Ex Parte Banavalikar

Patent Trial and Appeal Board

May 2, 2018

14229692 (P.T.A.B. May. 2, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/229,692 03/28/2014
126109 7590 05/04/2018
Zilka-Ko tab, PC - Endicott
1155 North First Street, Suite 105
San Jose, CA 95112
FIRST NAMED INVENTOR
Bhalachandra G. Banavalikar
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
END 1P048/SJ0920l40009US 1 3986
EXAMINER
AHMED, ATIQUE
ART UNIT PAPER NUMBER
2479
NOTIFICATION DATE DELIVERY MODE
05/04/2018 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):
zk-uspto@zilkakotab.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BHALACHANDRA G. BANA V ALIKAR
Appeal2017-010584
Application 14/229,692 1
Technology Center 2400
Before MICHAEL J. STRAUSS, JEREMY J. CURCURI, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Final Rejection of
claims 1-20, all of the pending claims of the application. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 Appellant is the Applicant, International Business Machines Corporation,
which, according to the Brief, is the real party in interest. See Appeal Br. 2.
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Application 14/229,692
STATEMENT OF THE CASE
Invention
According to Appellant, the "invention relates to implementing
Quality of Service (QoS) for packets in a multi-tenant-aware overlay virtual
network." Spec. ,-r 1. 2
Exemplary Claims
Claims 1, 10, and 19 are independent claims. Claims 1, 4, 5, 7, 8, and
12 are exemplary and are reproduced below with limitations at issue
italicized:
1. A system, comprising:
a first switch comprising logic integrated with
and/or executable by a first processor, the logic being
configured to:
receive an overlay tunnel-encapsulated packet via
an overlay tunnel, the overlay tunnel-encapsulated packet
comprising:
at least one overlay tunnel header having
Quality of Service (QoS) attributes stored therein;
and
a packet;
remove the QoS attributes from the at least
one overlay tunnel header;
decapsulate the packet from the overlay
tunnel-encapsulated packet to remove the at least
one overlay tunnel header;
2 This Decision refers to: (1) Appellant's Specification filed March 28, 2014
("Spec."); (2) the Final Office Action ("Final Act.") mailed September 2,
2016; (3) the Appeal Brief ("Appeal Br.") filed February 2, 2017; (4) the
Examiner's Answer ("Ans.") mailed June 22, 2017; and (5) the Reply Brief
("Reply Br.") filed August 9, 2017.
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determine a destination port from the packet; and
forward the packet to the destination port.
4. The system as recited in claim 2, wherein the QoS
attributes to store with the at least one overlay tunnel header are
determined by consulting a first table, the first table storing
virtual network identifiers associated with QoS attributes.
5. The system as recited in claim 2, wherein the virtual
network associated with the source port is determined from QoS
attributes included in a header of the packet.
7. The system as recited in claim 1, further comprising
a switch controller, the switch controller comprising logic
integrated with and/or executable by a third processor, the logic
being configured to:
send a list of virtual network identifiers associated
with applicable QoS attributes to each switch where
presence of workloads associated with a particular virtual
network is known or learned; and
cause each switch where presence of workloads
associated with the particular virtual network is known or
learned to associate the particular virtual network with
ports which are connected to the particular virtual
network.
8. The system as recited in claim 1, wherein the at
least one overlay tunnel header having QoS attributes stored
therein comprises a Layer-2 (L2) QoS field storing L2 QoS
attributes including L2 priority information for the packet and a
Layer-3 (L3) QoS field storing L3 QoS attributes including a type
of service (TOS) value indicating L3 priority information, and
wherein the L2 and L3 QoS attributes comprise at least one of: a
virtual local area network (VLAN) tag according to Institute of
Electrical and Electronics Engineers (IEEE) 802. lq, a
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Differentiated Services Code Point (DSCP) value, and a traffic
class value according to IEEE 802.1 p.
