Ex Parte Ballard

Board of Patent Appeals and Interferences

Feb 28, 2011

10342966 (B.P.A.I. Feb. 28, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte CURTIS C. BALLAARD
____________________

Appeal 2009-007216
Application 10/342,966
Technology Center 2400
____________________

Before THU A. DANG, CAROLYN D. THOMAS, and DEBRA K.
STEPHENS, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-007216
Application 10/342,966
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I. STATEMENT OF CASE
Appellant appeals the Examiner’s final rejection of claims 1-11, 15-
17, 19, 20, 22-30, and 35-43 under 35 U.S.C. § 134 (2002). Claims 12-14,
18, 21, and 31-34 have been canceled. We have jurisdiction under 35 U.S.C.
§ 6(b) (2008).
We affirm.

A. INVENTION
According to Appellant, the invention relates to a backplane system
which includes a hub or a switch on a first backplane support (Spec. 29, ll.
2-3).

B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary and is reproduced below:
1. A backplane system comprising:

a first backplane for supporting and interconnecting a plurality of
electrical components; and

a first switch, said first switch being on said first backplane, for
concurrently routing packetized data to and among said plurality of electrical
components connected to said backplane;

wherein some of said packetized data is in the form of a command for
controlling one of said plurality of electrical components and, wherein, said
switch is configured to concurrently route said command with a remainder
of said packetized data.
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C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Willson 5,983,318 Nov. 9, 1999
Paul 2002/0023184 Feb. 21, 2002
Allen 2002/0162010 Oct. 31, 2002

Mizrachi 2003/0058870 Mar. 27, 2003
(filed Sept. 6, 2002)
Marsh 6,584,511 June 24, 2003
(filed Mar. 24, 2000)
Maity 2003/0229406 Dec. 11, 2003
(filed May 23, 2002)

Alappat 2003/0231624 Dec. 18, 2003
(filed June 12, 2002)

Claims 1-4, 7, and 9 stand rejected under 35 U.S.C. § 102(e) over the
teachings of Alappat.
Claims 5, 15-17, 20, 22-30, 35, 37-39, and 41 stand rejected under 35
U.S.C. § 103(a) over the teachings of Alappat and Marsh.
Claim 6 stands rejected under 35 U.S.C. § 103(a) over the teachings
of Alappat and Wilson.
Claims 8 and 10 stand rejected under 35 U.S.C. § 103(a) over the
teachings of Alappat and Mizrachi.
Claim 11 stands rejected under 35 U.S.C. § 103(a) over the teachings
of Alappat and Paul.
Claims 19, 40, and 42 stand rejected under 35 U.S.C. § 103(a) over
the teachings of Alappat, Marsh and Mizrachi.
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Claims 36 stands rejected under 35 U.S.C. § 103(a) over the teachings
of Alappat, Marsh, Wilson, Maity and Allen.
Claim 43 stands rejected under 35 U.S.C. § 103(a) over the teachings
of Alappat, Marsh and Paul.

II. ISSUE
The issue is whether Appellant has shown that the Examiner erred in
finding that Alappat discloses “a first switch . . . for concurrently routing
packetized data to and among said plurality of electrical components
connected to said backplane” as required by claim 1.

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Appellant’s Specification
1. According to Appellant’s Specification, “the term ‘switch’ will be
defined as meaning a switch, a hub or other data routing device” (pg.
3, ¶ [0019]).
Alappat
2. Alappat is directed to a switch fabric, e.g., arrangements or
configurations of devices that handle, process, route, and/or transfer
information, that interconnects or mutually couples network
equipment, wherein the switch fabric is implemented within a self-
contained unit with a backplane (pg. 1, ¶ [0002]).
3. A card modular platform comprises a backplane and multiple switch
fabric modules contained within a single unit that permits switching
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between a plurality of network nodes, thereby forming the switch
fabric between the network nodes (pg. 1, ¶ [0016]).

