Ex Parte Farkas et al

Patent Trial and Appeal Board

Feb 10, 2017

13819526 (P.T.A.B. Feb. 10, 2017)

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.
13/819,526 02/27/2013 János Farkas 4015-8444 / P36113-US2 1071
24112 7590 02/10/2017
COATS & BENNETT, PLLC
1400 Crescent Green, Suite 300
Cary, NC 27518
EXAMINER
AHMED, ABDULLAHI
ART UNIT PAPER NUMBER
2472
MAIL DATE DELIVERY MODE
02/10/2017 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 PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JANOS FARKAS, BALAZS PETER GERO,
LASZLO MOLNAR, and PANAGIOTIS SALTSIDIS
____________________

Appeal 2016-006007
Application 13/819,5261
Technology Center 2400
____________________

Before LARRY J. HUME, JENNIFER L. MCKEOWN, and
JOHN D. HAMANN, Administrative Patent Judges.

HUME, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 26–30 and 32–50. The Examiner has withdrawn the
rejection of claim 31 (Ans. 2), and Appellants have canceled claims 1–25.
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 According to Appellants, the real party in interest is Telefonaktiebolaget
LM Ericsson (publ). App. Br. 2.
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STATEMENT OF THE CASE2
The Invention
Appellants' disclosed and claimed inventions "generally relate[] to
link aggregation, and more particularly relate[] to a technique for ensuring
congruency in link aggregation. The technique may be implemented as a
method, as a computer program product or as a network node." Spec. 1,
ll. 6–9 (Technical Field).
Exemplary Claims
Claims 26 and 42, reproduced below, are representative of the subject
matter on appeal (emphases and labeling added to contested limitations):
26 A method of processing Link Aggregation Group
(LAG) link assignments into digests, the LAG link assignments
assigning network services to specific LAG links, wherein each
LAG link is formed between a local LAG node of a local LAG
virtual node in a local network and a corresponding remote
LAG node of a remote LAG virtual node in a remote network,
wherein the method is implemented in the local LAG node and
comprises:
[L1] obtaining an enforced service assignment table that
indicates LAG links of the LAG nodes to which a plurality of
services that require LAG congruency are assigned and for
which LAG congruency is enforced; and
[L2] preparing, based on the enforced service
assignment table, a congruency digest of the local LAG virtual
node.

2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed
Sept. 11, 2015); Reply Brief ("Reply Br.," filed May 24, 2016); Examiner's
Answer ("Ans.," mailed May 18, 2016); Final Office Action ("Final Act.,"
mailed Apr. 3, 2015); and the original Specification ("Spec.," filed
Feb. 27, 2013).
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42. A method of verification and enforcement of
congruent services, wherein a congruency digest has been
processed from Link Aggregation Group (LAG) link
assignments, the LAG link assignments assigning network
services to specific LAG links, wherein a service assignment
table indicates LAG links of the local LAG node to which a
plurality of services that require LAG congruency are assigned,
wherein each LAG link is formed between a local LAG node of
a local LAG virtual node in a local network and a
corresponding remote LAG node of a remote LAG virtual node
in a remote network, wherein the method is implemented in the
local LAG node and comprises:
receiving a remote congruency digest from the
corresponding remote LAG node;
detecting whether the link assignments of the received
remote congruency digest and of a local congruency digest
match; and
moving, if the detecting indicates that the link
assignments in the local congruency digest and the remote
congruency digest do not match, all services referenced in the
digests to a predefined default LAG link.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Jain et al. ("Jain") US 8,054,830 B2 Nov. 8, 2011
Finn et al. ("Finn") US 2012/0233492 A1 Sept. 13, 2012

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Rejections on Appeal3
R1. Claims 26–30, 32–35, 38–41, 48, and 49 stand rejected under
35 U.S.C. § 102(e) as being anticipated by Finn. Ans. 2.
R2. Claims 36, 37, 42–47, and 50 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Finn and Jain.
Ans. 7.
ISSUES AND ANALYSIS
We agree with particular arguments advanced by Appellants with
respect to claims 26 and 42 for the specific reasons discussed below. We
highlight and address specific findings and arguments regarding these claims
for emphasis as follows.
1. § 102(e) Rejection R1 of Claims 26–30, 32–35, 38–41, 48, and 49
Issue 1
Appellants argue (App. Br. 6–8; Reply Br. 2) the Examiner's rejection
of claim 26 under 35 U.S.C. § 102(e) as being anticipated by Finn is in error.
These contentions present us with the following issue:
Did the Examiner err in finding the cited prior art discloses a "method
of processing Link Aggregation Group (LAG) link assignments into digests
. . . implemented in the local LAG node" that includes, inter alia, limitations
L1 and L2, as recited in claim 26?