12. The method as recited m claim 10, further
compnsmg:
sending a list of virtual network identifiers associated with
applicable QoS attributes to each switch where presence of
workloads associated with a particular virtual network is known
or learned; and
causing each switch where presence of workloads
associated with the particular virtual network is known or learned
to associate the particular virtual network with ports which are
connected to the particular virtual network.
Appeal Br. 32-35.
REFERENCES
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Hawthorne, III et al.
("Hawthorne")
Elgebaly et al. ("Elgebaly")
Choudhary et al.
("Choudhary")
Engebretson
Zhang et al. ("Zhang")
Hampel et al. ("Hampel")
BHATT A CHARY A et al.
("Bhattacharya")
US 2003/0152075 Al
US 2007/0147378 Al
US 2010/0290398 Al
US 2011/0225303 Al
US 2013/0051399 Al
US 2014/0153572 Al
US 2015/0195178 Al
4
Aug. 14, 2003
June 28, 2007
Nov. 18, 2010
Sept. 15, 2011
Feb.28,2013
June 5, 2014
July 9, 2015
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Application 14/229,692
REJECTIONS 3
Claims 1-3 and 5 stand rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Bhattacharya, Zhang, and Elgebaly.
Final Act. 2-11.
Claim 4 stands rejected under 35 U.S.C. § 103 as being unpatentable
over the combination of Bhattacharya, Zhang, Elgebaly, and Hawthorne.
Final Act. 12-13.
Claims 7 and 20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Bhattacharya, Zhang, Elgebaly, and
Choudhary. Final Act. 13-18.
Claims 8 and 15 stand rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Bhattacharya, Zhang, Elgebaly, and
Engebretson. Final Act. 18-22.
Claims 10, 11, 13, 17, and 19 stand rejected under 35 U.S.C. § 103 as
being unpatentable over the combination of Bhattacharya and Zhang. Final
Act. 24--32.
Claim 12 stands rejected under 35 U.S.C. § 103 as being unpatentable
over the combination of Bhattacharya, Zhang, and Choudhary. Final
Act. 32-34.
Claim 14 stands rejected under 35 U.S.C. § 103 as being unpatentable
over the combination of Bhattacharya, Zhang, and Hawthorne. Final
Act. 34--35.
3 The Examiner indicates the "outstanding rejection of claims 6, 9, 16 & 18
under 35 U.S.C 103 (a) is withdrawn in light of Appellant's persuasive
arguments to said claims." Ans. 3.
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Our review in this appeal is limited only to the above rejections and
the issues raised by Appellant. Arguments not made are waived. See
Manual of Patent Examining Procedure (MPEP) § 1205.02; 37 C.F.R.
§§ 41.37(c)(l)(iv), 41.39(a)(l).
ANALYSIS
Rejections of Claims 1-3, 10, 11, 13, and 19 Under§ 103
The Examiner determines claim 1 is obvious over the combination of
Bhattacharya, Zhang, and Elgebaly. Final Act. 2-5; Ans. 5-11.
Specifically, the Examiner finds Bhattacharya's discussion of a header
having user-defined Class of Service ("COS") data teaches "at least one
overlay tunnel header having Quality of Service (QoS) attributes stored
therein," as in claim 1. See Final Act. 3 (citing Bhattacharya i-f 126).
Appellant argues Bhattacharya's COS data does not suggest QoS
attributes as claimed. Appeal Br. 7-8. Namely, Appellant argues
The Examiner has further argued that class of service is
the same as quality of service attributes, because Applicant has
described quality of service as possibly including class of
service identification. See EA at 6.
For example, "the QoS attributes may include at least one
of: a VLAN tag according to IEEE 802.lq, a DSCP value, and a
traffic class value according to IEEE 802.1 p. Of course, more
types of QoS attributes are possible, and this simple list is not
meant to limit the types of QoS attributes that may be stored
with the overlay tunnel header." Specification at [0086].
