to the metric, wherein the set of delay functions comprises a plurality of different delay functions, wherein each of the plurality of different delay functions computes, for a different metric, an output comprising an amount of time by which a transmission of a second handshake packet should be delayed; computing, using the value of the metric in the selected delay function, a delay period; Appeal 2020-006775 Application 15/368,776 3 preventing a transmission of a second handshake packet for at least the delay period; and causing, from the first system to the data processing system, an intentionally delayed transmission of the second handshake packet after the delay period. Appeal Br. 16 (Claims App.). REJECTION Claims 1-3 and 5-20 stand rejected under 35 U.S.C. § 103 based on the combination of Park (US 2011/0153828 A1, published June 23, 2011), Kurata (US 2009/0268747 A1, published Oct. 29, 2009), and Linden (US 2011/0022812 A1, published Jan. 27, 2011). Final Act. 4-17. ANALYSIS Legal Principles Title 35, section 103(a), provides: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. The question of obviousness is resolved on the basis of underlying factual determinations including: (1) the scope and content of the prior art; (2) any differences between the claimed subject matter and the prior art; (3) the level of ordinary skill in the art; and (4) where present, objective evidence of nonobviousness. Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18 (1966). Appeal 2020-006775 Application 15/368,776 4 Claim 1 Claim 1 recites in part the following limitations: [S]electing, from a set of delay functions, a delay function that corresponds to the metric, wherein the set of delay functions comprises a plurality of different delay functions, wherein each of the plurality of different delay functions computes, for a different metric, an output comprising an amount of time by which a transmission of a second handshake packet should be delayed. Appeal Br. 11, 16 (Claims App.) (emphasis Appellant’s). The Examiner finds that Kurata teaches these limitations of claim 1. Final Act. 2-3, 6. Appellant disputes the Examiner’s findings. Appeal Br. 9-12; Reply Br. 4. Specifically, Appellant argues that Kurata discloses only one delay time period computation-the updating interval. Appeal Br. 11-12. According to Appellant, Kurata’s updating interval is predetermined, and uses only a single metric. Id. The Examiner disagrees, noting that Kurata teaches two different methods of computing an ACK packet delay period using (1) the capacity of the FIFO 36 and the transfer capability of the system bus 32; or (2) the bit rate requested by the application. Final Act. 2-3; Ans. 17 (citing Kurata ¶ 342). “[T]he PTO is obligated to give claims their broadest reasonable interpretation during examination.” See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). The Examiner has shown, and we agree, that Kurata teaches “a set of delay functions” comprising “a plurality of different delay functions.” Final Act. 6; Ans. 17 (citing Kurata ¶ 342). Kurata states the following: Appeal 2020-006775 Application 15/368,776 5 Note that the ACK amount and the ACK packet delaying time period can be computed using the capacity of the FIFO 36 and the transfer capability of the system bus 32, or the bit rate requested by the application, as with the expression for computing the updating amount and the updating interval. Kurata ¶ 342. Thus, Kurata’s first function is computing the ACK packet delay period using the metrics of capacity of the FIFO 36 and the transfer capability of the system bus 32. Kurata’s second function is computing the ACK packet delay period using the metric of bit rate requested by the application. Kurata’s functions for computing the ACK packet delay period are based on metrics that are variable in the sense that the FIFO’s capacity and system bus’s transfer capability may be selected as desired, and the bit rate requested by the application may vary. Because they depend on variable metrics, Kurata’s functions are likewise variable and not predetermined, contrary to Appellant’s argument. See Appeal Br. 11. Furthermore, the metrics of Kurata’s first function are different from the metric of Kurata’s second function. Consequently, the Examiner has shown, and we agree, that Kurata teaches the argued limitations of claim 1 under broadest reasonable interpretation. Appellant argues that the Examiner did not provide sufficient reasons why a person of ordinary skill in the art would have been motivated to combine the references. Appeal Br. 12-14. Specifically, Appellant argues the following: In the Final Office Action Examiner states that the motivation/suggestion to combine Park with Kurata would have been because there is a need to provide a communication apparatus which is capable of prompting the transmitting apparatus to immediately retransmit a lost packet even in the case Appeal 2020-006775 Application 15/368,776 6 of packet loss. Final Office Action at pp. 6-7. However, the delay value calculation of Park is made based on observed delays, used to assign connection requests or loads to a particular server. Thus, even if a person having ordinary skill in the art would understand Park’s delay value calculation, done to assign connection requests or loads, as disclosing a portion of the claimed invention, such a person would have no motivation to combine Park’s disclosure with a delay calculation made to delay transmission of a handshaking packet. Appeal Br. 12-13. The Supreme Court has stated that “[o]ften, it will be necessary for a court to look to interrelated teachings of multiple patents . . . to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Though Park may calculate delay time for a different purpose than Kurata, as Appellant argues (Appeal Br. 12-13), Park and Kurata both teach calculating delay times in the context of load balancing. Park, codes (54), (57); Kurata ¶¶ 342-343, code (57). Accordingly, we determine the teachings of the references are sufficiently interrelated that one of ordinary skill in the art would have considered them together. Appellant also argues against the combination of Linden with Park-Kurata in the following statement: In the Final Office Action Examiner