DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This action is in response to the communication filed on 12/16/2025. Claims 1-20 are pending in this application.
Response to Amendment
Applicant’s arguments with respect to claims 1-20 have been considered but are moot based on the new grounds of rejection necessitated by Applicant’s amendments. Specifically, the arguments present that Howcroft-Sun fails to provide for the amended language, where the rejection below now relies on Azizullah and McBrearty to teach this subject matter.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
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. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 10 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Azizullah et al. (US 20190230012 A1, published 07/25/2019; hereinafter Azizullah), in view of McBrearty et al. (US 6829638 B1, published 12/07/2004; hereinafter McBrearty), and in further view of Claybon (US 20220141114 A1, published 05/05/2022; hereinafter Claybon).
For Claim 1, Azizullah teaches a system (Azizullah, para. [0001] “… A network-side speed testing system generally measures bandwidth (e.g., upload speed, download speed) and perhaps other service quality parameters …”) comprising:
a test instrument (Azizullah exemplifies an agent 155 of end device in FIG. 1); and
an apparatus that is physically separate from and in communication with the test instrument (Azizullah teaches a speed testing service system, especially exemplifies that the speeding testing service system comprise an OSS (i.e. Operations Support System) device 115 in FIG. 1, a testing device 120 in FIG. 1 and FIG. 2 and a portal device 125 that are physically separate and connect with the agent of end device using a communication link in FIG. 1, and the speed testing service system is associated with a service provider and provides a speed testing service; para. [0013] “… A service provider may offer to its customers the ability to initiate a speed test with a speed testing system in order to test upload and download speeds associated with various user devices …”; para. [0027] “… OSS device 115 includes a network device comprising logic that provides a speed testing service…”), the apparatus comprising:
a hardware processor; and a memory on which is stored machine-readable instructions that, when executed by the hardware processor (Azizullah, FIG. 4; para. [0069] “… Processor 410 may access instructions from memory/storage 415, from other components of device 400, and/or from a source external to device 400 (e.g., a network, another device, etc.) …”; ), cause the hardware processor to:
send, to a third party test service provider, a request for identifiers of a plurality of servers with which throughput tests are to be executed (Azizullah teaches the OSS device querying a service provider database to retrieve network addresses of testing devices for speed tests; FIG. 1; para. [0028] “… OSS device 115 performs a look-up or queries a database or other type of data/information structure in order to select the testing device. For example, the database or other data/information structure may correlate types of test information with information indicating locations and network addresses of testing devices … For example, the type of test may be a ping test, a Domain Name System (DNS) test, or a network performance metric (e.g., an upload speed test, a throughput test, etc.) …”);
receive, from the third party test service provider, the identifiers of the plurality of servers with which throughput tests are to be executed (Azizullah teaches receiving the query result of multiple network addresses of testing devices for a speed test; Examiner notes that the database query may return a plurality of network addresses of testing devices during the process of selecting a testing device for a speed test; FIG. 1, FIG. 2; para. [0028] “… the database or other data/information structure may correlate types of test information with information indicating locations and network addresses of testing devices. OSS device 115 may use this information when performing the look-up or query. For example, OSS device 115 may include logic that performs the look-up or query based on the type of test. …”; para. [0029] “… For example, OSS device 115 may perform the look-up or query based on the geographic location of end device 150 relative to the geographic location of a testing device that is configured to provide the type of test requested …”; para. [0036] “… Based on a result of the look-up or the query, tester interface 207 may identify one or multiple testers 210 that are configured to perform the test …”);
send an instruction to the test instrument to determine throughputs of external network communications with … a testing device (Azizullah teaches the speed testing service system transmitting the speed testing instruction to the agent of end device; FIG. 1, FIG. 2, FIG. 7; para. [0030] “… According to an exemplary embodiment, in response to selecting a testing device 120, OSS device 115 includes logic that generates a test response. According to an exemplary embodiment, the test response includes an API request … OSS device 115 includes logic that transmits the test response to end device 150 …”; para. [0038] “… tester interface 207 includes logic that generates a test response in response to selecting the candidate tester 210 that indicated acceptance to perform the test. For example, the test response may include a network address or other type of URI (e.g., FQDN, etc.) of the selected tester 210. Tester interface 207 includes logic that transmits the test response to agent 155 of end device 150 …”; para. [0044] “… portal device 125 includes logic that allows the user to initiate a test between testing device 120 and agent 155, and obtain the test result information …”; para. [0096] “… In block 730, a test response is received from the network device (by the agent of end device), and interpreted based on the protocol independent data model … ”),
wherein the test instrument determines the throughputs through execution of the throughput tests with … the testing device in response to receipt of the instruction from the hardware processor (Azizullah teaches the agent of end device performing the speed test; FIG. 1, FIG. 2, FIG. 3A, FIG. 7; para. [0096] “… In block 735, a test with a test server may be initiated based on the test response. For example, single tester 315 may generate and transmit a request to initiate a test with tester 210. Agent 155 and tester 210 may perform the test, and agent 155 may receive test result information …”);
receive, from the test instrument, the determined throughputs of the external network communications with … the testing device (Azizullah teaches the speed testing service system receiving the test result information from the agent of end device; FIG. 1, FIG. 2, FIG. 3A, FIG. 8; para. [0105] “… In block 835, test result information, which stems from a completion of the test, is received and stored. For example, subsequent to the completion of the test, controller 205 may receive test result information. Controller 205 may store the test result information …”);…;
send an indication and an identifier of the testing device … to the third party test service provider via the external network, wherein the third party test service provider is to store the indication and the identifier of the testing device … (Azizullah teaches the speed testing service system associated with the service provider receiving and storing the test result information including the identifier of the testing device, the components of the speed testing service system such as the OSS device, the testing device and the databases/storer 215 as exemplified in FIG. 1, FIG. 2 may connect via network communication links; FIG. 1, FIG. 2; para. [0042] “… Tester 210 includes logic that generates and stores test result information in storer 215 based on the performance of a test …”; para. [0043] “… The test result information may be implemented to include various types of information including, for example, information that indicates a success of a test, a failure or an error associated with a test, an upload speed value (e.g., Megabits/second (Mbp/s), Gigabits/second (Gbp/s), Megabytes/second (MBp/s), etc.), a download speed value, a throughput value, a latency value, a test identifier, a tester identifier, an agent 155 and/or end device identifier, …”).
