Ex Parte Sharma et al

Board of Patent Appeals and Interferences

Jun 27, 2012

10835404 (B.P.A.I. Jun. 27, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PUNEET SHARMA, SUNG-JU LEE,
JOHN T. BRASSIL, and KANG G. SHIN
____________

Appeal 2009-015156
Application 10/835,404
Technology Center 2400
____________

Before BRADLEY W. BAUMEISTER, JEFFREY S. SMITH,
and BRUCE R. WINSOR, Administrative Patent Judges.

WINSOR, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-015156
Application 10/835,404

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Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-35,1 which constitute all the claims pending in this application. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
Appellants’ invention relates to “communication systems for
computer systems, and more particularly to assigning wide area network
(WAN) links.” (Spec. 1:5-6). “WAN link preferences for subflows of an
application flow are determined. The characteristics of WAN links operable
to transmit the subflows are also determined. The WAN link preferences are
compared to the WAN link characteristics, and the subflows are assigned to
the WAN links based on the comparison.” (Abstract). Claim 1, which is
illustrative of the invention, reads as follows:
1. A method of assigning subflows of an application flow to
a plurality of WAN links, the method comprising:
determining WAN link preferences for the subflows,
wherein each of the subflows comprises a portion of data from
a single application flow;
determining WAN link characteristics of WAN links
operable to transmit the subflows;

1 Appellants refer to claims 1-43 (App. Br. 18), which we will treat as a
typographical error. Appellants request that an objection to the Abstract be
reversed. (Id.). However, the objection relates to petitionable subject matter
under 37 C.F.R § 1.181 and, therefore, this matter is not before us. See, e.g.,
MPEP § 706.01 (“[T]he Board will not hear or decide issues pertaining to
objections and formal matters which are not properly before the Board.”);
see also MPEP § 1201 (“The Board will not ordinarily hear a question that
should be decided by the Director on petition . . . .”).
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comparing the WAN link preferences to the WAN link
characteristics; and
assigning the subflows to the WAN links based on the
comparison.
The Examiner relies on the following prior art in rejecting the claims:
Frank WO 02/45013 A2 June 6, 2002
Okamura US 2004/0184483 A1 Sept. 23, 2004
S. Hanks, T. Li, D. Farinacci, & P. Traina, Generic Routing
Encapsulation (GRE), Network Working Group Request for Comments:
1701 (Oct. 1994), available at http://www.ietf.org/rfc/rfc1701.txt.
Claims 1-8, 12-24, 26, 31, and 32 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Frank. (Ans. 3).
Claims 9-11 and 25 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over by Frank in view of Okamura. (Ans. 3, 8).
Claims 27-30 and 33-35 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over by Frank in view of Hanks. (Ans. 3, 9).
Rather than repeat the arguments here, we refer to the Briefs (“App.
Br.” filed Feb. 9, 2009; “Supp. App. Br.” filed Mar. 26, 2009; “Reply Br.”
filed Aug. 5, 2009) for the positions of Appellants and the Final Rejection
(“Fin. Rej.” mailed Sept. 9, 2008) and the Answer (“Ans.” mailed June 9,
2009) for the positions of the Examiner. Only those arguments actually
made by Appellants have been considered in this decision. Arguments that
Appellants did not make in the Briefs have not been considered and are
deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).