also states that the motivation/suggestion to combine Linden with Park and Kurata would have been because there is a need to establish a communication bridge between two different clouds. Id. at p. 8. However, Park discloses only one server farm, and communication between clients and servers within the server farm. Park does not disclose cloud operations, or communications between clouds. Thus, even if a person having ordinary skill in the art would understand Park’s delay value calculation as disclosing a portion of the claimed invention, such Appeal 2020-006775 Application 15/368,776 7 a person would have no motivation to combine Park’s disclosure with Linden’s communication bridge between two different clouds. Appeal Br. 13. We do not agree with Appellant that because Park discloses only one server farm, one would not seek to combine the references to apply their teachings to balance loads across multiple clouds according to Linden. Id. Essentially, Appellant’s argument treats Park in isolation from the other references, and does not consider what a person of ordinary skill in the art would have gathered from the references considering them holistically. “Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). We determine one of ordinary skill in the art would have gleaned that Park’s teachings in the context of a single server farm could be extended to multiple clouds as Linden teaches. In addition, Appellant argues the following: Further, Examiner has not provided sufficient reasons why a personal of ordinary skill in the art would be motivated to combine a reference calculating a delay for use in assigning loads (Park), a reference disclosing prompting a transmitting apparatus to immediately retransmit a lost packet (Kurata), and a reference disclosing a communication bridge between different clouds (Linden). Beyond all dealing with network communications, as Examiner states, the references include different solutions to different problems. Even if a person of ordinary skill in the art would agree with Examiner’s characterizations of the scattered fragments of the references Examiner cites as disclosing the many unique elements of claim 1, Examiner has not even made a token effort to explain why such a person would think to daisy Appeal 2020-006775 Application 15/368,776 8 chain these scattered fragments together into a combination disclosing the limitations of claim 1. Appeal Br. 13. Concerning Appellant’s argument that the Examiner relied upon references with different solutions for different problems, the law does not require that the references be combined for the same reasons contemplated by an inventor, nor does it require that they address the same problem. In re Kahn, 441 F.3d 977, 984 (Fed. Cir. 2006). Instead, “motivation to combine may be found explicitly or implicitly in market forces; design incentives; the ‘interrelated teachings of multiple patents’; ‘any need or problem known in the field of endeavor at the time of the invention and addressed by the patent’; and the background knowledge, creativity, and common sense of the person of ordinary skill.” Plantronics, Inc. v. Aliph, Inc., 724 F.3d 1343, 1354 (Fed. Cir. 2013) (citing Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1328 (Fed. Cir. 2009) (quoting KSR, 550 U.S. at 418-21)). Although the Examiner cited a number of reasons for combining the references, but that does not mean that the cited parts of the references cited were scattered or unrelated to one another, as Appellant contends. See Appeal Br. 13. To the contrary, as the Examiner found (Final Act. 4-8), Park teaches a delay calculation unit 100 (Fig. 1) in a load balancing apparatus (¶ 21), and handshake acknowledgements (e.g., SYN-SYN/ACK-ACK) for a TCP connection (¶ 17). Kurata teaches functions and metrics for delaying a handshake acknowledgement (¶¶ 341-343) for controlling the burden (i.e., load) on a communication apparatus (code (57)). Linden teaches an appliance 200 between networks (Fig. 1F) which may use overflow control in a TCP delayed ACK mechanism (¶ 178). Considering how interrelated Appeal 2020-006775 Application 15/368,776 9 the teachings are concerning delay calculations associated with handshake acknowledgements for load control and balancing, we determine there would have been ample reason to combine the references. See, KSR, supra. The Examiner stated that one reason for combining Park, Kurata, and Linden is “to provide a communication apparatus which is capable of voluntarily controlling, according to its own reception capability, data transmission traffic of a transmitting side apparatus which transmits data, while reducing the burden for the control.” Ans. 18; Final Act. 2 (“Kurata discloses a communication apparatus which is capable of voluntarily controlling, according to its own reception capability, data transmission traffic.”). We agree with the Examiner that the combination of references achieves the above-stated advantages set forth in Kurata. To sustain a rejection based on obviousness, “there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” KSR, 550 U.S. at 418 (quoting Kahn, 441 F.3d at 988). In our view, the Examiner provided the necessary reasoning and underpinning to sustain the rejections, and we agree with the Examiner’s findings and conclusion of obviousness. Accordingly, we are not persuaded by Appellant’s arguments regarding independent claim 1, and we sustain the obviousness rejection. Claims 17 and 20 Appellant presents the same arguments for independent claims 17 and 20 as for claim 1. Appeal Br. 14. For the reasons stated above for claim 1, we sustain the obviousness rejections of claims 17 and 20. Appeal 2020-006775 Application 15/368,776 10 Claims 2, 3, 5-16, 18, and 19 Appellant presents no separate arguments for dependent claims 2, 3, 5-16, 18 and 19. Appeal Br. 14. Accordingly, we sustain the Examiner’s obviousness rejections of these claims for the reasons stated regarding their respective independent claims. 37 C.F.R. § 41.37(c)(1)(iv). CONCLUSION We affirm the Examiner’s rejections of claims 1-3 and 5-20 under 35 U.S.C. § 103. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-3, 5-20 103 Park, Kurata, Linden 1-3, 5-20 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