Azizullah does not explicitly teach, but McBrearty teaches performing network performance test by communicating with the plurality of servers (McBrearty teaches performing network performance test for a plurality of proxy servers; FIG. 2; col. 3, ll. 62-64 “… FIG. 2 shows a flowchart of one embodiment of selecting between proxy servers based upon the speed of the proxy server …”; col. 4, ll. 1-36 “… The proxy server information is stored in an array named Proxy( ). The total number of available proxy servers is determined based on the number of proxy server records read (step 220) … For-Next loop 250 is started to test all of the proxy servers available …”).
McBrearty and Azizullah are analogous art because they are both related to performance test of network devices.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the performance test for a plurality of network devices techniques of McBrearty with the system of Azizullah to facilitate the performance test for the plurality of network devices based upon a given criteria (McBrearty, col. 2, ll. 19-25).
Azizullah-McBrearty does not explicitly teach, but Claybon teaches identify, from the determined throughputs, which servers of the plurality of servers communicated over the external network with the test instrument at a throughput that meets or exceeds a predefined throughput (Claybon teaches identifying the URLs (i.e. servers’ identifiers) that are communicated with the monitoring device at a throughput comparing with the contracted connection rate; FIGS 1-4; para.[0038] “… The monitoring device 10 operating in client mode, measures the amount of time it takes to receive the data. For example, one such measurement: 105.4719 MB received, divided by the 10.09 seconds it took to receive the data=87.7015 Mbps. This measurement, typically in Mega-Bits Per Second (Mbps), is the ‘speed’ or ‘throughput’ of the connection. This is also the basis of the contract that consumers maintain with their ISPs (Plan A: ‘Fast’ 100 Mbps speed, Plan B: ‘Faster’ 300 Mbps, Plan C: ‘Blazing’ 750 Mbps, etc.) …”; para.[0065] “… All devices 10 presently disclosed communicate with and may be controlled by a central computer server 40 and the one or more databases 50a-b that store the output of monitoring devices 10. The monitoring device 10 may comprise an embedded software/firmware configured to access website locations (URLs) of popular Internet content providers, downloading content from these providers, and measuring the throughput of the download …”); and
send identifiers of the servers identified as having communicated over the external network with the test instrument at the throughput that meets or exceeds the predefined throughput to the third party test service provider via the external network (Claybon teaches sending the throughput test information including the identified URLs to server 40; FIGS 1-4; para.[0033] “… According to some embodiments, the one or more databases 50a-b allow the one or more remote servers 40 to store and/or retrieve monitoring/diagnostic results from the monitoring devices 10 …”; para.[0065] “All devices 10 presently disclosed communicate with and may be controlled by a central computer server 40 and the one or more databases 50a-b that store the output of monitoring devices 10 … According to some embodiments, the devices 10 may be instructed, at random intervals during the day, to access one or more of these popular URLs to obtain random content. According to some embodiments, the monitoring devices 10 may be programmed to execute these commands all at the same time. According to some embodiments, in the same timeframe, the monitoring devices 10 may also conduct a speed/throughput test to a local server 40 as a control. Throughput may be measured for all tests and sent back to the central server 40 …”).
Claybon and Azizullah-McBrearty are analogous art because they are both related to performance test of network devices.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the throughput test techniques of Claybon with the system of Azizullah-McBrearty to test and monitor Broadband Internet connectivity (Claybon, para. [0009]).
For Claim 10, the claim is substantially similar to claim 1 and therefore is rejected for the same reasoning set forth above.
For Claim 17, the claim is substantially similar to claim 1 and therefore is rejected for the same reasoning set forth above. Additionally, Azizullah-McBrearty-Claybon teaches a non-transitory computer-readable medium on which is stored machine-readable instructions that when executed by a hardware processor of an apparatus (Azizullah, para. [0114] “… Additionally, embodiments described herein may be implemented as a non-transitory computer-readable storage medium that stores data and/or information, such as instructions, program code, a data structure, a program module, an application, a script, or other known or conventional form suitable for use in a computing environment. The program code, instructions, application, etc., is readable and executable by a processor (e.g., processor 410) of a device …”).