Clearly, this portion of the Specification describes what may be
included in the QoS attributes, without limiting what the QoS
attributes actually includes, nor the full extent of the
information conveyed in the QoS attributes. Therefore, even
when a class of service is included in the QoS attributes, the
packet header must still include actual QoS attributes, not just
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COS values. The Examiner relies on a teaching from the
Specification that describes what may be included in QoS
attributes as a teaching of what QoS attributes are, which is
improper and not supported by the present Specification.
Reply Br. 3--4.
First, we must construe the term "QoS attributes," as recited in claim
1. See In re Geerdes, 491F.2d1260, 1262 (CCPA 1974) ("Before
considering the rejections ... , we must first [determine the scope of] the
claims"). In this regard, as Appellant's note directly above, Appellant's
Specification discloses that "the QoS attributes may include at least one of a
VLAN tag according to IEEE 802. lq, a DSCP value, and a traffic class
value according to IEEE 802.1 p." Spec. i-f 86 (emphasis added). "Of course,
more types of QoS attributes are possible, and this simple list is not meant to
limit the types of QoS attributes that may be stored with the overlay tunnel
header." Spec. i-f 86. Thus, the Specification discloses that, in an
embodiment, QoS attributes may be comprised of traffic class values. Id.
During examination of a patent application, a claim is given its
broadest reasonable construction "in light of the specification as it would be
interpreted by one of ordinary skill in the art." In re Am. Acad. of Sci. Tech.
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted) (internal
quotation marks omitted). "The correct inquiry in giving a claim term its
broadest reasonable interpretation in light of the specification" is "an
interpretation that corresponds with what and how the inventor describes his
invention in the specification, i.e., an interpretation that is 'consistent with
the specification."' In re Smith Int'! Inc., 871F.3d1375, 1383 (Fed. Cir.
2017) (quoting In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997)).
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In view of our reviewing court's case law, we decline to construe the
claim language as narrowly as Appellant's urge. Rather, we agree with the
Examiner that in light of the Specification "QoS attributes may include
Institute of Electrical and Electronics Engineers (IEEE) 802.1 p information
configured to provide traffic class expediting" and, thus, Class of Service
information. Ans. 5.
Given our construction, we agree with the Examiner's finding
(Ans. 6-7) that Bhattacharya's COS data teaches "QoS attributes," as
claimed, because a species of a genus anticipates the genus (See In re
Slayter, 276 F.2d 408, 411(CCPA1960)) and because "anticipation is the
epitome of obviousness." Connell v. Sears, Roebuck & Co., 722 F.2d 1542,
1548 (Fed. Cir.1983) (quoting Jn reFracalossi, 681F.2d792, 794 (CCPA
1982)) As such, we also agree Bhattacharya teaches "at least one overlay
tunnel header having [QoS] attributes stored therein," as in claim 1.
Appellant further argues Elgebaly does not teach "remov[ing] the QoS
attributes from the at least one overlay tunnel header," as in claim 1, because
"Elgebaly is not directed to overlay packets nor their use." Appeal Br. 9.
We are not persuaded. The Examiner finds, and we agree,
Bhattacharya teaches overlay tunnel-encapsulated packets. See Final Act. 3
(citing Bhattacharya i-fi-f 121, 126, 128). The Examiner further finds, and we
agree, Elgebaly teaches removing QoS information from a packet header.
Ans. 8-9 (citing Elgebaly i130, Fig. 7). Appellant's argument that Elgebaly
does not teach overlay packets does not address the Examiner's finding that
Bhattacharya teaches overlay packets, and Elgebaly teaches removing QoS
attributes from the header.
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Appellant further argues that the "QoS attributes [in Bhattacharya] are
not stored in the packet header ... but instead are passed to the NVE via a
separate mechanism, namely a VDP via an available IS-IS or LISP based
control plane." Appeal Br. 10.
We are unpersuaded because Appellant fails to address the
Examiner's finding that Bhattacharya's COS data teaches or suggests "QoS
attributes," as claimed. See Ans. 6-7 (citing Bhattacharya i-f 126).
