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Full text of "USPTO Patents Application 09750903"

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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 Dziong (US6625155) in view of Varian 
"Estimating the Demand for Bandwidth." 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 


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 Dziong 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 Varian 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 Dziong's teachings of pricing- 
based quality of service with the teachings of Varian 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 then 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 


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. Contrary to what the Examiner alleges, Varian is not concerned at all with 
measuring variance in either an aggregated traffic flow or in a traffic flow to be 
admitted to a same network resource in a communications network as that on which 
the aggregated flow is carried. Thus, Varian does not teach the feature of 
determining from mean bandwidth and bandwidth variance measurements of the 
aggregated traffic flow separate respective prices for bandwidth and variance nor 
any of the succeeding steps of claim 21 of sampling the traffic flow to be admitted to 
measure its mean bandwidth and mean variance or of applying said separate 
bandwidth and variance prices to the traffic flow to be admitted as a means of 
controlling admission of said traffic flow to the network resource. Varian discloses an 
experimental system to study of the effect of pricing bandwidth at discrete levels for 
a service delivered to users to determine the effect on users' utilization of the service 
at the discrete bandwidth price levels. This leads to an assessment of what is 
termed "user's time cost" which is a random parameter dependent on a user's 
circumstances and/or behavior. For example, a user who is patient can be 
considered as having a low user time cost whereas a user who is in a hurry is 
considered as one who has a high time cost. It is not revealing to disclose that a 
user having a high user time cost is believed to be more willing to adopt a higher 
cost for a higher level of bandwidth service than one who has a low user time cost. 


6. Varian discloses that, in the experimental system, user service bandwidth was 
priced at six different discrete bandwidth levels ranging from 8kbs (kilobits per 
second) to 128kbs, with 8kbs being free and the remaining five levels being charged 
at successively higher rates. Results from the experimental system draw the 
surprising conclusion that users generally have a low user time cost, significantly 
less than the wage rate at which they would expect to be paid for employment. 

7. It is clear from Varian that bandwidth is priced at successively greater levels, 
but that no price mechanism is disclosed for bandwidth variance. Varian is not 
concerned with whether a service delivered to a user involves bandwidth variance. 
All that Varian is concerned with is whether a user is willing to move up from a free 
basic user bandwidth service level (of 8kbs) to a higher user bandwidth level that 
attracts a cost, the rate of which increases as the user bandwidth level selected by 
the user increases. This is logical in that a user's perception of a service is governed 
by their understanding of what they believe they are paying for, namely a certain 
level of bandwidth of so many kilobits per second, but that the user can have no 
direct knowledge of whether data being delivered at that service level suffers from 
any degree of bandwidth variance and even if they did it would have no real meaning 
to them giving its complex statistical form in any real situation. In contrast, the 
measure of variance and the pricing of it are important in the present invention 
because the present invention is concerned with admitting traffic flows to join an 
aggregate traffic flow on a network resource but is not directly concerned with a 
user's perception of the service being delivered, i.e. a user's "time cost". 

8. It can be seen from the foregoing that the combination of Dziong and Varian 
does 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 Dziong and Varian, one would 
arrive at an arrangement in which traffic flow admission to an aggregate flow is 
controlled based on successively greater rates for successively greater bandwidth 


-in 


levels. There is nothing, however, in the combination of these references that would 
lead one of ordinary skill in the art to derive separate prices for bandwidth (level) and 
bandwidth variance and to apply these separate prices to a traffic flow to be admitted 
to an aggregate flow on a network resource in a communications network. 

9. If the Examiner remains of the view that Varian discloses the features of i) 
sampling the traffic flow to be admitted to measure its mean bandwidth and mean 
variance and ii) of applying said separate bandwidth and variance prices to the traffic 
flow to be admitted as a means of controlling admission of said traffic flow to the 
network resource, then he is requested to identify where in Varian either or both of 
these steps are specifically disclosed. Applicant has studied the whole of Varian and 
can find no such teachings or even suggestions of these steps or similar features. 

10. 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 that 
those of the prior art references of record, whether taken singly or in any 
combination. 


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


January 15, 2007 


Respectfully submitted, 

William 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) 


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