FatPipe, Inc.

Patent Trials and Appeals Board

Dec 18, 2020

2019002623 (P.T.A.B. Dec. 18, 2020)

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.
15/338,341 10/29/2016 Sanchaita DATTA 3003.2.27A 8110
23484 7590 12/18/2020
John Ogilvie
2148 E. 11270 S.
Sandy, UT 84092
EXAMINER
LANIER, BENJAMIN E
ART UNIT PAPER NUMBER
2437
NOTIFICATION DATE DELIVERY MODE
12/18/2020 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):
john@OgilvieLawFirm.com
johnwogilvie@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte SANCHAITA DATTA, BHASKAR RAGULA,
XIAOXIONG FAN, and SANKHADIP SENGUPTA1
________________

Appeal 2019-002623
Application 15/338,341
Technology Center 2400
________________

Before BRADLEY W. BAUMEISTER, IRVIN E. BRANCH, and
DAVID J. CUTITTA II, Administrative Patent Judges.

BAUMEISTER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1–20, which constitute all of the pending claims. Appeal
Br. 1. We have jurisdiction under 35 U.S.C. § 6(b). The Board conducts a
limited de novo review of the appealed rejections for error based upon the
issues identified by Appellant, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential).
We REVERSE.

1 Appellant identifies FatPipe, Inc. as the real party in interest. Appeal Brief
filed November 26, 2018 (“Appeal Br.”), 1.
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2
CLAIMED SUBJECT MATTER
Appellant describes the present invention as follows:
Instead of specifying actual transport layer IP addresses as
a basis for a secure tunnel’s security association, an approach
described herein specifies virtual addresses. Then suitable
network appliances intercept and modify packets in order to map
between the virtual addresses and actual addresses. The virtual
addresses satisfy IPsec or another authentication procedure that
checks packets using the security association. The actual
addresses are used by transport layer protocols. This overlay
approach permits a session to failover from one network
connection to another without requiring restoration of the session
in a newly created secure tunnel after one of the network
interfaces becomes unavailable, thereby obsoleting the security
association based in part on the IP address of the now unavailable
interface. This innovative approach also allows the use of
parallel paths and the use of one-to-many or many-to-one path
topologies, which would otherwise not be permitted.
Spec., Abstr.
Independent claim 1, reproduced below, illustrates the subject matter
of the appealed claims:
1. A secure networking process comprising:
establishing a virtual private network (VPN) tunnel which
has a security association which is specified with at least a source
virtual IP address that is not an actual wide area network (WAN)
interface address and which is also specified with at least a
destination virtual IP address that is not an actual WAN interface
address;
intercepting an outgoing packet that is directed from a
source endpoint of the VPN tunnel toward a destination endpoint
of the VPN tunnel;
modifying the outgoing packet by replacing an instance of
the source virtual IP address in the outgoing packet with an actual
address that is the IP address of an outgoing WAN interface at a
local site, and modifying the outgoing packet by replacing an
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instance of the destination virtual IP address in the outgoing
packet with an actual address that is the IP address of an
incoming WAN interface at a remote site; and
then transmitting the modified outgoing packet through
the outgoing WAN interface at the local site toward the incoming
WAN interface at the remote site.

STATEMENT OF THE REJECTIONS
Claims 1, 8, 9, and 16 stand rejected under 35 U.S.C. § 102(a)(1) as
being anticipated by Alkhatib (US 2013/0136133 A1; published May 30,
2013). Final Act. 5–8.
Claims 2–6, 10–13, 15, and 17–19 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Alkhatib and Yang (US 2009/0328192 A1;
published Dec. 31, 2009). Final Act. 9–16.
Claims 7, 14, and 20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Alkhatib and Smedman (US 2015/0124966 A1; published
May 7, 2015). Final Act. 17.

CONTENTIONS AND ANALYSIS2
The Examiner finds, inter alia, that “Alkhatib discloses distributed
virtual network gateways that provide the establishment of tunneled
connections between two endpoints.” Final Act. 6 (citing Alkhatib ¶¶ 25–
27). The Examiner clarifies that Alkhatib’s directory service maintains

2 In addition to the abovementioned Appeal Brief, we also reference the
following documents for their respective details: the Final Action mailed
October 15, 2018 (“Final Act.”); the Examiner’s Answer mailed February 4,
2019 (“Ans.”); and the Reply Brief filed February 12, 2019 (“Reply Br.”).
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mappings between virtual IP addresses and physical addresses of a physical
network. Ans. 5 (citing Alkhatib ¶¶ 26, 43).
Appellant argues, “[t]he references, including Alkhatib, only teach the
use of virtual IP addresses in packets [or packet headers, but] do not teach
the use of virtual IP addresses in security associations[,] as claimed.”
Appeal Br. 7. According to Appellant, the use of virtual IP addresses in
packets is not the same as the use of IP addresses in security associations:
Packets are different data structures than security associations,
and they serve different purposes. Packets carry data in a
network . . . . The format of packet data structures is defined by
communication protocols such as TCP/IP . . . . By contrast,
security associations define security parameters, and their
content and format is defined by security protocols such as
[internet key exchange (IKE) protocol].
Appeal Br. 8 (citing Alkhatib ¶¶ 3–4; Datta (US 7,406,048 B23; issued
July 29, 2008), col. 10, ll. 10–20; Yang ¶¶ 24–25).
Appellant further argues the difference between the invention and the
cited art, as follows:
The rejections confuse virtual IP addresses in packets with
virtual IP addresses in security associations. The reasoning
behind the rejections seems to be that (a) Alkhatib shows use of
virtual IP addresses in packets, (b) Alkhatib mentions IPsec,
(c) IPsec uses security associations, and therefore (d) Alkhatib
teaches use of virtual IP addresses in security associations. But
(a), (b), and (c) do not imply (d). The mere presence of security
associations in a system is not enough to conclude that those
security associations also make innovative use of virtual IP
addresses in place of the usual location-dependent IP addresses.
Security associations at the time of invention used location-
dependent IP addresses. For instance, security associations with