Claim Rejections - 35 USC § 103
Claim 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Azizullah et al. (US 20190230012 A1, published 07/25/2019; hereinafter Azizullah), in view of McBrearty et al. (US 6829638 B1, published 12/07/2004; hereinafter McBrearty), in view of Claybon (US 20220141114 A1, published 05/05/2022; hereinafter Claybon), in view of Young (US 6477522 B1, published 11/05/2002; hereinafter Young), and in further view of Zawari (US 20150358225 A1, published 12/10/2015; hereinafter Zawari).
For Claim 2, Azizullah-McBrearty-Claybon teaches the system of claim 1. Azizullah-McBrearty-Claybon does not explicitly teach, but Young teaches wherein the instructions cause the hardware processor to: define a set of the identified servers that communicated over the external network at a throughput that meets or exceeds the predefined throughput (Young teaches a desired rate of throughput - col. 4, l. 58-col. 5, l. 9) as a custom list of servers for an organization (Young teaches ranking list of servers based on the throughput of the servers above a desired rate; FIG. 2; “… an applet indicated generally at 200 in FIG. 2 may be configured to intercept the user's request for the file as indicated at 210 …” – col. 4, ll. 7-24; “… At 225, a first portion of the file is requested from the highest priority server. The throughput of such server is tracked at 230, such as by a bits per second indication … Throughput of this transfer is also tracked and the rest of the servers are contacted in the same manner to obtain further consecutive or contiguous portions of the file. Once all the servers in the list have completed, the performance as measured by throughput is ranked …” – col. 4, ll. 39-57; “… The throughput may further be monitored at 240 from the optimal server. This is done because performance may change over time for very large files. If the performance falls below a desired rate at 245, a different server may be selected … The desired rate for decision block 245 may be established as a desired percentage of the throughput as determined at step 230, such as 75% …” – col. 4, l. 58-col. 5, l. 9); and …
Young and Azizullah-McBrearty-Claybon are analogous art because they are both related to performance of network devices.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the throughput monitoring techniques of Young with the system of Azizullah-McBrearty-Claybon to facilitate the selection of the server with the best throughput to complete the data transmission (Young, col. 2, ll. 3-13).
Azizullah-McBrearty-Claybon-Young further teaches send a custom list of server identifiers to the third party test service provider (Claybon teaches sending the throughput test information including the identified URLs to server 40, FIGS 1-4; para. [0065] “… According to some embodiments, the devices 10 may be instructed, at random intervals during the day, to access one or more of these popular URLs to obtain random content. According to some embodiments, the monitoring devices 10 may be programmed to execute these commands all at the same time. According to some embodiments, in the same timeframe, the monitoring devices 10 may also conduct a speed/throughput test to a local server 40 as a control. Throughput may be measured for all tests and sent back to the central server 40 …”). See motivation to combine for claim 1.
Azizullah-McBrearty-Claybon-Young does not explicitly teach, but Zawari teaches wherein the test service provider is to, in response to receipt of a request for execution of a throughput test that meets or exceeds the predefined throughput from a member of the organization, at least one of: output an identifier of at least one of the servers in the custom list of server identifiers to execute the throughput test; and select one of the identified servers in the custom list of server identifiers to execute the throughput test (Zawari teaches that the Speed Test Service receives the speed test request and selects one of its own servers to execute the speed test; FIG. 1, FIG. 2; para. [0060], para. [0071], para. [0072], para. [0093] “… Below is a brief description of the API: … SomApi.config.testServerEnabled … Determines whether to find the test server name or not. If the user doesn't care about what test server has been used for the test, he may disable this feature by setting its value to false. The default value is true … testResult.testServer: Test server name. It will be empty string if SomApi.config.testServerEnabled is false …”; para. [0111] “… Referring to FIG. 2, the schematic drawing illustrates a diagram of the Speed Test API … The user (or client) 200 access the Website 201 for the speed test 202. The Website (or App) 201 delegates the speed testing requirements to the Speed Test Service 202 using the Speed Test API 203 … The Speed Test Service 202 relies on its own servers 204, 205, 206, 207, 208. Whenever the Website 201 needs to measure the user's speed, it just asks the Speed Test API 203. The Speed Test API 203, uses the Speed Test Service behind the scene and returns the test result to the Website 201 …”).
Zawari and Azizullah-McBrearty-Claybon-Young are analogous art because they are both related to performance test of network devices.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the speed test techniques of Zawari with the system of Azizullah-McBrearty-Claybon-Young to test and diagnose broadband Internet bandwidth wherein the users can access a website or application which delegates the speed testing requirements to the speed test service (Zawari, para.0027).
Claim Rejections - 35 USC § 103
Claim 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Azizullah et al. (US 20190230012 A1, published 07/25/2019; hereinafter Azizullah), in view of McBrearty et al. (US 6829638 B1, published 12/07/2004; hereinafter McBrearty), in view of Claybon (US 20220141114 A1, published 05/05/2022; hereinafter Claybon), and in further view of Zawari (US 20150358225 A1, published 12/10/2015; hereinafter Zawari).
