Ex Parte Lavian et al

Board of Patent Appeals and Interferences

Aug 30, 2012

09747296 (B.P.A.I. Aug. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte TAL I. LAVIAN and STEPHEN LAU
____________

Appeal 2011-001312
Application 09/747,2961
Technology Center 2400
____________

Before JOSEPH L. DIXON, JAMES R. HUGHES, and
ANDREW J. DILLON, Administrative Patent Judges.

HUGHES, Administrative Patent Judge.

DECISION ON APPEAL

1 Application filed on December 22, 2000. The present Application claims
benefit from U.S. Provisional Application No. 60/226,787 filed August 21,
2000. The Real Party in Interest is Nortel Networks Limited. (App. Br. 2.)
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STATEMENT OF CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1 and 3-24. Claim 2 was cancelled during prosecution.
(App. Br. 2.) We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Invention
Appellants’ invention relates generally to telecommunications. More
particularly, the present applications relates to dynamic assignment of traffic
classes to queues having different priority levels. (Spec. 1, ¶ [0004].)2
Representative Claim
1. In a packet forwarding device, a method
comprising:

monitoring types of packet traffic received in the packet
forwarding device;

determining whether a type of packet traffic received in
the packet forwarding device is a unicast type or a multicast
type; and

when the type of packet traffic is unicast type, selectively
modifying a priority of the traffic in response to a destination
parameter of the packet traffic; and

when the type of packet traffic is multicast type,
selectively modifying the priority of the traffic in response to a
source parameter of the packet traffic

2 We refer to Appellants’ Specification (“Spec.”); Reply Brief (“Reply Br.”)
filed October 15, 2010; and Appeal Brief (“Br.”) filed May 6, 2010. We
also refer to the Examiner’s Answer (“Ans.”) mailed August 18, 2010.
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wherein the step of selectively modifying the priority
includes performing at least one of changing assignment of the
packet traffic from a queue having a first priority to a queue
having a second priority, dropping packets of the packet traffic,
copying packets of the packet traffic, and diverting packets of
the predetermined type in the packet traffic.

Rejections on Appeal
1. The Examiner rejects claims 1, 3-10, 12-15, 17, and 19-24
under 35 U.S.C. § 103(a) as being unpatentable over Hoffman (US Patent
No. 6,094,435; filed June 30, 1997) and Ambe (US Patent No. 7,009,968,
May 7, 2006, claiming benefit from Provisional Application No. 60/210,510
filed June 9, 2000).
2. The Examiner rejects claims 11, 16, and 18 under 35 U.S.C.
§ 103(a) as being unpatentable over Hoffman, Ambe, and Bowman-Amuah
(US Patent No. 6,611,867; filed Aug. 31, 1999).

Grouping of Claims
Based on Appellants’ arguments in the Briefs, we will decide the
appeal on the basis of representative claim 1. See 37 C.F.R.
§ 41.37(c)(1)(vii).

ISSUES
1. Under § 103, did the Examiner err in in finding that the cited
reference combinations would have collectively taught or suggested:
when the type of packet traffic is unicast type, selectively
modifying a priority of the traffic in response to a destination
parameter of the packet traffic; and
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when the type of packet traffic is multicast type,
selectively modifying the priority of the traffic in response to a
source parameter of the packet traffic;
(Claim 1(emphasis added)) within the meaning of independent claim 1 and
the commensurate language of independent claims 13 and 20?
2. Under § 103, was the Examiner’s rejection based on impermissible
hindsight?

FINDINGS OF FACT
We adopt the Examiner’s findings in the Answer and the Final Office
Action as our own, except as to those findings that we expressly overturn or
set aside in the analysis as follows.

