Packet Intelligence Ex. 2038 Page 1 of 13
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`Office Aetion summary
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`' Application No.
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`Applicant(s)
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`10/283,216
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`‘
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`BESER,NURETT|N BURCAK
`
`Examiner
`
`Lewis A. Bullock. Jr.
`
`Art Unit
`
`2195 -
`
`-- The MAILING DA TE of this communication appears on the cover sheet with the correspondence address --
`Period for Reply
`
`A SHORTENED STATUTORY PERIOD FOR REPLY IS SET TO EXPIRE g MONTH(S) OR THIRTY (30) DAYS,
`WHICHEVER IS LONGER. FROM THE MAILING DATE OF THIS COMMUNICATION.
`- Extensions of time may be available under the provisions of 37 CFR 1.136(a).
`In no event, however, may a reply be timely filed
`after SIX (6) MONTHS from the mailing date of this communication.
`If NO period for reply is specified above, the maximum statutory period will apply and will expire SIX (6) MONTHS from the mailing date of this communication.
`-
`- Failure to reply within the set or extended period for reply will. by statute, cause the application to become ABANDONED (35 U.S.C. § 133).
`Any reply received by the Office later than three months after the mailing date of this communication, even if timely filed, may reduce any
`earned patent term adjustment. See 37 CFR1.704(b).
`.
`
`Status
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`1)IX] Responsive to communication(s) filed on 22 May 2006.
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`2a)l:l This action is FINAL.
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`-
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`2mg This action is non-final.
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`3)[j Since this application is in condition for allowance except for formal matters, prosecution as to the merits is
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`closed in accordance with the practice under Ex parte Quayle, 1935 CD. 11,453 0.6. 213.
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`
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`Disposition of Claims
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`ME Claim(s)1-2_5is/are pending in the application.
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`4a) Of the above Claim(s) _ is/are withdrawn from consideration.
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`5)E] Claim(s) __ is/are allowed.
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`6)IZ Claim(s) fl is/are rejected.
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`7):] Claim(s) _ is/are objected to.
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`8):] Claim(s) _ are subject to restriction and/or election requirement.
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`Application Papers
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`9):] The specification is objected to by the Examiner.
`10)IXI The drawing(s) filed on 22 May 2006 is/are: a)® accepted or b)|:] objected to by the Examiner.
`
`Applicant may not request that any objection to the drawing(s) be held in abeyance. See 37 CFR 1.85(a).
`
`Replacement drawing sheet(s) including the correction is required if the drawing(s) is objected to. See 37 CFR 1.121(d).
`
`11)[:I The oath or declaration is objected to by the Examiner. Note the attached Office Action or form PTO-152.
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`Priority under 35 U.S.C. § 119
`
`12)Ij Acknowledgment is made of a claim for foreign priority under 35 U.S.C. § 119(a)-(d) or (f).
`alfl All blfl Some * cifl None of:
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`Application/Control Number: 10/283,216
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`Page 2
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`Art Unit: 2195
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`DETAILED ACTION
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`Claim Rejections - 35 USC § 101
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`1.
`
`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.
`
`Claims 24 and 25 are rejected under 35 U.S.C. 101 because the claimed invention is
`
`directed to non-statutory subject matter. The cited claims do not define a statutory
`
`machine product. M.P.E.P. 2106 details that a machine is a concrete thing, consisting
`of parts or of certain devices and combinations of devices. The claims detail a system
`
`having a set of means that are described in the specification to be software capable of
`
`performing the cited functions. Therefore, the claims allude to a software system and
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`therefore a program absent of a statutory product. The relevant parts of M.P.E.P. 2106
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`are detailed below. Applicant is requested to either amend the claims such that the
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`system has a concrete thing, Le. a processor, or state that the system is stored on a
`computer storage medium thereby established the functional processor a statutory
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`medium.
