Ex Parte 7,774,833 et al

Patent Trial and Appeal Board

Aug 19, 2016

95001811 (P.T.A.B. Aug. 19, 2016)

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.
95/001,811 11/08/2011 7,774,833 11517.0010-00000 4942
87916 7590 08/19/2016
2nd Reexam Group - Polsinelli PC
1000 Louisiana Street
Fifty-Third Floor
Houston, TX 77002
EXAMINER
WOOD, WILLIAM H
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
08/19/2016 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE PATENT TRIAL AND APPEAL BOARD
____________

A10 NETWORKS, INC.
Requester and Respondent

v.

BROCADE COMMUNICATIONS, INC.
Patent Owner and Appellant
____________

Appeal 2014-007379
Reexamination Control 95/001,811
Patent 7,774,833 B1
Technology Center 3900
____________

Before HOWARD B. BLANKENSHIP, MAHSHID D. SAADAT, and
JENNIFER L. McKEOWN, Administrative Patent Judges.

McKEOWN, Administrative Patent Judge.

DECISION ON REHEARING
In the Decision on Appeal dated March 30, 2015 (“Decision”), we
affirmed-in-part the Examiner’s rejections. In particular, the Decision
sustains the rejection of claims 1–3 and 11–15 as unpatentable over
IronShield and the rejection of claim 16 as unpatentable over IronShield and
Procurve. The Decision does not sustain (1) the rejections of claims 2–5 and
12–16 based on Procurve, (2) the rejection of claim 4 based on IronShield,
and (3) the rejection of claim 5 based on IronShield and Procurve.
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Patent Owner requests rehearing of this Decision under 37 C.F.R.
§ 41.79. Request for Rehearing (“Request”) dated April 29, 2015. In this
Request, Patent Owner contends the Board overlooked certain of Patent
Owner’s arguments regarding claim 11. Request 2–10. Claim 11 recites:
11. A network device comprising:
a plurality of ports including a management port; and
a control component configured to:
determine if a destination IP address included in a
received data packet corresponds to a gateway IP address of the
management port;
if the destination IP address corresponds to the gateway
IP address of the management port, determine if the data packet
originated from a management virtual local area network
(VLAN), wherein the management VLAN includes the
management port;
if the data packet did not originate from the management
VLAN, determine if the data packet uses a management
protocol; and
if the data packet uses a management protocol, drop the
packet.
With respect to claim 11, Patent Owner more specifically asserts
the Board misapprehended or overlooked that, unlike claim 1,
the proposed modification of Figure 4 could not be a basis for
the rejection of claim 11 because claim 11 explicitly requires
the claimed network device (i.e., Router #2) to drop a packet
originating from another management VLAN (i.e., a packet
originating from the Management VLAN on Router #1).
Appeal Brief at 11. Thus, there could be no communication
between the two management VLANs in Figure 4 if it were
modified to read on claim 11, which would defeat the entire
purpose of the Figure 4 embodiment.
Request 2; see also Request 3 (asserting that claim 11 includes an “explicit
requirement for a network device to drop all management packets that do not
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originate from the management VLAN corresponding to the management
port of that network device.”).
We disagree. Claim 11 does not require the claimed network device
to drop every packet received that does not originate from the management
VLAN, rather the claimed network device is only configured to drop a
packet according to the three claimed criteria including the criteria that the
packet does not originate from the management VLAN. In other words, as
long as a network device is configured to drop a packet according to the
claimed criteria in at least one instance, that network device would satisfy
the limitation. For example, in IronShield’s figure 4 example, a packet from
data VLAN 10.0.0.0 with the destination IP address of one management
station of router 2 would satisfy the limitation of being a packet that does not
originate from the management VLAN.
Moreover, the Decision does not rely on the particular control access
limitations of IronShield’s exemplary step 3, but instead more broadly relies
on exemplary step 3 for teaching determining if the destination IP address
corresponds to the gateway IP address of the management port. Decision
34–36; Ans. 10 (finding that IronShield considers the IP destination address
of the management stations in a rule for filtering); Ans. 11 (stating that
access control lists are part of IronShield’s management VLAN). IronShield
also describes the additional criteria, namely denying access to packets using
a management protocol that do not originate from the management VLAN.
Ans. 11 (citing pages 23 and 24 of Request for Inter Partes Reexamination,
dated November 8, 2011). As such, IronShield teaches or suggests each of
the determining limitations of claim 11.
