Ex Parte Monette et al

Patent Trials and Appeals Board

Feb 26, 2013

11020158 - (D) (P.T.A.B. Feb. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SYLVAIN MONETTE, MATHIEU GIGUERE, MARTIN
JULIEN, and BENOIT TREMBLAY
____________

Appeal 2010-004959
Application 11/020,158
Technology Center 2400
____________

Before JOSEPH F. RUGGIERO, BRUCE R. WINSOR,
and STANLEY M. WEINBERG, Administrative Patent Judges.

WINSOR, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-10, which constitute all the claims pending in this application. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

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STATEMENT OF THE CASE
Appellants’ invention relates to routers; more specifically to adaptive
router architecture. Spec. ¶ [0001]. Claims 1 and 2, which are illustrative of
the invention, read as follows:
1. A router comprising:
a network interface:
a logical addressing module for:
maintaining at least one local table associating at
least one card of the router with at least a portion of at
least one service provided by the router; and
a forwarding element card for:
receiving a packet stream on the network interface;
detecting that the packet stream requires further
treatment from a further card of the router;
if it is detected that the packet stream requires
further treatment consulting the local table to find an
identifier, to which the further card is linked, based on
information found in the packet stream; and
if it is detected that the packet stream requires
further treatment forwarding the packet stream toward
the further card, wherein the further card is selected
based on the found identifier.
2. The router of claim 1, wherein the router support [sic] the
virtual router concept:
wherein the at least one local table is related to a virtual
router and is maintained only in element cards of the router that
are associated with the virtual router.
Claims 1-5 and 8-10 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Marshall (US 2004/0213235 A1; published Oct. 28, 2004)
and Stacey (US 6,266,342 B1; issued July 24, 2001). Ans. 3-11.
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Claims 6 and 7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Marshall, Stacey, and Suzuki (US 2001/0048662 A1;
published Dec. 6, 2001). Ans. 11-12.
Rather than repeat the arguments here, we refer to the Brief and the
Answer for the respective positions of Appellants and the Examiner. Only
those arguments actually made by Appellants have been considered in this
decision. Arguments that Appellants did not make in the Brief have not
been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2010).

