Ex Parte BanavalikarDownload PDFPatent Trial and Appeal BoardMay 2, 201814229692 (P.T.A.B. May. 2, 2018) Copy Citation 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. Appeal2017-010584 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. 2 Appeal2017-010584 Application 14/229,692 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 3 Appeal2017-010584 Application 14/229,692 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 Appeal2017-010584 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. 5 Appeal2017-010584 Application 14/229,692 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 6 Appeal2017-010584 Application 14/229,692 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)). 7 Appeal2017-010584 Application 14/229,692 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. 8 Appeal2017-010584 Application 14/229,692 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. 9 Appeal2017-010584 Application 14/229,692 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. 10 Appeal2017-010584 Application 14/229,692 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. 11 Appeal2017-010584 Application 14/229,692 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 12 Appeal2017-010584 Application 14/229,692 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."). 13 Appeal2017-010584 Application 14/229,692 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 14 Appeal2017-010584 Application 14/229,692 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. 15 Appeal2017-010584 Application 14/229,692 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. 16 Appeal2017-010584 Application 14/229,692 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 17 Copy with citationCopy as parenthetical citation