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`Packet Intelligence Ex. 2038 Page 3 of 13
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`Application/Control Number: 10/283,216
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`Page 3
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`Art Unit: 2195
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`2. Statutdry Subject Matter
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`F01 the purposes ofa 35 U.S.C 101 analysis it is- oflittlerelevance whether the claim is '
`directed to a machine or a process. The legalprinciples are the same. 4 T 8:?" C01p v.
`'
`Excel Communications, Inc, 172 F.3d 1352,1357,50USPQ2d 1447,1451 (Fed.
`Cir. 1999).
`‘
`.
`.
`.
`
`(a) Statutory Product Claims
`
`Products may be either 111acl1ii1es,ImanufactL1res, on compositions Qf111atter.
`A machine is “a concrete thing, 'c'oiisisting of paits or of'ceitain devices and '_
`combinations of devices.”Bzirr v.-Du1;vee, 68 U.S.'-(-1 Wall.) 531, 570 (1863).
`
`A manufacture is “the production of atticles for use tiom-raw or prepared materials by
`giving to these mateiials new forms, qualities, properties or combinations, whether by
`handlabor or by machinery.” Chak'rabarty, _447'U.S. at 308,. 206 USPQ at 196-97 ‘
`(quoting 4me1‘1'0an Fruit Groweis,Inc v B1ogdex Co.,283 U. S 1,'1=-1'(193l)).
`.
`I
`A composition ofmattel is “Ia composition oftwo or mere substances [or], .aI]'
`composite article, whether [it] bethe 1esu1tI]_ of chemicalunion, or of mechanical lrnxtmge ,
`orwhetl1e1..[it]be Ia]gasI],fluidI], powderI]. '01 solidI]?Id. at 308 206 USPQ at
`I
`_
`_ 197 (quotingShell Development C0 v Watsbn,149 F. Stlpp.279,280,113 USPQ
`265‘, 266 (D.D.C 1957) afiI.’’deei 0111121111, 252 F.2d86133-116USPQ 428 (DC C1r
`19.58)).
`‘
`-
`.
`.
`'Ifa claim defines a useful machine or 111anufactuie byidentifying-thephysicalstructure of
`the machine or1mnuthct1‘11e111 termsofIts hardwa1e or hardwaie and software
`'
`'
`combination, it definesa statutory prodtlct- See, e g. L0w1v 32 F. 3d at 1583, 32
`USPQ2d at 1034-35, Waimeldam, 33 F. 3d at 1361 -62, 31 USPQ2d at 1760.
`Oflice personnel must treat each claim as a whole. The mere fact that a hardwaie element
`is recited111 a claim does. not necessarily limit the claim to a specific machine 01
`manufacture Cf In 1e [14ahashz’, 888 F. 2d 1370, 1374-75, 12 USPQ2d1908,1911'—.,
`12 (Fed. Cir. 1989), cited with approval111 4lappai‘, 33 F.3d at 154411.24, 31
`USPQ2d at 155811.24.
`
`-
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`Claim Rejections - 35 USC § 102
`
`1.
`
`The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that
`
`form the basis for the rejections under this section made in this Office action:
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`Application/Control Number: 10/283,216
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`Page 4
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`Art Unit: 2195
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`A person shall be entitled to a patent unless -
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`(e) the invention was described in (1) an application for patent, published under section 122(b), by
`another filed in the United States before the invention by the applicant for patent or (2) a patent
`granted on an application for patent by another filed in the United States before the invention by the
`applicant for patent, except that an international application filed under the treaty defined in section
`351 (a) shall have the effects for purposes of this subsection of an application filed in the United States
`only if the international application designated the United States and was published under Article 21(2)
`of such treaty in the English language.
`
`2.
`
`Claims 1-11, 13-21 and 23-25 are rejected under 35 U.S.C. 102(e) as being
`
`anticipated by JORGENSEN (US. Patent 6,640,248).
