Ex Parte Brahim

Patent Trial and Appeal Board

Sep 26, 2012

10326121 (P.T.A.B. Sep. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte HAMID OULD BRAHIM

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Appeal 2010-005788
Application 10/326,121
Technology Center 2400
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Before DEBRA K. STEPHENS, DAVID M. KOHUT, and
JOHN G. NEW, Administrative Patent Judges.

NEW, Administrative Patent Judge.

DECISION ON APPEAL

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SUMMARY
Appellant files this appeal under 35 U.S.C. § 134(a) from the
Examiner’s final rejection of claims 1-20 as unpatentable under 35 U.S.C.
§ 102(e) as being anticipated by Chang et al. (US 2002/0141408 A1,
October 3, 2002) (“Chang”). Appellant also appeals the Examiner’s final
rejection of claims 21-23 as unpatentable under 35 U.S.C. § 103(a) as being
obvious over Chang and Kirk et al. (US 2003/0115361 A1, June 19, 2003)
(“Kirk”). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
Appellant’s invention is directed to a technique for implementing an
optical virtual private network. Abstract. Because the Examiner rejects
independent claims 1, 10, and 18 for substantially the same reasons, we
select claim 1 as representative. Claim 1 recites:
1. A method for implementing an optical virtual private
network, the method comprising the steps of:

providing at least one client edge-optical virtual private
network at a client edge;

supporting a set of at least one client edge-users at the at
least one client edge-optical virtual private network at the client
edge, wherein the client edge provides at least one optical
virtual private network service to each client edge-user and
determines connectivity between each client edge-user; and

establishing the connectivity determined by the client
edge.

App. Br. 32.
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Dependent claims 21-23 are rejected by the Examiner as unpatentable
under 3 U.S.C. §103(a) as being obvious over Chang and Kirk. Because the
Examiner rejects these claims for substantially the same reason, we select
claim 21 as representative of this group. Claim 21 recites:
21. The method of claim 1, wherein establishing the
connectivity determined by the client edge comprises a service
provider establishes the connectivity determined by the client
edge.

App. Br. 38.

ISSUES
Claim 1
Issue 1: Whether Chang teaches the limitation of claim 1 reciting
“providing at least one client edge-optical virtual private network at a
client edge.”

Appellant argues that the Examiner erred in rejecting claim 1 as
unpatentable under 35 U.S.C. § 102(e) as being anticipated by Chang. App.
Br. 6. Specifically, Appellant contends that the Examiner erred because
Chang discloses only a location of network 132 on “a national-scale,
transparent WDM-based backbone network with full interoperability and
reconfigurability.” App. Br. 8 (citing Figure 1). Moreover, contends
Appellant, Chang also teaches a network 500 for communicating packets
among end-users in certain large cities in the United States. App. Br. 8
(citing Figure 5). Therefore, Appellant argues, Chang fails to teach the
limitation of claim 1 reciting “providing at least one client edge-optical
virtual private network at a client edge.” We are thus presented with the
issue of whether the Examiner erred in finding that Chang discloses the
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limitation of claim 1 reciting “providing at least one client edge-optical
virtual private network at a client edge.”

Issue 2: Whether Chang teaches the limitation of claim 1 reciting
“determines connectivity between each client edge-user.”

Appellant also argues that the Examiner erred because Chang teaches
only a centralized network control and management (“NC&M”) 220 to
determine connections for establishing links within a network, and establish
input and output ports for each network element. App. Br. 9. Appellant
contends that Chang further discloses a Wavelength Division Multiplexing
(“WDM”) network that employs WDM label-switching and thus enables
highly efficient routing and throughput, and reduces the number of IP-level
hops required by keeping the packets routing at the optical level to one hop
as managed by the centralized NC&M which creates and maintains routing
information. Id. Consequently, argues the Appellant, Chang does not
disclose the limitation of claim 1 reciting “determines connectivity between
each client edge-user.” Id. We are thus presented with the issue of whether
Chang teaches or discloses the limitation of claim 1 reciting “determines
connectivity between each client edge-user.”

ANALYSIS
Claim 1
Issue 1
The Examiner answers that Appellant defines an optical virtual
private network as “a client private network with a set of sites connected
through a service provider.” Ans. 8 (quoting Specification, p.7, ll. 24-26).
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The Examiner finds that Chang discloses a virtual private network
connected through a service provider with edge clients. Ans. 8. (citing Fig.
39; nodes 4, 7, 8 & 6).
We are not persuaded by Appellant’s argument. Fig. 39 of Chang
explicitly teaches the realization of an optical virtual private network (VPN)
with a concomitant method of carrying out communications over the VPN.
(Chang, ¶ [0240]). We find that this reads directly on the language of the
claim 1 reciting “a client private network with a set of sites connected
through a service provider.” We therefore find that the Examiner did not
err in finding that the limitation reciting “providing at least one client edge-
optical virtual private network at a client edge” is anticipated by Chang.

