Ex Parte Waitzmann

Patent Trial and Appeal Board

Mar 21, 2013

11061572 (P.T.A.B. Mar. 21, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte CARSTEN WAITZMANN
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Appeal 2010-009891
Application 11/061,572
Technology Center 2400
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Before CAROLYN D. THOMAS, BRUCE R. WINSOR, and
DANIEL N. FISHMAN, Administrative Patent Judges.

FISHMAN, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-10. App. Br. 8.1 We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.

1 Throughout this opinion, we refer to: (1) the Appeal Brief (“App. Br.”)
filed June 8, 2009; (2) the Examiner’s Answer (“Ans.”) mailed August 5,
2009; and (3) the Reply Brief (“Reply Br.”) filed October 5, 2009.
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STATEMENT OF THE CASE
The Invention
Appellant’s invention relates to detecting a fault of a packet switching
fabric plane and/or a destination board in a media gateway. Responsive to
the detection, the invention determines the media access control (“MAC”)
address of the faulty element and reassigns the determined MAC address to
a spare packet switching fabric plane and/or spare destination board. See
generally Abstract.
Claim 1 is reproduced below and is illustrative of the claims at issue
on this appeal:
1. A method of providing a reconfiguration of a packet
switching fabric plane and/or source boards of a media gateway,
wherein a set of source boards and a set of destination boards of the
media gateway are connected via Ethernet trunks through a set of
packet switching fabric planes of the media gateway, the method
comprising the steps of:
detecting a failure of a packet switching fabric plane and/or a
destination board of the media gateway;
determining the Ethernet media access control address of the
concerned or faulty destination board; and
reassigning the determined Ethernet medium access address to a
spare packet switching fabric plane and/or a spare destination board.
The Examiner relies on the following as evidence of unpatentability:
Kurio US 5,774,640 June 30, 1998
Byrnes US 2002/0095493 A1 July 18, 2002
Dubois US 2002/0154646 A1 Oct. 24, 2002
Vepa US 6,512,774 B1 Jan. 28, 2003
Keenan US 6,577,631 B1 June 10, 2003
The Rejections
Claims 1 and 10 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Dubois and Kurio. Ans. 3-6.
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Claim 2 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Dubois, Kurio, and Vepa. Ans. 6-7.
Claims 3-5 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Dubois, Kurio, and Byrnes. Ans. 7-9.
Claim 6 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Dubois, Kurio, and Keenan. Ans. 9-10.
Claims 7-9 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Dubois, Kurio, Keenan, and Byrnes. Ans. 10-11.
Rather than repeat the arguments here, we refer to Appellant’s Briefs
and the Answer for the respective positions of Appellant and the Examiner.
Only those arguments actually made by Appellant have been considered in
this decision. Arguments that Appellant 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) (2010).

ISSUES
Appellant argues claims 1 and 10 together. App. Br. 9-15; Reply Br.
4-7. Appellant’s arguments regarding claims 2-9 rely on the arguments made
for claim 1. App. Br. 15-16; Reply Br. 7-8. Accordingly, we will discuss
Appellant’s contentions by reference to claim 1. Appellant’s contentions
raise the following issues:
1. Has the Examiner articulated a reason with some rational
underpinnings for the proposed combination of Dubois and Kurio?
2. Has the Examiner erred by failing to identify each limitation
recited in claim 1 in the combination of Dubois and Kurio?
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3. Has the Examiner erred in finding that Kurio teaches the steps of:
“determining the Ethernet media access control address of the
concerned or faulty destination board; and reassigning the
determined Ethernet medium access address to a spare packet
switching fabric plane and/or a spare destination board” as recited
in claim 1?

