Ex Parte Lolayekar et al

Board of Patent Appeals and Interferences

Jun 27, 2009

10051321 (B.P.A.I. Jun. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SANTOSH C. LOLAYEKAR, YU-PING CHENG,
ANOOP R. HEGE, SUNIL K. ASTHANA, RENATO E. MARANON,
WAN-HUI LEE, ROBERT T. FREY,
and ENYEW TAN
____________

Appeal 2008-003917
Application 10/051,321
Technology Center 3600
____________

Decided:1 June 29, 2009
____________

Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and JOSEPH A.
FISCHETTI, Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

1The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 (2002) of the
Examiner’s final rejection of claims 1-6, and 8-44. Claim 7 was cancelled.
We have jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
Appellants claim a system and method relating to a storage switch
which is a scalable switch that allows the creation of a SAN that is easy to
deploy and that can be centrally managed. (Specification 6:10-12.)
Claim 1, reproduced below, is representative of the subject matter on
appeal.
1. A switch for use in a network,
comprising:
a plurality of linecards, each including: a plurality
of ports; and a plurality of storage protocol
processing units, wherein each storage protocol
processing unit is associated with at least one port
and performs storage command processing for
commands received at said at least one port,
thereby distributing processing resources amongst
linecard ports, and wherein the switch performs
said storage command processing of packets
without buffering the packets.

THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
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Latif US 6,400,730 Jun. 4, 2002
Tzeng US 6,693,906 B1 Feb. 17, 2004

The following rejection is before us for review.
The Examiner rejected claims 1-6 and 8-44 as obvious under 35
U.S.C. § 103 over Latif in view of Tzeng.

ISSUES
Have Appellants shown that the Examiner erred in rejecting claims 1-
6, 8-20, and 24-44 on appeal as being unpatentable under 35 U.S.C. § 103(a)
over Latif in view of Tzeng on the grounds that a person with ordinary skill
in the art would understand that Latif discloses either alone or in
combination with Tzeng a switch which performs a storage command
processing of packets without buffering the packets and/or at wire speed?
Have Appellants shown that the Examiner erred in rejecting claims
21-23 on appeal as being unpatentable under 35 U.S.C. § 103(a) over Latif
in view of Tzeng on the grounds that a person with ordinary skill in the art
would understand that Latif discloses either alone or in combination with
Tzeng a switch having means associated with each port for performing wire
speed storage command processing of packets?

PRINCIPLES OF LAW
A claim limitation will be interpreted to invoke 35 U.S.C. § 112, sixth
paragraph, if it meets the following 3-prong analysis:
(A) the claim limitations must use the phrase “means for” or “step
for;”
(B) the “means for” or “step for” must be modified by functional
language; and
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(C) the phrase “means for” or “step for” must not be modified by
sufficient structure, material, or acts for achieving the specified
function.
Manual of Patent Examining Procedure (MPEP) § 2181 (8th ed., Rev. 7, Jul.
2008).
“The recitation of some structure in a means plus function element
does not preclude the applicability of [§ 112, ¶ 6 when it] merely serves to
further specify the function of the means. The recited structure tells only
what the means-for-joining does, not what it is structurally.” Laitram Corp.
v. Rexnord, Inc., 939 F.2d 1533, 1536 (Fed. Cir. 1991) (emphasis in
original) (holding that the claim language “means for joining said pluralities
[of link ends] to one another so that the axes of [certain holes are arranged in
certain configurations]” invokes § 112, ¶ 6).
Once 35 U.S.C. § 112, sixth paragraph meaning is determined
appropriate, we are required by statute to look to appellants’ specification
and construe the “means” language recited in the claims as limited to the
corresponding structure disclosed in the specification and equivalents
thereof. See In re Donaldson Co., Inc., 16 F.3d 1189, 1195 (Fed. Cir. 1994).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) where in evidence, so-called secondary
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considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See
also KSR, 550 U.S. at 407 (“While the sequence of these questions might be
reordered in any particular case, the [Graham] factors continue to define the
inquiry that controls.”)

