SAREEN, Jatin et al.

Patent Trials and Appeals Board

Sep 4, 2020

14489838 - (D) (P.T.A.B. Sep. 4, 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.
14/489,838 09/18/2014 Jatin SAREEN 10.2220 7937
22474 7590 09/04/2020
Clements Bernard Walker
4500 Cameron Valley Parkway
Suite 350
Charlotte, NC 28211
EXAMINER
SHALABY, MINA M
ART UNIT PAPER NUMBER
2636
NOTIFICATION DATE DELIVERY MODE
09/04/2020 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):
cwright@worldpatents.com
patlaw@worldpatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JATIN SAREEN, WASEEM REYAZ KHAN,
KAPIL JUNEJA, and RAJAGOPALAN KANNAN
____________________

Appeal 2019-003069
Application 14/489,838
Technology Center 2600
____________________

Before JOHN A. EVANS, JOHN P. PINKERTON, and
MICHAEL M. BARRY, Administrative Patent Judges.

PINKERTON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1 and 3–20, which are all of the claims pending in
the application. Claim 2 is canceled. We have jurisdiction under 35 U.S.C.
§ 6(b).
We reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Ciena
Corporation. Appeal Br. 2.
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STATEMENT OF THE CASE
Appellant’s Invention
Appellant generally describes the disclosed and claimed invention as
relating to “fast mesh restoration systems and methods that use real time
detection of fault location at a source/originating node.” Spec. ¶ 2.
Illustrative Claim
Independent claim 1 is illustrative of the subject matter on appeal and
provides as follows:
1. A method, by a node in a network using a control
plane, for fast restoration in the network, the method
comprising:
detecting a failure on a link associated with the node; and
providing failure information through in-band data path
overhead of an affected connection, wherein the in-band data
path overhead is sent over a fast path, wherein the failure
information is received at an originating node of the affected
connection via the fast path directly from the in-band data path
overhead, prior to the originating node receiving the control
plane signaling via a slow path relative to the fast path, wherein
the failure information comprises control plane identification
information which identifies the node and link in the control
plane such that the failure information from the in-band data
path overhead is provided to the control plane at a receiving
node for action based thereon, wherein the originating node is
configured to receive the failure information via the fast path
and generate and forward associated control plane signaling
over the slow path based on the failure and the control plane
identification information,
wherein the failure information is sent both over the in-
band data path overhead and the control plane, and
wherein the control plane operates in a distributed
manner between the node and other nodes in the network via
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control plane signaling to establish and release network
resources in an end-to-end manner.
Appeal Br. 17 (Claims App.).
References
The prior art relied upon by the Examiner is:
Name Reference Date
Rabie et al. (Rabie) US 7,333,438 B1 Feb. 19, 2008
Skalecki et al. (Skalecki) US 7,590,051 B1 Sept. 15, 2009
Saitoh US 2012/0287778 A1 Nov. 15, 2012
Nuijts et al. (Nuijts) US 2014/0199072 A1 July 17, 2014
Hussain et al. (Hussain) US 2015/0334004 A1 Nov. 19, 2015
Applicant Admission/Background
Rejections on Appeal
Claims 1, 3–5, 9, and 11–20 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Saitoh, Hussain, and Nuijts. Final Act. 4–15.
Claims 6 and 8 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Saitoh, Hussain, Nuijts, and Skalecki. Id. at 16.
Claim 7 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Saitoh, Hussain, Nuijts, and Rabie. Id. at 16–17.
Claim 10 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Saitoh, Hussain, Nuijts, and Applicant Admission/Background. Id. at
17–18.
ANALYSIS
Claim 1—“A method, by a node in a network using a control plane,
for fast restoration in the network”—requires that
failure information is received at an originating node . . . via the
fast path directly from the in-band data path overhead, prior to
the originating node receiving the control plane signaling via a
slow path relative to the fast path, . . . wherein the failure
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information is sent both over the in-band data path overhead
and the control plane.
Appeal Br. 17 (Claims App.). For the reasons that follow, we are persuaded
the Examiner erred in finding the combined teachings of Saitoh, Hussain,
and Nuijts suggest these limitations. See Final Act. 4, 6–7.
The first limitation at issue recites that “the failure information is
received at an originating node via the fast path directly from the in-band
data path overhead.” The Examiner finds Saitoh’s method for handling a