REJECTIONS OVER MARSHALL AND STACEY
We have considered Appellants’ arguments and contentions (Br. 8-19,
21-26) regarding claims 1-5 and 8-10 in light of the Examiner’s findings
(Ans. 3-11) and explanations in response to Appellants’ arguments (Ans. 12-
33, 35-41). Except with regard to claim 2, discussed infra, we find no error
in the Examiner’s findings and explanations and, with regard to claims 1, 3-
5, and 8-10, adopt them as our own. The further discussions and findings,
infra, regarding claims 1, 3-5, and 8-10 are for emphasis.
CLAIM 1
Issue
The Examiner finds that Marshall teaches or suggests all of the
limitations of claim 1 except further processing being done by further,
separate, cards. Ans. 3-4 (citing Marshall Figs. 2-4; ¶¶ [0035], [0040],
[0042]-[0047]). The Examiner finds that Stacey teaches the further
processing being done by further, separate, cards and that it would have been
obvious to one of ordinary skill in the art at the time of the invention to
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combine Marshall and Stacey. Ans. 4-5 (citing Stacey Fig. 2; col. 9, ll. 21-
47).
Appellants contend that in rejecting claim 1 the Examiner has failed to
establish a prima facie case of obviousness because: the Examiner has
construed claim 1 unreasonably and over broadly (see Br. 9, 12-13);
Marshall does not teach the features relied upon by the Examiner in rejecting
claim 1 (see generally Br. 8-13); Stacey does not teach the features relied on
by the Examiner in rejecting claim 1 (see Br. 13-14); and it would not have
been obvious to one of ordinary skill in the art at the time of the invention to
combine the features of Marshall and Stacey (see Br. 14-15).
The issue presented by Appellants’ contentions is as follows: In
rejecting claim 1 as unpatentable under § 103(a), has the Examiner
established a prima facie case for obviousness?
Analysis
Marshall
Appellants contend that the Examiner has construed the terms of
claim 1 unreasonably and over broadly. Br. 9, 12. Although it is true that a
claim term is construed “in light of the specification as it would be
interpreted by one of ordinary skill in the art,” In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364, (Fed. Cir. 2004), “it is [also] important not to
import into a claim limitations that are not a part of the claim,” SuperGuide
Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004).
Appellants assert that claim 1 should be understood as reciting “conditional”
routing that forwards or routes a packet stream “only” if the forwarding
element card detects that the packet stream requires a particular treatment.
See Br. 11-12. However, the limitations “conditional,” and “only” are not
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recited in the claim. Although claim 1 does recite “if it is detected that the
packet stream requires further treatment forwarding the packet stream
toward the further card, wherein the further card is selected based on the
found identifier” the claim is silent as the handling, or even the existence, of
packet streams that do not require further treatment.
Appellants contend that “further treatment must be understood as
something more than the input-to-output routing provided between its input
and its output.” Br. 11. Appellants further contend that “[n]o one of
ordinary skill in the art would equate Marshall's destination-based routing of
packets to destination line cards as the claimed selective routing for
particular stream treatments.” Br. 13. However, Appellants do not
persuasively explain why routing a packet stream to an output destination is
not “further treatment” or provide a construction of the term “further
treatment” that would exclude Marshall’s packet classification and routing.
See Ans. 4 (citing Marshall, ¶¶ [0042]-[0047]).
Furthermore, Appellants’ arguments regarding Marshall are not
commensurate with the grounds of rejection, as Appellants do not
persuasively address the teachings of Marshall, see id., actually relied on by
the Examiner, which we find have a rational underpinning. Accordingly,
Appellants have not persuaded us that the Examiner has construed claim 1
unreasonably and over broadly or that Marshall does not teach the features
relied upon by the Examiner in rejecting claim 1
Stacey
Appellants contend that “Stacey does not teach the claimed
forwarding of packet streams to a further card of a router, based on detecting
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from the packet stream that it needs the further treatment.” Br. 13.
However, as pointed out by the Examiner, “the limitation for which Stacy
was combined with Marshall was ‘further processing is being done in a
further/separate card’; not ‘forwarding of packet streams to a further card of
a router, based on detecting from the packet stream that it needs the further
treatment ’. . . .” Ans. 23. Appellants’ contention is unpersuasive because
“one cannot show non-obviousness by attacking references individually
where, as here, the rejections are based on combinations of references.” In
re Keller, 642 F.2d 413, 426 (CCPA 1981) (citations omitted).
Appellants assert that Stacey’s “Col. 9 . . . stat[es] at lines 25-30 that
no essential signal processing is divided between cards, but rather is
consolidated onto a single card, to avoid delays and reduce ATM switching
bandwidth.” Br. 14. Appellants argue that Stacey thus “appears to teach
away from the claimed selective routing to a further card, in a router in
which selective, further processing is provided on further, separate cards.”
Id. We find this argument to be unpersuasive.
The referenced passage of Stacey actually reads: “Beneficially, the
use of a modularised system (having individual cards partitioned on a
functional basis) eliminates delay and minimises bandwidth on the ATM
switch because no essential signal processing interactions occur across
distinct cards; instead they are consolidated into single cards dedicated to
particular functions.” Stacey col. 9, ll. 24-30 (emphasis added). We agree
with the Examiner that this passage of Stacey, read in its entirety, teaches the
benefits of a modularized system having individual cards partitioned on a
functional basis. See Ans. 5. We further conclude that the passage does not
teach away from the claimed selective routing but, rather, provides guidance
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as to how to define the functional partitions for implementation on
individual cards (i.e., so that signal processing interactions are not required
between distinct cards).
Finally, Appellants contend, without further argument or evidence,
“that the specialized DSP processing and the DSP module/farm teachings, as
applied to non-packet data channels incoming to an interface module linking
a narrowband network with a broadband network, would not have been
obvious to combine with Marshall.” Br. 14-15. Such a statement, without
specific citation to support in the record, amounts to little more than a
conclusory statement of patentability and unsupported attorney argument.
Mere lawyer’s arguments and conclusory statements that are unsupported by
factual evidence are entitled to little probative value. In re Geisler, 116 F.3d
1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705
(Fed. Cir. 1984).
Appellants fail to persuade us that Stacey does not teach the features
