Ex Parte Gage et al

Board of Patent Appeals and Interferences

Jun 4, 2012

10464715 (B.P.A.I. Jun. 4, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte CHRISTOPHER A. S. GAGE, DIANE P. POZEFSKY, and
SOUMITRA SARKAR
____________________

Appeal 2010-002567
Application 10/464,715
Technology Center 2400
____________________

Before DEBRA K. STEPHENS, KRISTEN L. DROESCH, and JUSTIN T.
ARBES, Administrative Patent Judges.

STEPHENS, Administrative Patent Judge.

DECISION ON APPEAL
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Appellants appeal under 35 U.S.C. § 134(a) (2002) from a non-final
rejection of claims 1, 2, 4-10, 12-18, and 20-23. We have jurisdiction under
35 U.S.C. § 6(b). Claims 3, 11, and 19 have been cancelled.
We AFFIRM.
Introduction
According to Appellants, the invention relates to a system, method,
and computer program for managing network connectivity between a host
and a server cluster to reduce network traffic bottlenecks at the server
cluster. Abstract.

STATEMENT OF THE CASE

Exemplary Claim
Claim 1 is an exemplary claim and is reproduced below:
1. A method for managing network connectivity between a host and a
target server, the target server belonging to a server cluster, and the
server cluster including a dispatching node configured to dispatch
network traffic to cluster members, the method comprising:
receiving an initial message from the host at the dispatching
node;
selecting the target server to receive the initial message;
sending the initial message to the target server; and
instructing the host to modify its network mapping such
that future messages sent by the host to the server cluster reach
the target server without passing through the dispatching node;
and
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wherein instructing the host to modify its network mapping
includes adding a redirect rule to a host's IP (Internet Protocol)
routing table such that any message sent by the host to the
server cluster is instead sent to the target server.

Prior Art
Trethewey US 2003/0056002 A1 Mar. 20, 2003
Buyukkoc 6,189,043 B1 Feb. 13, 2001
Pearce 6,556,574 B1 Apr. 29, 2003

Rejections
(1) Claims 1, 2, 5-10, 13-18, and 21-23 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Trethewey and Buyukkoc.
(2) Claims 4, 12, and 20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Trethewey, Buyukkoc, and Pearce.

GROUPING OF CLAIMS

Based upon Appellants’ arguments, we select representative claim 1
to decide this appeal for the group consisting of claims 1, 2, 5-10, 13-18, and
21-23. (See App. Br. 7-14).
We will address the appeal for the group consisting of claims 4, 12,
and 20 separately. (See App. Br. 14-15).
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We accept Appellants’ grouping of the claims. We have only
considered those arguments that Appellants actually raised in the Briefs.
Arguments Appellants could have made but chose not to make in the Briefs
have not been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2009).

ISSUE 1
35 U.S.C. § 103(a): claims 1, 2, 5-10, 13-18, and 21-23
Appellants assert their invention is not obvious over Trethewey and
Buyukkoc because the references were improperly combined and the
combination does not teach or suggest (i) “instructing the host to modify its
network mapping such that future messages sent by the host to the server
cluster reach the target server without passing through the dispatching node”
and (ii) “wherein instructing the host to modify its network mapping
includes adding a redirect rule to a host’s IP (Internet Protocol) routing table
such that any message sent by the host to the server cluster is instead sent to
the target server” (Br. 7-14). Specifically, Appellants contend Trethewey
discloses the network address is extracted by the software on the remote
computer without the client’s knowledge, but does not mention or suggest
instructing the host to modify its network mapping (Br. 9).
Appellants further contend Buyukkoc does not teach using a redirect
rule such that messages sent to a server cluster are instead sent to a target
server (Br. 10). Specifically, Appellants argue Buyukkoc’s teachings ignore
instructing the host to modify its network mapping from a server cluster to a
target server without passing through a dispatching node (Br. 11).
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Further, Appellants argue the Examiner does not state what “the
desirability and advantages” are of the routing table taught by Buyukkoc
being incorporated into the system of Trethewey (Br. 12). Indeed,
Appellants argue Trethewey teaches away from employing Buyukkoc’s
routing table and further, the router taught by Buyukkoc would be
ineffective (id.).

