Skip to main content

Full text of "USPTO Patents Application 09750903"

See other formats


Remarks 


1 . Applicant is grateful to the Examiner for indicating that Applicant's previous 
arguments were persuasive. 

2. Applicant notes that the Examiner now rejects claims 21 to 35 under U.S.C. 
103(a) as being unpatentable over Knightly et al (US6801501) in view of 
Krishnamurthy et al (US2001/0025310). The Examiner will be aware that in ex parte 
examination of patent applications, the Patent and Trademark Office bears the 
burden of establishing a prima facie case of obviousness. MPEP § 2142; In re 
Fritch, 972 F.2d 1260, 1262, 23 U.S.P.Q.2d 1780, 1783 (Fed. Cir. 1992). The initial 
burden of establishing a prima facie basis to deny patentability to a claimed invention 
is always upon the Patent and Trademark Office. MPEP § 2142; In re Oetiker, 977 
F.2d 1443, 1445, 24 U.S.P.Q.2d 1443, 1444 (Fed. Cir. 1992); In re Piasecki, 745 
F.2d 1468, 1472, 223 U.S.P.Q. 785, 788 (Fed. Cir. 1984). Only when a prima facie 
case of obviousness is established does the burden shift to the applicant to produce 
evidence of nonobviousness. MPEP § 2142; In re Oetiker, 977 F.2d 1443, 1445, 24 
U.S.P.Q.2d 1443, 1444 (Fed. Cir. 1992); In re Rijckaert, 9 F.3d 1531, 1532, 28 
U.S.P.Q.2d 1955, 1956 (Fed. Cir. 1993). If the Patent and Trademark Office does 
not produce a prima facie case of unpatentability, then without more the applicant is 
entitled to grant of a patent. In re Oetiker, 977 F.2d 1443, 1445, 24 U.S.P.Q.2d 
1443, 1444 (Fed. Cir. 1992); In re Grabiak, 769 F.2d 729, 733, 226 U.S.P.Q. 870, 
873 (Fed. Cir. 1985). A prima facie case of obviousness is established when the 
teachings of the prior art itself suggest the claimed subject matter to a person of 
ordinary skill in the art. In re Bell, 991 F.2d 781, 783, 26 U.S.P.Q.2d 1529, 1531 
(Fed. Cir. 1993). To establish a prima facie case of obviousness, three basic criteria 
must be met. First, there must be some suggestion or motivation, either in the 
references themselves or in the knowledge generally available to one of ordinary skill 
in the art, to modify the reference or to combine reference teachings. Second, there 


7 


must be a reasonable expectation of success. Finally, the prior art reference (or 
references when combined) must teach or suggest all the claim limitations. The 
teaching or suggestion to make the claimed invention and the reasonable 
expectation of success must both be found in the prior art, and not based on 
applicant's disclosure. MPEP § 2142. 

3. The Examiner accepts that Knightly does not disclose determining from mean 
bandwidth and bandwidth variance measurements of an aggregated traffic flow 
separate respective prices for bandwidth and bandwidth variance. However, the 
Examiner contends that Krishnamurthy does disclose the foregoing feature of 
determining from mean bandwidth and variance measurements of an aggregated 
traffic flow separate respective prices for bandwidth and variance and that it would 
have been obvious to one skilled in the art to have incorporated Krishnamurthy's 
teachings of pricing-based quality of service with the teachings of Knightly thus 
rendering the present invention as defined by at least claim 21 obvious. Applicant 
respectfully disagrees for the following reasons. 

4. Any traffic flow where the transmission bandwidth varies with time can be 
characterized by a mean bandwidth measurement and a bandwidth variance 
measurement. This is not unique to the present invention. What is unique to the 
present invention is the derivation from the mean bandwidth and bandwidth variance 
measurements performed on the aggregated traffic flow of separate respective 
prices for bandwidth and variance where these separate prices are each applied to a 
traffic flow to be admitted to the aggregated traffic flow by way of controlling 
admission of the traffic flow to a network resource. One advantage provided by the 
present invention is that there is no need for the traffic flow source to determine a 
Quality of Service (QoS) scheme when requesting admission of the traffic flow to the 
network resource since the application of the separate prices for bandwidth and 
bandwidth variance are self-regulating. Either they produce a price that is 
acceptable to the traffic flow source or they do not. For example, where the 


8 


aggregated traffic flow has a low mean bandwidth measurement and a high 
bandwidth variance measurement and a traffic flow to be admitted has high 
bandwidth requirement but a low variance, the price for that traffic flow to be 
admitted will be relatively low despite its high bandwidth requirement since, in this 
example, variance rather than bandwidth will be charged at high rates. Thus, it can 
be seen that the present invention provides a sophisticated admission control 
mechanism through the use of the two separate pricing rates for bandwidth and 
variance. Also, there is no requirement on the traffic flow source of the present 
invention to regulate, i.e. police the traffic flow at the edge of the network resource to 
stay within a requested QoS scheme. 

