Ex Parte Dacosta

Board of Patent Appeals and Interferences

Jun 6, 2011

10397445 (B.P.A.I. Jun. 6, 2011)

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.
10/397,445 03/26/2003 Behram M. Dacosta 80398P549 9015
8791 7590 06/07/2011
BLAKELY SOKOLOFF TAYLOR & ZAFMAN LLP
1279 OAKMEAD PARKWAY
SUNNYVALE, CA 94085-4040
EXAMINER
JUNTIMA, NITTAYA
ART UNIT PAPER NUMBER
2462
MAIL DATE DELIVERY MODE
06/07/2011 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BEHRAM M. DACOSTA
____________

Appeal 2009-011473
Application 10/397,445
Technology Center 2400
____________

Before MAHSHID D. SAADAT, ALLEN R. MACDONALD,
and BRUCE R. WINSOR, Administrative Patent Judges.

WINSOR, Administrative Patent Judge.

DECISION ON APPEAL

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Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-30. Claims 31-43 are withdrawn from consideration. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

STATEMENT OF THE CASE
Appellant’s invention relates to a technique for routing data packets in
a network, and a system that employs the technique. A network table at a
first node includes transmission paths for a data packet transmitted from the
first node to a second node in a network. The data packet is routed from the
first node to the second node using the optimal path which is selected from
the transmission paths according to a data packet transmission requirement.
(Spec. ¶ [004]). Claim 1, which is illustrative of the invention, reads as
follows:
1. A method comprising:
building a network table at a first node for transmission
of a data packet from the first node to a second node in a
network having a plurality of nodes, the network table
including transmission paths constructed from information sent
to the first node by each of the plurality of nodes, the
transmission paths including links connecting the each of the
plurality of nodes to other nodes, the data packet having a
transmission requirement;
selecting an optimal path from the transmission paths
according to the transmission requirement; and
routing the data packet from the first node to the second
node using the optimal path.
The Examiner relies on the following prior art in rejecting the claims:
Perlman US 5,455,865 Oct. 3, 1995
Pyhälammi US 5,541,922 Jul. 30, 1996
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Fedyk US 6,560,654 B1 May 6, 2003
The Examiner cites the following prior art for its evidentiary value
(see Ans. 13-14), but does not rely on it in rejecting the claims:
Hao US 6,728,214 Apr. 27, 2004
Adolfsson US 6,823,395 Nov. 23, 2004
Elliott US 6,987,726 Bl Jan. 17, 2006
Rajagopal US 7,120,118 B2 Oct. 10, 2006
Claims 1-2, 7-12, 17-22, and 27-30 stand rejected under 35 U.S.C.
§ 102(e) as being anticipated by Fedyk .
Claims 3, 13, and 23 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Fedyk in view of Pyhälammi.
Claims 4-6, 14-16, and 24-26 stand rejected under 35 U.S.C. §103(a)
as being unpatentable over Fedyk in view of Perlman.
Rather than repeat the arguments here, we make reference to the
Briefs (App. Br. filed December 8, 2008; Reply Br. filed April 14, 2009) and
the Answer (mailed March 4, 2009) for the respective positions of Appellant
and the Examiner. Only those arguments actually made by Appellant have
been considered in this decision. Arguments that Appellant did not make in
the Briefs have not been considered and are deemed to be waived. See
37 C.F.R. § 41.37(c)(1)(vii).

ISSUES
The issues presented by Appellant’s arguments are:
Is claim 1 anticipated by Fedyk (App. Br. 7-13; Reply Br. 2-4)?
Is claim 2 anticipated by Fedyk (App. Br. 7, 13)?
Is claim 7 anticipated by Fedyk (App. Br. 7, 13)?
Is claim 10 anticipated by Fedyk (App. Br. 7, 13-14)?
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Is claim 3 obvious over Fedyk in view of Pyhälammi (App. Br. 14-
16)?
Is claim 4 obvious over Fedyk in view of Perlman (App. Br. 16-20)?

FINDINGS OF FACT (FF)
1. Fedyk discloses data storage 26 having a path and network
database and a link state database (col. 4, ll. 28-36).
2. Fedyk discloses a link state routing network that produces link
state advertisements (LSAs) that overwrite the stored data in the local data
storage (col. 2, ll. 22-28).
3. Fedyk discloses selecting the shortest path of a plurality of
available paths (col. 4, ll. 55-58) that also meets parameters established by a
setup message (col. 5, ll. 31-41) in accordance with requirements of a data
packet to be transmitted (col. 4, l. 61 - col.5, l. 7).

