Ex Parte Terry et al

Patent Trial and Appeal Board

Apr 26, 2017

13092873 (P.T.A.B. Apr. 26, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/092,873 04/22/2011 John Michael Terry BRCD-3056. l.US.NP 7552
73257 7590 04/28/2017
PVF — Brocade Communications Systems Inc.
c/o PARK, VAUGHAN, FLEMING & DOWLER LLP
2820 Fifth Street
Davis, CA 95618
EXAMINER
PATEL, PARTHKUMAR
ART UNIT PAPER NUMBER
2468
NOTIFICATION DATE DELIVERY MODE
04/28/2017 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):
sy_incoming @parklegal.com
j eannie @parklegal. com
wendy@parklegal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN MICHAEL TERRY, MANDAR JOSHI,
PHANIDHAR KOGANTI, SHUNJIA YU, and ANOOP GHANWANI
Appeal 2016-001236
Application 13/092,8731
Technology Center 2400
Before KRISTEN L. DROESCH, LINZY T. McCARTNEY, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
DROESCH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek review under 35 U.S.C. § 134(a) from the Examiner’
Non-Final Rejection of claims 1—21, all of the pending claims in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants indicate the real party-in-interest is Brocade Communications
Systems, Inc. App. Br. 1.
Appeal 2016-001236
Application 13/092,873
BACKGROUND
The disclosed invention relates to a method and system for remote
load balancing in high-availability networks. Spec. Abstract, 2:9-10.
CLAIMED SUBJECT MATTER
Representative claim 1, reproduced from the Claims Appendix of the
Appeal Brief, reads as follows (disputed limitations in italics)'.
1. A system, comprising:
a mapping module adapted to identify at least two egress
switches coupled to a common remote destination device for a
frame, wherein a respective egress switch of the identified
egress switches is coupled to the destination device via one
hop; and
a determination module adapted to determine an egress
switch for the frame from the identified egress switches; and
a header generation module adapted to assign an identifier
of the determined egress switch to the frame as the frame’s
egress switch identifier.
REFERENCES AND REJECTIONS ON APPEAL
Claims 1, 2, 4, 5, 10, 11, 13, 14, 19, and 20 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Rai et al. (US 2012/0027017 Al; Feb.
2, 2012) (“Rai”).
Claims 3, 6—9, 12, 15—18, and 21 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Rai and Mehta et al. (US 2011/0019678 Al;
Jan. 27, 2011) (“Mehta”).
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments in the Appeal Brief, the Examiner’s Answer, and Appellants’
arguments in the Reply Brief responsive to the Answer. Any arguments not
raised and developed timely in the Briefs have been waived by Appellants.
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Appeal 2016-001236
Application 13/092,873
See 37 C.F.R. § 41.37(c)(l)(iv). We are not persuaded by Appellants’
arguments. We highlight and address specific findings and arguments below
for emphasis.
Appellants argue that Rai does not teach identifying “at least two
egress switches coupled to a common remote destination device for a frame,
wherein a respective egress switch of the identified egress switches is
coupled to the destination device via one hop,” as required by independent
claims 1, 10, and 19. See App. Br. 6. Specifically, Appellants contend that
the Examiner’s finding that Rai’s switches SI and S4 teach the at least two
egress switches is erroneous because “switches S1 and S4 are not coupled to
‘a common remote destination device for a frame.’” Id. at 7.
Appellants’ arguments are not persuasive because they are premised
incorrectly on a requirement that the at least two egress switches are directly
coupled to a common remote destination device.
Figure lb of Rai is reproduced below:
Figure lb depicts an example network infrastructure. See Rai H 5, 21. Rai
teaches switch S4 coupled directly to common destination host 110 and
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Appeal 2016-001236
Application 13/092,873
switch SI coupled, via switch S4, to common destination host 110. See Rai
1120, 22.
Appellants also contend that Rai’s description that a forwarding table
210 provides a lookup table mapping ports on device 200 to the address of a
device connected to a given port teaches determining a local port coupled to
a local device. See App. Br. 7 (citing Rai 128); Rai Fig. 2. Appellants
contend that Rai’s “mapping does not map egress switches to ‘a common
remote destination device for a frame.’” Id.
Appellants’ arguments are not persuasive because Appellants do not
direct us to objective evidence to demonstrate that Rai’s teachings are
limited to a local destination device. Appellants also do not direct us to
objective evidence to support a specific meaning for the terms “remote” or
“remote destination device,” such that the terms designate a specific
distance. We note that “remote” is a term of relative degree since the remote
destination may be located only a short distance from the at least two egress
switches or mapping module, but still may be considered remote relative to
the egress switches or mapping module. See Brookhill-Wilk 1, LLC v.
Intuitive Surgical, Inc., 334 F.3d 1294, 1302 (Fed. Cir. 2003) (construing the
ordinary and customary meaning of “the term ‘remote location’ to