FINDINGS OF FACT
We find the following facts by a preponderance of the evidence:
1. The Specification defines “wire speed” as “…without introducing
any more latency that would be introduced by a switch that merely
performed switching or routing functions…” (Specification 6:17-19).
2. Latif discloses an embodiment wherein a FC ports on the same
switch do not introduce any more latency than would be introduced by a
switch that merely performed switching or routing functions in that
[w]hen an FC port performs a Port Login
with an FC port which is local (i.e.[,] connected to
the same switch), it is not necessary to change the
Buffer to Buffer Receive Data Field Size of the
Login request for response. This is because, in one
embodiment, the switch supports the maximum
frame size or transfers between FC ports (on the
same switch). However, the FC port interface
logic will always redirect the Port Login packets to
the switch's Management Processor to simplify the
port interface logic. Thus, in this embodiment, the
switch looks and acts like an FC switch from the
point of view of any FC devices connected thereto.
An example of the routing of Port Login Request
and Response frames for local FC ports is shown
in FIG. 10.
(Latif, col. 10, ll. 39-51.)
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3. Latif disclose plural device-based modes of performing storage
operations such that
each device, e.g., SCSI device 105, FC device 110,
Ethernet device 115, or generic IP device 120 (e.g.,
disk drive, tape drive, server), performs storage
operations based on the SCSI Command Set. For
Fibre Channel device 110, the SCSI commands
and data are converted to FCP and transmitted
using Fibre Channel interface 111. For SCSI
device 105 the SCSI commands and data are
transferred directly using a "parallel" bus 106. In
this embodiment, the SCSI port interface 125 of
switch 135 acts like a SCSI to FC bridge so that
the SCSI port looks like an FC port from the point
of view of switch fabric 140. As shown, the SCSI
data is preferably converted to FCP, and is not
actually transmitted using a Fibre Channel
interface.
(Latif, col. 6, l. 58 - col. 7-l. 3.)
4. Latif specifically demarks the practice of encapsulating an IP
packet as part of data transmission using an Ethernet device in that it
specifically discloses “[f]or Ethernet device 115, SCSI commands and data
are converted to FCP and then encapsulated in an IP packet using UDP or
TCP. The IP packet is then encapsulated in an Ethernet frame and
transmitted using Ethernet interface 116. (Latif, col. 7, ll. 3-7.)
5. Latif discloses encapsulated FCP data frame in relation only to
Ethernet packet size because in this mode, the FCP data is being carried over
an Ethernet link. (Latif, col. 9, ll. 50-51.)
6. Latif discloses that “[t]he amount of processing performed by each
port interface 270 is dependent on the interface type .… Fibre Channel ports
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2703 and 2704 require the least amount of processing because the internal
frame format is most compatible with Fibre Channel. (Latif, col. 7, l. 64–
col. 8, l. 5.)
7. Latif however discloses that Ethernet ports 2705,6 must convert data
into an internal frame format before sending the packets through the switch
fabric 240. (Latif, col. 8, ll. 6-9.)
8. The Examiner found that
Latif et al disclose the processing of storage
commands (column 1, lines 25-30, column 6,
lines 9-10, column 19, lines 30-37, ) but fail to
explicitly disclose that the switch processes
packets without buffering the packets. However,