relied on by the Examiner in rejecting claim 1 or that it would not have been
obvious to one of ordinary skill in the art at the time of the invention to
combine the features of Marshall and Stacey as articulated by the Examiner.
Conclusion
We conclude that in rejecting claim 1 as unpatentable under § 103(a)
the Examiner has established a prima facie case of obviousness, which
Appellants have not persuasively rebutted. Accordingly, we will sustain the
rejection of claim 1.
CLAIM 2
The Examiner finds the further limitations recited in claim 2 are
taught or suggested by Marshall. Ans. 5-6 (citing Marshall Fig. 4;
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¶¶ [0045], [0047]). Appellants contend, inter alia, that Marshall does not
teach or suggest “at least one local table [that] is related to a virtual router
and is maintained only in element cards of the router that are associated with
the virtual router” (emphasis added) as recited in claim 2. Br. 15.
We agree with Appellants. We agree with the Examiner that Marshall
discloses virtual routers and local tables related to the virtual router that are
maintained in element cards associated with the virtual router. See App. Br.
5-6, 24-26. However, the Examiner does not identify any teaching or
suggestion in Marshall that would preclude the local table from also being
maintained in other locations. Further, the Examiner does not articulate any
rationale as to why one of ordinary skill in the art would choose to only
maintain the at least one local table in element cards associated with the
virtual router. Therefore, the Examiner has failed to establish a prima facie
case of the obviousness of claim 2 and we will not sustain the rejection.
CLAIM 3
The Examiner finds the further limitations recited in claim 3 are
taught or suggested by Marshall. Ans. 5-6 (citing Marshall Figs. 4, 5, 14;
see also ¶ [0062]). Appellants contend: (1) that the Examiner’s reference to
step 1410 in Figure 14 (see Ans. 6) was a mistake or logical inconsistency;
(2) that the Examiner’s findings (see Ans. 5-6) regarding Marshall’s claim 2
seem to be inconsistent with the findings (see Ans. 6) regarding claim 3; and
(3) the Examiner has not established sufficient evidence to support an
obviousness rejection of claim 3 over Marshall and Stacey.
As explained by the Examiner, the Examiner’s reference to step 1410
in Figure 14 was to explain the functionality of Marshall’s line card 400.
Ans. 26-27 (citing Marshall Fig. 4, ¶ [0062]). With regard to Appellants’
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remaining contentions, Appellants do not persuasively identify specific
inconsistencies in the Examiner’s findings nor do Appellants persuasively
identify specific deficiencies in the teachings of Marshall and Stacey. See
Geisler, 116 F.3d at 1470. Accordingly, Appellants have not persuaded us
of error in the rejection of claim 3 and we will sustain the rejection.
CLAIM 4
The Examiner finds the further limitations recited in claim 4 are
taught or suggested by Marshall. Ans. 5-6 (citing Marshall Figs. 5, 14;
¶¶ [0045]-[0047], [0060]-[0061]). Appellants contend that operations
disclosed by Marshall do not establish an evidentiary basis for the
Examiner’s findings. Br. 17 (citing Marshall ¶¶ [0012]-[0013], [0040]).
As pointed out by the Examiner, Appellants’ arguments fail to address
the grounds of rejection articulated by the Examiner and, in particular, fail to
address the passages of Marshall relied upon by the Examiner. Ans. 29.
The arguments are, therefore, unpersuasive of error in the rejection of claim
4, and we will sustain the rejection.
CLAIM 5
The Examiner finds the further limitations recited in claim 5 are
taught or suggested by Marshall. Ans. 5-6 (citing Marshall ¶¶ [0045],
[0064]-[0065]). Appellants contend that claim 5 “plainly sets forth the
limitation of associating a range of network addresses with a particular
service provided by the routers” and that the limitation does not appear to be
taught or suggested by the cited passages, or by Marshall and Stacey as a
whole. Br. 18.
Appellants’ argument is unpersuasive, as it amounts to little more than
a repetition of the claim language and a general assertion that the cited
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passages do not meet the claim language. See 37 C.F.R. § 41.37(c)(1)(vii)
(2010); see also In re Lovin, 652 F.3d 1349, 1356 (Fed. Cir. 2011) (“We
conclude that the Board has reasonably interpreted Rule 41.37 to require
applicants to articulate more substantive arguments if they wish for
individual claims to be treated separately.”). Accordingly, Appellants have
not persuaded us of error in the rejection of claim 5 and we will sustain the
rejection.
CLAIM 8
The Examiner finds the further limitations recited in claim 8 are
taught or suggested by Marshall. Ans. 6-7 (citing Marshall Fig. 14; ¶ [0040]
(ll. 14-18)). Appellants contend that in rejecting claim 8 the Examiner has
“ignor[ed] the meaning of the word ‘proxy’” in claim 8. Br. 18. Appellants
further contend as follows:
The claim language unambiguously defines the switching
element card as a proxy between the forwarding element card
and the further card. Marshall's description of forwarding a
packet to its appropriate destination line card overlooks the
claim limitations at issue, and ignores the claimed arrangement
of cards and their associated proxy-related limitations. See,
e,g., paragraph [0031] of Marshall--there, Marshall describes
the supervisor engine card 300 in a manner that makes clear the
absence of the claimed proxy limitations from its operations.
Br. 19.
The Examiner maps the recited switching element card to Marshall’s
supervisor engine (see Marshall Fig. 2 (ref. 300)). See generally Ans. 6-7,
31-33. The Examiner explains that the “Supervisor Engine is functioning as
a ‘proxy’ as known to one of ordinary skilled in the art, i.e. it is performing
proxy functionality by being an intermediary between source line card and
destination line card; applying access policy to network services, scanning
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transmitted content before delivery and scanning outbound content.” Ans.
32.
The Examiner has made specific findings that the Marshall supervisor
engine performs the proxy functions recited in claim 8. Ans. 6-7, 31-33.
Appellants merely assert that Marshall’s supervisor engine does not meet the
recited “proxy limitations” without explaining what “proxy limitations”
Marshall’s supervisor engine fails to meet. Such generalized allegations of
error are unpersuasive. Accordingly, Appellants have not persuaded us of
error in the rejection of claim 8 and we will sustain the rejection.
CLAIM 9
Claim 9 includes substantially the same limitations as claim 1, was
rejected on substantially the same basis as claim 1 (see Ans. 7-9, 35-37), and
were argued on substantially the same basis as claim 1 (see Br. 21-24). For
reasons similar to those discussed supra regarding claim 1, we will sustain
the rejection of claim 9.
CLAIM 10
Claim 10 includes substantially the same limitations as claim 1, was
rejected on substantially the same basis as claim 1 (see Ans. 9-11, 37-41),
and were argued on substantially the same basis as claim 1 (see Br. 24-26).
Accordingly, and for the reasons similar to those discussed supra regarding
claim 1, we will sustain the rejection of 10.

