Ex Parte Bejerano et al

Patent Trial and Appeal Board

Aug 8, 2016

13247477 (P.T.A.B. Aug. 8, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/247,477 09/28/2011
76614 7590
Terry W. Kramer, Esq.
Kramer & Amado, P.C.
330 John Carlyle Street
3rd Floor
Alexandria, VA 22314
08/10/2016
FIRST NAMED INVENTOR
Yigal Bejerano
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
ALC 3753 9188
EXAMINER
LIU, TIJNG-JEN
ART UNIT PAPER NUMBER
2473
NOTIFICATION DATE DELIVERY MODE
08/10/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
mail@krameramado.com
ipsnarocp@alcatel-lucent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YIGAL BEJERANO and ANDREA FRANCINI
Appeal2015-001916
Application 13/247,477
Technology Center 2400
Before JOSEPH L. DIXON, JOHNNY A. KUMAR, and
JOHN D. HAMANN, Administrative Patent Judges.
KUMAR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1-3 and 5-18. Claims 4 and 19 have been indicated to
contain allowable subject matter. Final Act. 8. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
Invention
The claimed invention on appeal relates to routing a packet from an
origin to a destination along multiple MPLS domains (Spec. i-fi-19-12). A
Label Sequencing Edge Router provides a label sequence to a header of the
Appeal2015-001916
Application 13/247,477
packet that is sufficient to enable the packet to traverse the multiple ivIPLS
domains (Spec. i-fi-121-22).
Representative Claim
1. A method of routing a message packet having a
destination address across a plurality of MPLS domains in a
network, said method comprising the steps of:
receiving said message packet at an ingress port of a
Label Sequencing Edge Router;
determining by said Label Sequencing Edge Router
based upon said destination address a Label Sequence
sufficient to traverse those intervening MPLS domains of said
plurality of MPLS domains between said Label Sequencing
Edge Router and said destination address;
modifying by said Label Sequencing Edge Router the
header of said message packet by affixing said Label Sequence
to said header; and
forwarding by said Label Sequencing Edge Router said
message packet with modified header into the MPLS tunnels
denoted by said Label Sequence.
App. Br. 16 (emphasis added).
Rejection
Claims 1-3 and 5-18 are rejected under 35 U.S.C. § 103(a) over the
combined teachings and suggestions of Guichard (US 2006/0262735 Al;
Nov 23, 2006) and Zhang (US 2008/0069010 Al; Mar 20, 2008).
Grouping of Claims
Based on Appellants' arguments, we decide the appeal of the rejection
of claims 1-3 and 5-18 on the basis of representative claim 1 (App. Br. 6
and 14). See 37 C.F.R. § 41.37(c)(l)(iv).
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ANALYSIS
Issue 1: Under 35 U.S.C. § 103(a), did the Examiner err in finding
the combination of Guichard and Zhang would have taught or suggested the
contested limitation "determining by said Label Sequencing Edge Router
based upon said destination address a Label Sequence sufficient to traverse
those intervening MPLS domains of said plurality of MPLS domains
between said Label Sequencing Edge Router and said destination address,"
within the meaning of claim 1 (emphasis added)? 1
Appellants argue that the claim limitation should not be interpreted
under its plain meaning because the Examiner's claim interpretation is
inconsistent with the Specification (App. Br. 7). Although Appellants
acknowledge that Guichard teaches the term "Label Sequence" in the form
of a "three-level MPLS label stack" (App. Br. 10), Appellants contend this is
distinct from the Label Sequence taught in the Specification which is
sufficient to traverse intervening MPLS domains. In other words,
Appellants contend the term "Label Sequence sufficient" excludes
maintaining a tunnel at each Label Edge Router or performing a lookup at
each hop (App. Br. 9) because this is not described in the Specification.
The Examiner finds that Appellants' invention is based on the context
of MPLS technology and protocol found in the prior art and that "label
sequences that direct packets to the destination" are ordinary and
well-known terms in the MPLS art (Ans. 19). Therefore, the Examiner
concludes, and we agree, that "Label Sequence" should be interpreted under
1 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997).
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Application 13/247,477
its plain meaning (Ans. 20) given the well-known usage of the term in the
prior art.
We also agree with the Examiner that limitations appearing in the
Specification but not recited in the claim should not be read into the claim.
E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003).
We are not persuaded that the Examiner's interpretation of the term "Label
Sequence sufficient" is overly broad or unreasonable (Ans. 23-24), because
the label sequence component "VPN 290" recited in Guichard Figure 2 and
