Ex Parte 7,840,678 B2 et al

Patent Trial and Appeal Board

Jul 24, 2013

90011763 (P.T.A.B. Jul. 24, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
90/011,763 06/27/2011 7,840,678 B2 18156.0032.RX0000 2706
87916 7590 07/24/2013
2nd Reexam Group - Novak Druce + Quigg LLP
1000 Louisiana Street
Fifty-Third Floor
Houston, TX 77002
EXAMINER
STEELMAN, MARY J
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
07/24/2013 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex Parte BROCADE COMMUNICATIONS SYSTEMS, INC.
Patent Owner and Appellant
________________

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Patent 7,840,678 B2
1

Technology Center 3900
________________

Before HOWARD B. BLANKENSHIP, MAHSHID D. SAADAT, and
STANLEY M. WEINBERG, Administrative Patent Judges.

WEINBERG, Administrative Patent Judge.

DECISION ON APPEAL

1
The patent involved in this reexamination appeal proceeding (the “’678
Patent”) issued to Joshi on November 23, 2010.
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A. STATEMENT OF THE CASE
Introduction
This reexamination proceeding arose from a third-party request for ex
parte reexamination filed by A10 Networks, Inc. (“Requester”) on June 27,
2011. Brocade Communications Systems, Inc. (“Appellant”), the owner of
the patent under reexamination, appeals under 35 U.S.C. § 134(b) from a
final rejection of claims 1, 11, and 15. Appellant relies on its Appeal Brief
(App. Br.) filed October 24, 2012 and its Reply Brief (Reply Br.) filed
January 28, 2013.
We have jurisdiction under 35 U.S.C. §§ 134(b) and 306.
We affirm.
Related Proceedings
Appellant informs us that it owns 12 patents that may be related to,
directly affect, or be directly affected by, or have a bearing on the Board’s
decision in the present appeal. It also informs us that Requester has filed a
Request for inter partes reexamination of the ‘678 Patent (Reexamination
Control 95/001,822, filed November 17, 2011) and that Requester has filed
Requests for ex parte and inter partes reexamination of all of the 12 other
patents owned by Appellant. App. Br. 2-3.
Appellant also informs us that the following judicial proceeding may
be related to, directly affect, or be directly affected by, or have a bearing on
the Board’s decision in the present appeal: Brocade Communication
Systems, Inc. v. A10 Networks, Inc., U.S. District Court for the Northern
District of California, Case No. 10-CV-03428-LHK. App. Br. 3-4.
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Our own research has revealed that on June 13, 2013, Requester filed
a Notice of Withdrawal of Third Party Requester A10 Networks, Inc. in all
of the 13 inter partes reexamination proceedings. The Notice states, in part,
that A10 has entered into a settlement agreement with Appellant, that A10
will make no further comment or otherwise participate in each inter partes
proceeding, that A10 agreed to a Stipulated Final Judgment in the District
Court litigation that represents a final non-appealable judgment of all claims,
counterclaims, and defenses that were or could have been raised by A10 in
the District Court litigation, and that A10 understands that Appellant’s
counsel will file the Stipulated Final Judgment with the Patent Office. As of
the date of this Decision, we are not aware that Appellant has filed the
Stipulated Final Judgment with the Patent Office.
The Invention
The invention relates to load balancing among servers by using host-
level policies to provide an address of a server that is expected to serve the
client with a high performance in a given application. Col. 1, ll. 17-23. A
global server load balancing (GSLB) switch provides load balancing to the
servers and is configured with the GSLB host-level policies. Users can
define a host-level policy (alternatively or in addition to a globally applied
GSLB policy) and apply the host-level policy to hosts in domains configured
on the GSLB switch. Thus, the user can enable different policies for
different hosts. Abstract. The invention also specifies at least one metric
and associated parameters, if applicable, to be used by the defined host-level
policy. Col. 2, ll. 46-48. Metrics examples are health check, geographic,
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round-trip time, least-response. Col. 4, ll. 2-7. Independent claim 1 is
reproduced below (App. Br. 24, Claims App’x):
1. A method, comprising:
storing, in a load balance switch, a first load balancing
policy associated with a first domain and a second load
balancing policy associated with a second domain different
from the first domain, wherein said first load balancing policy
specifies an order in which a first plurality of metrics of said
first load balancing policy are to be applied; and
load balancing traffic, by said load balance switch, to
network addresses associated with the first and second domains,
using corresponding said first and second load balancing
policies that are respectively associated to the first and second
domains, wherein said first load balancing policy is used by the
load balancing switch to rank addresses associated with said
first domain and said second load balancing policy is used by
the load balancing switch to rank addresses associated with said
second domain
The Prior Art
3-DNS Reference Guide, Version 4.2, Dell Computer Corporation,
Copyright 2002 (“3-DNS”).