Tzeng discloses a network switch that processes
incoming data packets without buffering (column
1, line 39-column 2, lines 16). It would have been
obvious to one of the ordinary skill in the art at the
time of the Applicant's invention to combine the
teachings of Latif et al and Tzeng because doing so
would reduce the overall cost of the network
switch and enhance switching performance.
(Answer 3.)
9. Tzeng discloses
[e]ach core module is configured for
simultaneously generating a corresponding frame
tag based on a corresponding equation identifier
for a corresponding selected equation and the min
term comparison results. Since a given received
byte of the incoming data packet is simultaneously
compared with the all the relevant min terms, this
ensures the real time evaluation of the incoming
data packet. Moreover, a plurality of equation core
modules minimizes the need for a buffer because
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of the simultaneous generation of multiple frame
tags minimizes latency in switching of the
incoming data packet.
(Tzeng, col. 2, ll. 31-41.)
10. Appellants invoke 35 U.S.C. § 112, sixth paragraph (Appeal Br.
24) for the interpretation of independent claim 21 and in so doing,
Appellants state that the means of claim 21 is Storage Processor Unit (SPU)
701, and specifies by line and page number at Figure 7; page 17, lines 11-1;
“[t]he SPU [701] rapidly processes the data traffic allowing for wire-speed
operations.”
11. The Specification describes that the SPU comprises: a Packet
Aggregation and Classification Engine (PACE) 704, a Packet Processing
Unit (PPU) 706, an SRAM 705, and a CAM 707. (Specification 17:14-15.)
Each PACE has a dedicated path to a PPU 706 while all four PACEs in the
illustrated embodiment share a path to the CPU 714, which in one
embodiment is a 104MHz/32 (3.2 Gbps) bit data path. (Specification 18:8-
11.)
12. The Examiner found regarding claim 9
Latif et al disclose wherein the switch is capable of
receiving a packet at a first port of a first linecard
destined for a virtual target and formatted in
accordance with a first protocol (column 2, lines
34-column 3, line 22), determining if the packet is
a data or control packet (column 7, lines 49-59),
and if the packet is a data packet, sending the
packet formatted in accordance with a second
protocol to a physical target (column 2, lines 34-
column 3, line 22).
(Answer 4.)
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13. It is our understanding that the practice of periodic backup is a
well known practice in the computer art to preserve against losing data.
14. The Examiner found that Latif “…discloses virtualization (see
column 11, lines 5-30, column 16, lines 30-42,column 7, lines 26-46;
address translation).” (Answer 5.)
15. The Examiner found that Latif discloses a processing unit which
includes a classification unit citing to (column 7, line 45-column 8, line 15,
Figs, 8, 16-17). (Answer 5.)
16. The Examiner found that
Latif et al discloses a Packet Aggregation and
Classification Engine and a Packet Processing
Unit. Latif et al disclose that the switch performs
translation of data packets between SCSi, Fibre
Channel and Ethernet devices. (column 1, lines
18- 25, column 3, lines 5-21, column 6, lines 44-
57). Latif et al further discloses that the switch
performs address translation (virtualization) (see
column 11, lines 5-30, column 16, lines 30-42,
column 7, lines 26-46). Tzeng et al discloses a
packet classifier (see column 3, lines 35-45).
(Answer 11.)