For Claim 3, Azizullah-McBrearty-Claybon teaches the system of claim 1, wherein the instructions cause the hardware processor to: identify a set of servers of the plurality of servers that communicated over the external network with the test instrument at a throughput that meets or exceeds a second predefined throughput, the second predefined throughput differing from the predefined throughput (Claybon teaches identifying the URLs (i.e. servers’ identifiers) that are communicated at a throughput comparing with the contracted connection rate and there are different contracted connection rates; FIGS 1-4; para. [0038] “… The monitoring device 10 operating in client mode, measures the amount of time it takes to receive the data. For example, one such measurement: 105.4719 MB received, divided by the 10.09 seconds it took to receive the data=87.7015 Mbps. This measurement, typically in Mega-Bits Per Second (Mbps), is the ‘speed’ or ‘throughput’ of the connection. This is also the basis of the contract that consumers maintain with their ISPs (Plan A: ‘Fast’ 100 Mbps speed, Plan B: ‘Faster’ 300 Mbps, Plan C: ‘Blazing’ 750 Mbps, etc.) …”; para. [0065] “… All devices 10 presently disclosed communicate with and may be controlled by a central computer server 40 and the one or more databases 50a-b that store the output of monitoring devices 10. The monitoring device 10 may comprise an embedded software/firmware configured to access website locations (URLs) of popular Internet content providers, downloading content from these providers, and measuring the throughput of the download …”); and
send identifiers of the set of servers to the third party test service provider (Claybon teaches sending the throughput test information including the identified URLs to server 40; FIGS 1-4; para. [0065] “… According to some embodiments, the devices 10 may be instructed, at random intervals during the day, to access one or more of these popular URLs to obtain random content. According to some embodiments, the monitoring devices 10 may be programmed to execute these commands all at the same time. According to some embodiments, in the same timeframe, the monitoring devices 10 may also conduct a speed/throughput test to a local server 40 as a control. Throughput may be measured for all tests and sent back to the central server 40 …”). See motivation to combine for claim 1.
Azizullah-McBrearty-Claybon does not explicitly teach, but Zawari teaches wherein the third party test service provider is to, in response to receipt of a request for execution of another throughput test that meets or exceeds the second predefined throughput, at least one of: output an identifier of at least one of the servers in the set of servers to execute the another throughput test; and select one of the servers in the set of servers to execute the throughput test (Zawari teaches that the Speed Test Service receives the speed test request and selects one of its own servers to execute the speed test; FIG. 1, FIG. 2; para. [0060], para. [0071], para. [0072], para. [0093] “… Below is a brief description of the API: … SomApi.config.testServerEnabled … Determines whether to find the test server name or not. If the user doesn't care about what test server has been used for the test, he may disable this feature by setting its value to false. The default value is true … testResult.testServer: Test server name. It will be empty string if SomApi.config.testServerEnabled is false …”; para. [0111] “… Referring to FIG. 2, the schematic drawing illustrates a diagram of the Speed Test API … The user (or client) 200 access the Website 201 for the speed test 202. The Website (or App) 201 delegates the speed testing requirements to the Speed Test Service 202 using the Speed Test API 203 … The Speed Test Service 202 relies on its own servers 204, 205, 206, 207, 208. Whenever the Website 201 needs to measure the user's speed, it just asks the Speed Test API 203. The Speed Test API 203, uses the Speed Test Service behind the scene and returns the test result to the Website 201 …”).
Zawari and Azizullah-McBrearty-Claybon are analogous art because they are both related to performance test of network devices.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the speed test techniques of Zawari with the system of Azizullah-McBrearty-Claybon to test and diagnose broadband Internet bandwidth wherein the users can access a website or application which delegates the speed testing requirements to the speed test service (Zawari, para. [0027]).
Claim Rejections - 35 USC § 103
Claims 4 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Azizullah et al. (US 20190230012 A1, published 07/25/2019; hereinafter Azizullah), in view of McBrearty et al. (US 6829638 B1, published 12/07/2004; hereinafter McBrearty), in view of Claybon (US 20220141114 A1, published 05/05/2022; hereinafter Claybon), and in further view of Okhravi et al. (US 20150109940 A1, published 04/23/2015; hereinafter Okhravi).
For Claim 4, Azizullah-McBrearty-Claybon teaches the system of claim 1. Azizullah-McBrearty-Claybon does not explicitly teach, but Okhravi teaches wherein the instructions cause the hardware processor to: receive an instruction for the test instrument to execute a throughput test with a server (Okhravi, e.g. throughput test server – para. [0033]) that communicated at a throughput that meets or exceeds the predefined throughput (Okhravi, FIG. 3; FIG. 7; para. [0033] “… throughput test server 375 may send and/or receive traffic to and/ or from user device 305 (e.g., via WLAN AP 370 and network 360), and may determine (or may aid in the determination of) an uplink and/or a downlink throughput experienced by user device 305 …”; para. [0063] “… Process 700 may include determining (at block 710) whether the cellular wireless network average throughput (determined at block 705) is greater than a threshold throughput …”);
based on receipt of the instruction for the test instrument to execute the throughput test: access a profile associated with the predefined throughput (Okhravi, FIG. 3; para. [0028] “… HSS/AAA server 350 may manage, update, and/or store, in a memory associated with HSS/AAA server 350, profile information associated with a subscriber. The profile information may identify applications and/or services that are permitted for and/or accessible by the subscriber; a mobile directory number (‘MDN’) associated with the subscriber; bandwidth or data rate thresholds associated with the applications and/or services …”); and
send an instruction to the test instrument execute the throughput test with the server based on information contained in the accessed profile (Okhravi, FIG. 3; para. [0033] “… throughput test server 375 may send and/or receive traffic to and/ or from user device 305 (e.g., via WLAN AP 370 and network 360), and may determine ( or may aid in the determination of) an uplink and/or a downlink throughput experienced by user device 305 …”).
