10061242 (B.P.A.I. Jan. 30, 2009)

Ex Parte Kawaguchi

Board of Patent Appeals and InterferencesJan 30, 2009

10061242 (B.P.A.I. Jan. 30, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte SHINICHI KAWAGUCHI ____________ Appeal 2008-2567 Application 10/061,242 Technology Center 2400 ____________ Decided: January 30, 2009 ____________ Before HOWARD B. BLANKENSHIP, JAY P. LUCAS, and ST. JOHN COURTENAY III, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-19. Claims 20-29 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Appeal 2008-2567 Application 10/061,242 THE INVENTION The disclosed invention relates generally to computer systems. More particularly, the present invention relates to a computer system that transmits and receives data by packet transfer between modules that it incorporates. (Spec. 1, ll. 6-10). Independent claim 1 is illustrative: 1. A computer system that transfers data in packets mutually between a plurality of modules, comprising: a plurality of communications paths which connect the plurality of modules, each of said plurality of modules transmitting and receiving packets via the plurality of communications paths, wherein a transmitting module duplicates a packet to be transmitted into a plurality of duplicate packets and transmits each of said plurality of duplicate packets of the packet to be transmitted to a receiving module by a different communication path, wherein the receiving module selects a first received packet among the plurality of duplicate packets which are received from said transmitting module. 2 Appeal 2008-2567 Application 10/061,242 THE REFERENCES The Examiner relies upon the following references as evidence in support of the anticipation and obviousness rejections: Lipp US 6,751,219 B1 Jun. 15, 2004 (filed Apr. 20, 2000) Gollnick US 2004/0073933 A1 Apr. 15, 2004 (filed Sep. 8, 2003) THE REJECTIONS 1. The Examiner rejected claims 1-4, 6-15, and 17-19 under 35 U.S.C. § 102(e) as being anticipated by Lipp. 2. The Examiner rejected claims 5 and 16 under 35 U.S.C. § 103(a), as being unpatentable over Lipp in view of Gollnick. “[T]he examiner bears the initial burden on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability. If that burden is met, the burden of coming forward with evidence or argument shifts to the applicant.” In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Therefore, we look to Appellant’s Briefs to show error in the proffered prima facie case. Only those arguments actually made by Appellant have been considered in this decision. Arguments which Appellant 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). 3 Appeal 2008-2567 Application 10/061,242 Anticipation under 35 U.S.C. § 102 We consider the Examiner’s rejection of claims 1, 3, 6-9, 12-15, and 17-19 under 35 U.S.C. § 102(e) as being anticipated by Lipp. Since Appellant’s arguments have treated these claims as a single group which stand or fall together, we select claim 1 as the representative claim for this group. See 37 C.F.R. § 41.37(c)(1)(vii). APPELLANT’S CONTENTIONS 1. Appellant contends that Lipp fails to teach the limitations of “the receiving module selects a first received packet among the plurality of duplicate packets which are received from the transmitting module.” (App. Br.. p. 11). 2. Appellant contends that Lipp fails to teach that the transmitting module transmits each of said plurality of duplicate packets to a receiving module by a different communication path. (Reply Br. p. 5-7) ISSUES Has Appellant shown the Examiner erred in determining that Lipp teaches that “the receiving module selects a first received packet among the plurality of duplicate packets which are received from said transmitting module?” Has Appellant shown the Examiner erred in determining that Lipp teaches that the transmitting module transmits each of said plurality of duplicate packets of to a receiving module by a different communication path? 4 Appeal 2008-2567 Application 10/061,242 Findings of Facts The following Findings of Facts (FF) are supported by a preponderance of the evidence. 1. Lipp discloses that node 38 replicates a multicast packet 12 producing copies of the packet 12. (Col. 9 ll. 26-29) 2. Lipp discloses that copies of the packets are received by intermediate node 35. (Fig. 7 and Col. 9 ll. 31-32) 3. Lipp discloses that copies of the packet are received by node 35 as indicated by two different arrows. (See Fig. 7) PRINCIPLES OF LAW Anticipation under 35 U.S.C. § 102 In rejecting claims under 35 U.S.C. § 102, “[a] single prior art reference that discloses, either expressly or inherently, each limitation of a claim invalidates that claim by anticipation.” Perricone v. Medicis Pharm. Corp., 432 F.3d 1368, 1375-76 (Fed. Cir. 2005) (citation omitted). ANALYSIS As discussed above, Appellant contends that Lipp fails to teach the limitations of “the receiving module selects a first received packet among the plurality of duplicate packets which are received from said transmitting module.” 