ANALYSIS
We affirm the rejection of claims 1-6, 8-20, and 24-44 on appeal as
being unpatentable under 35 U.S.C. § 103(a) over Latif in view of Tzeng
and reverse the rejection of claims 21-23 under the same rejection.
I. Claims 1, 2-6, 8-19, 24-34, and 43-44 and the phrase
without buffering
Appellants argue that the distinguishing limitation in these claims lies
with the phrase “…wherein the switch performs said storage command
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processing of packets without buffering the packets (emphasis added).”
(Appeal Br. 16.) In particular, Appellants argue that
Latif does not disclose processing without
buffering packets. Rather, Latif explicitly
discloses buffers in the switch for buffering
incoming packets for encapsulation in frames for
routing and processing within his switch [see col.
9, Ins. 47-57, col. 10, lns. 18-42].
(Appeal Br. 16.)
We disagree with Appellants. While Appellants are correct in their
assertion that some packets are encapsulated and hence require buffering,
this is not the case for all scenarios disclosed in Latif. Rather, Latif
discloses plural device-based modes for performing storage operations such
that each of a SCSI device 105, FC device 110, Ethernet device 115, or
generic IP device 120 (e.g., disk drive, tape drive, server), performs storage
operations based on the SCSI Command Set. (FF 3). The portion of Latif
which Appellants cite to above, discloses encapsulating FCP data frames in
relation only to Ethernet packet size because in this mode, the FCP data is
being carried over an Ethernet link. (FF 4, 5.)
In contrast, the other disclosed modes of performing storage
operations involve non-encapsulated data frames. One such mode is the
SCSI device 105 where the SCSI commands and data are transferred directly
using a "parallel" bus 106 (FF 3). Latif also discloses that “[t]he amount of
processing performed by each port interface 270 is dependent on the
interface type.” (FF 6.) Fibre Channel ports 2703 and 2704 thus require the
least amount of processing because the internal frame format is most
compatible with Fibre Channel. (FF 6.) By contrast, Ethernet ports 2705,6
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convert data into an internal frame format before sending the packets
through the switch fabric 240. (FF 7.)
Furthermore, Latif discloses another embodiment where FC ports on
the same switch do not make it necessary to change the Buffer to Buffer
Receive Data Field Size of the Login request or response (FF 2). This is
because, in one embodiment, the switch supports the maximum frame size or
transfers between FC ports (on the same switch) (FF 2). Latif furthermore
discloses that in this case, the switch looks and acts like an FC switch from
the point of view of any FC devices connected thereto. (FF 2.) Therefore,
we find that these scenarios do not require data encapsulation when
transmitting data, a characteristic which Appellants argue is associated with
buffering (Appeal Br. 16). We thus find an absence of buffering in these
scenarios.
Our analysis could stop here because the claims do not distinguish
between the types of modes or devices which transmit the data. See In re
Bush, 296 F.2d 491, 496 (CCPA 1961). However, in the interest of
completeness, we note that the Examiner by focusing only on the Ethernet
mode in Latif found that Latif “… fail[s] to explicitly disclose that the
switch processes packets without buffering the packets,” but that “… Tzeng
discloses a network switch that processes incoming data packets without
buffering ….” (FF 8.)
We agree with the Examiner’s finding in that Tzeng discloses using
core modules configured for simultaneously generating a corresponding
frame tag based on a corresponding equation identifier for a corresponding
selected equation….” (FF 9.) The Examiner concluded “[i]t would have
been obvious to one of the ordinary skill in the art at the time of the
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Applicant[s'] invention to combine the teachings of Latif et al[.] and Tzeng
because doing so would reduce the overall cost of the network switch and
enhance switching performance.” (FF 8.)
Appellants argue however that “[t]here is no teaching in the references
as to how one could accomplish this redesign, and it is not even clear how or
whether Latif could be modified and reconstructed to eliminate buffering.”
(Appeal Br. 18.) We disagree with Appellants. Appellants’ argument seeks
an explanation of how the plurality of core modules in Tzeng would be
bodily incorporated into the system of Latif, which is not the test for
obviousness. See In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Appellants next argue that the Examiner “…has merely offered
unsupported assertions that it would be obvious to combine the references.”
