Ex Parte Fedyk et al

Patent Trial and Appeal Board

Sep 27, 2016

14521174 (P.T.A.B. Sep. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/521,174 10/22/2014
76614 7590
Terry W, Kramer, Esq,
Kramer & Amado, P.C.
330 John Carlyle Street
3rd Floor
Alexandria, VA 22314
09/29/2016
FIRST NAMED INVENTOR
DonFedyk
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.
ALC 3779-CON 2600
EXAMINER
GHOWRW AL, OMAR J
ART UNIT PAPER NUMBER
2463
NOTIFICATION DATE DELIVERY MODE
09/29/2016 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):
mail@krameramado.com
ipsnarocp@alcatel-lucent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DON FEDYK and SHAFIQ PIRBHAI,
Appeal2015-007286
ApplicationNo. 14/521,1741
Technology Center 2400
Before MARC S. HOFF, CATHERINE SHIANG, and
JAMES W. DEJMEK, Administrative Patent Judges.
HOFF, Administrative Patent Judge.
DECISION ON APPEAL
STATEivIENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a Final Rejection of
claims 1-17. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part, and enter a new ground of rejection.
Appellants' invention is concerned with redundant network
connections. The inventive method includes performing an active gateway
election to determine whether a provider edge device will be an active
gateway for a connection. If the provider edge device will be the active
gateway for the connection, the method calls for indicating to a customer
edge device that no fault is currently associated with a link between the
1 The real party in interest is Alcatel Lucent.
Appeal2015-007286
Application No. 14/521,174
customer edge device and the provider edge device, regardless of whether a
fault has been detected. If the provider edge will not be the active gateway
for the connection, the method calls for indicating to the customer edge
device that a fault is currently associated with the link between the customer
edge device and the provider edge device, regardless of whether a fault has
been detected. Abstract.
Claim 1 is exemplary of the claims on appeal:
1. A method performed by a provider edge device comprising a
processor for enabling connection redundancy, the method comprising:
performing by the processor an active gateway election to determine
whether the provider edge device will be an active gateway for a connection;
based on a determination that the provider edge device will be the active
gateway for the connection and regardless of whether a fault has been
detected, sending a no fault message to a customer edge device indicating
that no fault is currently associated with a link between the customer edge
device and the provider edge device; and
based on a determination that the provider edge device will not be the active
gateway for the connection and regardless of whether a fault has been
detected, sending a fault message to the customer edge device indicating that
a fault is currently associated with the link between the customer edge
device and the provider edge device.
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Application No. 14/521,174
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Davie US 2006/0182122 Al Aug. 17,2006
Kuschke US 2006/0274746 Al Dec. 7, 2006
Arai US 2007 /0047436 Al Mar. 1, 2007
Filsfils US 2009/0010153 Al Jan. 8,2009
Appanna US 7 ,515,525 B2 Apr. 7, 2009
Alon US 2012/0127855 Al May 24, 2012
Claims 1-3, 5, 7, 10, 11, 14, and 16 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Alon and Filsfils.
Claim 4 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Alon, Filsfils, and Arai.
Claims 6 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Alon, Filsfils, and Appanna.
Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Alon, Filsfils, and Davie.
Claims 9 and 17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Alon, Filsfils, and Kuschke.
Claims 1 and 10 stand provisionally rejected on the ground of
nonstatutory double patenting over claims 11-14, 16, 17, and 21-29 of U.S.
Patent Application Publication No. 2013/0194911 Al).
Throughout this decision, we make reference to the Appeal Brief
("App. Br.," filed Apr. 22, 2015), the Reply Brief ("Reply Br.," filed August
3, 2015), and the Examiner's Answer ("Ans.," mailed July 10, 2015) for
their respective details.
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Application No. 14/521,174
ISSUE
Does the combination of Alon and Filsfils disclose or fairly suggest
that, based on a determination that the provider edge device will not be the
active gateway for the connection, and regardless of whether a fault has been
detected, a fault message is sent to the customer edge device indicating that
a fault is currently associated with the link between the customer edge
device and the provider edge device?
ANALYSIS
§ 103 REJECTION OF CLAIMS 1-3, 5, 7, 10, 11, 14, AND 16
The Examiner finds that Filsfils teaches the claim limitation
"regardless of whether a fault has been detected, sending a fault message to
the consumer edge device indicating that a fault is currently associated with
the link between the customer edge device and the provider edge device."
Final Act. 15-17.
Figure 2 of Filsfils is reproduced below:
Figure 2 of Filsfils illustrates transfer of a failure notification packet
between nodes having multiple links. Filsfils i-f 6.
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Application No. 14/521,174