`
`As to claim 1, JORGENSEN teaches a method for allocating resources in a
`
`network, comprising:
`
`receiving an allocation request for a first flow and a second flow
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`from an application (via receiving a lP fiow packet having IP flow identification
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`information and application data or an application communication which indicates the
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`application data and flow identification information wherein the IP flow has multiple
`
`flows) (col. 3, lines 46 — col. 4, lines 19); identifying the application based on the
`allocation request (via an IP flow analyzer) (col. 48, line 25 -— col. 49, line 9; col. 50, line
`
`9-45; col. 63, lines 10-61; col. 64, lines 13-43; col. 69, lines 26-51; col. 70, lines‘1-30);
`
`and scheduling resources for the first flow based on the identifying and the second flow
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`(via allocating QoS requirements / bandwidth allocation based on the application or
`
`application type) (col. 48, line 25 — col. 49, line 9; col. 50, line 9-45; col. 63, lines 10-61;
`
`col. 64, lines 13-43; col. 69, lines 26-51; col. 70, lines 1-30).
`
`As to claims 15, reference is made to a device that corresponds to the method of
`
`claim 1 and is therefore met by the rejection of claim 1 above.
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`Application/Control Number: 10/283,216
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`Page 5
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`Art Unit: 2195
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`As to claim 24, reference is made to a system that corresponds to the method of
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`claim 1 and is therefore met by the rejection of claim 1 above.
`
`As to claim 2, JORGENSEN teaches the allocation request includes a service
`
`class name (application identifier / type) (col. 48, line 25 — col. 49, line 9; col. 50, line 9-
`
`45; col. 63, lines 10-61; col. 64, lines 13-43; col. 69, lines 26-51; col. 70, lines 1-30).
`
`As to claim 3, JORGENSEN teaches the identifying includes identifying the
`
`application based on the service class name (application identifier/type) (col. 48, line
`
`25 — col. 49, line 9; col. 50, line 9-45; col. 63, lines 10-61; col. 64, lines 13-43; col. 69,
`
`lines 26-51; col. 70, lines 1-30).
`
`As to claim 4, JORGENSEN teaches the allocation request includes one of a
`
`registration message, a dynamic service addition message, or a dynamic service
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`change message (IP flow packet / application communication) (col. 3, lines 46 — col. 4,
`
`lines 19; col. 48, line 25 - col. 49, line 9; col. 50, line 9-45; col. 63, lines 10-61; col. 64,
`
`lines 13-43; col. 69, lines 26-51; col. 70, lines 1-30).
`
`As to claim 5, JORGENSEN teaches the identifying includes comparing the
`
`service class name to stored application identifiers (via comparing the application
`
`identifier or application type to a table of QoS requirement table) (see in particular col.
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`Packet Intelligence Ex. 2038 Page 6 of 13
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`Application/Control Number: 10/283,216
`Art Unit: 2195
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`.
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`Page 6
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`64,. lines 9-43 and col. 70, lines 1-30; see also col. 48, line 25 — col. 49, line 9; col. 50,
`
`line 9-45; col. 63, lines 10-61; col. 69, lines 26-51).
`
`As to claim 6, JORGENSEN teaches the allocation request includes a resource
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`reservation protocol message that includes a gate identifier (via sending and comparing
`
`flow information as well as the application identifier and type to determine resources to
`
`be allocated) (col. 48, line 25 — col. 49, line 9; col. 50, line 9-45; col. 63, lines 10-61; col.
`
`64, lines 13-43; col. 69, lines 26-51; col. 70, lines 1-30).
`
`As to claim 7, JORGENSEN teaches the identifying includes: identifying the
`
`application using the gate identifier (via comparing flow information as well as the
`
`application identifier and type to determine resources to be allocated) (col. 48, line 25 —
`
`col. 49, line 9; col. 50, line 9-45; col. 63,-lines 10-61; col. 64, lines 13—43; col. 69, lines
`
`_ 2651; Col. 70, lines 1-30).