Issue 1: Has the Examiner erred in finding the combination of
Trethewey and Buyukkoc would have taught or suggested (i) “instructing
the host to modify its network mapping such that future messages sent by the
host to the server cluster reach the target server without passing through the
dispatching node” and (ii) “wherein instructing the host to modify its
network mapping includes adding a redirect rule to a host’s IP (Internet
Protocol) routing table such that any message sent by the host to the server
cluster is instead sent to the target server” as recited in claim 1?

Issue 2: Has the Examiner improperly combined Trethewey and
Buyukkoc?
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellants’
arguments that the Examiner has erred. We disagree with Appellants’
conclusions. We adopt as our own the findings and reasons set forth by the
Examiner in the action from which this appeal is taken and the reasons set
forth by the Examiner in the Answer in response to Appellants’ Appeal
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Brief. However, as outlined infra, we highlight and address specific
findings and arguments regarding claim 1 for emphasis.
Trethewey discloses “the remote computer thereafter communicates
directly with assigned server 35b…bypassing the load balancer” (pg. 2, ¶
[0025]). Thus, in light of this teaching and the Examiner’s findings (Ans. 5),
we find Trethewey teaches or at least suggests modifying its network
mapping such that future messages sent by the host to the server cluster
reach the target server without passing through the dispatching node.
Additionally, Appellants argue Buyukkoc does not teach using a
redirect rule such that messages sent to a server cluster are instead sent to a
target server (Br. 10). We agree with the Examiner’s findings and
conclusions (Ans. 6). We further note that Appellants have not shown that
adapting Buyukkoc’s teaching of adding a redirect rule in a routing table to
the teachings of Trethewey would have been uniquely challenging or
otherwise beyond the level of ordinarily skilled artisans. As such, we
conclude this enhancement would have been obvious. See KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007) (noting that if a technique has been
used to improve one device, and an ordinarily skilled artisan would
recognize that it would improve similar devices in the same way, using the
technique is obvious unless its actual application is beyond his or her skill);
see also Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162
(Fed. Cir. 2007).
Appellants’ argument that an ordinary artisan would not have been
motivated to modify Trethewey by employing the routing table of Buyukkoc
(Br. 11) is similarly unpersuasive. We agree with the Examiner who has
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articulated a reasoning with a rational underpinning (Ans. 6). Further,
Appellants have not shown Trethewey and/or Buyukkoc criticize, discredit,
or otherwise discourage the solution claimed. Indeed, Appellants have not
provided clear evidentiary support for the “teaching away” allegation.
Thus, in light of these findings, Appellants have not shown the Examiner
improperly combined the references.
Accordingly, the Examiner did not err in finding the combination of
Trethewey and Buyukkoc would have taught or suggested the invention as
recited in independent claim 1 and claims 2, 5-10, 13-18, and 21-23, not
separately argued. Therefore, the Examiner did not err in rejecting claims 1,
2, 5-10, 13-18, and 21-23 under 35 U.S.C. § 103(a) for obviousness over
Trethewey and Buyukkoc.

ISSUE 2
35 U.S.C. § 103(a): claims 4, 12, and 20
Appellants did not present any separate arguments for claims 4, 12,
and 20, instead relying on arguments for their respective independent claims
(Br. 14-15).
Accordingly, the Examiner did not err in finding the combination of
Trethewey, Buyukkoc, and Pearce would have taught or suggested the
invention as recited in claims 4, 12, and 20. Therefore, the Examiner did not
err in rejecting claims 4, 12, and 20 under 35 U.S.C. § 103(a) for
obviousness over Trethewey, Buyukkoc, and Pearce.

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DECISION
The Examiner’s rejection of claims 1, 2, 5-10, 13-18, and 21-23 under
35 U.S.C. § 103(a) as being obvious over Trethewey and Buyukkoc is
affirmed.
The Examiner’s rejection of claims 4, 12, and 20 under 35 U.S.C. §
103(a) as being obvious over Trethewey, Buyukkoc, and Pearce is affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2010).

AFFIRMED

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