The Rejections
Claims 1, 11, and 15 stand rejected under 35 U.S.C. § 102(b) as
anticipated by 3-DNS.
B. ANALYSIS
Whether 3-DNS Is A Printed Publication That Was Available
Before May 6, 2004

Appellant contends that 3-DNS is not available as prior art because it
“has not been established as being publicly available before the priority date
of the ‘678 patent.” App. Br. 8, 20-22. Because the ‘678 Patent is a
continuation of US 7,584,301 (the ‘301 Patent), the Examiner must show
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that 3-DNS was a printed publication before May 6, 2004, the filing date of
the ‘301 Patent, which is therefore the critical date.
Based upon a number of findings, the Examiner concludes that the
totality of the evidence shows that 3-DNS was published more than one year
before the critical date. Final Rej. 6; Ans. 18.
The Examiner first finds that 3-DNS shows a copyright date of 2002.
Final Rej. 5. See 3-DNS page ii. Appellant agrees that 3-DNS contains such
a copyright date; but contends that a copyright date is not evidence of public
availability. App. Br. 21; Reply Br. 13.
The Examiner next finds that October 30, 2002 is the Software
Release date documenting version 4.5 of 3-DNS and that the Release Note
for version 4.5 shows that it followed version 4.2. Final Rej. 5, Ex. B. For
example, page 9 of the version 4.5 Release Note explains how to return 3-
DNS “to the previous software version, version 4.2, after you upgrade to
version 4.5.” The Examiner concludes that because version 4.5 of 3-DNS
was published in 2002, the undisputable logical conclusion is that 3-DNS for
version 4.2 was also available in 2002. 7/13/2002 Advisory Action 4.
Appellant does not dispute that 3-DNS version 4.5 was published in 2002.
Instead, Appellant contends that the publishing of a related document does
not establish the public availability of the cited 3-DNS reference. App. Br.
21; Reply Br. 13.
The Examiner next finds that a press release dated February 19, 2002
states that “3-DNS version 4.2 is available now.” Final Rej. 5, Ex. C at p. 2.
Appellant admits that “[t]he evidence currently appears to fairly suggest that
the software was publicly available.” App. Br. 22; Reply Br. 14. Appellant
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nevertheless contends that the release of software does not establish public
availability of the cited 3-DNS reference. App. Br. 21; Reply Br. 13.
The Examiner next finds that a Release Note for version 4.2 states that
the software was released on February 13, 2002. Final Rej. 5, Ex. D at p. 1.
Appellant contends that (1) the release of software does not establish public
availability of the document cited in this reexamination proceeding; and (2)
even if a product manual describing 3-DNS version 4.2 existed at the time
the version 4.2 software was released, there is no proof that the version cited
by the Examiner was publicly available because it is “possible” that there are
multiple revisions or drafts. App. Br. 21; Reply Br. 13.
The Examiner also finds that “[Appellant] has not provided any
evidence showing that 3-DNS Ref Guide was published later” than 2002.
Final Rej. 6; Ans. 18. Appellant does not dispute this finding.
Even though Appellant seems to agree that the Examiner’s burden of
proof is based upon a preponderance of the evidence standard (Reply Br.
13), Appellant nevertheless contends that “[p]ublic availability of the
reference must be conclusively established if the rejection is to be
maintained, and this burden is on the Examiner. Since the Examiner did not
carry this burden, Appellant submits the Examiner erred in relying on 3-
DNS to reject the claims.” App. Br. 22; Reply Br. 14 (emphasis added). We
disagree with Appellant.
In reexaminations, the standard of proof is a preponderance of the
evidence, not the conclusive burden of proof Appellant posits. In re
Swanson, 540 F.3d 1368, 1377 (Fed. Cir. 2008). See also 37 CFR §
1.555(b) referring to the preponderance of the evidence, burden of proof
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standard. The Examiner concludes that the 3-DNS was publicly available in
2002 based upon a combination of the 2002 copyright notice, the Release
Note for version 4.5 in 2002, the February 19, 2002 press release stating the
version 4.2 is “available now,” and the February 13, 2002 Release Note for
version 4.2. Appellant presents no countervailing evidence suggesting that
the 3-DNS reference was never publicly available; or that it was not publicly
available until a date later than 2002; or that it was not publicly available
until a date later than May 6, 2003 (one year prior to the May 6, 2004 filing
date of the parent ‘301 Patent).
We observe that the cited 3-DNS Reference Guide version 4.2 appears
to be a software manual that describes to the end user the software version
that Appellant admits was available in 2002. See pages iii-iv and 1-1 to 1-4.
For example, page 1-1 states, in part: “The 3-DNS Reference Guide includes
information about the features of the 3-DNS
®
system . . .Use the DNS
Reference Guide for help in configuring a specific feature of the 3-DNS.”
These pages indicate that the information in the 3-DNS Reference Guide
would be useful to a user of the software while the user is implementing the
software and therefore indicate that the cited Reference Guide would have
been provided to the user along with the software.
Further, there is no indication in the manual that the document was
confidential or limited to internal corporate use. To the contrary, pages 1-3
to 1-4 refer to further information about this system being available at one or
more publicly available web sites (“the home page of the Configuration
utility;” and “The Dell | Support website”).
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Based upon the evidence produced by the Examiner
2
and the lack of
evidence in rebuttal produced by Appellant, we conclude that the Examiner
has shown by a preponderance of the evidence that it is more likely than not
that the cited 3-DNS Reference Guide for version 4.2 was publicly available
in 2002.
Neither the Examiner nor we have to determine an exact date in 2002
when the 3-DNS reference was publicly available. Even if we assume that it
was not publicly available until December 31, 2002 (the last day of the year
indicated by the 2002 copyright notice), that date is still more than one year
prior to the May 6, 2004 critical date.
For all of the above reasons, we conclude that the cited 3-DNS
reference is a printed publication that is available as prior art.
Whether The 3-DNS Reference Discloses Claim 1
Chapter 8 of 3-DNS is entitled Load Balancing. The 3-DNS system
uses a load balancing mode to select the best available virtual server from a
wide IP pool. 3-DNS p. 8-1. A pool is a group of virtual servers that the 3-
DNS load balances. 3-DNS p. 8-10. For load balancing in a pool, three
different load balancing modes are specified for use in sequential order:
preferred method, alternate method, and fallback method. The preferred
method is the first load balancing mode that the 3-DNS uses for load
balancing. If the preferred method fails, the system then uses the alternate