Appellant further argues "Bhattacharya specifically teaches away
from using QoS parameters at UNI points or via NMS/EMS." Appeal
Br. 10. We find this argument unpersuasive because it is not commensurate
with the scope of the claim, which merely requires the QoS attributes to be
stored in an overlay tunnel header. Furthermore, in light of the Examiner's
finding that Bhattacharya's COS data teaches QoS attributes, Appellant's
"teaching away" argument is not persuasive because merely teaching a
different way in some embodiments of the references is not teaching away.
See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) ("The prior art's
mere disclosure of more than one alternative does not constitute a teaching
away from any of these alternatives because such disclosure does not
criticize, discredit, or otherwise discourage the solution claimed.").
Accordingly, Appellant has not shown error in the Examiner's factual
findings or conclusion of obviousness. We, therefore, sustain the
Examiner's 35 U.S.C. § 103 rejection of independent claim 1, and of
independent claims 10 and 19, for which similar arguments are presented.
See Appeal Br. 23-26. Dependent claims 3, 11, and 13 are not argued
separately and so the rejection of these claims is sustained for the reasons
given for independent claim 1. See Appeal Br. 7, 20-27.
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Claim 2 is argued separately but relies on an argument similar to the
argument found unpersuasive for independent claim 1. See Appeal Br. 11-
12. Accordingly, the rejection of claim 2 is sustained for the reasons given
for independent claim 1.
Rejection of Claims 5 and 17 Under§ 103
Appellant argues Zhang fails to teach or suggest "wherein the virtual
network associated with the source port is determined from QoS attributes
included in a header of the packet," as recited in claim 5.
We are unpersuaded. The Examiner relies on Bhattacharya to teach
QoS attributes in the header. Final Act. 8. The Examiner determines that in
view of Appellant's Specification, QoS attributes encompass a virtual local
area network ("VLAN") identifier as discussed in Zhang. Ans. 16-17
(citing Zhang i-fi-f 149-151 ); see also Spec. i1 86 ("In a further embodiment,
the QoS attributes may include at least one of: a VLAN tag"). The
Examiner further finds Zhang teaches the VLAN id tag is used "for
determining the logical context of the packet" (Zhang i-f 150) and the "logical
context ... specif-1ies] the logical switch to which the packet belongs"
(Zhang i-f 149). Ans. 16-17.
Next, we find Appellant's argument (Appeal Br. 13) that "Zhang does
not teach that 'the logical switch to which the packet belongs' is the source
of the packet in any way" unpersuasive because the argument is not
commensurate with the scope of the claim. That is, Appellant fails to
demonstrate that any of claims 2, 5, 10, or 17 require the virtual network to
be the source of the packet.
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Appellant next argues "[a]lthough Zhang may teach that logical
context may be determined from a header VLAN id, and that logical context
may be determined from a source MAC address of the packet, there is no
teaching, ... which relates the two concepts such that the source of the
packet is determined from the VLAN ID in the header of the packet."
Appeal Br. 13. We are unpersuaded of Examiner error, because, as
discussed above, the Examiner finds Zhang teaches the VLAN id tag is used
"for determining the logical context of the packet" (Zhang i-f 150) and the
"logical context ... specif[ies] the logical switch to which the packet
belongs" (the source of the packet). Thus, we disagree with Appellant's
premise because we find Zhang teaches the source of the packet is
determined from the VLAN ID in the header of the packet. We, therefore,
sustain the Examiner's 35 U.S.C. § 103 rejection of claim 5, and of claim 17,
for which Appellant's provide similar arguments. See Appeal Br. 27-28.
Rejection of Claims 4 and 14 Under§ 103
The Examiner finds the combination of Bhattacharya, Zhang,
Elgebaly, and Hawthorne teaches "wherein the QoS attributes to store with
the at least one overlay tunnel header are determined by consulting a first
table, the first table storing virtual network identifiers associated with QoS
attributes," as recited in claim 4. Final Act. 12. More specifically, the
Examiner finds "Bhattacharya teaches wherein the QoS attributes to store
with the at least one overlay tunnel header" and Hawthorne teaches a table
storing virtual network identifiers and QoS attributes. Final Act. 12.