3 We note the Examiner has withdrawn the rejection of dependent claim 31.
Ans. 2.
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Analysis
Limitation L1 — "obtaining" Step
Appellants contend the obtaining step in limitation L1 in "which a
plurality of services that require LAG congruency are assigned and for
which LAG congruency is enforced" is not disclosed by Finn. App. Br. 6–7.
The Finn devices inform each other of their preferences by
exchanging protocol data units (PDUs) that include
bidirectional preference indicators. ¶ [0037] . . . . Thus, a device
is not required to, for example, "transfer data across its inter-
switch link in order to comply with the other virtual switch's
preferences," as this may create a conflict for the transmitting
device. Id. Accordingly, LAG congruency is permitted, and at
times preferred, but not enforced in the Finn system.
App. Br. 6.
The Examiner responds by finding:
Finn teaches the link aggregation system in which LAG
congruency is enforced for services that require LAG
congruency (paragraph 39). Preference Level is assigned to
service; preference level of 1 indicates preference of link
assignment to be same in both directions and preference level 0
indicates that link assignment can be different. For example in
figure 2, network device E sends preference value to network
device F, network device F assigns the link based on the
preference value. Network device F action of assigning the
preferred link is viewed as enforcing the service to be on the
same link. (Paragraph 40 and 41)
App. Br. 15 (emphasis added).
We note paragraphs 40 and 41 of Finn, cited by the Examiner as
disclosing enforcing the service based upon assigning the preferred link,
disclose the following:
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[0040] If either virtual switch (or network device) sets the
bidirectional preference indicator in the PDUs on any of the
physical links, then each virtual switch attempts to transmit
each service on the same link as the other virtual switch. If the
preference levels are different at each virtual switch, the highest
level preference wins (e.g., efficiency preference level). If the
preference levels are the same, then a tie breaker may be used
(e.g., switch with lowest numerical system ID from PAgP or
LACP wins). If the network device transmitting the preference
indicates conflicting preferences (i.e., the same set is included
in the PDUs on two different physical links), the receiver can
choose which preference to use.
[0041] If the bidirectional preference indicators are all 0, then
each virtual switch attempts to comply with the other virtual
switch's preferences. Conflicts are most likely to arise if a
virtual switch has to transfer data across its inter-switch link in
order to comply with the other virtual switch's preferences. The
final choice is up to the transmitter of the data packet. The
virtual switch (or network device) can express a preference, but
it should be prepared to receive any service on any physical
link.
Finn ¶¶ 40–41 (emphasis added).
We agree with Appellants that Finn's disclosure in paragraph 41 —
"[t]he virtual switch (or network device) can express a preference, but it
should be prepared to receive any service on any physical link" — does not
meet limitation L1 because merely attempting to honor a "preference" does
not equate to enforcing LAG congruency, as claimed.
Limitation L2 — "preparing . . . a congruency digest" Step
Appellants contend "[t]he Office alleges that the claimed congruency
digest is taught by Finn's PDU, and that the claimed enforced service
assignment table is taught by the Finn database . . . . [a]lthough the Finn
PDU specifies a database ID and set number that identifies the services in
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the set as specified in the given database, the Finn database is not taught to
indicate any LAG links to which those services are assigned." App. Br. 7–8
(emphasis added).
The Examiner responds, "[n]etwork device generates a PDU which
[is] equated to be the congruency digest. The PDU includes bidirectional
preference indicator, the data base ID, and list of set of preferences, and
service identifier." Ans. 16 (citing Finn ¶¶ 36, 37).
We have reviewed the disclosure of Finn, particularly paragraphs 36
and 37 cited by the Examiner, and do not find that the PDU of Finn discloses
a database that stores LAG links to which services are assigned, particularly
when viewing the recited "congruency digest" in light of Appellants'
Specification.4