5 Appeal 2008-2567 Application 10/061,242 Claim Construction “[T]he PTO gives claims their ‘broadest reasonable interpretation.’” In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004) (quoting In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)). At the outset, we note that claim 1 recites “the receiving module selects a first received packet among the plurality of duplicate packets which are received from said transmitting module.” We note that, as claimed, all transmitted packets are duplicate packets since each transmitted packet has a duplicate. It is our reasoned view that the language of claim 1 does not require the selection of the first packet in time. Thus, the language of claim 1 does not preclude selection of a “second received packet,” “a third received packet,” etc. We further note that the language of claim 1 does not specify what is done with the “first received packet” after it has been selected. Accordingly, we decline to narrowly interpret claim 1 to require that the selection of the first packet must correspond to the selection of the first packet that is received in time. Based on the above claim construction, it is our view that Lipp discloses a selection of a first received packet, as recited in independent claim 1, for the reasons discussed infra. The Examiner relied on col. 9, ll. 25-32 and Fig. 7 of Lipp to disclose this limitation. (Ans., p. 7-8). We note that Fig. 7 shows duplicate packets 14 forwarded to node 35, as indicated by the two arrows shown in Fig. 7. (FF 1-2). As discussed above, it is our view that the language of claim 1 does not limit the selection to the first packet received in time, or the selection of any particular duplicate packet. Thus, it is our view that Lipp 6 Appeal 2008-2567 Application 10/061,242 discloses a receiving module (node 35) selecting a first received packet among the plurality of duplicate packets (duplicates of packet 14) as recited in claim 1. As discussed above, Appellant contends that Lipp fails to disclose transmitting each of the plurality of duplicate packets by a different communication path. Appellant contends that the Examiner improperly interpreted the arrows drawn from the packet 14 to intermediate node 35. We disagree. We agree with the Examiner’s interpretation of Fig. 7 that the two different arrows show two different paths to intermediate node 35. Contrary to Appellant’s position, we do not find that the two arrows merely show that two duplicate packets are forwarded to node 35. Thus, it is our view that Lipp discloses transmitting each of the plurality of duplicate packets by a different communication path. Based on the record before us, we conclude that Appellant has not shown error in the Examiner’s prima facie case of anticipation in rejecting claim 1 and claims 3, 6-9, 12-15, and 17-19 which fall therewith Accordingly, we affirm the Examiner’s rejection of claims 1, 3, 6-9, 12-15, and 17-19 under 35 U.S.C. 102(e) as being anticipated by Lipp. Claims 2 and 10 We next consider the Examiner’s rejection of claims 2 and 10 as being anticipated by Lipp. Appellant contends that Lipp fails to disclose the limitation of selecting the first received packet only. (App. Br. 16). We agree. 7 Appeal 2008-2567 Application 10/061,242 The Examiner contends that according to Lipp, since each unicast packet contains just one destination address, only one of the two first received packets can be selected to be sent to an egress port 22. (Ans. p. 8). We note that “the received packet” recited in claim 2 has antecedent basis from claim 1. Thus, in light of the claim construction discussed supra, we find that Lipp does not disclose that node 35 (receiving module) selects only the first received packet of the duplicate packets 14, as recited in claims 2 and 10. Based on the record before us, we conclude that Appellant has shown that the Examiner erred in rejecting claims 2 and 10 as being anticipated by Lipp. Accordingly, we reverse the Examiner’s rejection of claims 2 and 10 under 35 U.S.C. 102(e). Because claims 4 and 11 depend upon claims 2 and 10, respectively, we also reverse the Examiner’s rejection under 35 U.S.C. 102(e) of these claims. Obviousness under 35 U.S.C. § 103 PRINCIPLES OF LAW In rejecting claims under 35 U.S.C. § 103, “[w]hat matters is the objective reach of the claim. If the claim extends to what is obvious, it is invalid under § 103.” KSR Int’l Co. v. Teleflex, Inc., 127 S. Ct. 1727, 1742 (2007). To be nonobvious, an improvement must be “more than the predictable use of prior art elements according to their established functions.” Id. at 1740. 8 Appeal 2008-2567 Application 10/061,242 Claims 5 and 16 We next consider the Examiner’s rejection of claims 5 and 16 under 35 U.S.C. § 103(a) as being unpatentable over Lipp in view of Gollnick. We note that Appellant has not presented any arguments with respect to the obviousness rejection. Thus, any such arguments are hereby waived. Accordingly, we sustain the Examiner’s rejection of claims 5 and 16 under 35 U.S.C. §103(a) as being unpatentable over Lipp in view of Gollnick. CONCLUSIONS OF LAW Based on the findings of facts and analysis above, we conclude the following: Appellant has not shown the Examiner erred in determining that Lipp discloses that the receiving module selects a first received packet among the plurality of duplicate packets which are received from the transmitting module. Appellant has not shown the Examiner erred in determining that Lipp discloses that the transmitting module transmits each of said plurality of duplicate packets of to a receiving module by a different communication path. Appellant has shown the Examiner erred in determining that Lipp discloses the limitation of selecting the first received packet only. 9 Appeal 2008-2567 Application 10/061,242 DECISION The decision of the Examiner rejecting claims 1, 3, 6-9, 12-15, and 17-19 under 35 U.S.C. § 102(e) is affirmed. The decision of the Examiner rejecting claims 2, 4, 10, and 11 under 35 U.S.C. § 102(e) is reversed. The decision of the Examiner rejecting claims 5 and 16 under 35 U.S.C. § 103(a) is affirmed. AFFIRMED-IN-PART pgc SUGHRUE, MION, ZINN, MACPEAK & SEAS, PLLC 2100 Pennsylvania Avenue, N.W. Washington DC 20037-3213 10