`
`As to claim 8, JORGENSEN teaches the identifying further includes: determining
`
`an application name (application identifier / application type) using the gate identifier
`
`(flow identification information), and comparing the application. name to stored
`
`application identifiers (via comparing flow information as well as the application identifier
`
`and type to determine resources to be allocated) (col. 48, line 25 — col. 49, line 9; col.
`
`50, line 9-45; col. 63, lines 10-61; col. 64, lines 13-43; col. 69, lines 26-51; col. 70, lines
`
`1-30).
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`Application/Control Number: 10/283,216
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`Art Unit: 2195
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`Page 7
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`-
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`As to claim 9, JORGENSEN teaches the allocation request includes a resource
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`reservation protocol message that includes application identification information (via
`
`sending and comparing flow information as well as the application identifier and type to
`
`determine resources to be allocated) (col. 48, line 25 — col. 49, line 9; col. 50, line 9-45;
`
`col. 63, lines 10-61; col. 64, lines 13-43; col. 69, lines 26-51; col. 70, lines 1-30).
`
`As to claim 10, JORGENSEN teaches the identifying includes: identifying the
`
`application using the application identification information (via comparing flow
`
`information as well as the application identifier and type to determine resources to be
`
`V allocated that that application based on the QoS requirement table) (col. 48, line 25 -
`
`col. 49, line 9; col. 50, line 9-45; col. 63, lines 10-61'; col. 64, lines 13-43; col. 69, lines
`
`, 26-51; col. 70, lines 1-30).
`
`As to claim 11, JORGENSEN teaches the identifying further includes: comparing
`the application identification information to stored'application identifiers (via comparing
`
`the application identifier to the QoS requirement table to determine what resources to
`
`allocate to the particular application) (col. 48, line 25 — col. 49, line 9; col. 50, line 9-45;
`
`col. 63, lines 10-61; col. 64, lines 13-43; col. 69, lines 26-51; col. 70, lines 1-30).
`
`As to claim 13, JORGENSEN teaches the identifying further includes comparing
`
`the application identification information to information in the gate control protocol (via
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`Application/Control Number: 10/283,216
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`Page 8
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`Art Unit: 2195
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`comparing flow information as well as the application identifier and type to determine
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`resources to be allocated that that application based on the QoS requirement table)
`
`(col. 48, line 25 — col. 49, line 9; col. 50, line 9-45; col. 63, lines 10-61; col. 64, lines 13-
`
`43; col. 69, lines 26-51; col. 70, lines 1-30).
`
`As to claim 14, JORGENSEN teaches the information in the gate control protocol
`
`includes one or more application identifiers (via comparing flow information as well as
`
`the application identifier and type to determine resources to be allocated that that
`
`application-based on the QoS requirement table) (col. 48, line 25 — col. 49, line 9; col.
`
`50, line 9-45; col. 63, lines 10-61; col. 64, lines 13-43; col. 69, lines 26-51; col. 70, lines
`
`1-30).
`
`As to claim 16, refer to claim 2 for rejection.
`
`As to claim 17, refer to claim 5 for rejection.
`
`As to claim 18, refer to claim 7 for rejection.
`
`As to claim 19, refer to claim 8 for rejection.
`
`As to claim 20, refer to claim 10 for rejection.
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`Application/Control Number: 10/283,216
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`.
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`Page 9
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`Art Unit: 2195
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`As to claim 21, refer to claim 11 for rejection.
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`As to claim 23, refer to claim 13 for rejection.
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`As to claim 25, JORGENSEN teaches the means for identifying identifies the
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`application as one of a higher priority application or a lower priority application (via
`
`identifying high priorities of applications in relation to allocatable resources) (col. 64,
`
`lines 11—43).
`
`Claim Rejections - 35 USC § 103
`
`3.