Okhravi and Azizullah-McBrearty-Claybon are analogous art because they are both related to throughput of network devices.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the throughput testing techniques of Okhravi with the system of Azizullah-McBrearty-Claybon to help to “create a better experience for end users” (Okhravi, para. [0001]).
For Claim 11, Azizullah-McBrearty-Claybon teaches the method of claim 10. Azizullah-McBrearty-Claybon does not explicitly teach, but Okhravi teaches further comprising: accessing a profile associated with the predefined throughput (Okhravi, FIG. 3; para. [0028] “… HSS/AAA server 350 may manage, update, and/or store, in a memory associated with HSS/AAA server 350, profile information associated with a subscriber. The profile information may identify applications and/or services that are permitted for and/or accessible by the subscriber; a mobile directory number (‘MDN’) associated with the subscriber; bandwidth or data rate thresholds associated with the applications and/or services …”); and
sending an instruction to the test instrument or another test instrument to execute a throughput test with a server based on options selected in the accessed profile (Okhravi, FIG. 3; para. [0033] “… throughput test server 375 may send and/or receive traffic to and/ or from user device 305 (e.g., via WLAN AP 370 and network 360), and may determine (or may aid in the determination of) an uplink and/or a downlink throughput experienced by user device 305 …”).
Okhravi and Azizullah-McBrearty-Claybon are analogous art because they are both related to throughput of network devices.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the throughput testing techniques of Okhravi with the system of Azizullah-McBrearty-Claybon to help to “create a better experience for end users” (Okhravi, para. [0001]).
Claim Rejections - 35 USC § 103
Claims 5, 13 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Azizullah et al. (US 20190230012 A1, published 07/25/2019; hereinafter Azizullah), in view of McBrearty et al. (US 6829638 B1, published 12/07/2004; hereinafter McBrearty), in view of Claybon (US 20220141114 A1, published 05/05/2022; hereinafter Claybon), and in further view of Clancy et al. (US 20220150153 A1, published 05/12/2022; hereinafter Clancy).
For Claim 5, Azizullah-McBrearty-Claybon teaches the system of claim 1, wherein the instructions cause the hardware processor to: receive, from the third party test service provider, identifiers of a plurality of the identified servers that communicated with the test instrument over the external network at a throughput that meets or exceeds the predefined throughput (Claybon teaches receiving the throughput test information including the identified URLs from the server 40, FIGS 1-4; para. [0065] “… According to some embodiments, the devices 10 may be instructed, at random intervals during the day, to access one or more of these popular URLs to obtain random content. According to some embodiments, the monitoring devices 10 may be programmed to execute these commands all at the same time. According to some embodiments, in the same timeframe, the monitoring devices 10 may also conduct a speed/throughput test to a local server 40 as a control. Throughput may be measured for all tests and sent back to the central server 40 …”). See motivation to combine for claim 1.
Azizullah-McBrearty-Claybon does not explicitly teach, but Clancy teaches cause the identifiers of the received plurality of identified servers to be displayed on a display of the apparatus; receive a selection of one of the servers associated with the displayed identifiers; and send an instruction to the test instrument to execute a throughput test using the selected one of the servers (Clancy, FIG. 4; para. [0065] “… FIG. 4 depicts an example server entry and results screen. The user may be prompted for a host name or IP address of a test server prior to running the test and displaying the results. A list of available test servers, from which a particular test server may be selected by the user, may be presented via the GUI …”).
Clancy and Azizullah-McBrearty-Claybon are analogous art because they are both related to network monitoring.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the user interface with test servers techniques of Clancy with the system of Azizullah-McBrearty-Claybon to enable a subscriber to validate the performance improvements of a service (Clancy, para.0004).
For Claim 13, the claim is substantially similar to claim 5 and therefore is rejected for the same reasoning set forth above.
For Claim 19, the claim is substantially similar to claim 5 and therefore is rejected for the same reasoning set forth above.
Claim Rejections - 35 USC § 103
Claims 6 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Azizullah et al. (US 20190230012 A1, published 07/25/2019; hereinafter Azizullah), in view of McBrearty et al. (US 6829638 B1, published 12/07/2004; hereinafter McBrearty), in view of Claybon (US 20220141114 A1, published 05/05/2022; hereinafter Claybon), and in further view of Knoepp et al. (US 20090030981 A1, published 01/29/2009; hereinafter Knoepp).