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We further note that any “proposed modification” of IronShield to
arrive at the invention of claim 11 would merely apply the filtering criteria
to router 2 in addition to router 1. As the Decision points out, this alleged
modification would have been obvious to a skilled artisan as IronShield
discloses to “[a]dd the necessary packet filtering ACLs to limit access to and
from each management VLAN.” Decision 36 (quoting IronShield 20); see
also IronShield 18 (noting that “ACLs can be used to restrict access to and
from the management VLANs” and that access security is governed by
packet filtering ACLs); IronShield 19 (“Precautions should be taken to limit
access into the management VLANs through use of packet filtering ACLs or
firewalls”); IronShield 20 (noting that the step of creating an access control
list should be repeated for “each management VLAN”). In other words,
IronShield at least suggests using ACLs for each management VLAN, not
just the management VLAN connected to router 1.
Patent Owner additionally argues that the Board overlooked that the
Examiner switched from Figure 4 to Figure 3 for teaching the limitations of
claim 11. Request 2–4. To the contrary, the Requester merely points to
Figure 3 as additional support for the rejection. See, e.g., Requester’s ACP
Comment 30–31. As discussed above, Figure 4 demonstrates the
determining criteria of claim 11 and therefore we are not persuaded of error.
Patent Owner next asserts that the Board overlooked an independent
argument presented for claim 11. Request 3. Particularly, Patent Owner
maintains that the Board failed to consider the argument that “since one of
the claimed criteria is determining if the packet originated from the
management VLAN, it would not make sense to modify IronShield to
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include the additional criteria recited in claim 11 that must be met in order to
drop a packet.” Request 3 (quoting App. Br. 11).
This argument, however, fails to consider IronShield’s express
teaching of each claimed criteria. For example, as discussed above,
IronShield describes determining if the destination IP address corresponds to
the gateway IP address of the management port. IronShield 20; Ans. 10.
IronShield also describes determining if the data packet originated from the
management VLAN including the management port and whether the data
packet uses a management protocol. See, e.g., IronShield 21 (noting that the
router “will only accept management protocols from hosts belonging to the
management VLAN” and, in one example, describing that clients using a
management protocol from ports outside the management VLAN will not be
granted management access); IronShield 20 (“For stricter security, create
specific ACLs to govern each management protocol”); Ans. 11. As the
Examiner points out, IronShield teaches using these criteria to “limit access
to and from each management VLAN.” Ans. 11; see also Decision 36.
Moreover, contrary to Patent Owner’s assertions, a skilled artisan
would understand that IronShield’s router 2 does not drop all received traffic
that do not originate from the management VLAN. Notably, IronShield
teaches restricting of “control access” or management traffic. IronShield 18
(discussing control access between management VLAN and other networks
supporting regular data traffic); IronShield 5–6. In other words, a skilled
artisan would recognize that IronShield’s router 2 would permit transmission
of regular data traffic, but would restrict management traffic based on
IronShield’s identified criteria, such as whether the packets’ destination IP
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address is a management station address, whether the packets originated
from a management VLAN, and whether the packets use the associated
management protocol. See, e.g., IronShield 20–21. As such, we are
unpersuaded by Patent Owner’s argument that it would not make sense to
include in IronShield determining whether the destination IP address is the
gateway address of the management port in addition to determining if the
packet originated from the management VLAN and if the packet uses a
management protocol.
Patent Owner’s Request is granted to the extent that we have
reconsidered the Decision in light of the Request, but denied to the extent
that we do not modify the outcome of the Decision.
Pursuant to 37 C.F.R. § 41.79(d), this decision is final for the purpose
of judicial review. A party seeking judicial review must timely serve notice
on the Director of the United States Patent and Trademark Office. See
37 C.F.R. §§ 90.1 and 1.983.

DENIED

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PATENT OWNER:

2ND REEXAM GROUP - POLSINELLI PC
1000 Louisiana Street
Fifty-Third Floor
Houston, TX 77002

THIRD-PARTY REQUESTER:

Timothy J. May
FINNEGAN HENDERSON, FARABOW, GARRETT & DUNNER, LLP
901 New York Avenue, N.W.
Washington, DC 20001-4413