4 With respect to the recited "congruency digest." Appellants' Specification
discloses:
The matching of the assignment is periodically checked based
on an exchange mechanism between the two sides of the LAG.
The periodic exchange of the entire tables for the verification of
their match would consume too much bandwidth. Therefore, a
well-defined digest may be exchanged instead of an entire table.
As there are two types of assignment tables, two types of
digests are distinguished. The "Congruency Enforcement
Digest" is computed on the Congruency Enforced Service to
Link Assignment table (Table 1), and the "Service Verification
Digest" is 15 computed on the Non-enforced Services table
(Table 2).
The digest, for example, can be computed by creating a 16 octet
MDS signature (see IETF RFC 1321). The digest then serves as
a summary of the table from which it is created . . . .
See Spec. 11 "Digests"; see also Tables 1 and 2, Spec. 10.
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Overall, we agree with Appellants because the Examiner has not
adequately explained how Finn discloses each limitation of claim 26 as is
required to support an anticipation rejection. The Examiner's rejections
identify concepts and principles regarding preferential assignment of the
preferred link and a database that relate to claim 26, but "'[c]oncepts' do not
anticipate." Panduit Corp. v. Dennison Mfg. Co., 774 F.2d 1082, 1101 (Fed.
Cir. 1985); see also Net MoneyIn, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371
(2008) ("[i]t is not enough that the prior art reference discloses part of the
claimed invention, which an ordinary artisan might supplement to make the
whole, or that it includes multiple, distinct teachings that the artisan might
somehow combine to achieve the claimed invention.") An anticipation
rejection requires an element-by-element analysis of each claim. See
Bristol-Myers Squibb Co. v. Ben Venue Labs., Inc., 246 F.3d 1368, 1374
(Fed. Cir. 2001). Further, an anticipation rejection must establish that a
reference not only discloses all elements of the claim within the four corners
of the document, but that the reference also discloses those elements
arranged as in the claim. Net MoneyIn, 545 F.3d at 1369. On this record,
we find the Examiner has not met his burden in establishing anticipation of
claim 26 by Finn.
Accordingly, based upon the findings above, on this record, we are
persuaded of error in the Examiner's reliance on the disclosure of the cited
prior art to disclose the disputed limitations of independent claim 26, as well
as independent claims 48 and 49, which recite the contested limitations in
commensurate form. Therefore, we cannot sustain the Examiner's
anticipation rejection of independent claims 26, 48, and 49, and dependent
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claims 27–30, 32–35, and 38–41 which depend from and stand with claim
26.
§ 103 Rejection R2 of Claims 36 and 37
In light of our reversal of the rejection of independent claim 26, supra,
we also reverse obviousness Rejection R2 under § 103 of claims 36 and 37,
which variously and ultimately depend from claim 26. On this record, the
Examiner has not shown how the additionally cited secondary Jain reference
overcomes the aforementioned deficiencies with Finn, as discussed above
regarding claim 26.
2. § 103 Rejection R2 of Claims 42–47 and 50
Issue 2
Appellants argue (App. Br. 8–13; Reply Br. 2–5) the Examiner's
rejection of claim 42 under 35 U.S.C. § 103(a) as being obvious over the
combination of Finn and Jain is in error. These contentions present us with
the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests "[a] method of verification and enforcement of congruent
services" that includes, inter alia, the step of "moving, if the detecting
indicates that the link assignments in the local congruency digest and the
remote congruency digest do not match, all services referenced in the digests
to a predefined default LAG link," as recited in claim 42?
Analysis
Appellants contend the combination of Finn and Jain fail to teach or
suggest link assignments in the local congruency digest and the remote
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congruency digest because Finn's PDUs do not contain link assignments, but
instead, similar to arguments presented with respect to claim 26, supra, a
"Finn PDU merely specifies whether link congruence is preferred for
particular sets of services, without specifying any particular link to which
those services may be assigned." App. Br. 8–9 (citing Finn ¶¶ 37–39).
Appellants further argue Jain does not make up for the argued
deficiencies of Finn, because "Jain also do[es] not contain link assignments.
Jain teaches a method for eliminating redundant messages '[b]y dropping
control protocol messages that do not carry any updated control protocol
information [so that] valuable resources are not wasted processing redundant
control protocol information that will have no [e]ffect on the protocol state'
Col. 5, lines 34-37." App. Br. 9. We agree with Appellants' argument.
For the same reasons set forth at least with respect to limitation L1 of
claim 26 and the teachings of Finn, supra, we are persuaded the Examiner
erred in finding independent claim 42 unpatentable under § 103.
Therefore, based upon the findings above, on this record, we are
persuaded of at least one error in the Examiner's reliance on the combined
teachings and suggestions of the cited prior art combination to teach or
suggest the disputed limitation of independent claim 42 and independent
claim 50 which recites the contested limitation in commensurate form, such
that we find error in the Examiner's resulting legal conclusion of
obviousness. Therefore, we cannot sustain the Examiner's obviousness
Rejection R2 of independent claims 42 and 50, and claims 43–47 which
depend from claim 42 and stand therewith.
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CONCLUSIONS
(1) The Examiner erred with respect to anticipation Rejection R1 of
claims 26–30, 32–35, 38–41, 48, and 49 under 35 U.S.C. § 102(e) over the
cited prior art of record, and we do not sustain the rejection.
(2) The Examiner erred with respect to obviousness Rejection R2
of claims 36, 37, 42–47, and 50 under 35 U.S.C. § 103(a) over the cited prior
art combination of record, and we do not sustain the rejection.
DECISION
We reverse the Examiner's decision rejecting claims 26–30
and 32–50.
REVERSED