5. The issues of mean bandwidth and bandwidth variance are also relevant to 
Knightly and Krishnamurthy in the manner that they would be to any traffic admission 
system. Knightly does not disclose pricing, although it does disclose controlling 
admission of a traffic flow based an empirical traffic envelop of the aggregated traffic 
flow. Krishnamurthy on the other hand does not teach deriving separate prices for 
bandwidth and bandwidth variance nor of applying these separate prices to a traffic 
flow to be admitted to an aggregated traffic flow. Applicant observes from 
paragraphs 0130 through to 0141 of Krishnamurthy that the various pricing schemes 
disclosed in paragraphs 0131, 0133, 0135, 0137, 0139 and 0141 are consistent with 
each other in that they disclose the pricing of bandwidth only. There is no separate 
price applied for bandwidth variance. The price for bandwidth used in the various 
pricing schemes may be a fixed rate or a rate that varies with time. In either case, it 
is still a single pricing mechanism. Also, nowhere in any of the schemes taught by 
Knightly is there any suggestion of applying a separate price for bandwidth variance. 
The various pricing schemes comprise a combination of a fixed or variable rate price 
for bandwidth and a variable or fixed QoS scheme. In other words, the pricing 
scheme disclosed by Krishnamurthy employs only the pricing of bandwidth either as 
a fixed or variable rate as a means of charging for bandwidth usage etc. It also 
requires a traffic flow source to specify a required QoS and, if necessary, to police, 


9 


i.e. adapt, the traffic flow to the QoS scheme. By employing only pricing of 
bandwidth, Krishnamurthy cannot provide a system where, using the example 
discussed above, a high bandwidth, low variance traffic flow can be accorded a 
lower price for admission that a low bandwidth, high variance traffic flow since it only 
employs a single pricing mechanism. This remains true even if it is contended that 
the single pricing mechanism of Knightly implicitly involves variance. 

6. It can be seen from the foregoing that the combination of Knightly and 
Krishnamurthy do not disclose or suggest all of the limitations of claim 21 . Further, 
even if one skilled in the art were to combine the teachings of Knightly and 
Krishnamurthy, one would arrive at an arrangement in which traffic flow admission to 
an aggregate flow is controlled based an empirical traffic envelop of the aggregated 
traffic flow and priced according to a single bandwidth price rate, either variable or 
fixed. Thus, the combination of Knightly and Krishnamurthy would not result in the 
arrangement of the present invention. 

7. The present invention makes a useful contribution to the art in that it provides 
a means of managing the admissions of traffic flows to a network resource in 
accordance with two price determinations relating to the resource, wherein the price 
determinations can be separately applied to respective corresponding characteristics 
(measurements) of a traffic flow to be admitted to the resource. This provides an 
admission control arrangement that is much more sophisticated and versatile than 
those of the prior art references of record, whether taken singly or in any 
combination. 


10 


8. In view of the foregoing, it is submitted that the claims presented herewith are 
in condition for allowance. 


July 7, 2006 Respectfully submitted: 



nlliam M. Lee, Jr. 
Registration No. 26,935 
Barnes & Thornburg LLP 
P.O. Box 2786 
Chicago, Illinois 60690-2786 
(312) 214-4800 
(312) 759-5646 (fax) 


CHDS01 WLEE 344883vl 


11 


JUll 


CERTIFICATE UNDER 37 CRF 1.8(a) 

I hereby certify that the Response to Office Action Mailed April 11, 2006 is being 
deposited with the United States Postal Service via First Class Mail in an envelope addressed to: 


Commissioner for Patents 
P.O. Box 1450 
Alexandria, VA 22313-1450 


on July 7, 2006 , )/]/)• 

Minnie Wilson 


CHDS01 WLEE 259686vl