(Appeal Br. 18.)
We disagree with Appellants. The Examiner has provided some
articulated reasoning with some rational underpinning for why a person with
ordinary skill in the art would modify Latif to include the non-buffering
feature of Tzeng. (FF 8.) According to Tzeng, the plurality of equation core
modules minimizes the need for a buffer because of the simultaneous
generation of multiple frame tags minimizes latency in switching of the
incoming data packet. (FF 8.) Thus, in our view, the Examiner’s proposal
for modifying Latif is reasonable and Appellants’ arguments are accordingly
not persuasive as to error in the rejection. See KSR Int’l Co. v. Teleflex Inc.,
550 U.S. at 418-19.
Claims 9 and 10
Claims 9 and 10 recite in comparable terms,
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packet at a first port of a first linecard destined for
a virtual target and formatted in accordance with
a first protocol, determining if the packet is a data
or control packet, and if the packet is a data
packet, sending the packet formatted in
accordance with a second protocol to a physical
target, all without buffering the packet.
(Emphasis added.) Since this is an article claim, we address the structural
components of the claim. Structurally, claims 9 and 10 require (1.) a first
port of a first linecard, (2.) formatted in accordance with a first protocol,
and (3.) a physical target to which the data packet is sent. Apparatus claims
are defined by their structure, not their method of use. "[E]xpressions
relating the apparatus to contents thereof during an intended operation are of
no significance in determining patentability of the apparatus claim." Ex
parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969). Furthermore,
"inclusion of the material or article worked upon by a structure being
claimed does not impart patentability to the claims." In re Otto, 312 F.2d
937, 940 (CCPA 1963). The Examiner found that Latif discloses these
structural components (FF 12) and Appellants do not challenge the existence
of such devices in Latif. Thus, in light of the breadth of the claims, the
Appellants’ argument is not persuasive as to error in the rejection.
Claim 14
Claim 14 recites that the storage service is any one of local mirroring,
mirroring over slow link, snapshot, replication, third-party copy, periodic
backup, and restore. Appellants argue that “Latif does not disclose or even
suggest these storage operations set out in Claim 14.” (Appeal Br. 20.)
While it is possible that Latif does not disclose for example, periodic back-
up, we will not sustain a rejection made under 35 U.S.C. § 103(a) based on
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Appellants’ mandating an explicit disclosure of such an old and well known
practices, such, as periodic back-up (FF 13). Furthermore, claim 14 is
directed to a device and not a method, and thus the method limitations
cannot impart patentability to the claims. See, In re Otto, 312 F.2d at 940.
Claims 27-29 and 43-44
Claim 27 recites “wherein the switch is designed to process data
packets, including virtualization and translation ….” (Emphasis added.)
The Examiner found that Latif discloses switch virtualization and
translation. (FF 14, 15). Appellants’ only argument is that the disclosed
switch virtualization and translation does not occur without buffering or at
“wire speed.” Since we have found supra/infra that Latif either solely or in
combination with Tzeng discloses these features, we are not persuaded as to
error in the rejection.
Appellants do not provide a substantive argument as to the separate
patentability of remaining claims in this group, but rather merely rely on the
restated arguments that these claims recite the non-buffering feature as
argued against claim 1 whose rejection is affirmed, these remaining claims
thus fall with claim 1. See, 37 C.F.R. § 41.37(c)(1)(vii) (2008).
II. Claims 8, 10, 20, 28- 29, and 35- 42 and the phrase wire speed
Exemplary claim 20 recites “each processing unit includes a
classifier, a virtualizer, and a translator that classifies, virtualizes, and
translates packets at wire speed.” (Emphasis added.)
Appellants argue that
[n]either Latif nor Tzeng teach a plurality of
processing units, each of which includes a
classifier, a virtualizer and a translator that
classifies, virtualizes and translates packets, as
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claimed, and neither reference teaches or suggests
performing such operations "at wire speed."
(Appeal Br. 22.)
However, the Examiner found that Latif discloses processing units
which include a classifier, a virtualizer and a translator (FF 14-16).
Appellants’ only reply to these findings is to repeat the claim elements, and
thus Appellants’ argument is not persuasive as to error in the rejection. A
statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim. See,
37 C.F.R. § 41.37(c)(1)(vii) (2008).
Regarding the second prong of Appellants’ argument addressing the
wire speed feature of the claims, we find that Latif meets the definition of
this term as defined by the Specification (FF 1) in that Latif discloses an
embodiment wherein a FC ports on the same switch do not introduce any
more latency than would be introduced by a switch that merely performed
switching or routing functions (FF 2). Likewise, even modifying the
Ethernet device in Latif with the core modules of Tzeng would result in the
requirement of no additional latency because the modules are configured for
simultaneously generating a corresponding frame tag (FF 9).
In light of the breadth of the claim, the Appellants’ argument is not
persuasive as to error in the rejection.
Claims 35-41
Appellants’ only reply to the rejection of these claims is to repeat the
claim elements, and restate the reasons asserted against claim 1 which we
addressed above. Thus, Appellants’ argument is not persuasive as to error in
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the rejection. A statement which merely points out what a claim recites will
not be considered an argument for separate patentability of the claim. See,
37 C.F.R. § 41.37(c)(1)(vii) (2008).
III. Claims 21-23; 35 U.S.C. § 112, Sixth Paragraph
Claim 21 recites “means associated with each port for performing
wire speed storage command processing of packets.” (Emphasis added.)
Appellants invoke the language of 35 U.S.C. § 112, sixth paragraph.
(FF 10.) We credit this phrase as one under 35 U.S.C. § 112, sixth
paragraph.
Accordingly, we are required by statute to look Appellants’
Specification and construe the “means” language recited in the last segment
of claim 21 as limited to the corresponding structure disclosed in the
specification and equivalents thereof. See In re Donaldson Co., Inc., 16
F.3d at 1195.
Appellants assert that the means here is the Storage Processor Unit
(SPU) 701 (FF 10). The Specification describes that the SPU comprises: a
Packet Aggregation and Classification Engine (PACE) 704, a Packet
Processing Unit (PPU) 706, an SRAM 705, and a CAM 707 and each PACE
has a dedicated path to a PPU 706 while four PACEs share a data path to the
CPU 714. (FF 11.) We thus interpret the means plus function language to
include these enumerated elements.
The Examiner asserts that the citations from the Specification which
the Appellants use as corresponding structure for the means plus function
language of claim 21is unrecognizable. (Answer 10.) We disagree with
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Appellants. The cited portion of the Specification on page 17 plainly states
that the SPU 701 “rapidly processes the data traffic for wire-speed
operations” (FF 10).
The Examiner nevertheless maintains that Latif discloses a Packet
Aggregation and Classification Engine and a Packet Processing Unit. (FF
11.) However, a review of the sections in Latif or Tzeng referenced by the
Examiner in this finding do not show where Latif or Tzeng either alone or in
combination disclose a (1.) Packet Aggregation and Classification Engine
(PACE) 704, (2.) a Packet Processing Unit (PPU) 706, (3.) an SRAM 705,
(4.) a CAM 707, and (5.) each PACE has a dedicated path to a PPU 706
while four PACEs share a data path to the CPU 714. Accordingly, since we
construe claim 21 to import these limitations from the corresponding
sections of the Specification and equivalents thereof, and do not find this
specific arrangement in the prior art, we will not sustain the rejection of
claim 21 or its dependent claims
IV. Claim 42
Appellants only reply to the rejection of claim 42 is to repeat the
claim elements, and restate the reasons asserted against claim 20 which we
addressed above. Thus, Appellants’ argument is not persuasive as to error in
the rejection. A statement which merely points out what a claim recites will
not be considered an argument for separate patentability of the claim. See
37 C.F.R. § 41.37(c)(1)(vii) (2008)

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CONCLUSIONS OF LAW
We conclude the Appellants have not shown that the Examiner erred
in rejecting claim 1-6, 8-20, and 24-44 on appeal as being unpatentable
under 35 U.S.C. § 103(a) over Latif in view of Tzeng.
We conclude the Appellants have shown that the Examiner erred in
rejecting claims 21-23 on appeal as being unpatentable under 35 U.S.C.
§ 103(a) over Latif in view of Tzeng.

DECISION
The decision of the Examiner to reject claims 1-6, 8-20, and 24-44 is
AFFIRMED.
The decision of the Examiner to reject claims 21-23 is REVERSED.
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) (2007).

AFFIRMED-IN-PART

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