Issue 2
The Examiner answers that the language of claim 1 does not preclude
that the determining of connectivity between client edge-users is done
exclusively through the client edge. Ans. 8. The Examiner finds that
Chang does read on the limitation, because Chang discloses the use of a
NC&M along with other internal data (i.e. preferred path with minimized
cost, based on total propagation distance, number of hops and the traffic
load) to establish input and output ports for each network element Ans. 8-9
(citing Chang, ¶¶ [0105]-[0106]). The Examiner finds that, for Chang’s
invention to do this it would have to be able to determine the connectivity
between each of the edge clients. Ans. 9.
Furthermore, the Examiner notes that the Appellant states that an
exemplary client edge device may be a router. Ans. 9. The Examiner finds
that Chang discloses routers and dynamic routing algorithms based on
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minimized costs, total propagation distance, number of hops and the traffic
load. Ans. 9. The Examiner finds that for the invention disclosed by Chang
to be functional, the routers (as disclosed in Chang) would have to be able
to determine connectivity between each edge client (citing Chang, ¶¶
[0105]-[0122]).
We are persuaded by the Examiner’s reasoning and adopt it as our
own. We agree with the Examiner’s finding that the language of claim 1
does not preclude that the determining of connectivity between client edge-
users is done exclusively through the client edge, and that Chang discloses
means by which connectivity between each client edge-user is determined.
Ans. 8-9. We therefore conclude that the Examiner did not err in finding
that Chang teaches the limitation of claim 1 reciting “determines
connectivity between each client edge-user.”

Claims 2, 11, and 19
Claims 2, 11, and 19 depend from claims 1, 10, and 18, respectively.
Appellant contends that these claims are each separately patentable because
Chang does not disclose or suggest the limitation of all three claims reciting
“implementing a discovery mechanism for determining a client edge set
having at least one client edge-user associated with a client edge-optical
virtual private network.” App. Br. 10-11. As such, Appellantis merely
restating what the claim requires and arguing that the reference fails to
teach or suggest these requirements. App. Br. 10-11. See 37 C.F.R.
§ 41.37(c)(1)(vii) (“A statement which merely points out what a claim
recites will not be considered an argument for separate patentability of the
claim.”); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold
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that the Board reasonably interpreted Rule 41.37 to require more
substantive arguments in an appeal brief than a mere recitation of the claim
elements and a naked assertion that the corresponding elements were not
found in the prior art.”).
Even so, the Examiner answers that Chang discloses the use of “plug-
and-play modules” with certain network elements to efficiently handle
bursty traffic. Ans. 9. The Examiner finds that plug-and-play modules
inherently have a discovery mechanism so that once the device/element is
plugged into the network it is announced to all other devices/elements
within the network. Consequently, the Examiner finds that Chang does not
disclose the limitation of claims 2, 11, and 19 reciting “implementing a
discovery mechanism for determining a client edge set having at least one
client edge-user associated with a client edge-optical virtual private
network.”
We agree with the Examiner’s reasoning and adopt it as our own
(cite). Chang teaches the use of plug and play elements and such modules
have a discovery mechanism so that once the device/element is plugged into
the network it is announced to all other devices/elements within the
network. See Chang, ¶¶ [0008], [0107]. We therefore conclude that the
Examiner did not err in finding that Chang teaches the limitation of claim 2,
11, and 19 reciting “implementing a discovery mechanism for determining
a client edge set having at least one client edge-user associated with a client
edge-optical virtual private network.”

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Claims 3, 12, and 20
Claims 3, 12, and 20 depend from claims 2, 11, and 19, respectively.
Appellant contends that these claims are each separately patentable because
Chang does not disclose or suggest the limitation of all three claims reciting
“enabling a first client edge-user to request a connection with a second
client edge-user wherein the first client edge-user and the second client
edge-user are associated with the same client edge-optical virtual private
network.” Ans. 11, 18, and 24-25. Again, Appellant is merely restating the
claim and arguing that the references do not teach the claimed limitations
and as such will not be treated as an argument for separate patentability.
Even so, the Examiner answers (referring to the points made in the
answers supra) that Chang's disclosure of a minimizing the time wasted in
requesting connection times and actually achieving the connections, along
(citing ¶ [0007]) with setting up and maintaining of connections over the
network (citing Chang, in fig. 5, 500) in order to communicate packets
among end-users, reads on the disputed limitations of the claims. Ans. 9.
Furthermore, the Examiner finds that the very field of Chang’s invention is
to configure a virtual optical private network. Id. (citing Chang, ¶ [0002]).
We agree with the Examiner’s reasoning and adopt it as our own.
We therefore conclude that the Examiner did not err in finding that Chang
teaches the limitation of claim 3, 12, and 20 reciting “enabling a first client
edge-user to request a connection with a second client edge-user wherein
the first client edge-user and the second client edge-user are associated with
the same client edge-optical virtual private network.”