2
The Examiner also relies upon a published conference paper identified as
Ex. E in the Final Rejection (Final Rej. 6). We conclude that the conference
paper’s reference in its end note 1 to a “3-DNS reference guide” was
published in 2002 is insufficient evidence that it is referring to version 4.2.
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method for load balancing. If this load balancing mode fails, the system
uses the fallback load balancing mode. 3-DNS p. 8-1.
A wide IP is a mapping of a fully-qualified domain name to a set of
virtual servers that host the domain’s content. 3-DNS p. 8-10. When a wide
IP is defined, and there are multiple pools in the wide IP, a load balancing
mode is first specified to use in selecting a pool in the wide IP. Next is
specified which preferred, alternate, and fallback load balancing methods to
use in selecting a virtual server within the selected pool. 3-DNS p. 8-10.
The Examiner finds that 3-DNS uses Wide IP statements that invoke
load balancing policies to perform load balancing for specified domains.
Final Rej. 11. The Examiner also finds that the Wide IP statement disclosed
in Fig. 8.7 of 3-DNS discloses the claimed load balancing policy that is
associated with a domain. Final Rej. 11.
The Examiner also finds that when multiple pools are defined, a pool
load balancing method in the Wide IP statement is used to select a pool
based on a metric. For the pool load balancing method, one of the metrics
rr, ratio, ga, random, or topology may be selected. Final Rej. 12, citing 3-
DNS Fig. 8.7 at p. 8-12. Next, the Examiner finds, 3-DNS uses the
preferred, alternate, and fallback methods within that pool to apply a second
metric. Id. Thus, the Examiner finds, 3-DNS discloses a load balancing
policy that defines an order in which multiple metrics (e.g., the pool metric
and the preferred metric) are applied. Id. The Examiner also finds that all of
these load balancing methods that make up load balancing policy are
associated with a domain. Final Rej. 13, citing Figs. 8.7 and 8.8 at pp. 8-12
and 8-14.
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Referring to Fig. 8.8 at p. 8-14, the Examiner also finds a load
balancing policy associated with the domain mx.wip.domain.com that
applies at least two metrics in order. Specifically, the ratio metric is
followed by the preferred, alternate, or fallback metric for either pool_1 or
pool_2 which anticipates “first load balancing policy associated with a first
domain” and a “second load balancing associated with a second domain
different from the first domain.” More specifically, the Examiner finds that
the Wide IP statement in Fig. 8.8 uses the pool load balancing method
(“pool_lbmode”) associated with the above domain applies the ratio metric
to select between pool_1 and pool_2. Within pool_1, the metrics rtt,
random, and return to dns (the metric for the default fallback method) is
applied in order. Within pool_2, the ratio metric is applied first, followed by
the default metrics for the alternate and fallback methods (rr and “return to
dns,” respectively). Final Rej. 13. Accordingly, the Examiner equates
pool_1 and pool_2 with domain names, not pool load balancing policies.
9/6/2012 Advisory Action 6.
3