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Appellant argues the Examiner fails to demonstrate "how the L2
forwarding table correlates the QoS attributes with network identifiers, such
that the L2 forwarding table may be used to determine which QoS attributes
to store. Instead, the Examiner merely alleges that Hawthorne teaches a L2
forwarding table having VLAN ID and QoS information therein in some
fashion." Appeal Br. 16 (citing Hawthorne i-f 56). Further, "the Examiner's
Answer ... did not provide any additional arguments regarding this
rejection." Reply Br. 11.
We find Appellant's arguments persuasive. With respect to
Hawthorne, the Examiner states "Hawthorne teaches [sic] are determined by
consulting a first table, the first table storing virtual, network identifiers
associated with QoS attributes (Hawthorne [0056] lines 1-10. Fig. 4. the L2
forwarding table includes VLAN ID. QoS information)." Final Act. 12.
We agree the Examiner fails to demonstrate how Hawthorne's L2
forwarding table having VLAN information and QoS information teaches
determining which of the QoS attributes to store with the at least one overlay
tunnel header by consulting the L2 forwarding table.
Accordingly, on this record we do not sustain the Examiner's
35 U.S.C. § 103 rejection of claim 4. We also do not sustain the rejection of
claim 14, which recites limitations commensurate in scope with claim 4, and
for which Appellant provides similar arguments. See Appeal Br. 30-31.
Rejection of Claims 7 and 20 Under§ 103
Appellant quotes portions of Zhang and Choudhary and argues "at no
point does Zhang, Choudhary, or the other art of record teach logic
configured to 'send a list of virtual network identifiers associated with
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applicable QoS attributes to each switch where presence of workloads
associated with a particular virtual network is known or learned,' as
required by claim 7." Appeal Br. 19. "The combination of art fails to teach
or suggest that applicable QoS attributes are sent with the list or that the list
is sent to each switch where presence of workloads associated with a
particular virtual network is known or learned." Appeal Br. 19. In their
reply, Appellant quotes portions of the Examiner's findings with respect to
Choudhary and argue "[ e ]ven with this expanded explanation of the
teachings of Zhang and Choudhary, there is still no evidence of a teaching in
the art of sending 'a list of virtual network identifiers."' Reply Br. 12.
We are unpersuaded because Appellant does not present substantive
arguments that specifically address the Examiner's findings based on the
combined teachings of Zhang and Choudhary or persuasively demonstrate
the Examiner erred. In particular, Appellant summarizes Zhang and
Choudhary and portions of the Examiner's rejection and conclude Zhang
and Choudhary fail to teach or suggest to "send a list of virtual network
identifiers," as claimed, (Appeal Br. 19) without a more specific
explanation. See 37 C.F.R. § 41.37(c)(l)(iv) ("A statement which merely
points out what a claim recites will not be considered an argument for
separate patentability of the claim."); see also In re Lovin, 652 F.3d 1349,
1357 (Fed. Cir. 2011) ("[W]e hold that the Board reasonably interpreted
Rule 41.37 to require more substantive arguments in an appeal briefthan a
mere recitation of the claim elements and a naked assertion that the
corresponding elements were not found in the prior art.").
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Accordingly, we are unpersuaded of error and we sustain the
Examiner's 35 U.S.C. § 103 rejection of claim 7. We also sustain the
Examiner's§ 103 rejection of claim 20, which is not argued separately. See
Appeal Br. 17-19.
Rejection of Claims 8 and 15 Under§ 103
The Examiner determines claim 8 is obvious over the combination of
Bhattacharya, Zhang, Elgebaly, and Engebretson. Final Act. 18-20.