For Claim 6, Azizullah-McBrearty-Claybon teaches the system of claim 1, wherein the instructions cause the hardware processor to: receive, from the third party test service provider, identifiers of a plurality of the identified servers that communicated with the test instrument over the external network at a throughput that meets or exceeds the predefined throughput (Claybon discloses receiving the throughput test information including the identified URLs from the server 40, FIGS 1-4; para. [0065] “… According to some embodiments, the devices 10 may be instructed, at random intervals during the day, to access one or more of these popular URLs to obtain random content. According to some embodiments, the monitoring devices 10 may be programmed to execute these commands all at the same time. According to some embodiments, in the same timeframe, the monitoring devices 10 may also conduct a speed/throughput test to a local server 40 as a control. Throughput may be measured for all tests and sent back to the central server 40 …”). See motivation to combine for claim 1.
Azizullah-McBrearty-Claybon does not explicitly teach, but Knoepp teaches cause the identifiers of the received plurality of identified servers to be displayed on a display of the apparatus; receive a selection of one or more of the servers associated with the displayed identifiers to add to a server list; and add the identifiers of the received selection of the one or more servers in the server list (Knoepp, FIG. 4; FIG. 6; para. [0067] “… If a Customer chooses to use test servers, the next step in FIG. 3a is to configure the test servers to be used … In the portal illustrated in FIG. 4, the Customer clicks upon link 35 to navigate to the test server configuration page which is illustrated in FIG. 6. On the test server configuration page illustrated, the Customer adds multiple servers to the list of servers that are used for testing by clicking add button 52. After adding a server address to a text box input object, the new server is then displayed in list box 50 …”).
Knoepp and Azizullah-McBrearty-Claybon are analogous art because they are both related to distributed computing networks.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the user interface with test servers techniques of Knoepp with the system of Azizullah-McBrearty-Claybon to facilitate the test servers to test changes of a system prior to releasing the system changes to the production servers (Knoepp, para. [0004]).
For Claim 14, the claim is substantially similar to claim 6 and therefore is rejected for the same reasoning set forth above.
Claim Rejections - 35 USC § 103
Claims 7, 15 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Azizullah et al. (US 20190230012 A1, published 07/25/2019; hereinafter Azizullah), in view of McBrearty et al. (US 6829638 B1, published 12/07/2004; hereinafter McBrearty), in view of Claybon (US 20220141114 A1, published 05/05/2022; hereinafter Claybon), and in further view of Ramalho (US 20070115832 A1, published 05/24/2007; hereinafter Ramalho).
For Claim 7, Azizullah-McBrearty-Claybon teaches the system of claim 1. Azizullah-McBrearty-Claybon does not explicitly teach, but Ramalho teaches wherein the instructions cause the hardware processor to: determine whether a line rate option (Ramalho, para. [0045] a mode of a system for determining network communications link quality) has been enabled (Ramalho, FIG. 4; FIG. 5; para. [0040] “… FIG. 4 is a diagram illustrating a system 100 for determining network communications link quality over different portions 104, 106 of a network 102 …”; para.0045 “… With reference to FIGS. 4 and 5, the method 120 includes an initial mode-determining step 122, wherein the mode of the system 100 is determined via diagnostic software and/or hardware running on the remote diagnostic system 44 …”);
based on a determination that the line rate option has been enabled (Ramalho, para. [0042], para. [0046] the packet-concealment mode), disregard packets received out of order and packet loss from a server (Ramalho, e.g. the remote diagnostic system 44 as exemplified in FIG. 4) during execution of a throughput test with the server (Ramalho, e.g. concealing the packet loss information over the wireless link from the diagnostic system; FIG. 4; FIG. 5; para. [0042] “… In packet-concealment mode, … FLV2 represents network or link quality attributable to the wired portion 106 of the network 102 …”; para. [0046] “… If the remote diagnostic system 44 selects packet-concealment mode, then lost packets occurring over the wireless link 22 are detected in a first lost-packet-detection step 124 …”; para. [0048] “… Subsequently, in a first FLV step 127, FLV2 is computed by the wired VOIP phone 26 based on the data stream arriving at the wired VOIP phone 26 after traversing the network 102 and after insertion of substitute packets via the substitute-packet inserter 40 …”); and
based on a determination that the line rate option has been disabled (Ramalho, para.0043, para.0049 the standard mode), include packets received out of order and lost packets from a server during execution of a throughput test with the server (Ramalho, e.g. combining the packet loss information over the wireless link by the diagnostic system; FIG. 4; FIG. 5; para. [0043] “… In standard mode … The remote diagnostic system 44 may selectively combine FLV2 and FLV3 to infer packet-loss rates over the wireless link 22 associated with the first portion 104 of the network 102 …”; para.0049 “… If the network diagnostic mode is standard mode as determined in the initial mode-determining step 122, then a second lost-packet-detection step 128 is performed. In the second lost-packet-detection step 128, the DEMUX select signal from the remote diagnostic system 44 to the DEMUX 108 causes the DEMUX to divert the output of the decoder 34 to the packet interface 42, thereby effectively bypassing the lost-packet detector 36 and the substitute-packet inserter 40 …”).
Ramalho and Azizullah-McBrearty-Claybon are analogous art because they are both related to network monitoring.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the network diagnostic techniques of Ramalho with the system of Azizullah-McBrearty-Claybon to facilitate determining accurate network quality information of the communication links (Ramalho, para. [0002]).
For Claim 15, the claim is substantially similar to claim 7 and therefore is rejected for the same reasoning set forth above.