`
`The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all
`
`obviousness rejections set forth in this Office action:
`
`' (a) A patent may not be obtained though the invention is not identically disclosed or described as set
`forth in section 102 of this title, if the differences between the subject matter sought to be patented and
`the prior art are such that the subject matter as a whole would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said subject matter pertains.
`Patentability shall not be negatived by the manner in which the invention was made.
`
`4.
`
`Claims 12 and 22 are rejected under 35 U.S.C. 103(a) as being unpatentable
`
`over JORGENSEN (US. Patent 6,640,248).
`
`‘ As to claim 12, JORGENSEN teaches comparing the application identification
`
`information to stored application identifiers (via comparing the application identifier to
`
`the QoS requirement table to determine what resources to allocate to the particular
`
`application) (col. 48, line 25 — col. 49, line 9; col. 50, line 9-45; col. 63, lines 10-61; col.
`
`64, lines 13-43; col. 69, lines 26-51; col. 70, lines 1-30). However,'JORGENSEN does
`
`not teach the identifiers have wildcard characters.
`
`It is well known in the art that
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`Application/Control Number: 10/283,216
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`Page 10
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`Art Unit: 2195
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`identifiers have wildcard characters and therefore obvious to one of ordinary skill in the
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`art that the identifiers of JORGENSEN have wildcard characters in order to have a
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`similar identifier that refers to multiple entities.
`
`As to claim 22, refer to claim 12 for rejection.
`
`Response to Arguments
`
`5.
`
`Applicant's arguments with respect to claims 1-25 have been considered but are
`
`moot in view of the new ground(s) of rejection. _
`
`Conclusion
`
`Any inquiry concerning this communication; or earlier communications from the
`
`examiner should be directed 'to Lewis A. Bullock, Jr. whose telephone number is (571)
`
`272-3759. The examiner can normally be reached on Monday-Friday, 8:30 am. - 5:00
`
`pm.
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`If attempts to reach the examiner by telephone are unsuccessful, the examiner’s
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`supervisor, Meng An can be reached on (571) 272-3756. The fax phone number for the
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`organization where this application or proceeding is assigned is 571-273-8300.
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`Application/Control Number: 10/283,216
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`'
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`Page 11
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`Art Unit: 2195
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`'
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`Information regarding the status of an application may be obtained from the
`Patent Application Information Retrieval (PAIR) system. Status information for
`published applications may be obtained from either Private PAIR or Public PAIR.
`
`Status information for unpublished applications is available through Private PAIR only.
`
`For more information about the PAIR system, see http://pair-directtusptogov. Should
`
`you have questions on access to the Private PAIR system, contact the Electronic
`
`Business Center (EBC) at 866-217—9197 (toll-free). If you would like assistance from a
`
`USPTO Customer Service Representative or access to the automated information
`
`system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
`
`September 26, 2006
`
`'
`
`_ XGW
`
`LEWISA MOCK. JR-
`PRIMARY EXAWNER
`
`}
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`Application/Control No.
`
`Applicant(s)/Patent Under
`Reexamination
`
`10/283216
`.
`Examiner
`
`‘
`
`Lewis A. Bullock, Jr.
`U5. PATENT DOCUMENTS
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`.
`Art Unit
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`2195
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`'
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`Page 1 °f 1
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`DocumentNumber
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`Date
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`.
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`.
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`BESER, NURETTIN BURCAK Notice of References Cited
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`
`:9
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`I c 9”
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`11
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`I
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`c E”
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`_—
`——
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`Document Number
`Country Code-Number-Kind Code
`
`Date
`MM-YYYY
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`Country
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`.
`.
`ClaSSIficatIOn
`
`‘A copy of this reference is not being furnished with this Office action. (See MPEP § 707.05(a).)
`Dates in MM-YYYY format are publication dates. Classifications may be US or foreign.
`U.S. Patent and Trademrk Office
`
`PTO-892 (Rev. 01-2001)
`
`Notice of References Cited
`
`Part of Paper No. 20060926
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`
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