Ex Parte Martin et al

Patent Trial and Appeal Board

Dec 15, 2015

12626975 (P.T.A.B. Dec. 15, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/626,975 11130/2009
111350 7590
Daniels IP Services LTD,
555 Legget Drive
Suite 204
Kanata, ON K2K 2X3
CANADA
12/17/2015
FIRST NAMED INVENTOR
David MARTIN
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.
102918/00063 3215
EXAMINER
GIDADO, RASHEED
ART UNIT PAPER NUMBER
2464
NOTIFICATION DATE DELIVERY MODE
12/17/2015 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):
sharon @danielsip.ca
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID MARTIN, MARC HOLNESS, and
BERNARD ST-DENIS
Appeal2013-010344
Application 12/626,975
Technology Center 2400
Before KEVIN C. TROCK, JESSICA C. KAISER, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
KAISER, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134 from the Examiner's final
rejection of claims 1-11. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 According to Appellants, the real party in interest is Rockstar Bidco LP.
(App. Br. 2.)
Appeal2013-010344
Application 12/626,975
EXEMPLARY CLAIM
Claim 1 is exemplary and is reproduced below with the disputed
limitations italicized:
1. A method of controlling traffic forwarding in a
Provider Backbone- Traffic Engineered (PBB-TE) network, the
method comprising:
defining a protection group including N working Traffic
Engineered Service Instances (TES Is) and M protection TES Is,
where N2: 1 and M2: 1; and
providing a Automatic Protection Switching Protocol
Data Unit (APS PDU) including information defining at least a
state of the protection group; and
forwarding the APS PDU through each protection TESI;
wherein the information defining at least a state of the
protection group includes information defining one or more of a
protection scheme of the protection group and a hierarchy of
protection TES!s.
REJECTION
Claims 1-11 stand under 35 U.S.C. § 103(a) as being unpatentable
over Skalecki (US 2008/0281987 Al; published Nov. 13, 2008) and Wang
(US 2008/0107416 Al; published May 8, 2008). (Final Act. 4--10.)
ISSUES
1. Did the Examiner err in finding Skalecki teaches "information
defining one or more of a protection scheme of the protection group," as
recited in claim 1?
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Application 12/626,975
2. Did the Examiner err in finding the combination of Skalecki
and Wang teach information defining "a hierarchy of protection TESis," as
recited in claim 1?
ANALYSIS
Only those arguments actually made by Appellants in the Briefs are
considered in this Decision. Arguments that Appellants did not make in the
Briefs are waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2013).
We are not persuaded by Appellants' arguments that the Examiner has
erred. (App. Br. 8-10; Reply Br. 3-7.) We agree with, and adopt as our
own, the Examiner's findings and reasons as set forth in the Examiner's
rejection (Final Act. 2-10) and as set forth by the Examiner in the
Examiner's Answer (Ans. 9-11). We highlight specific arguments and
findings for emphasis as follows.
Obviousness Rejection of Independent Claim 1
As an initial matter, we note the limitation, "information defining one
or more of a protection scheme of the protection group and a hierarchy of
protection TESis," as recited in claim 1 (emphasis added), is written in the
alternative. Accordingly, under the broadest reasonable interpretation, the
prior art need only teach or suggest information defining either a protection
scheme of the protection group or a hierarchy of protection TES Is to render
the claim obvious. Appellants acknowledge this, arguing the prior art does
not teach "either or both of a protection scheme and a hierarchy of protection
TESis." (App. Br. 9.)
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Appeal2013-010344
Application 12/626,975
Issue 1
Appellants argues the Examiner erred by improperly construing
"protection scheme." (See App. Br. 8.) Specifically, Appellants argue the
Specification defines a protection scheme as "re lat[ ing] to the number M of
protection (back-up) paths, and the number N of working paths" (Id. (citing
Spec. if 12-14, 26, 30, 32-33)).
We disagree because Appellants' construction of "protection scheme"
is not commensurate with the scope of claim 1. In particular, the
Specification does not expressly define a "protection scheme," and
Appellants' arguments are based on non-limiting examples from the
Specification. Moreover, the Specification's exemplary protection schemes
are not limited to the number of protection paths and working paths as
Appellants argue; for example, the Specification also includes examples of
revertive and non-revertive protection schemes. (Spec. iii! 26-27 .)
Appellants further argue, without elaboration, that Wang does not
teach information defining a protection scheme. (See App. Br. 9-10.) We
are not persuaded by Appellants' contentions regarding Wang because the
Examiner primarily relies upon Skalecki, not Wang, to teach or suggest the
