Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
1. Applicant's arguments have been fully considered but they are not persuasive.
(A) Claims 15-20 are rejected under 35 U.S.C. 101 as being software per se.
Applicant argues since the software is executing, and the claim should be treated no differently a processor executing the processes recited.
Applicant argues that as Claim 15 recites that the agent is “in operative communication with at least one edge device…” and thus the agent is “executing.” However, this does not place the claim within a statutory category. None of Applicant’s arguments address this plain fact. Applicant does not clearly argue that the agent is not strictly software; rather, Applicant only attempts to justify software per se as patentable subject matter. However, Applicant cannot argue for some private interpretation, when the statutory language is plain and clear.
Applicant’s argument that the agent is “executing” is merely word-play. Applicant makes various comparison between “non-transient storage media storing computer-executable instructions” and the claims, arguing that “it makes no sense to distinguish between them.”
However, this failure to see the distinction is due entirely to applicant’s word-play, i.e. “the agent is executing.” In reality, the agent is being executed via some hardware element. However, Applicant’s language would strictly suggest, erroneously, that the agent is self-executing. As such, this is the plain distinction between a patentable expression of a storage media storing executable instructions, along with a processor to execute the instructions and a set of claims that are software per se.
Examiner notes that Claim 1 does not limit Claim 15, and thus cannot resolve the issue with Claim 15.
(B) Claims 1-20 are rejected under 35 U.S.C. 112 as being indefinite.
Applicant argues that “low latency service” is not being used as a metric to quantify some other element, but rather is specifying a type of service that is well-understood.
However, Examiner maintains that this is inadequate.
First, Examiner considers Applicant’s particular interpretation as only further establishing the relative nature of the claims, as Applicant argues that a low latency service refers to “the prioritization of some packets for faster delivery tha[n] the remainder of the packets.”
This is to say that according to Applicant’s own understanding of a “low latency service,” that the service necessarily cannot be understood on its own, but rather requires some relative comparison to be determined, i.e. the term is relative.
This is an issue as the claims do not require any secondary service, i.e. a low latency service and non-low latency service. Rather the term “low latency service” is presented, and thus interpreted, entirely on its own without any alternative service to compare it towards. Therefore, the claim is indefinite as it cannot be reasonable ascertained whether or not a service is low-latency is not given claim language.
(C) Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Nagarajan et al. (US 20220210080 A1) in view of Elazzouni et al. (US 20220377823 A1).
Applicant argues that the prior art does not present an obvious teaching of the claimed inventions. Specifically, that it would not be obvious to analyze a payload portion of a data packet, when analyzing a data packet.
However, Examiner respectfully disagrees.
The payload portion of data packet is not some novel element of a data packet generally, nor in the context of analyzing data packets. It is an obvious to try variation of “analyzing a data packet” to analyze elements that compose of a data packet.
Furthermore, the claim does not specify how the analysis is used to selectively classify data packets, as such the analysis of the payload portion does not need to be exclusively used for this selective classification. Therefore, given that Nagarajan uses the analysis of the entirety of the data packet to make this selective classification, it would be obvious that the analysis of a part of the data packet would at least by partially used to make this selective classification.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
2. Claims 15-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claims do not fall within at least one of the four categories of patent eligible subject matter because the claims are directed to Software Per Se.
Claim 15 recites “a low-latency DOCSIS (LLD) agent…” The Specification does not provide a definition of an agent and an agent is generally understood as a software agent.
Claims 16-20 are rejected for the same reasons as Claim 15.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
3. Claims 1-20 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 1 recites “low latency” The term “low” is a relative term which renders the claim indefinite. The term “low latency” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claims 2-20 are rejected for the same reasons as Claim 1.
Claim 15 recites “an output receiving the edge device with the header characteristics.” However, this language is unclear and indefinite.
First, the use of an “output” to “receive” is contrary to ordinary meaning and usage.
Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The term “output” in Claim 15 is used by the claim to mean “an element that receives” while the accepted meaning is “an element that transmits or outputs.” The term is indefinite because the specification does not clearly redefine the term.
Second, the terms on their own do not make clear sense. How does an agent “receive” an edge device? Based on applicant’s arguments, the agent is an executing software element. However, it is unclear how a software element would receive a physical object.
Claims 16-20 are rejected for the same reasons as Claim 15.
Claim Rejections - 35 USC § 103
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.
4. Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Nagarajan et al. (US 20220210080 A1) in view of Elazzouni et al. (US 20220377823 A1).
Claim 1 Nagarajan teaches a method of provisioning low-latency service flow for data packets associated with an application in a communication network conforming to Data Over Cable Service Interface Specification (DOCSIS) (¶0033) standard, (When reading the preamble in the context of the entire claim, the recitation is not limiting because the body of the claim describes a complete invention and the language recited solely in the preamble does not provide any distinct definition of any of the claimed invention’s limitations. Thus, the preamble of the claim(s) is not considered a limitation and is of no significance to claim construction. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51 USPQ2d 1161, 1165 (Fed. Cir. 1999). See MPEP § 2111.02.) the method comprising:
receiving a plurality of data packets associated with the application; (FIG. 3, S304, ¶0088, receiving a plurality of data packets associated with a new application)
analyzing the data packets; (FIG. 3, step S310, ¶0091, determining whether the data packets are classified correctly) and
using the analysis of the data packets to selectively classify a subset of the analyzed data packets as being associated with low latency service. (FIG. 3 step S310, ¶0092, based on the analysis classifying the packets as being correctly classified as low latency service, S318 or whether to update to associate with the low latency service, S312-S314; ¶0097, a method for detecting and classifying low latency traffic and modifying the classifiers to associate with the low latency service flow)
However, Nagarajan does not explicitly teach each data packet including a payload portion.