Appeal 2009-015156
Application 10/835,404

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REJECTION OF CLAIMS 1-8, 12-24, 26, 31, AND 32 UNDER
35 U.S.C. § 102(B) AS ANTICIPATED BY FRANK
CLAIM 1
Appellants’ Contentions
Appellants contend as follows:
“Frank fails to teach determining WAN link characteristics of WAN
links operable to transmit the subflows” (App. Br. 11; see also Reply Br. 2-
3), as recited in claim 1. More particularly, “[t]he [virtual channel (VC)]
and pipe of Franks [sic] are not WAN links operable to transmit subflows.”
(App. Br. 12).
“Frank fails to teach assigning subflows to different WAN links based
on the comparison between preferences for subflows and characteristics for
the WAN links” (App. Br. 12; see also Reply Br. 3-4) because Frank’s
VC/pipe is not a WAN link.
“Frank fails to teach multiple WAN links.” (App. Br. 13).
Issues
The pivotal issues raised by Appellants’ contentions are:
Does Frank’s VC/pipe disclose “WAN links operable to transmit . . .
subflows,” as recited in claim 1?
Does Frank disclose “a plurality of WAN links,” as recited in claim 1?
Does Frank disclose “determining WAN link characteristics,” as
recited in claim 1?
Does Frank disclose “comparing the WAN link preferences to the
WAN link characteristics; and assigning the subflows to the WAN links
based on the comparison,” as recited in claim 1?
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Analysis
The Examiner finds that WAN links recited in claim 1 read on the
VC/pipes disclosed by Frank. (See Ans. 3-4; see also Frank 14:1-10; Figs.
1, 2a-b). Appellants contend that “the VC and pipe of Franks [sic] are the
data to be transmitted, i.e., the frames assigned to flows. The VC and pipe
of Franks [sic] are not WAN links operable to transmit subflows.” (App. Br.
12). We agree with the Examiner.
Appellants point to Frank’s definitions of “VC” and “pipe” (App. Br.
11):
- Virtual Channel (VC) - a group of flows that share
common attributes and have a common [Quality of Service
(QoS)] policy.
- Pipe - a group of VCs whose underlying flows share
common attributes. All flows under a pipe share the pipe’s
QoS policy.
(Frank 9:17-21). The ordinary meanings of “VC” and “pipe” as would have
been understood by one of ordinary skill in the art are: “virtual channel
[(“VC”)] . . . the path taken by data sent from one sender to one receiver,”
MICROSOFT COMPUTER DICTIONARY 553 (5th ed. 2002), and “pipe . . . [a]
portion of memory that can be used by one process to pass information along
to another,” id. at 405.
Comparing the ordinary meanings of “VC” and “pipe” with Frank’s
definitions (Frank 9:17-21), we find that Frank’s definitions do not
contradict the ordinary meaning of the words. This finding is reinforced by
the fact that Frank defines flow and connection (i.e., “link”) with the same
definition (Frank 9:9). Appellants argue that “Frank does not disclose
determining WAN link characteristics for physical connections, such as
telephony connections or Internet access connections, transmitting
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subflows.” (Reply Br. 3 (citing Spec. 5:10-16)). However, Appellants’
Specification envisions that WAN links may be logical links rather than
physical connections (see Spec. 4:3-7).
We find that one of ordinary skill in the art would have understood
Frank’s VC and pipe to be logical links encompassed by the phrase “WAN
links operable to transmit . . . subflows” recited in claim 1.
Appellants contend that “Frank only discloses a single interface 31 in
figure 1, and fails to teach multiple WAN links connected to the interface
31.” (App. Br. 13). However, as discussed above, the phrase “WAN links
operable to transmit . . . subflows” encompasses logical links as well as
physical connections. We find, as did the Examiner, that Frank discloses
incoming traffic (Frank Fig. 1, Ref. 12) (i.e., as “application flow”) that is
classified (id., Ref. 13) into a plurality of flows (id., Ref. 23) (i.e.
“subflows”) which are assigned to one of a plurality of VC/pipes (i.e.,
“multiple WAN links”) by matching the flow (i.e., “subflows”) to
appropriate VC/pipe definitions (i.e., “WAN link characteristics”) (Frank
14:8-10). We note that the test of anticipation is not whether the prior art
uses the same terminology as the claim. See In re Bond, 910 F.2d 831, 832
(Fed. Cir. 1990) (“These elements must be arranged as in the claim under
review, but this is not an ‘ipsissimis verbis’ test” (citations omitted)).
Therefore, we agree with the Examiner (Ans. 4, 12) that Frank discloses
“multiple WAN links,” as recited in claim 1.
Appellants contend “Frank fails to teach determining WAN link
characteristics.” (App. Br. 11). Frank discloses “looking up the VC and
pipe [(i.e., ‘WAN link’)] definitions stored in policy database 25.” (Frank
14:10). We find, as did the Examiner (Ans. 3-4, 11), that “WAN link
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characteristics” encompasses Frank’s “VC and pipe definitions” and
“determining WAN link characteristics” encompasses Frank’s looking up of
definitions in a policy database.
Appellants contend “Frank fails to teach assigning subflows to
different WAN links based on the comparison between preferences for
subflows and characteristics for the WAN links.” (App. Br. 12). Frank
discloses “match[ing] the flow 23 [(i.e., ‘subflow’)] to an appropriate
VC/pipe [(i.e., ‘WAN link’)] (i.e. a policy) by looking up the VC and pipe
definitions [(i.e., ‘WAN link characteristics.’)]” (Frank 14:9-10), and
assigning the flow (i.e., “subflow”) to a matching VC/pipe (i.e., “WAN
link”) (Frank Figs. 1, 2a-b). We find, as did the Examiner (Ans. 4, 10), that
Frank’s disclosure of matching a flow to a VC/pipe definition and assigning
the flow to the VC/pipe based on the VC/pipe definition is encompassed by
“comparing the WAN link preferences to the WAN link characteristics; and
assigning the subflows to the WAN links based on the comparison,” as
recited in claim 1.
Appellants have failed to persuade us of error in the Examiner’s
rejection of claim 1. Independent claim 22 was argued relying on arguments
made for claim 1 (App. Br. 14). Claims 2 and 7, which depend from claim
1, and claims 23 and 26, which depend from claim 22, were not separately
argued. Accordingly, we will sustain the rejection of claims 1, 2, 7, 22, 23,