3 Appellant incorrectly refers to Datta’s patent number as 7,406,408. Appeal
Br. 8.
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location-dependent IP addresses (and no mention of virtual IP
addresses) are taught in Yang [0027].
Appeal Br. 8 (emphasis omitted).
The Examiner explains in response, “the claims only require that the
established virtual private network has a security association that specifies a
source virtual IP address and a destination virtual IP address.” Ans. 4. The
Examiner further reasons that it is proper to read the claim language broadly
as corresponding to the stated mapping to Alkhatib’s disclosure:
Appellant’s specification does not include a definition of
the term “security association” that would prevent the mappings
of Alkhatib from being considered the claimed
“security associations”. In fact, Appellant’s glossary (Appeal
Brief: Page 18) attempts to define “security association” using a
Wikipedia article, which would be considered further evidence
that Appellant’s specification does not include sufficient
disclosure that would overcome the reading of Alkhatib’s
mappings to the claimed security associations.
Ans. 5.
We find the Examiner’s interpretation to be unreasonably broad.
Claim 1’s first limitation recites, inter alia, “establishing [a VPN] tunnel
which has a security association which is specified with at least a source
virtual IP address . . . and which is also specified with at least a destination
virtual IP address.” Appeal Br. 20 (emphasis added). The Examiner does
not dispute that the emphasized language pertains to the recited security
association, as opposed to the recited VPN tunnel. See Final Act. 2–7;
Ans. 4–6. That is, the Examiner agrees that claim 1 requires that the source
and destination virtual IP addresses specify the structure of the security
association, in particular, as opposed to merely specifying some structure
within a VPN tunnel.
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The Examiner justifies the broad interpretation, though, on the basis
that Appellant’s Specification does not adequately define the claim term
“security association,” and, as such, it is reasonable to interpret the claim
broadly, such that the claimed step of modifying the virtual IP addresses of
the security association reads on Alkhatib’s protocol of modifying packet
headers:
Appellant’s specification does not include a definition of
the term “security association” that would prevent the mappings
of Alkhatib from being considered the claimed “security
associations”. In fact, Appellant’s glossary . . . attempts to define
“security association” using a Wikipedia article, which would be
considered further evidence that Appellant’s specification does
not include sufficient disclosure that would overcome the
reading of Alkhatib’s mappings to the claimed security
associations.
Ans. 5 (citing Appeal Br. 18).
It is true that, during examination of a patent application, pending
claims are given their broadest reasonable construction consistent with the
Specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004); In re Prater, 415 F.2d 1393, 1404–05 (CCPA 1969). The law is
clear, though, that “interpreting what is meant by a word in a claim is not to
be confused with adding an extraneous limitation appearing in the
specification, which is improper.” In re Cruciferous Sprout Litig., 301 F.3d
1343, 1348 (Fed. Cir. 2002) (internal quotation marks omitted).
Presently, Appellant cites to multiple pieces of extrinsic evidence to
support (1) Appellant’s proffered interpretation of what the disputed claim
term means and (2) how the claim term differs from Alkhatib’s disclosure.
Appeal Br. 8–11, 18. And the Examiner’s reasoning is essentially that
whenever an Appellant proffers extrinsic evidence to demonstrate how one
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of ordinary skill would interpret a claim term, that extrinsic evidence serves
the opposite purpose of proving that the claim term is not limited to that
meaning. Ans. 5. This simply is not the law.
The Examiner also reasons, “the claims do not functionally utilize the
claimed security association in any particular manner.” Ans. 4. We
understand the Examiner’s position to be that the virtual IP addresses
constitute nonfunctional descriptive material that fails to further patentably
distinguish the claim over the prior art. We disagree.
Claim 1 initially sets forth the act of establishing a VPN tunnel which
has a security association. Because the VPN tunnel is established initially,
the format or structure of the security association performs a function. That
is, the claims do functionally utilize the claimed security association in a
particular manner. And, as such, the Examiner has not established that the
structure of the security association reasonably can be interpreted as
constituting non-functional descriptive material.

CONCLUSIONS
For the foregoing reasons, Appellant has persuaded us of error in the
Examiner’s anticipation rejection of independent claim 1. Accordingly, we
reverse the Examiner’s rejection of that claim and of claims 8, 9, and 16,
which either depend from claim 1 or otherwise recite similar claim language.
With respect to the remaining rejection of dependent claims 2–7, 10–
15, and 17–20, the Examiner does not rely on Yang or Smedman to cure the
deficiency of the obviousness rejection explained above. Final Act. 9–17.
We, therefore, reverse the rejections of these claims for the reasons set forth
in relation to independent claim 1.
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DECISION SUMMARY
In summary:

REVERSED

Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1, 8, 9, 16 103 Alkhatib 1, 8, 9, 16
2–6, 10–13, 15,
17–19
103 Alkhatib, Yang 2–6, 10–13,
15, 17–19
7, 14, 20 103 Alkhatib
Smedman
7, 14, 20
Overall
Outcome
1–20