From a related technology, Elazzouni teach each data packet including a payload portion. (¶0162, wherein the packet includes a payload of the packet)
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of Nagarajan to incorporate the teachings of Elazzouni in order to more effectively utilize network resources.
Claim 2 Nagarajan in view of Elazzouni teaches Claim 1, and further teaches where the analysis of the payload portions comprises comparing payload attributes of the payload portions to predetermined attributes of low latency applications. (Elazzouni, ¶0162, wherein the packets are analyze to meet low latency criteria)
Claim 3 Nagarajan in view of Elazzouni teaches Claim 2, and further teaches where the payload attributes are selected from a group comprising: an application category (Elazzouni, ¶0162, wherein the payload attribute comprises an application category of meeting a low latency criteria) and an application name.
Claim 4 Nagarajan in view of Elazzouni teaches Claim 1, and further teaches using the classification of the subset of the analyzed data packets to determine a set of additional attributes in the analyzed data packets; (Nagarajan, FIG. 3 step S310, ¶0092, wherein determining whether it is correctly classified determines a latency attribute) and
using the additional attributes to classify additional data packets as being associated with low latency service. (Nagarajan, FIG. 3 step S310, ¶0092, wherein determining low latency attribute associates it with the low latency service)
Claim 5 Nagarajan in view of Elazzouni teaches Claim 4, and further teaches where the additional attributes are in a header of the analyzed data packets, and the additional data packets are associated with low latency service by examining the header of the additional data packets. (Elazzouni, ¶0162, wherein the payload attribute present in the header comprises an application category of meeting a low latency criteria)
Claim 6 Nagarajan in view of Elazzouni teaches Claim 4, and further teaches wherein the additional attributes are selected from a group comprising one or more of:
an application port number, (Nagarajan, ¶0092, wherein the port number comprises an additional attribute) an IP protocol, an application IP address, an application IP mask, a destination IP address, a destination IP mask, an application IP port start and port end, a destination port start and port end, a destination MAC address, an application MAC address, an Ethernet/DSA/MAC type, and a virtual LAN identification (VLAN ID).
Claim 7 Nagarajan in view of Elazzouni teaches Claim 1, and further teaches wherein provisioning the low latency service flow for data packets based on additional attributes comprises at least one of:
updating Access Control Lists (ACLs) of the communication network using the additional attributes; and
transmitting the additional attributes to a cable modem (CM) of the communication network for identification of low latency traffic in the communication network. (Nagarajan, ¶0046, data is provided to the CMTS, cable modem termination system)
Claims 8-14 are taught by Nagarajan in view of Elazzouni as described by Claims 1-7.
Claim 15 Nagarajan teaches a low-latency DOCSIS (LLD) agent in operative communication with at least one edge device that propagates a signal onto a communications network, the LLD agent comprising:
an input receiving a first plurality of data packets eligible for low latency service over the communications network, (FIG. 3, S304, ¶0088, receiving a plurality of data packets associated with a new application) each having a header and a payload;
a processor analyzing (FIG. 3, step S310, ¶0091, determining whether the data packets are classified correctly) and uses the analysis to identify characteristics of the first plurality of data packets; (FIG. 3, step S310, ¶0091, determining whether the data packets are classified correctly, and identifying the packets as low latency) and
an output receiving the edge device. (¶0046, data is provided to the CMTS, cable modem termination system)
However, Nagarajan does not explicitly teach wherein each data packet has a header and a payload, and with the header characteristics, the header characteristics usable by the edge device to identify a second plurality of data packets, different from the first plurality of data packets, also eligible for low latency service over the communications network.
From a related technology, Elazzouni teaches wherein each data packet has a header and a payload, (¶0162, where the data packet comprises a header and payload) and the header characteristics usable by the edge device to identify a second plurality of data packets, different from the first plurality of data packets, also eligible for low latency service over the communications network. (Examiner notes that this is an intended use statement, wherein the characteristics are merely usable to… but the limitation does not have patentable weight)
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of Nagarajan to analyze data packet elements, such as the header and payload as described in Elazzouni, in order to more effectively utilize network resources.
Claim 16 is taught by Nagarajan in view of Elazzouni as described for Claim 2.
Claim 17 Nagarajan in view of Elazzouni teaches Claim 16, and further teaches configurable by a cloud agent (Examiner notes that merely being configurable is a generic feature to a computing element) to modify the payload attributes. (Examiner notes that this is an intended use statement without patentable weight)
Claim 18 is taught by Nagarajan in view of Elazzouni as described for Claim 3.
Claim 19 is taught by Nagarajan in view of Elazzouni as described for Claim 6.
Claim 20 Nagarajan in view of Elazzouni teaches Claim 15, and further teaches where the at least one edge device is at least one of a Cable Modem Termination Service (CMTS), (Nagarajan, ¶0002, a cable modem termination system, CMTS) a Remote Physical Device (RPD), a Remote MACPHY Device (RMD) and a cable modem.
Conclusion
THIS ACTION IS MADE FINAL. 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 CHRISTOPHER PALACA CADORNA whose telephone number is (571)270-0584. The examiner can normally be reached M-F 10:00-7:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, John Follansbee can be reached at (571) 272-3964. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTOPHER P CADORNA/ Examiner, Art Unit 2444
/JOHN A FOLLANSBEE/ Supervisory Patent Examiner, Art Unit 2444