Appellant contends that the Examiner’s claim construction fails to
reasonably reflect what the inventor actually invented as disclosed by the
Specification of the ‘678 Patent (App. Br. 8) and that the examples in the
Specification must be given consideration as understood by a person having
ordinary skill in the art. App. Br. 10. Accordingly, Appellant contends that

3
As an alternate response to some of Appellant’s arguments, the Examiner
relied upon Fig. 13.3 of 3-DNS. 7/13/2012 Advisory Action 9. We do
analyze Appellant’s discussion of Fig. 13.3 (App. Br. 15-16; Reply Br. 7-9)
or the Examiner’s further discussion of Fig. 13.3 (Ans. 9) because other
parts of 3-DNS anticipate the contested claim limitations as discussed in the
text.
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because the ‘678 Patent Specification requires that all IP addresses are
evaluated by a load balancing policy in order to rank the addresses (App. Br.
14; Reply Br. 5-7), 3-DNS does not anticipate claim 1 because 3-DNS
discloses associating or applying a load balancing policy across only a pool
or a portion of addresses to rank addresses of a domain – not all addresses.
App. Br. 15.
More specifically, Appellant contends that 3-DNS Fig. 8.7 discloses
the methods are only associated with or applied to pool or subset of
addresses within the domain. App. Br. 16. That is, Appellant contends, the
methods are never associated with or applied to the entire domain to rank all
received IP addresses because the preferred, alternate, and fallback methods
are applied to only the selected pool. App. Br. 16-17; Reply Br. 3.
As the Examiner points out, however, claim 1 recites a load balancing
policy is “associated with” a domain and the term “associated” is not defined
in the Specification. Ans. 7. Therefore, the Examiner concludes,
“associated” can be read broadly and under the broadest reasonable
interpretation, the claim language cannot be read to require a policy
associated with every IP address in the domain or a policy that ranks every
IP address in the domain. Ans. 7. We agree with the Examiner because
although claims are interpreted in light of the Specification, limitations from
the Specification are not read into the claims. In re Van Geuns, 988 F.2d
1181, 1184 (Fed. Cir. 1993). Therefore, Appellant cannot use the
Specification to narrow the claims. In addition, claim 1 recites “a first
domain” and “a second domain.” Contrary to Appellant’s suggestions
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(Reply Br. 7-8), the claim does not recite an “entire domain.” And, the
Specification does not define “domain.”
Appellant also contends that the Specification of the ‘678 Patent
provides examples separating the domain from load balancing policy in
different data structures and separate distinct entities that are defined before
they are associated. App. Br. 19; Reply Br. 3, 10. That is, Appellant
contends, because the claim separately recites a domain and a load balancing
policy, the domain cannot also be a part of the entity that is being construed
as the load balancing policy. App. Br. 20. Therefore, Appellant contends,
the Examiner cannot use a single structure to define both the claimed load
balancing policy and the domain. App. Br. 19.
The Examiner finds, however, that the broadest reasonable
interpretation of the claims permits the domain and the load balancing policy
to be associated in any manner and there is no limitation on how or when the
association between a load balancing policy and a domain is formed. Final
Rej. 13-14. Therefore, the Examiner concludes, the Wide IP statement
“associates” a load balancing policy with a domain. Ans. 7-8. We agree
with the Examiner that because Fig. 8.7 shows both a domain “name <
“domain name”>) and a load balancing policy (preferred, alternate,
fallback), the load balancing policy is associated with the domain.
We are therefore not persuaded that the Examiner erred in rejecting
(1) claim 1; and (2) claims 11 and 15 for similar reasons.
C. CONCLUSION
Under § 102, the Examiner did not err in rejecting claims 1, 11, and
15.
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DECISION
The Examiner’s decision rejecting claims 1, 11, and 15 is affirmed.
Extensions of time for taking any subsequent action in connection
with appeal are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED

alw

PATENT OWNER:
BRIAN K. MCKNIGHT
NOVAK DRUCE + QUIGG LLP
1000 LOUISIANA STREET
53
RD
FLOOR
HOUSTON, TX 77002

THIRD PARTY REQUESTER:
TIMOTHY J. MAY
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
901 NEW YORK AVENUE, NW
WASHINGTON, DC 20001-4413