ANALYSIS
Issue 1
The Examiner finds that Dubois in combination with Kurio teaches all
the recited limitations of claim 1. The Examiner explains the combination
stating:
Therefore, it would have been obvious to one of ordinary skill
in the art at the time of invention to modify Dubois et al.'s
method to include determining the Ethernet media access
control address of the concerned or faulty destination board;
and reassigning the determined Ethernet medium access address
to a spare packet switching fabric plane and/or a spare
destination board disclosed by Kurio for failure-free data
transmission in the system.
Ans. 4-5. See also Ans. 18.
Appellant contends as follows:
Dubois relates to a programmable services node system for
providing call services to subscribers and providing
connectivity to voice and data networks and a framework for
managing those connections, while Kurio provides a fault
tolerant network interface comprising primary and alternate
network controllers where polling messages are sent between
the primary and alternate controllers to determine if a fault in
either of these controllers and allowing the alternate controller
to assume the physical address of the primary controller if a
fault has occurred in the primary controller.
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App. Br. 14-15. In other words, Appellant asserts Dubois and Kurio “are
directed to completely different objects.” App. Br. 15. We are not persuaded.
As pointed out by the Examiner, “both the packet switching fabric
plane/destination board of PSN (Programmable Services Node) system of
Dubois et al. and the network connecting device/fault tolerant network
interface of Kurio use “MAC” addresses for their functioning in the network
and thus these two references are not directed to completely different
objects.” Ans. 25.
The Supreme Court, quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006), stated that “‘[R]ejections on obviousness grounds cannot be sustained
by mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness.’” KSR Int’l Co. v Teleflex Inc., 550 U.S. 398, 418 (2007). We
conclude that the Examiner has articulated reasons for the proposed
combination with rational underpinnings, which have not been persuasively
rebutted by Appellant. Accordingly, Appellant has not demonstrated error in
the Examiner’s reasons for combining Dubois and Kurio.
Issue 2
The Examiner maps the structural context in the preamble of method
claim 1 to the structure of Dubois shown in Fig. 2 as described in ¶¶ 0033,
0039, 0040, and 0041. Ans. 3. The Examiner finds the detecting step taught
by Dubois in Fig. 4 and ¶ 0054. Ans. 3-4. The Examiner notes that Dubois
does not teach the determining and reassigning steps but finds Kurio
teaching these steps in column 2, lines 33-53 (and articulated a reason for
the combination). Ans. 4-5.
Appellant argues:
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The Examiner broadly cites paragraphs [0033], [0039]-[0041],
and [0054] of Dubois as allegedly teaching these elements of
the claims. However, the Examiner does not articulate with any
specificity how the claimed “packet switching fabric plane”, the
claimed “source board”, and the claimed "destination board"
read on the cited reference.
App. Br. 11-12. Appellant also contends that Dubois fails to show a “set” of
boards or a “set” of packet switching fabric planes as recited in claims 1 and
10 because “set” refers to more than one board or plane. App. Br. 12. We are
not persuaded.
The Examiner’s Answer explains the mapping of Dubois to claim 1.
In particular, the Examiner states (emphases added):
As shown in above figures 2 & 4, Dubois et al. teach a method
of providing a reconfiguration of a packet switching fabric
plane and/or source boards of a media gateway (see above Fig.2
for media gateway and paragraph [0036] for Access Control
Subsystem (ACS) of media gateway wherein is mentioned that
access processing module 70 & switching resource module 60
together form switching fabric plane of media gateway and the
communication resource modules 80a/b & digital signal
processing modules 90a/b together form I/O cards i.e.
source/destination boards of media gateway and see paragraph
[0039] wherein the access processing module 70 controlling
communication resource modules 80a/b & digital signal
processing modules 90a/b i.e. the I/O cards via the switching
resource module 60 across cPCI backplane via 100 Backplane
Ethernet links is mentioned), wherein a set of source boards and
a set of destination boards of the media gateway are connected
via Ethernet trunks through a set of packet switching fabric
planes of the media gateway (see Fig.2 & page 3, paragraph
[0036] wherein coupling of the access resource module 70 &
the switching resource module 60 via link 62 and coupling of
the switching resource module 60 & the communication
resource modules 80a/b & digital signal processing modules
90a/b via links 52/54 & 56/58 respectively is mentioned and
also communication resource modules 80a/b & digital signal
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processing modules 90a/b populating a meshed network 100 is
mentioned and see paragraph [0039] wherein the access
processing module 70 controlling communication resource
modules 80a/b & digital signal processing modules 90a/b i.e.
the I/O cards via the switching resource module 60 across cPCI
backplane via 100 Backplane Ethernet links is mentioned and
also see paragraph [0040] wherein redundancy for each of the
hardware components of fig.2 i.e. media gateway is mentioned
which shows including more than one component i.e. set of
components for I/O boards i.e. source/destination boards and
for packet switching fabric plane components and also in para
[0041], one or more components & functionality of the PSN
system 30/media gateway is mentioned)
Ans. 15-16. We agree. The Examiner finds that Dubois teaches the recited
switching fabric planes as the combination of modules 60 and 70 of Dubois
and shows the recited source and destination boards as the combination of
modules 80a/b and 90a/b. The Examiner further notes that Dubois shows a
set of boards and a set of fabric planes, noting in particular the discussion of
redundancy of the various components in Dubois. Ans. 21-22. We further
note that Fig. 2 of Dubois shows multiple boards (80a/b and 90a/b) and Fig.
4 of Dubois shows multiple fabric planes (60 and 70). Thus, “sets” of planes
and boards are taught or suggested in Dubois.
Appellant further argues that Kurio fails to show the recited packet
switching fabric planes and the destination board as recited in the claims.
App. Br. 13-14; Reply Br. 6. We are not persuaded. The Examiner does not
rely on Kurio for teaching the structural elements (i.e., boards and fabric
planes) recited in claim 1 but rather, as noted above, relies on teachings of
Dubois as teaching these elements. Appellant’s argument improperly argues
the teachings of Kurio separately from the combination of Dubois and
Kurio.
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The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill
in the art.
In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted). “[O]ne
cannot show non-obviousness by attacking references individually where, as
here, the rejections are based on combinations of references.” Id. at 426. We
find that Dubois teaches all the structural elements of claim 1.