and 26.
CLAIM 3
The Examiner finds that Frank’s disclosure of classifying flows (i.e.,
“subflows”) according to their protocol and assigning the flows to VC/pipes
on the basis of that classification (see Frank 14:1-10; Figs. 1, 2a-b) is
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encompassed by “identifying an application associated with the application
flow; and determining WAN link preferences [for the subflows] based on the
identified application,” as recited in claim 3. (Ans. 4; see also Fin. Rej. 11).
The Examiner further explains “[a]s it can be seen in [Figure 1], each flow
belongs to [a] specific type of network application.” (Ans. 13).
Appellants contend “Frank . . . fails to teach WAN link preferences
are determined based on the transport [sic] protocol for a frame.” (App. Br.
13). Appellants further contend “the flows are not WAN links, so Frank
fails to teach determining WAN link preferences.” (Reply Br. 4).
The thrust of Appellants’ arguments is the same as arguments made
for the patentability of claim 1, i.e., that Frank’s VC/pipes are not
encompassed within the “WAN links” recited in claims 1 and 3. We find
Appellants’ arguments unpersuasive for the reasons set forth supra regarding
claim 1.
Appellants have failed to persuade us of error in the Examiner’s
rejection of claim 3. Claim 4, which depends from claim 3, was not
separately argued. Accordingly, we will sustain the rejection of claims 3
and 4.
CLAIM 5
Appellants contend that “Frank . . . fails to teach prioritizing frames
based on their transport protocol.” (App. Br. 13). Appellants further
contend as follows:
[T]he Examiner is interpreting the flows of Frank to be the
claimed subflows.
The Examiner is inconsistently interpretating [sic] the
VC of Frank to be both the claimed WAN links operable to
transmit subflows and also to be the claimed subflows. The VC
of Frank, which Franks [sic] defines to be the flows, cannot be
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both the flows and the link that carries the flows. Thus, the
Examiner is clearly stretching the reference to include features
that simply are not taught or suggested by the reference.
(Reply Br. 4).
The thrust of Appellants’ arguments is the same as arguments made
for the patentability of claim 1, i.e., that Frank’s VC/pipes are not
encompassed within the “WAN links” recited in claims 1 and 5 and that
Frank’s “flows” are not encompassed within the recited “subflows.”
We are not persuaded that the Examiner is interpreting Frank
inconsistently, and we find Appellants’ arguments unpersuasive for the
reasons set forth supra regarding claim 1. Claim 6, which depends from
claim 5, was not separately argued. Claim 24, which depends from claim
22, which was argued relying on the arguments made for claim 1, see supra,
is argued on substantially the same basis as claim 5. Accordingly, we will
sustain the rejection of claims 5, 6, and 24.
CLAIM 8
The Examiner finds that “Frank discloses a method that comprises
demultiplexing the application flow into the subflows.” (Ans. 5; see Frank
Fig. 1). Appellants contend that: “[Frank’s] Figure 1 shows generating
multiple flows, rather than subflows, from incoming traffic, i.e., frames.
Furthermore, the Final Office Action interprets the subflows as frames of a
flow. Frank fails to teach demultiplexing any of the flows 1-5 shown in
figure 1 into frames.” (App. Br. 13).
We are unpersuaded by Appellants’ contention. We find, as did the
Examiner (Ans. 5, 13), that Frank discloses a frame and flow classifier
(Frank Fig. 1, Ref. 13) that demultiplexes incoming traffic (id., Ref 12) (i.e.,
“application flow”) into a plurality of flows (id., Ref. 23) (i.e., “subflows”).
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The test of anticipation is not whether the prior art uses the same
terminology as the claim. See Bond, 910 F.2d at 832.
We are not persuaded that the Examiner erred in rejecting claim 8 and
we will, therefore, sustain the rejection of claim 8.
CLAIM 12
Appellants’ contentions regarding independent claim 12 are
substantially the same as for claims 1 and 8 and are unpersuasive for the
same reasons. Appellants’ contention regarding claim 13, which depends
from claim 12, is substantially the same as for claim 8, and is unpersuasive
for the same reason. Claims 14 and 15, which depend from claim 12, were
not separately argued. Appellants’ contention regarding claim 16, which
depends from claim 15, is substantially the same as for claim 5, and is
unpersuasive for the same reason. Accordingly, we will sustain the rejection
of claims 12-16.
CLAIM 17
Appellants contend that Frank does not anticipate claim 17 for reasons
that are substantially the same as the contentions made regarding claims 1
and 8. (App. Br. 14). These contentions are unpersuasive for the reasons set
forth supra.
Appellants further contend that “Frank fails [to] teach a best match.
Instead, in Frank, a frame for a flow will not be transmitted if a QoS policy
for the flow is not satisfied, so there is no best match determination.” (Id.).
The Examiner responds that “Frank teaches a method of matching between
flows and links based on the QOS [sic] requirements.” (Ans. 13). Other
than Appellants’ contention, Appellants provide no persuasive explanation
why matching the QoS requirements of the frames in the flow (i.e.,
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“subflow”) to the QoS characteristic of the VC/pipe (i.e., “WAN link”) (see
Frank 9:17-21; 14:1-10) is not encompassed by “[assigning] at least one of
the subflows . . . to a WAN link of the set of WAN links having WAN link
characteristics that best match the WAN link preferences of the at least one
subflow,” as recited in claim 17. Mere attorney’s arguments and conclusory
statements, which are unsupported by factual evidence in the record, are
entitled to little probative value. Cf. In re Geisler, 116 F.3d 1465, 1470
(Fed. Cir. 1997).
Appellants have not persuaded us of error in the Examiner’s rejection
of claim 17.2 Independent claim 31 was argued relying on arguments made
for claim 17 (App. Br. 14). Claims 18-21, which depend from claim 17, and
claim 32, which depends from claim 31, were not separately argued.
Accordingly, we will sustain the rejection of claims 17-21, 31, and 32.