For Claim 20, the claim is substantially similar to claim 7 and therefore is rejected for the same reasoning set forth above.
Claim Rejections - 35 USC § 103
Claims 8 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Azizullah et al. (US 20190230012 A1, published 07/25/2019; hereinafter Azizullah), in view of McBrearty et al. (US 6829638 B1, published 12/07/2004; hereinafter McBrearty), in view of Claybon (US 20220141114 A1, published 05/05/2022; hereinafter Claybon), and in further view of Deragon et al. (US 20060045021 A1, published 03/02/2006; hereinafter Deragon).
For Claim 8, Azizullah-McBrearty-Claybon teaches the system of claim 1. Azizullah-McBrearty-Claybon does not explicitly teach, but Deragon teaches wherein the instructions cause the hardware processor to: cause icons corresponding to a plurality of ports in a test instrument to be displayed (Deragon, e.g. Port 1 and Port 2 tabs are exemplified in FIG. 5; para. [0069] “… FIG. 5 is an image 500 of a graphical user interface (GUI) used for configuring ports for a loopback test …”);
receive a selection of a port of the plurality of ports (Deragon, FIG. 5; para. [0069] “… Another tab 507 indicates that the addresses are defined for Port 1, rather than Port 2 …”); and
cause the test instrument to execute the throughput test with a server through the selected port (Deragon, para. [0059] “… The user may select to run Throughput, Frame Loss, Throughput & Frame Loss, Latency and Burst tests …”).
Deragon and Azizullah-McBrearty-Claybon are analogous art because they are both related to network monitoring.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the testing system ports configuration techniques of Deragon with the system of Azizullah-McBrearty-Claybon to facilitate the testing system to operate in a convenient and user-friendly manner (Deragon, para. [0005]).
For Claim 16, the claim is substantially similar to claim 8 and therefore is rejected for the same reasoning set forth above.
Claim Rejections - 35 USC § 103
Claim 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Azizullah et al. (US 20190230012 A1, published 07/25/2019; hereinafter Azizullah), in view of McBrearty et al. (US 6829638 B1, published 12/07/2004; hereinafter McBrearty), in view of Claybon (US 20220141114 A1, published 05/05/2022; hereinafter Claybon), and in further view of Arya et al. (US 20140143423 A1, published 05/22/2014; hereinafter Arya).
For Claim 9, Azizullah-McBrearty-Claybon teaches the system of claim 1. Azizullah-McBrearty-Claybon does not explicitly teach, but Arya teaches wherein the predefined throughput is 2.5 gigabits per second, 5 gigabits per second, or 10 gigabits per second (Arya, FIG. 1; FIG. 3; para. [0039] “… The processing centers (132, 134) may also include network devices, such as routers and modems that interface to other clients or processing centers. The ‘bandwidth utilization’ parameter 302C may be measured by monitoring this network equipment to determine the throughput of the output and/or input data that is passed by these network devices. This parameter may be specified in terms of gigabits per second (Gbps) and may be associated with a threshold value 306C of 10 Gbps, for example …”).
Arya and Azizullah-McBrearty-Claybon are analogous art because they are both related to network monitoring.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the defining throughput threshold techniques of Arya with the system of Azizullah-McBrearty-Claybon to facilitate the fulfillment of the client processing requests from a network service processing center (Arya, para. [0005]).
Claim Rejections - 35 USC § 103
Claim 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Azizullah et al. (US 20190230012 A1, published 07/25/2019; hereinafter Azizullah), in view of McBrearty et al. (US 6829638 B1, published 12/07/2004; hereinafter McBrearty), in view of Claybon (US 20220141114 A1, published 05/05/2022; hereinafter Claybon), in view of Okhravi et al. (US 20150109940 A1, published 04/23/2015; hereinafter Okhravi), and in further view of Yeddala et al. (US 20150109909 A1, published 04/23/2015; hereinafter Yeddala).
For Claim 12, Azizullah-McBrearty-Claybon-Okhravi teaches the method of claim 11. Azizullah-McBrearty-Claybon-Okhravi does not explicitly teach, but Yeddala teaches further comprising: displaying, on a display of the apparatus, user interface options for a profile; receiving inputs from a user regarding the displayed user interface options for the profile; storing the inputs for the displayed user interface options as part of the profile (Yeddala, FIG. 2; FIG. 3; para. [0073] “… assume that a subscriber (such as an administrator) in subscriber domain 150-1 creates access profiles 265 as shown in FIG. 3. Based on input received from the administrator (such as Jane Doe) in subscriber domain 150-1: the access profile manager 280 stores corresponding settings associated with the user 108-1 (such as Jane Doe) in access profile information 265-1…”; para. [0074] “… If desired, the access profiles 265 can be modified. For example, subsequent to creation of access profiles 265, the administrator in subscriber domain 150-1 can utilize access profile manager 280 at a subsequent time to modify settings associated with the access profiles 265 …”); and …
Yeddala and Azizullah-McBrearty-Claybon-Okhravi are analogous art because they are both related to distributed computing networks.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the user’s network access profile management techniques of Yeddala with the system of Azizullah-McBrearty-Claybon-Okhravi to facilitate the management of the network access resources (Yeddala, para. [0126]).