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Claims 4 and 13
Claims 4 and 13 depend from claims 3 and 12, respectively.
Appellant asserts that these claims are each separately patentable because
Chang does not disclose or suggest the limitation of the claims reciting
“wherein the connection between the first client edge-user and the second
client edge-user is established without intervention from a third party.”
Ans. 10-11. Again, Appellant is merely restating the claim and arguing that
the references do not teach the claimed limitations and as such will not be
treated as an argument for separate patentability.
Even so, the Examiner answers that the Appellant claims broadly and
as such the Examiner may therefore interpret the claims broadly. Ans. 10.
The Examiner finds that the constituent parts that make up a connection
between end points/users (i.e. routers, gateways etc.) are in fact a part of the
same connection, therefore the Examiner asserts that the two end-users
making a connection (i.e. via network in fig. 5) are doing so between
themselves and not a third party. Ans. 10-11.
We are persuaded by the Examiner’s reasoning and adopt it as our
own (cite). We therefore conclude that the Examiner did not err in finding
that Chang teaches the limitation of claim 4 and 13 reciting “wherein the
connection between the first client edge-user and the second client edge-
user is established without intervention from a third party.”

Claims 5 and 14
Claims 5 and 14 depend from claims 1 and 10, respectively.
Appellant asserts that these claims are each separately patentable because
Chang does not disclose or suggest the limitation of the claims reciting
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“wherein membership information associated with one or more client edge-
users is provided a third party, wherein the membership information
comprises one of a virtual private network identifier and a global unique
identifier.” App. Br. 12. Again, Appellant is merely restating the claim and
arguing that the references do not teach the claimed limitations and as such
will not be treated as an argument for separate patentability.
Even so, the Examiner answers that Chang's disclosure of a local
routing table and local addressing schema (citing Chang, ¶¶ [0009] and
[0047]) does in fact correlate to the membership information of a virtual
private network identifier and that the global information and global routing
tables (citing Chang, ¶ [0120]) correlate to the global unique identifier.
Ans. 10.
We are persuaded by the Examiner’s reasoning and adopt it as our
own (cite). We therefore conclude that the Examiner did not err in finding
that Chang teaches the limitation of claim 5 and 14 reciting “wherein
membership information associated with one or more client edge-users is
provided a third party, wherein the membership information comprises one
of a virtual private network identifier and a global unique identifier.”

Claims 6 and 15
Claims 6 and 15 depend from claims 1 and 10, respectively.
Appellant asserts that these claims are each separately patentable because
Chang does not disclose or suggest the limitation of the claims reciting
“wherein the client edge uses a private address to request connectivity to a
destination client edge.” App. Br. 12-13 and 19-20. Again, Appellant is
merely restating the claim and arguing that the references do not teach the
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claimed limitations and as such will not be treated as an argument for
separate patentability.
Even so, the Examiner answers (referring to his Answer with respect
to claims 6 and 15) that Chang’s disclosure of a local routing table and local
addressing schema does in fact read on this limitation. Ans. 10.
We are persuaded by the Examiner’s reasoning and adopt it as our
own (cite). We therefore conclude that the Examiner did not err in finding
that Chang teaches the limitation of claim 6 and 15 reciting “wherein the
client edge uses a private address to request connectivity to a destination
client edge.”

Claims 7 and 16
Claims 7 and 16 depend from claims 1 and 10, respectively.
Appellant contends that these claims are each separately patentable because
Chang does not disclose or suggest the limitation of the claims reciting
“wherein a connection with the client edge from a network associated with
a third party is established via a transport network assigned address.” App.
Br. 13 and 20. Again, Appellant is merely restating the claim and arguing
that the references do not teach the claimed limitations and as such will not
be treated as an argument for separate patentability.
Even so, the Examiner answers (referring to his Answer with respect
to claims 6 and 15) that Chang’s disclosure of local and global routing
tables (i.e. an addressing schema) does in fact read on the network assigned
address limitation. Ans. 10.
We are persuaded by the Examiner’s reasoning and adopt it as our
own (cite). We therefore conclude that the Examiner did not err in finding
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that Chang teaches the limitation of claim 7 and 16 reciting “wherein a
connection with the client edge from a network associated with a third party
is established via a transport network assigned address.”