recited protection scheme. (Ans. 9; Final Act. 5--6.)
Appellants address the Examiner's findings regarding Skalecki for the
first time in the Reply Brief, arguing Skalecki does not teach "information
defining a protection scheme of a protection group" as recited in claim 1.
(Reply Br. 3--4.) Even if we were to consider this untimely argument, it
would not persuade us of Examiner error because Appellants' argument that
"nothing in [Skalecki] teaches or suggests the number M of protection
(back-up) paths, and the number N of working paths" (Reply Br. 3) is
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Application 12/626,975
premised on their unduly narrow construction of "protection group" as
discussed supra.
The Examiner finds, and we agree, Skalecki teaches "information
defining a protection scheme of a protection group." (Final Act. 5-6 (citing
Skalecki Fig. 3); Ans. 9.) Specifically, Skalecki teaches that its APS PDU
provides information defining a protection scheme (i.e., the switching
mechanism being used and the status of the primary path). (Skalecki
Abstract.) Moreover, as Appellants acknowledge (Reply Br. 3), Skalecki
teaches a protection type field provides information relating to revertive or
non-revertive operation. (See Skalecki i-f 32 and Table therein.) As
discussed supra, such revertive or non-revertive protection types teach a
protection scheme consistent with Appellants' Specification. (Spec. i-fi-126-
27.)
Accordingly, we are not persuaded the Examiner erred in finding
Skalecki teaches or suggests the disputed limitation.
Issue 2
As discussed supra, claim 1 requires only information defining either
a protection scheme of the protection group or a hierarchy of protection
TESis. Because we find no error in the Examiner's finding that Skalecki
teaches the former, we need not reach Appellants' arguments regarding the
latter. We nevertheless address those arguments to advance further
prosecution.
Appellants argue Wang does not teach information defining "a
hierarchy of protection TESis," as recited in claim 1, because Wang teaches
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Application 12/626,975
protection channels, rather than protection TESis, and Wang's "channels
cannot be TESis." (Reply Br. 5---6; see also App. Br. 8-9.)
We are not persuaded because Appellants' arguments address Wang
individually. In re Keller, 642 F.2d 413, 426 (CCPA 1981) (citation omitted)
("[O]ne cannot show non-obviousness by attacking references individually
where ... the rejections are based on combinations of references."). The
Examiner finds, and we agree, Skalecki teaches protection groups including
protection TESis. (Final Act. 5---6 (citing Skalecki Abstract, i-fi-18, 10).)
Because Skalecki already teaches protection TESis, Wang need not also
teach them.
Appellants additionally argue Wang's rules governing the occupancy
and preemption of protection channels do not teach a hierarchy because
"none of [Wang's] rules sets out a predetermined order in which traffic may
be switched ... as described in the original specification." (Reply Br. 6;
App. Br. 8 (citing Spec. i134).)
We are not persuaded because Appellants' argument is not
commensurate with the scope of claim 1. Specifically, paragraph 34 of the
Specification on which Appellants rely relates to "some embodiments" and
does not provide a limiting definition of "hierarchy." (See App Br. 8 (citing
Spec. i134); see also Reply Br. 6.) We agree with the Examiner's finding
that Wang's rules teach a hierarchy because Wang's rules select which
channel is used by switching amongst protection channels according to
channel utilization and preempting channels based on priority. (Ans. 10-11
(citing Wang i-fi-1 82, 86-87); see Wang i1 92 ("the protection channel with the
lowest priority is preempted").)
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In addition, Appellants' argument that "Wang teaches directly away
from the presently claimed invention" because Wang's APS PDU does not
contain the elements recited in claim 1 (App. Br. 10) is not persuasive. To
teach away, a reference must actually "criticize, discredit, or otherwise
discourage" investigation into the claimed solution. In re Fulton, 391 F.3d
1195, 1201 (Fed. Cir. 2004). Appellants' argument listing alleged
deficiencies in Wang, however, does not show that Wang criticizes,
discredits, or otherwise discourages incorporation of a hierarchy into a
protection TESI system in the manner claimed. (See App. Br. 9--10.)
Accordingly, we are not persuaded of Examiner error.
Remaining Claims 2-11
Appellants do not argue separate patentability of claims 2-11. (See
App. Br. 8-10.) Accordingly, we sustain the Examiner's decision to reject
those claims for the same reasons as claim 1.
DECISION
For the above reasons, the Examiner's decision to reject of claims 1-
11 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)(l )(iv).
AFFIRMED
gvw
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