Azizullah-McBrearty-Claybon-Okhravi-Yeddala further teaches sending the instruction to the test instrument or another test instrument to execute the throughput test with the server based on the stored inputs of the profile (Okhravi, FIG. 3; para. [0028] “… HSS/AAA server 350 may manage, update, and/or store, in a memory associated with HSS/AAA server 350, profile information associated with a subscriber. The profile information may identify applications and/or services that are permitted for and/or accessible by the subscriber; a mobile directory number (‘MDN’) associated with the subscriber; bandwidth or data rate thresholds associated with the applications and/or services …”; para. [0033] “… throughput test server 375 may send and/or receive traffic to and/ or from user device 305 (e.g., via WLAN AP 370 and network 360), and may determine ( or may aid in the determination of) an uplink and/or a downlink throughput experienced by user device 305 …”). See motivation to combine for claim 11.
Claim Rejections - 35 USC § 103
Claim 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Azizullah et al. (US 20190230012 A1, published 07/25/2019; hereinafter Azizullah), in view of McBrearty et al. (US 6829638 B1, published 12/07/2004; hereinafter McBrearty), in view of Claybon (US 20220141114 A1, published 05/05/2022; hereinafter Claybon), in view of Okhravi et al. (US 2015/0109940 A1, published 04/23/2015; hereinafter Okhravi), and in further view of Arya et al. (US 2014/0143423 A1, published 05/22/2014; hereinafter Arya).
For Claim 18, Azizullah-McBrearty-Claybon teaches the non-transitory computer-readable medium of claim 17. Azizullah-McBrearty-Claybon does not explicitly teach, but Okhravi teaches wherein the instructions further cause the hardware processor to: access a profile associated with the predefined throughput (Okhravi, FIG. 3; para. [0028] “… HSS/AAA server 350 may manage, update, and/or store, in a memory associated with HSS/AAA server 350, profile information associated with a subscriber. The profile information may identify applications and/or services that are permitted for and/or accessible by the subscriber; a mobile directory number (‘MDN’) associated with the subscriber; bandwidth or data rate thresholds associated with the applications and/or services …”); and
send an instruction to the test instrument or another test instrument to execute a throughput test with a server based on options selected in the accessed profile (Okhravi, FIG. 3; para. [0033] “… throughput test server 375 may send and/or receive traffic to and/ or from user device 305 (e.g., via WLAN AP 370 and network 360), and may determine ( or may aid in the determination of) an uplink and/or a downlink throughput experienced by user device 305 …”), …
Okhravi and Azizullah-McBrearty-Claybon are analogous art because they are both related to throughput of network devices.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the throughput testing techniques of Okhravi with the system of Azizullah-McBrearty-Claybon to help to “create a better experience for end users” (Okhravi, para. [0001]).
Azizullah-McBrearty-Claybon-Okhravi does not explicitly teach, but Arya teaches wherein the predefined throughput exceeds 2.5 gigabits per second (Arya, e.g. a throughput threshold of 10 Gbps which exceeds 2.5 Gbps; FIG. 1; FIG. 3; para.0039 “… The ‘bandwidth utilization’ parameter 302C may be measured by monitoring this network equipment to determine the throughput of the output and/or input data that is passed by these network devices. This parameter may be specified in terms of gigabits per second (Gbps) and may be associated with a threshold value 306C of 10 Gbps, for example …”).
Arya and Azizullah-McBrearty-Claybon-Okhravi are analogous art because they are both related to network monitoring.
Before the effective filing date of the claimed invention it would have been obvious to one of ordinary skill in the art to use the defining throughput threshold techniques of Arya with the system of Azizullah-McBrearty-Claybon-Okhravi to facilitate the fulfillment of the client processing requests from a network service processing center (Arya, para.0005).
Citation of Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure is listed below, thank you:
i. Gomez (US 20210064516 A1) teaches in-device real time application program performance feature testing by test devices of an independent test device system of a performance test system. The performance test system includes an access control program that limits access to certain performance data that is automatically generated by the test devices, at test. A client device communicatively coupled to the performance test system via an internetwork installs program instructions of a performance test that may be iteratively executed to test an application program under test (APUT) in a test device. Different test conditions adapted to different performance feature testing identifying result data that is processed to determine the performance feature being tested. A test result is determined based on each performance test iteration and the test result, in addition to other test data is displayed on a user interface (Gomez, Abstract).
ii. Dinker et al. (US 20040199815 A1) teaches testing one or more servers using a distributed test system may involve a master agent synchronously transitioning multiple test agents through several state changes. In some embodiments, a method may involve configuring multiple test agents to execute a test by initiating a state change to a first state at each of the test agents. Each of the test agents is prepared to execute the test when in the first state. Each of the test agents simulates multiple clients of a server under test when executing the test. In response to each of the test agents confirming the state change to the first state, a state change to a second state may be initiated at each of the plurality of test agents. Each of the test agents executes the test when in the second state (Dinker, Abstract).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ZONGHUA DU whose telephone number is (408)918-7596. The examiner can normally be reached Monday - Friday 8 AM - 5 PM PST.
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/Z.D./Examiner, Art Unit 2444
/SCOTT B CHRISTENSEN/Primary Examiner, Art Unit 2444
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