Claims 8 and 17
Claims 8 and 17 depend from claims 1 and 10, respectively.
Appellant asserts that these claims are each separately patentable because
Chang does not disclose or suggest the limitation of the claims reciting
“wherein the client edge comprises one or more of a router, cross connect
device and a switch.” App. Br. 13-14 and 20. Again, Appellant is merely
restating the claim and arguing that the references do not teach the claimed
limitations and as such will not be treated as an argument for separate
patentability.
Even so, the Examiner answers by calling attention the elements of
Figure 1 (e.g., IP Routers, ATM/SONET system [131] with optical cross
connects). The Examiner finds that Chang therefore discloses the
limitations of claims 8 and 17. Ans. 10-11.
We are persuaded by the Examiner’s reasoning and adopt it as our
own (cite). We therefore conclude that the Examiner did not err in finding
that Chang teaches the limitation of claim 8 and 17 reciting “wherein the
client edge comprises one or more of a router, cross connect device and a
switch.”

Claim 9
Claims 9 depends from claims 1. Appellant contends that claim 9 is
separately patentable because Chang does not disclose or suggest the
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limitation of the claim reciting “a processor readable storage medium for
storing a computer program of instructions for executing a computer
process performing the method recited in claim 1.” App. Br. 14.
The Examiner rejects claim 9, finding that “[c]laim 9 is substantially
the same as claim 1 and is thus rejected for reasons similar to those in
rejecting claim 1.” Final Rejection 6 (boldface omitted).
We are not persuaded by Appellant’s reasoning. Appellant has not
provided any argument in opposition to the Examiner’s rejection of claim 9
as being substantially similar to claim 1, other than the bare assertion that it
is not. Appellant has therefore not persuaded us that the limitation of claim
9 reciting “a processor readable storage medium for storing a computer
program of instructions for executing a computer process performing the
method recited in claim 1” adds any element that is not either disclosed or
inherent in the language of claim. We therefore conclude that the Examiner
did not err in in rejecting claim 9.

Claims 21-23
Claims 21-23 are depend from claims 1, 10, and 18, respectively.
Appellant asserts that the obviousness rejection of claims 21-23 is moot in
view of the alleged deficiencies of the primary reference (i. e., Chang) as
with respect to independent claim 1. App. Br. 26. Moreover, Appellant
argues that Kirk fails to disclose, or even suggest, the alleged deficiencies
of the Chang. App. Br. 26-27. Appellant contends that claims 21-23 recite
additional features which are not disclosed, or even suggested, by the cited
references taken either alone or in combination. App. Br. 26-29. For
example, claims 21-23 recite “establishing the connectivity determined by
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the client edge comprises a service provider establishes the connectivity
determined by the client edge.” App. Br. 27.
The Examiner responds that, for the reasons cited above, Chang
discloses the limitations of claims 1, 10, and 18 discussed above. Ans. 11.
Although the Examiner finds that Chang remains silent on the specific
teachings of establishing the connectivity determined by the client edge
comprising a service provider establishes the connectivity determined by
the client edge, the Examiner finds Kirk discloses a service provider [412]
and “establish[ing] connectivity between a service provider (412) router and
service user router (422).” Final Rejection 7; Ans. 11 (citing Kirk, Fig. 4; ¶
[0057]). The Examiner further finds that a person of ordinary skill in the
contemporaneous art would be motivated to combine Chang and Kirk for
the purpose of providing for a more manageable and efficient system (i.e.,
by providing for a minimum level/standard on quality of service). Final
Rejection 7. Accordingly, the Examiner finds that it would have been
obvious for one of ordinary skill in the art to modify or incorporate Kirk's
teachings of using a service provider to establish connectivity between two
nodes within a network with the teachings of Chang. Id.
We are persuaded by the Examiner’s reasoning and adopt it as our
own (cite). As the Examiner finds, Kirk explicitly teaches peer IP links
used to establish connectivity between a router 130 within data transport
network 100 to a bridge 104, a service provider (412) router or a service
user (422) router; access IP links used to establish connectivity between a
service provider (412) router and a service user (422) router; and network
IP links between managed routers 130. Kirk, ¶ [0057]. We therefore
conclude that the Examiner did not err in concluding that claims 21-23 are
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unpatentable under 35 U.S.C. § 103(a) as being obvious over Chang and
Kirk.

DECISION
The Examiner’s rejection of claims 1-20 as unpatentable under 35
U.S.C. § 102(e) as being anticipated by Chang is affirmed.
The Examiner’s rejection of claims 21-23 as unpatentable under 35
U.S.C. § 103(a) as being obvious over Chang and Kirk 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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2010).

AFFIRMED

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