Issue 3
The Examiner finds that Dubois at ¶ 0054 teaches the detecting step of
claim 1 and that Kurio at column 2, lines 33-52 teaches the determining and
reassigning steps/functions. Ans. 3-5, 16-18. Appellant contends that Kurio
fails to teach the determining and reassigning steps (functions) lacking in
Dubois because Kurio only reassigns a MAC address of a faulty controller to
its paired redundant controller and does not show the additional redundancy
of “spare” boards. App. Br. 13-14; Reply Br. 6-7. We are not persuaded. We
find that Dubois teaches the detecting step and that Kurio teaches the
determining and reassigning steps of claim 1.
Appellant’s arguments are essentially based on Appellant’s assertion
that Kurio does not teach the structural elements of switched fabric planes
and destination boards and that therefore Kurio cannot show the steps of
determining the MAC address of a faulty destination board and reassigning
the determined MAC address to a spare board or fabric plane. See, e.g., App.
Br. 14; Reply Br. 5-7. As noted above, the Examiner does not rely on Kurio
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for teaching the structure of the boards and fabric planes and Appellant is
improperly attempting to show non-obviousness by arguing the teachings of
Kurio separately from the combination of Dubois and Kurio. Keller 642 F.2d
at 426. Further, as noted above, the test of obviousness is not whether the
features of a secondary reference (Kurio) may be bodily incorporated into
the structure of the primary reference (Dubois). Id. at 425.
Kurio recites: “When a fault is detected, the device driver disables the
first network connecting device, and reassigns the first MAC address to the
second network connecting device.” Kurio, col. 2, ll. 44-47. We find this
recitation of Kurio teaches the determining and reassigning steps. These
teachings of Kurio are properly combined with that of Dubois as discussed
above to show all elements of claim 1. Even assuming, arguendo, that Kurio
fails to explicitly teach a step of determining the MAC address of the faulty
first network connecting device (which it does teach), it clearly “reassigns”
the MAC address of that first device which necessarily entails determining
its MAC address.

CONCLUSION
For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of independent claim 1 and claim 10 which was argued with
claim 1. Dependent claims 2-9 are argued to be patentable merely based on
their dependency on claim 1, and that the additionally cited art fails to
remedy the alleged deficiencies in the rejection of claim 1. App. Br. 15-16;
Reply Br. 7-8. We, therefore, are not persuaded of error in the rejections of
claims 2-9 for the reasons set forth above regarding claim 1. Accordingly,
we sustain the rejections under 35 U.S.C. § 103(a) of (1) claims 1 and 10 as
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unpatentable over Dubois and Kurio; (2) claim 2 as unpatentable over
Dubois, Kurio, and Vepa; (3) claims 3-5 as unpatentable over Dubois, Kurio,
and Byrnes; (4) claim 6 as unpatentable over Dubois, Kurio, and Keenan;
and (5) claims 7-9 as unpatentable over Dubois, Kurio, Keenan, and Byrnes.

DECISION
The Examiner’s decision rejecting claims 1-10 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)(1)(iv).

AFFIRMED

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