PRINCIPLES OF LAW
[The USPTO] applies to the verbiage of the proposed claims
the broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in
the art, taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant’s specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
“A claim is anticipated only if each and every element as set forth in the
claim is found, either expressly or inherently described, in a single prior art
reference.” Verdegaal Bros. v. Union Oil Co. of Cal., 814 F.2d 628, 631
(Fed. Cir. 1987). “These elements must be arranged as in the claim under
review, but this is not an ‘ipsissimis verbis’ test.” In re Bond, 910 F.2d 831,
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832 (Fed. Cir. 1990) (citations omitted). Inherency requires that “the
allegedly inherent characteristic necessarily flows from the teachings of the
applied prior art.” Ex parte Levy, 17 USPQ2d 1461, 1464 (BPAI 1990)
(emphasis in original).

ANALYSIS
Claim 1
Appellant contends that Fedyk does not disclose “building a network
table at a first node for transmission of a data packet from the first node to a
second node in a network having a plurality of nodes,” as recited in claim 1
(App. Br. 7-10; Reply Br. 2-3). Appellant also contends that Fedyk does not
disclose “the network table including transmission paths constructed from
information sent to the first node by each of the plurality of nodes,” as
recited in claim 1 (App. Br. 7-8, 10-13; Reply Br. 3). Appellant further
contends Fedyk does not disclose “selecting an optimal path from the
transmission paths according to the transmission requirement,” as recited in
claim 1 (App. Br. 7-12; Reply Br. 3-4).
We do not find Appellant’s contentions to be persuasive. The
Examiner has articulated reasonable findings (Ans. 3-4) and explanations
(Ans. 9-17) and we adopt them as our own.
For emphasis, we find that Fedyk’s path and network and link state
databases (FF 1) would be understood by one skilled in the art as a network
table, see Bond, 910 F.2d at 832. Since the network table is disclosed as
existing, we find that it was necessarily and inherently “built” or
“constructed” at some time and in some manner, see Levy, 17 USPQ2d at
1464.
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We note that claim 1 does not preclude the transmission paths in the
network table from being constructed using information in addition to that
sent to the first node by each of the plurality of nodes, nor does it require
that all transmission paths be constructed using the information sent to the
first node by each of the plurality of nodes, see Morris, 127 F.3d at1054.
We find that when Fedyk’s LSAs overwrite stored data (FF 2), transmission
paths in the network table are constructed using information sent to the first
node by each of the plurality of nodes.
We also note that nothing in claim 1 precludes the “transmission
requirement” from being path length, precludes the “optimal path” from
being the shortest path that otherwise meets (i.e., is “select[ed] … according
to”) a “transmission requirement,” requires that the “optimal path” optimize
the “transmission requirement,” or precludes using information in addition
to that found in the network table to select the “optimal path,” see id. As
correctly stated by the Examiner, “the claimed ‘transmission requirement’
and ‘optimal path’ are not further defined to restrict or distinguish from
Fedyk's prescribed condition/the link parameter requirement and that the
selected path used for transmission that meets the shortest path criteria and
prescribed condition/the link parameter requirement, respectively” (Ans.
17). Therefore, we find that “selecting an optimal path from the
transmission paths according to the transmission requirement” reads on
Fedyk’s selection of the shortest path that meets other transmission
requirements (FF 3).
Accordingly we sustain the rejection of claim 1, of claims 11 and 21,
which were argued together with claim 1 (App. Br. 7), and of dependent
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claims 8, 9, 18, 19, 28 and 29, which were argued merely by reference to the
claims from which they depend (App. Br. 14).
Claim 2
Appellant contends that Fedyk’s LSA is not an identification packet
and that Fedyk does not teach using the LSA to construct the network table
(App. Br. 13). The Examiner answers that
the structure and function of the first identification packet, a
first transmit node, and the first node information are not
further defined, therefore, the first identification packet, the first
transmit node, and the first node information are interpreted as
[an] LSA packet, a node that broadcasts an LSA packet to
source node 12, and information contained in the LSA packet,
respectively.
(Ans. 17) (emphasis in original). We agree with the Examiner, and adopt
the Examiner’s findings (Ans. 4-5) and explanations (Ans. 17-18) as our
own.
Accordingly we sustain the rejection of claim 2, of claims 12 and 22,1
which were argued together with claim 2 (App. Br. 13), and of dependent
claims 5, 6, 15, 16, 25, and 26, which were argued by reference to the claims
from which they depend (App. Br. 17).
Claim 7
Appellant contends that Fedyk’s disclosure that high priority data may
require a relatively high minimum bandwidth does not teach a quality of
service (QoS) transmission requirement and that Fedyk does not disclose