REJECTION OF CLAIMS 9-11 AND 25 UNDER 35 U.S.C. § 103(A) AS
UNPATENTABLE OVER BY FRANK AND OKAMURA
In arguing the patentability of claims 9-11 and 25, Appellants reiterate
the arguments made for claim 1 and assert that Okamura does not cure the
alleged deficiencies in Frank. (App. Br. 16). As we are not persuaded that
the Examiner erred in rejecting claim 1, we are similarly unpersuaded that
the Examiner erred in rejecting claims 9-11 and 25. Accordingly we will
sustain the rejection of claims 9-11 and 25.

2 Claims 17 includes means-plus-function limitations in accordance with
35 U.S.C. § 112, 6th paragraph. We note, however, that Appellants’
arguments do no rely on the structure disclosed in Appellants’ Specification
(see Supp. App. Br. 5) and equivalents thereof, and such arguments are,
therefore, waived. See 37 C.F.R. § 41.37(c)(1)(vii).
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REJECTION OF CLAIMS 27-30 AND 33-35 UNDER 35 U.S.C. § 103(A)
AS UNPATENTABLE OVER BY FRANK AND HANKS
In arguing the patentability of claims 27-30 and 33-35, Appellants
reiterate the arguments made for claim 1 and assert that Hanks does not cure
the alleged deficiencies in Frank. (App. Br. 16). As we are not persuaded
that the Examiner erred in rejecting claim 1, we are similarly unpersuaded
that the Examiner erred in rejecting claims 27-30 and 33-35. Accordingly
we will sustain the rejection of claims 27-30 and 33-35.

ORDER
The decision of the Examiner to reject claims 1-8, 12-24, 26, 31, and
32 under 35 U.S.C. § 102(b) as anticipated by Frank is affirmed.3
The decision of the Examiner to reject claims 9-11 and 25 under
35 U.S.C. § 103(a) as unpatentable over Frank in view of Okamura is
affirmed.
The decision of the Examiner to reject claims 27-30 and 33-35 under
35 U.S.C. § 103(a) as unpatentable over Frank in view of Hanks is affirmed.

3 The Board of Patent Appeals and Interferences is a review body, rather
than a place of initial examination. In the event of further prosecution of
claims 17-21, or claims in similar form, we leave to the Examiner to
determine whether such claims are patentable under 35 U.S.C. § 112, second
paragraph. See Supplementary Examination Guidelines for Determining
Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in
Patent Applications, 76 Fed. Reg. 7162, 7168, at Part 1.III.C.3 (Feb. 9,
2011). In the event of further prosecution of claims 22-26, or claims in
similar form, we leave to the Examiner to determine whether such claims are
directed to statutory subject matter under 35 U.S.C. § 101. See In re Nuijten,
500 F.3d 1346, 1357 (Fed. Cir. 2007); David J. Kappos, Subject Matter
Eligibility of Computer Readable Media, 1351 OFF. GAZ. PAT. OFFICE 212
(Feb. 23, 2010).
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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

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