Specifically, the Examiner finds, and we agree, that Bhattacharya teaches "at
least one overlay tunnel header having (QoS) attributes stored therein," and
Engebretson teaches "wherein the at least one overlay tunnel header having
QoS attributes stored therein comprises a Layer-2 (L2) QoS field storing L2
QoS attributes including L2 priority information for the packet and a Layer-
3 (L3) QoS field storing L3 QoS attributes including a type of service (TOS)
value indicating L3 priority information." See Final Act. 19 (citing
Bhattacharya i-f 126, Engebretson i-f 29).
Appellant summarizes paragraph 33 of Engebretson and argues
"Engebretson and the other art of record fail to teach these L2 QoS and L3
QoS fields in the overlay tunnel header" because "the claim requires that the
overlay tunnel header has fields for placement of these L2 and L3 QoS
attributes, not an IP header" as in Engebretson. Reply Br. 14.
Appellant's argument that Engebretson does not teach "L2 QoS and
L3 QoS fields in the overlay tunnel header" is unpersuasive because
Appellant attacks Engebretson singly for lacking teachings that the
Examiner relies on a combination of references to show. That is,
Appellant's argument does not address the Examiner's finding that
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Bhattacharya teaches an overlay tunnel header having fields while
Engebretson teaches L2 QoS and L3 QoS fields.
Accordingly, we are unpersuaded of error and we sustain the
Examiner's 35 U.S.C. § 103 rejection of claim 8. We also sustain the
Examiner's§ 103 rejection of dependent claim 15, which is not argued
separately. See Appeal Br. 19--21.
Rejection of Claim 12 Under§ 103
The Examiner determines claim 12 is obvious over the combination of
Bhattacharya, Zhang, and Choudhary. Final Act. 32-34.
Appellant argues "[t]he art of record fails to teach or suggest" all of
the limitations of claim 12. Appeal Br. 28 (emphasis omitted).
We are unpersuaded because Appellant does not present substantive
arguments that specifically address the Examiner's findings based on the
combined teachings of Bhattacharya, Zhang, and Choudhary or persuasively
demonstrate the Examiner erred. Appellant summarizes portions of the
Examiner's findings and concludes "at no point does Zhang, Choudhary, or
the other art of record teach 'sending a list of virtual network identifiers
associated with applicable QoS attributes to each switch where presence of
workloads associated with a particular virtual network is known or
learned,' as required by claim 12," (Appeal Br. 30) without a more specific
explanation. See 37 C.F.R. § 41.37(c)(l)(iv); see also Lovin, 652 F.3d at
1357.
Accordingly, we are unpersuaded of error and we sustain the
Examiner's 35 U.S.C. § 103 rejection of claim 12.
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CONCLUSIONS
We sustain the rejection of claims 1-3 and 5 under 35 U.S.C. § 103 as
being unpatentable over the combination of Bhattacharya, Zhang, and
Elgebaly.
We sustain the rejection of claims 7 and 20 under 35 U.S.C. § 103 as
being unpatentable over the combination of Bhattacharya, Zhang, Elgebaly,
and Choudhary.
We sustain the rejection of claims 8 and 15 under 35 U.S.C. § 103 as
being unpatentable over the combination of Bhattacharya, Zhang, Elgebaly,
and Engebretson.
We sustain the rejection of claims 10, 11, 13, 1 7, and 19 under
35 U.S.C. § 103 as being unpatentable over the combination of Bhattacharya
and Zhang.
We sustain the rejection of claim 12 under 35 U.S.C. § 103 as being
unpatentable over the combination of Bhattacharya, Zhang, and Choudhary.
We do not sustain the rejection of claim 4 under 35 U.S.C. § 103 as
being unpatentable over the combination of Bhattacharya, Zhang, Elgebaly,
and Hawthorne.
We do not sustain the rejection of claim 14 under 35 U.S.C. § 103 as
being unpatentable over the combination of Bhattacharya, Zhang, and
Hawthorne.
DECISION
We affirm the Examiner's decision rejecting claims 1-3, 5, 7, 8, IO-
13, 15, 17, 19, and 20.
We reverse the Examiner's decision rejecting claim 4 and 14.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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