REJECTIONS OF CLAIMS 6 AND 7 OVER MARSHALL, STACEY,
AND SUZUKI
The Examiner finds that Suzuki teaches or suggests the further
limitations of claims 6 and 7 and that it would have been obvious to one of
ordinary skill in the art to combine the teachings of Suzuki with the
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combined teachings of Marshall and Stacey. Ans. 12 (citing Suzuki
¶¶ [0014], [0028]). The Examiner maps claims 6’s recited “header” to
Suzuki’s header with destination information (Suzuki ¶ [0028]) and claim
7’s “metadata” to Suzuki’s flow information (Suzuki ¶ [0014]). Ans. 12.
The Examiner finds that
it would have been obvious to one of ordinary skill in the art at
the time of the invention to use the header information and
adding flow identifiers as taught by Suzuki in packet
classification system of Marshall and Stacey in order to
enhance system efficiency. Known work in one field of
endeavor may prompt variations of it for use in either the same
field or a different one based on design incentives or other
market forces/market place incentives if the variations are
predictable to one of ordinary skill in the art.
Id., see also Ans. 34-35. Appellants contend, inter alia, that the Examiner’s
rationale for combining Suzuki with Marshall and Stacey is conclusory and
based on speculation that the combination would enhance efficiency.1
We agree with the Appellants. The Examiner has not cited to any
evidence in the record, nor made any findings, that would persuasively
articulate how the efficiency of the combination of Marshall and Stacey
would be predictably enhanced by the addition of Suzuki’s header with
destination information or Suzuki’s flow information. Accordingly, we will
not sustain the rejections of claims 6 and 7.

ORDER
The decision of the Examiner to reject claims 1, 3-5, and 8-10 is
affirmed.

1 We do not reach Appellants’ other contentions regarding claims 6 and 7 as
we find the discussed contention to be dispositive.
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The decision of the Examiner to reject claims 2, 6, and 7 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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2010).

AFFIRMED-IN-PART

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