encompass not just locations that are ‘far apart’ or ‘distant,’ but also those
locations that are merely ‘separated by intervals greater than usual.’”
(citation omitted)).
Appellants further argue that the Examiner erred in finding that Rai
teaches “a respective egress switch of the identified egress switches is
coupled to the destination device via one hop” because destination c is
coupled to one of the identified switches (i.e., SI) via another switch S5,
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Application 13/092,873
thus utilizing two links. App. Br. 7. Appellants’ arguments are not
persuasive because Rai teaches one of the identified switches S4 is coupled
to destination host device 110 via one hop. See Rai. Fig. IB, || 20, 22.
Related to the previous arguments, Appellants contend that because “a
packet egresses from an egress switch to a destination device, a host in Rai is
destination device.” App. Br. 9. On this basis, Appellants argue: (1) an
egress switch in Rai does not share a common host with another egress
switch; and (2) if a host in Rai is one hop away from an egress switch, that
host is not one hop distance with another egress switch. See id.
Appellants’ arguments are not persuasive because they are not
commensurate in scope with the claim limitations. Claims 1,10, and 19 do
not require an egress switch to share a common destination device with
another egress switch, and the destination device to be one hop away from
all of the at least two egress devices. The recitation “at least two egress
switches coupled to a common remote destination device for a frame,
wherein a respective egress switch of the identified egress switches is
coupled to the destination device via one hop” does not require all of the at
least two identified egress switches to be coupled directly (i.e., via one hop)
to a common remote destination device, but only requires one respective
egress switch of the at least two identified egress switches coupled via one
hop to the common remote destination device. Rai teaches switch S4, one of
the at least one of the identified egress switches, is coupled to destination
host device 110 via one hop. See Rai. Fig. IB, || 20, 22.
Lastly, Appellants argue that Rai does not teach “assigning an
identifier of the determined egress switch to the frame as the frame’s egress
switch identifier” because paragraphs 32 and 34 of Rai disclose adding an
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Application 13/092,873
L2 multipath header and a frame 500 having a multicast address indicating a
MAC address to which the frame 500 is being forwarded. See App. Br. 8.
Appellants contend a multicast address is not the same as an identifier of the
determined egress switch. See id.
Appellants’ arguments are not persuasive because they do not address
sufficiently the Examiner’s findings that Rai teaches adding a header for a
selected route. See Non-Final Act. 5 (citing Rai Tflf 32, 34). Rai teaches that
the header 505 of the frame 500 includes a route bridge ID, indicating a
selected one of the multipath routes to use in forwarding the frame 500, and
a multicast address indicating a MAC address to which the frame 500 is
being forwarded. See Rai ]Hf 32, 34, Fig. 5. Rai’s teaching of a route bridge
ID in the header 505 of the frame 500, in addition to the multicast MAC
destination address, suggests to one with ordinary skill in the art that the
route bridge ID and multicast MAC address in header 505 identifies the
corresponding intermediate switch(es) and egress switch(es) of the selected
route and destination address.
In the Reply Brief, Appellants present new arguments that are not
responsive to any findings raised for the first time in the Answer. See Reply
Br. 8—10. The substantive responses in the Examiner’s Answer are nearly
identical to the findings in the Non-Final Action. Compare Ans. 2-4, with
Final Act. 4—6. In the Appeal Brief, Appellants do not substantively address
the rejections of dependent claims 2—9, 11—18, 20, and 21 (see App. Br. 6—
9), but Appellants present substantive arguments for the first time
addressing dependent claims 2—9, 11—18, 20, and 21 (see Reply Br. 11—18).
Arguments raised for the first time in the Reply Brief are deemed waived
and will not be considered by the Board without a showing of good cause.
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Appeal 2016-001236
Application 13/092,873
See 37 C.F.R. § 41.41(b)(2) (2012); see also Ex parte Borden, 93 USPQ2d
1473, 1474 (BPAI 2010) (informative) (“[T]he reply brief [is not] an
opportunity to make arguments that could have been made in the principal
brief on appeal to rebut the Examiner's rejections, but were not.”).
Appellants do not provide good cause for consideration of Appellants’
belated arguments. See Reply Br. 8—18.
For all of the foregoing reasons, Appellants do not persuade us of
error in the Examiner’s rejections of claims 1, 2, 4, 5, 10, 11, 13, 14, 19, and
20 as unpatentable over Rai, and of claims 3, 6—9, 12, 15—18, and 21 as
unpatentable over Rai and Mehta.
DECISION
We AFFIRM the rejections of claims 1—21.
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
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