IV. ANALYSIS
35 U.S.C. § 102(e)
In the Appeal Brief, as to claim 1, Appellant contends that “Alappat,
as cited by the Action, merely states that various modules transfer and
receive signals such as data and control signals” and thus “does [not] state or
suggest that a single switch ‘is configured to concurrently route said
command with a remainder of said packetized data’ as claimed” (App. Br.
10, emphasis added). Appellant then merely repeats the claim language and
concludes that “Alappat fails to teach or suggest much of the subject matter
of claim 1” (App. Br. 11).
However, the Examiner finds that “Alappat states that switch fabric
modules ‘may include a device that is capable of transferring or switching
signals received from one or more nodes to one or more nodes that may be
different from the nodes that provided the signals’” (Ans. 20). Thus,
“Alappat clearly contemplates that the various nodes connected to the
backplane network would transmit data and/or control signals” (id.).
In the Reply Brief, Appellant admits that “collectively as a group, the
fourteen modules would, as Alappat says, handle signals where such ‘signals
may comprise, for example, data, address, and/or controls signals or
information’” (Reply Br. 3). However, Appellant argues that “claim 1 has
the novel advantage of a ‘first’ single switch on a backplane that
‘concurrently’ routes packetized data” wherein “this single switch, this
single data path, for both commands for controlling the electrical
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components connected to a backplane and data for use by those components
is not taught or suggested by the prior art of Alappat” (Reply Br. 2).
Appellant’s argument that Alappat does not teach or suggest “this
single switch, this single data path” is not commensurate in scope with the
specific language of claim 1. In particular, claim 1 does not recite such
“single” switch or “single data path” as Appellant argues. Thus, we
determine on this Appeal whether Alappat discloses “a first switch . . .for
concurrently routing packetized data to and among said plurality of electrical
components connected to said backplane” as specifically required by claim
1.
We give the claims their broadest reasonable interpretation consistent
with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997). However, we will not read limitations from the Specification into the
claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
Claim 1 does not place any limitation on what “a switch” means,
includes, or presents other than “said switch being on said first backplane,
for concurrently routing packetized data.” According to Appellant’s
Specification, a “switch” is a hub or other data routing device (FF 1). Thus,
we give “switch” its broadest reasonable interpretation as any hub for data
routing, as consistent with the Specification and as specifically defined in
claim 1. That is, we will not read “first switch” as a single switch on a
single data path as Appellant contends (Reply Br. 2).
Alappat is directed to a switch fabric implemented within a self-
contained unit with a backplane (FF 2), wherein the backplane and multiple
switch fabric modules are contained within a single unit that permits
switching between a plurality of network nodes, thereby forming the switch
fabric between the network nodes (FF 3). Accordingly, we find Alappat to
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disclose a hub as a routing device for concurrently routing packetized data.
That is, in view of our claim construction above, we find Alappat to disclose
a switch for concurrently routing packetized data to and among a plurality of
electrical components connected to a backplane, as specifically required by
claim 1.
As for claims 4 and 7, the Examiner makes detailed findings that
Alappat discloses these features of claims 4 and 7 (Ans. 20-21). However,
Appellant merely repeats the claim language and then argues that “Alappat
does not teach or suggest this subject matter” without presenting any
persuasive arguments or evidence (App. Br. 11-12).
A statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim. See 37 C.F.R.
§ 41.37(c)(vii). Moreover, mere attorney arguments and conclusory
statements that are unsupported by factual evidence are entitled to little
probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see
also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); and
Ex parte Belinne, No. 2009-004693, slip op. at 7-8 (BPAI Aug. 10, 2009)
(informative), available at
http://www.uspto.gov/web/offices/dcom/bpai/its/fd09004693.pdf.
Accordingly, we find that Appellant has not shown that the Examiner
erred in rejecting claims 1, 4 and 7, and claims 2 and 3 depending from
claim 1 under 35 U.S.C. § 102(e) over Alappat.
35 U.S.C. § 103(a)
Claims 5, 15-17, 20, 22-30, 35, and 37-39
As for claims 15, 22, and 35, Appellant similarly argues that Alappat
in view of Marsh do not disclose or suggest “the claimed single ‘first’ switch
on a backplane that routes data packet that ‘comprise both (1) packets
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bearing commands for controlling at least one electronic component
connected to said backplane system and (2) packets bearing data processed
by said electronic component’” (App. Br. 14, and similarly 15-16). As
discussed above with respect to claim 1, we find no deficiencies in the
Examiner’s finding that Alappat discloses such features.
Further, as for claims 29 and 39, Appellant merely repeats the claim
language and then argues that Alappat does not teach or suggest this subject
matter (App. Br. 16-17). However, because the conclusory statement merely
points out what a claim recites and is unsupported by factual evidence, such
statement is entitled to little probative value.
Thus, we conclude that the Examiner did not err in rejecting claims
15, 22, 29, 35 and 39, and claims 5, 16, 17, 20, 23-28, 30, 37 and 38
depending respectively from claims 1, 15, 22 and 35 under 35 U.S.C. §
103(a) over Alappat in view of Marsh.
Claims 6, 8, 10, 11, 19, 36, 40, 42, and 43
Appellant does not provide arguments for claims 6, 8, 10, 11, 19, 36,
40, 42, and 43 separate from those of claims 1, 15 and 35 from which they
respectively depend (App. Br. 17-18). As Appellants have not shown the
Examiner erred in rejecting claims 1, 15, and 35, we also affirm the rejection
of claim 6 over the combined teachings of Alappat and Wilson, the rejection
of claims 8 and 10 over the combined teachings of Alappat and Mizrachi,
the rejection of claim 11 over the combined teachings of Alappat and Paul,
the rejection of claims 19, 40, and 42 over the combined teachings of
Alappat, Marsh and Mizrachi, the rejection of claim 36 over the combined
teachings of Alappat, Marsh, Wilson, Miaty, and Allen, and the rejection of
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claim 43 over the combined teachings of Alappat, Marsh and Paul, under 35
U.S .C. § 103(a).

V. CONCLUSION AND DECISION
The Examiner’s rejection of claims 1-4, 7 and 9 under 35 U.S.C.
§ 102(e) and claims 5, 6, 8, 10, 11, 15-17, 19, 20, 22-30, and 35-43 under
35 U.S.C. § 103(a) 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

Erc

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