signal failure in an Optical Transport Network (“OTN”) teaches this
limitation. Final Act. 4 (citing Saitoh ¶ 81, Fig. 4). According to the
Examiner, however, “Saitoh does not teach that the signaling towards the
originating nodes is performed over the slow path and that the signaling
generated by the originating nodes is performed over the slow path, wherein
the failure information is sent both over the in-band data path overhead and
the control plane.” Id. at 6.
The Examiner cites Hussain for teaching that “in-band control may
also be used in networks that have an out-of-band control channel to provide
redundant in-band control channel functionality.” Id. (citing Hussain ¶ 97).
The Examiner determines that “it would have been obvious . . . to use both
in-band and out-of-band signaling simultaneously to provide redundant
control channel functionality . . . taught by Hussain . . . in the method of
Saitoh because it improves the reliability of the signaling and fault
notification across the network and thus increases the network robustness.”
Id. But, the Examiner finds that “Saitoh in view of Hussain . . . does not
expressly teach that out-of-band channel is slower that the in-band channel.”
Id.
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The Examiner then cites Nuijts as teaching “it is known in the art to
use a supervisory/signaling channel at a much lower bit rate than that used in
channels carrying data.” Id. (citing Nuijts ¶ 42). The Examiner then
determines that “it would have been obvious . . . to use a supervisory/
signaling channel at a much lower bit rate than that used in channels
carrying data, as taught by Nuijts . . . , in the modified method of Saitoh for
the benefit of increasing the bandwidth utilization efficiency.” Id. at 7.
Appellant contends that “[n]one of the references including Saitoh
suggest[s]” claim 1’s requirement that the failure information is received via
the overhead or “fast path” “prior to the originating node receiving the
control plane signaling via a slow path relative to the fast path.” Appeal
Br. 11, see also id. at 9–12. Appellant contends further that Hussain’s
suggestion of failover redundant control channels does not suggest that “the
originating node receive[s] this failure information from both the overhead
(fast path) and control plane signaling (slow path).” Id. at 12, see also id. at
12–13.
In response to Appellant’s contentions, the Examiner explains that
“[i]t is common knowledge in the art, as taught by Nuijts . . . , that out-of-
band signals are allocated slower transmission rates than that allocated to
data transmission (i.e., in-band signals),” and “[t]hus, it logically follows
that if fault indications signals are sent using both in-band and out-of-band
signals, fault indications signals sent via in-band signals (i.e., fast path) will
arrive at the desired destination (i.e., the originating node) prior to those sent
via out-of-band signals (i.e., slow path).” Ans. 17 (citing Nuijts ¶ 42). The
Examiner explains further that “providing redundant control channel
functionality,” as taught by Hussain, “means that the two signaling
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approaches are used to signal the same information.” Id. at 17–18 (citing
Hussain ¶ 97).
Appellant argues that the Examiner is incorrect for several reasons.
Reply Br. 2–3. First, the “Examiner is making assumptions based on his
knowledge of the art, not what the references suggest.” Id. at 2. Second, the
“Examiner agrees that Saitoh does not suggest ‘prior to the originating node
receiving the control plane signaling via a slow path relative to the fast
path.’” Id. at 2. Third, there is no suggestion that Hussain’s failover
redundant control channels work at the same time or at different speeds. Id.
Rather, according to Appellant, ordinarily skilled artisans would have
recognized that in Hussain, “redundant means one works when the other
fails. . . . [n]ot that they are used simultaneously.” Id. at 3. And fourth,
Nuijt’s “lower bit rate means less data can be sent at a time, not that one
piece of data arrives prior to another.” Id. at 2 (emphasis omitted).
We are persuaded by Appellant’s arguments that the Examiner erred.
As an initial matter, while Nuijts’ disclosure of transferring signals at a
lower bit rate may suggest that less data is sent over time, the Examiner does
not adequately explain why data sent at a higher bit rate would arrive at the
originating node “prior to” data transmitted with a lower bit rate. Indeed, the
Examiner does not explain why the proposed combination suggests that fault
data sent in the operator identifier field of an FTFL2 message between the
nodes of Saitoh’s OTN would arrive “prior to” data sent “at a much lower
bit rate” over one of the out-of-band channels described in Hussain or Nuijts.
The Examiner also does not provide any persuasive evidence as to when