paragraph 23 is determined by the edge router that forwards a packet
through the entire length of the MPLS data path 205 (Ans. 24), regardless of
other components of the label sequence which change at each hop.
Appellants could have amended the claim, for example, to recite expressly
"Label Sequence containing the IP header of the packet including the source
and destination IP addresses with empty fields for the forward and reverse
label sequences so as to traverse those intervening MPLS domains of said
plurality of MPLS domains between said Label Sequencing Edge Router and
said destination address" to address the Examiner's broader reading. 2
For these reasons, we find that Appellants' arguments are not
commensurate in scope with the claim3 and thus we are not persuaded the
2 Because "applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee." In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
3 See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) ("[A]ppellant's
arguments fail from the outset because ... they are not based on limitations
appearing in the claims.").
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Application 13/247,477
Examiner erred in concluding the combination of Guichard and Zhang
would have rendered the contested limitation obvious.
Issue 2: Under 35 U.S.C. § 103(a), did the Examiner err in finding
the combination of Guichard and Zhang would have taught or suggested the
contested limitation because Guichard teaches away from the claimed
invention?
Appellants contend:
[T]he entirety of paragraph [0024] (also cited within the action),
teach away from the claimed invention as they require that each
device between domains "performs a label-lookup operation
based on the value of the edge-device label 264 to determine the
packet's next destination ....
These assertions not only contradict the cited art, but the
text of the specification, throughout the detailed description but
particularly and at least at paragraphs [0045]-[0051], [0054],
[0056], [0084]-[0086], [0092], and [0122]. For example, the
specification makes clear that "an LS niscovery Request
(LSDQ) message 402 [] contains the IP header of the packet,
including the source and destination IP addresses. In addition,
the packet contains empty fields for the forward and reverse label
sequences."
App. Br. 12-13 (quoting Spec. i-f 84).
We first note that teaching away requires a reference to actually
criticize, discredit, or otherwise discourage the claimed solution. See In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). "We will not read into a
reference a teaching away from a process where no such language exists."
DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464
F.3d 1356, 1364 (Fed. Cir. 2006).
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Application 13/247,477
Here, we find Guichard does not criticize, discredit, or otherwise
discourage "determining by said Label Sequencing Edge Router based upon
said destination address a Label Sequence sufficient to traverse those
intervening MPLS domains," as recited in claim 1. As discussed above, the
Examiner finds, and we agree, that the claim limitation does not preclude a
label-lookup operation at each hop, as long as a component of the label
sequence is sufficient to allow for the traversal of the entire path (Ans. 20-
27).
Further, Appellants' arguments are based on limitations found in the
Specification which do not appear in the claim, for example the phrase
(citing App. Br. 13), "an LS Discovery Request (LSDQ) message 402 []
contains the IP header of the packet, including the source and destination IP
addresses. In addition, the packet contains empty fields for the forward and
reverse label sequences," is not recited in claim 1.
Accordingly, on this record, and based on a preponderance of the
evidence, we sustain the Examiner's rejection of representative claim 1, and
grouped claims 2, 3, and 5-18, which fall with claim 1 (see Grouping of
Claims, supra).
Reply Brief
To the extent Appellants advance new arguments in the Reply Brief
not in response to a shift in the Examiner's position in the Answer, we note
arguments raised in a Reply Brief that were not raised in the Appeal Brief or
are not responsive to arguments raised in the Examiner's Answer will not be
considered except for good cause. See 37 C.F.R. § 41.41(b)(2).
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Conclusion
For the reasons discussed above, we find a preponderance of the
evidence supports the Examiner's underlying factual findings and ultimate
legal conclusion of obviousness for rejected claims 1-3 and 5-18.
DECISION
We affirm the Examiner's rejection of claims 1-3 and 5-18 under
35 U.S.C. § 103(a).
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R. § 41.50(±).
AFFIRMED
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