1 Although the Appeal Brief only refers to claims 2 and 12 (App. Br. 13), in
view of similarities between the recitals of claim 22 and those of claims 2
and 12, and the absence of any separate argument for claim 22, we presume
that Appellant intended to argue claim 22 together with claims 2 and 12.
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that the bandwidth is contained in the network table (App. Br. 13). The
Examiner answers that
the minimum bandwidth requirement required to ensure quality
of the high priority data reads on the QoS transmission
requirement. Again, regardless of when the test on whether the
path meet the minimum bandwidth requirement is performed,
as long as it is performed and a path is selected resulting from
the test, the path selected is considered as the optimal path that
meets the transmission requirement. The argument regarding
the transmission requirement contained in the network table is
irrelevant because it is not in the claim.
(Ans. 18) (emphasis in original). We agree with the Examiner, and adopt
the Examiner’s findings (Ans. 5) and explanations (Ans. 18-19) as our own.
Accordingly, we sustain the rejection of claim 7 and of claims 17 and
27, which were argued together with claim 7 (App. Br. 13).
Claim 10
Appellant contends that Fedyk does not disclose a “home network” as
claimed (App. Br. 13). The Examiner responds that “home network” is not
further defined and, giving the claim its broadest reasonable interpretation it
reads on a local network that connects a plurality of nodes domestically
within itself, as shown in Fedyk’s Figure 1. We agree with the Examiner,
see Morris, 127 F.3d at1054, see also Bond, 910 F.2d at 832, and adopt the
Examiner’s findings (Ans. 5) and explanations (Ans. 19) as our own.
Accordingly, we sustain the rejection of claim 10 and of claims 20
and 30, which were argued together with claim 10 (App. Br. 13).
Claim 3
Appellant contends that Pyhälammi does not teach receiving the
packet transmitted at different data rates because the packet is transmitted at
one data rate and bridged, rather than transmitted, at a different data rate
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(App. Br. 16). Appellant also contends that Pyhälammi’s LAN packet does
not correspond to an identification packet broadcast by a transmit node (id.).
Appellant further contends that there is no suggestion or motivation to
combine the references (id.).
The Examiner responds that Pyhälammi is relied on to show that a
data packet may be transmitted at different rates in moving from one node to
another (Ans. 19). Therefore, when transmitting an LSA (i.e.,
“identification packet”) over Fedyk’s network comprising links with
different available bandwidths, it would have been be obvious to one of
ordinary skill in the art to use different data rates for transmitting the LSA in
order to utilize the non-uniform bandwidths of the links (Ans. 20).
We agree with the Examiner and adopt the Examiner’s findings (Ans.
6-7) and explanations (Ans. 19-20) as our own. We note, for emphasis only,
that claim 3 requires the identification packet to be transmitted at different
data rates, but does not require the identification packet to be received at
different data rates, see Morris, 127 F.3d at1054. We further note that claim
3 does not preclude transmitting at different data rates from occurring either
sequentially or simultaneously, see id.
Accordingly, we sustain the rejection of claim 3 and of claims 13 and
23, which were argued together with claim 3 (App. Br. 14).
Claim 4
Appellant contends, inter alia, that Perlman does not disclose that “the
first node information includes … a signal strength associated with the
second identification packet, as recited in claims 4, 14, and 24” (App. Br.
17; see also App. Br. 18). The Examiner fails to points to, nor do we find,
any teachings in the references regarding “a signal strength associated with
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the second identification packet” as recited in claim 4 (see Ans. 7-8, 20-22).
Accordingly, we do not sustain the rejection of claim 4 or of claims 14 and
24, which include the same recitation.

ORDER
The decision of the Examiner to reject claims 1-3, 5-13, 15-23, and
25-30 is affirmed. The decision of the Examiner to reject claims 4, 14, and
24 is reversed.
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-IN-PART

ELD