2 In Saitoh, FTFL stands for “fault type and fault location reporting
channel.” Saitoh ¶ 48.
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data is sent over Hussain’s in-band and out-of-band communication
channels, let alone that both are sent at the same time. Nor does the
Examiner persuasively rebut Appellant’s assertion that, in Hussain, only one
channel is being used at a time—either the out-of-band channel or the
redundant in-band channel when the out-of-band-channel fails.
Moreover, the Examiner has not convinced us that the cited prior art
teaches or suggests sending data over a “slow path” as claimed. Appellant’s
Specification describes a “slow path” as “operating sequentially and in
software,” “a RELEASE message being processed on each hop in the call
path.” Spec. ¶¶ 4, 31, see also id. ¶ 7 (“[T]he slow path can operate in
software based on processing and forwarding the control plane signaling
sequentially through the intermediate nodes to the originating node and is
delayed based on the number of the intermediate nodes.”). But the
Examiner does not identify any persuasive evidence that either of the out-of-
band channels taught by Nuijts or Hussain constitutes a “slow path,” nor that
either channel would result in a “slow” path when modified to include
Nuijts’ disclosure of transferring signals at a lower bit rate.
In view of the foregoing, the Examiner has not shown that the
proposed combination teaches or suggests all the limitations of claim 1. We
decline to resort to speculation to fill in the gaps in the Examiner’s rejection.
See Ex parte Braeken, 54 USPQ2d 1110, 1112 (BPAI 1999). We therefore
determine that the Examiner erred in rejecting claim 1 under 35 U.S.C.
§ 103 for obviousness over Saitoh, Hussain, and Nuijts.
Accordingly, constrained by this record, we decline to sustain the
Examiner’s § 103 rejection of independent claim 1. For similar reasons, we
decline to sustain the Examiner’s § 103 rejections of claims 3–20, which
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include one or more similar limitations. For these claims, the Examiner fails
to provide any finding or reasoning that cures one or more of the defects
discussed above. See Final Act. 7–18; cf. In re Fritch, 972 F.2d 1260, 1266
(Fed. Cir. 1992) (“dependent claims are nonobvious if the independent
claims from which they depend are nonobvious”).
CONCLUSION
We do not sustain the Examiner’s rejection of claims 1, 3–5, 9, and
11–20 under 35 U.S.C. § 103 as being unpatentable over the combination of
Saitoh, Hussain, and Nuijts.
We do not sustain the Examiner’s rejection of claims 6 and 8 under 35
U.S.C. § 103 as being unpatentable over the combination of Saitoh, Hussain,
Nuijts, and Skalecki.
We do not sustain the Examiner’s rejection of claim 7 under 35
U.S.C. § 103 as being unpatentable over the combination of Saitoh, Hussain,
Nuijts, and Rabie.
We do not sustain the Examiner’s rejection of claim 10 under 35
U.S.C. § 103 as being unpatentable over the combination of Saitoh, Hussain,
Nuijts, and Applicant Admission/Background.

DECISION SUMMARY

Claims
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3–5, 9,
11–20 103 Saitoh, Hussain, Nuijts
1, 3–5, 9,
11–20
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6, 8 103 Saitoh, Hussain, Nuijts, Skalecki 6, 8
7 103 Saitoh, Hussain, Nuijts, Rabie 7
10 103
Saitoh, Hussain, Nuijts,
Applicant Admission/
Background
10
Overall
Outcome 1, 3–20

REVERSED