ANALYSIS
Claims 1, 3-10, 12-15, 17, and 19-24
Distinguishing Between Unicast and Multicast packets for Prioritization
Appellants contend, inter alia, that the cited passages cannot be
interpreted as suggesting anything more than that priority would be changed
for both unicast and multicast packets. (Reply Br. 11; App. Br. 11.) We
disagree for the reasons discussed infra.
Appellants argue that the cited references do not make a “distinction
between modifying priority of the traffic in response to a destination
parameter for a unicast packet and in response to a source parameter for a
multicast packet.” (App. Br. 12.)
The Examiner found that Ambe teaches an incoming packet is read to
determine packet type (unicast / multicast) (Ans. 7, 18; Ambe, col. 3, ll. 21-
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51), and Ambe further teaches that the ARL (Address Resolution Logic)
decides the COS (class of service) for a packet (unicast or multicast) based
on either source or destination addresses (Ans. 7, 18-19; Ambe, col. 13, ll.
22-24). Thus, we find that Ambe teaches that in the case of a unicast packet,
a COS (priority) may be based on the destination address (destination
parameter). The Examiner also found that Hoffman discloses adjusting
priorities for a packet on a particular output port (priority based on
destination). (Ans. 18; Hoffman, col. 15, ll. 61-65.)
The Examiner further found that Ambe teaches, in the case of a packet
(unicast or multicast) coming in from an ingress port (source), ingress rules
are applied based upon Filtering Mechanisms. (Ans. 18.) The resulting
actions taken according to the ingress rules include changing the 802.1p
priority in the packet Tag header. (Ambe, col. 9, ll. 10-21.) Therefore, we
find that, in the case of a multicast packet, Ambe teaches/suggests that the
priority of a multicast packet can be changed based upon receiving the
multicast packet from an ingress port (source parameter).
Thus, in light of the above, we conclude that the combined teachings
of the cited references would have taught or at least suggested modifying
priority of the traffic in response to a destination parameter for a unicast
packet, or modifying priority of the traffic in response to a source parameter
for a multicast packet. Therefore, it is our view that the cited references
teach or suggest each scenario recited in the claimed limitations.
While we agree with Appellants that the cited references do not
clearly distinguish between the scenarios (unicast vs. multicast), it is our
view that making such a clear distinction would have been obvious to one of
ordinary skill in the art at the time of the invention. In ascertaining the
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scope of the present claims, we note that the claim is complete in the event
of either separate scenario. It is further our view, that the differences
between the prior art and the present invention, i.e., distinctions in how a
unicast packet and a multicast packet are specifically treated, are not
precluded by the disputed limitations and render the present invention
nonobvious, where the cited references teach that the priority of a unicast
packet can be modified based on a destination parameter and the priority of a
multicast packet can be modified based on a source parameter.3
Based on this record, we conclude that the Examiner did not err in
finding that the cited references would have taught or suggested “when the
type of packet traffic is unicast type, selectively modifying a priority of the
traffic in response to a destination parameter of the packet traffic; and when
the type of packet traffic is multicast type, selectively modifying the priority
of the traffic in response to a source parameter of the packet traffic,” as
recited in representative claim 1 (emphasis added).

Hindsight
Appellants contend that the Examiner relies on impermissible
hindsight to interrelate known features in a previously unknown manner.
(Reply Br. 15; App. Br. 12.)
While we are fully aware that hindsight bias often plagues
determinations of obviousness, we are also mindful that the Supreme Court
has clearly stated that the “combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield

3 Graham v. John Deere Co., 383 U.S. 1 (1966). The level of skill in the art
is not in dispute.
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predictable results,” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 401
(2007).
This reasoning is applicable here. Thus, we find unavailing
Appellants’ contention that the Examiner has relied on impermissible
hindsight reconstruction. Given the breadth of Appellants’ claims, we are
not persuaded that combining the respective familiar elements of the cited
references in the manner proffered by the Examiner was “uniquely
challenging or difficult for one of ordinary skill in the art” (see Leapfrog
Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007)
(citing KSR, 550 U.S. at 418)). Therefore, we find the Examiner’s proffered
combination of familiar prior art elements according to their established
functions would have conveyed a reasonable expectation of success to a
person of ordinary skill having common sense at the time of the invention.
Based on this record, we conclude that the Examiner did not err in
rejecting representative claim 1. Accordingly, we affirm the Examiner’s
rejection of claim 1 and claims 3-10, 12-15, 17, and 19-24 not separately
argued with particularity (supra).
Claims 11, 16, and 18
As noted above, claims 11, 16, and 18 stand rejected as obvious over
Hoffman, Ambe, and Bowman-Amuah. Appellants do not present separate
arguments for the patentability of these claims. (App. Br. 12-13.)
Therefore, we affirm the Examiner’s rejections of dependent claims 11, 16
and 18 for the same reasons discussed supra.
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CONCLUSION OF LAW
Appellants have not shown that the Examiner erred in rejecting claims
1 and 3-24 under 35 U.S.C. § 103(a).

DECISION
We affirm the Examiner’s rejection of claims 1 and 3-24, under 35
U.S.C. § 103(a).

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).

AFFIRMED

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