Ex Parte Ayandeh

Patent Trial and Appeal Board

Jan 25, 2017

13560332 (P.T.A.B. Jan. 25, 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.
13/560,332 07/27/2012 Siamack Ayandeh 83037542 3796
56436 7590
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
EXAMINER
MARCELO, MELVIN C
ART UNIT PAPER NUMBER
2463
NOTIFICATION DATE DELIVERY MODE
01/27/2017 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):
hpe.ip.mail@hpe.com
chris. mania @ hpe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SIAMACK AYANDEH
Appeal 2015-007272
Application 13/560,332
Technology Center 2400
Before CAROLYN D. THOMAS, IRVIN E. BRANCH, and
AMBER L. HAGY, Administrative Patent Judges.
BRANCH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1—
19. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2015-007272
Application 13/560,332
CLAIMED SUBJECT MATTER
The claims are directed to updating table data in network devices.
Abstract.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A network device comprising:
a processor; and
a memory communicatively coupled to the processor, the
memory storing instructions causing the processor, after
execution of the instructions by the processor, to:
receive a plurality of frames including table data,
each frame including a sequence number; and
update a table in the memory based on the table data
and the sequence number of each received frame including
updating the table in response to the sequence number of
a received frame being less than a sequence number of a
previously received frame.
REFRENCES AND REJECTION
Claims 1—19 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Hathom ('NPZD Re-ordering') in view of Meylan (US
2009/0168723 Al, published July 2, 2009). Final Act. 3—13
ANALYSIS
Claims 1—3, 6—11, and 13—15
Appellant argues claims 1—3, 6—11, and 13—15 on the basis that the
independent claims are not rendered obvious over the cited references. App.
Br. 6—9. Appellant first argues that the examiner erred because Meylan does
not “update a table in a memory or in a network device based on the table
data and the sequence number of the packet received out of order.” Id. 8.
This argument is unpersuasive because the claims do not recite updating a
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Application 13/560,332
table “based on” “the sequence number of a received frame being less than a
sequence number of a previously received frame.” Instead, the claim recites
the table being updated “in response to” the aforementioned condition.
Accordingly, Appellant’s argument is not commensurate with the scope of
the claims.
Appellant also argues that, because “Hathom would become
inoperable” if combined with Mylan, then “one of ordinary skill in the art at
the time of invention could not have combined the teaching of Meylan with
Hathom to provide the features recited by independent claims 1, 6, and 11.”
Id. This argument is unpersuasively premised on the Examiner’s rejection
proposing a “bodily incorporation” of Meylan into Hathom. See In re
Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the stmcture of the primary reference .... Rather, the test is what the
combined teachings of those references would have suggested to those of
ordinary skill in the art.”) Appellant does not persuasively rebut the
Examiner’s reasoning that would have led one of ordinary skill in the art to
combine the references teachings. Final Act. 4 (reasoning that it would have
been recognized as advantageous to use, rather than discard, the information
in a later-received packet with an earlier sequence number).
Appellant also argues that “one of ordinary skill in the art at the time
of invention would not have combined the packet handling during handover
disclosed by Meylan with the Fibre Channel network disclosed by Hathom
to provide the features recited by independent claims 1, 6, and 11.” App. Br.
8. The premise of this argument is that Hathom addresses a completely
different problem than Mylan. Id. We understand Appellant to be arguing
that Hathom is non-analogous art.
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Application 13/560,332
Our reviewing court has set forth a two-prong test for determining
whether a prior art reference is analogous: (1) whether the reference is from
the same field of endeavor as the claimed invention, and (2) if the reference
is not within the same field of endeavor, whether the reference is reasonably
pertinent to the particular problem with which the inventor is involved. In re
Klein, 647 F.3d 1343 (Fed. Cir. 2011). Appellant has not persuasively
established that Hathom is from a different field of endeavor, thereby
undermining the relevance of the assertion that Hathom addresses a
completely different problem, even if tme. App. Br. 8.
Because Appellant’s argue claims 1—3, 6—11, and 13—15 {id. 8—9) on
the foregoing, we sustain the Examiner’s rejection of these claims.
Claims 4, 5, and 12
The Examiner bases unpatentability of claims 4, 5, and 12, at least in
part, on the assertion that storing the sequence number of each received
frame in the table in the memory on a “per active end point basis” and/or a
“per peering entry list basis” would have been “obvious as a matter of choice
in design.” Final Act. 6—7, 9-10. See also Ans. 4—5. Appellant argues that
one of ordinary skill in the art at the time of invention would not
have any reason to store the sequence number of a received
NPZD frame in the FDF on a per active end point basis or on a
per peering entry list basis in the system of Hathom. Doing so
would result in increased complexity without any benefit.
App. Br. 10. Appellant also argues that, because Meylan teaches that “upper
layers may re-order data and provide the data in order to end applications”
and because “the end application (i.e., where the ACL entries in Hathom
would be updated) would receive the data in order,” the end application
would have “no reason to store the sequence number with the ACL entries.”
Reply Br. 3^4.
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Application 13/560,332
Appellant again presumes a “bodily incorporation” of Meylan and
Hathom {Keller, 642 F.2d at 425) when the Examiner’s rejection is instead
based on what the combined teachings of the references would have taught
or suggested to one of ordinary skill in the art. Final Act. 4. Further, one
cannot show nonobviousness by attacking references individually where the
rejections are based on combinations of references. See In re Keller, 642
F.2d 413, 426 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986). The Examiner correctly finds that Hathom discloses
storing sequence numbers of frames. Final Act. 6—7, 9—10 (citing Hathom
9). We do not find a persuasive argument that, in view of the combined
teachings of the references, storing the sequence number of each received
frame in the table in the memory on a “per active end point basis” and/or a
“per peering entry list basis” would have been unpredictable or beyond the
skill of the ordinarily skilled artisan and therefore non-ob vious. See KSR
Inti Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007).
Accordingly, we sustain the Examiner’s decision to reject claims 4, 5,
and 12.
Claims 16 and 17
Appellant argues claims 16 and 17 based on arguments previously
presented with respect to claims 1, 4, 6, and 9. App. Br. 11. We are
unpersuaded of error for reasons discussed above. We adopt the Examiner’s
findings and conclusion that claims 16 and 17 are obvious. Finals Act. 3—5,
11—12; Ans. 5.
Claims 18 and 19
Appellant argues claims 18 and 19 based on arguments previously
presented with respect to claims 4 and 12. App. Br. 11—12. We are
unpersuaded of error for the reasons discussed above. We adopt the
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Examiner’s findings and conclusion that claims 17 and 18 are obvious.
Final Act. 3—5, 12—13; Ans. 6.
DECISION
We affirm the Examiner’s decision to reject claims 1—19.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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