The Examiner finds that Filsfils sends a failure packet (over link 32)
when link 34 fails, and sends a failure packet when link 34 does not fail, i.e.,
when link 36 fails. The Examiner puts these two findings together, and finds
that Filsfils teaches the claim limitation at issue. Ans. 5.
We find error in the Examiner's rejection. Claim 1 first recites that
"based on a determination that the provider edge will be the active gateway
for the connection ... sending a no fault message ... indicating that no fault
is currently associated with a link between the customer edge device and the
provider edge device." We regard "a link" here to mean "any one of the
plurality of links" between the CE and PE in Appellants' invention. The
subsequent recitation at issue in the appeal, sending a fault message,
regardless of whether a fault has been detected, "indicating that a fault is
currently associated with the link between the customer edge device and the
provider edge device," is clearly intended to parallel the language in the
previous clause of the claim. Therefore, we regard "the link" in this clause
to have the same meaning as "a link" in the first clause; a "fault" here, as
before, is a fault associated with any of the plurality of links between CE and
PE.
Filsfils discloses that "once the local node detects a failure on one of
its interfaces to the remote node, it signals the interface ID as down to the
remote node, so that the remote node can take appropriate actions." ,-r 22.
Filsfils is concerned with whether one of the redundant connections between
two nodes (in Figure 2, Node D and Node E) has a failure. Conditional on
such a failure, Filsfils sends its failure notification packet 38. See Fig. 2.
Thus, we find that Filsfils does not teach "sending a fault message"
"indicating that a fault is currently associated with the link between the
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Application No. 14/521,174
consumer edge device and the provider edge device" regardless of whether a
fault has been detected.
We find that the combination of Alon and Filsfils fails to teach all the
limitations of claims 1-3, 5, 7, 10, 11, 14, and 16. We do not sustain the
Examiner's rejection under 35 U.S.C. § 103.
PROVISIONAL DOUBLE PA TENTING REJECTION OF CLAIMS 1 AND 10
Appellants' only reference to this rejection states that Appellants
"defer[] response to the double patenting rejection until there is an indication
that the claims are otherwise allowable." App. Br. 4. We therefore affirm
proforma the Examiner's rejection of claims 1 and 10 on the ground of
nonstatutory double patenting over claims 11-14, 16, 17, and 21-29 of U.S.
Patent Application Publication No. 2013/0194911 Al. See Final Act. 12.
CLAIMS 4, 6, 8, 9, 15, AND 17
The Examiner does not identify teachings in Arai, Appanna, Davie, or
Kuschke that remedy the deficiencies of the combination of Alon and
Filsfils, explained supra. Therefore, we do not sustain the rejections of
claims 4, 6, 8, 9, 15, and 17 for the same reasons given supra with respect to
the§ 103 rejection of claims 1-3, 5, 7, 10, 11, 14, and 16 over Alon and
Filsfils.
NEW GROUND OF REJECTION
Pursuant to our authority under 37 C.F.R. § 41.50(b), we enter a new
ground of rejection for claims 1-9.
Claims 1-9 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Alon in combination with Filsfils. We adopt the
Examiner's statement of rejection as set forth in the Final Rejection, as
modified infra. See Final Act. 14--27.
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Application No. 14/521,174
Method claim 1 contains two conditional steps, one of which will be
chosen based upon whether it is determined that the provider edge device
will, or will not, be the active gateway for the connection. Appellants do not
dispute that Alon teaches the conditional method step, "based on a
determination that the provider edge device will be the active gateway for
the connection and regardless of whether a fault has been detected, send[ing]
a no fault message to a customer edge device." See Final Act. 15-16.
We agree with the reasoning in Ex parte Katz, 2011 WL 514314
(BPAI Jan. 27, 2011), reh 'g denied, 2011WL1211248, at *2 (BPAI
Mar. 25, 2011 ), that the broadest reasonable interpretation of claim 1
requires performance of only one of the two conditional method steps. See
Katz at *4--5 (the broadest reasonable interpretation of a conditional step in a
method claim includes instances in which the conditional step would not be
invoked).
In view of the optional language used in claim 1, the Examiner need
not cite art for the steps responsive to both determinations of whether the
provider edge device is an active gateway, or is not an active gateway. As
long as the Examiner applies prior art to reject the claim for one potential
condition, the Examiner has set forth the prima facie obviousness of the
claim. See In re Johnston, 435 F.3d 1381, 1384 (Fed. Cir. 2006) ("optional
elements do not narrow the claim because they can always be
omitted"). Here, the Examiner finds that Alon teaches sending a no fault
message if it is determined that the provider edge device will be the active
gateway for the connection.
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Application No. 14/521,174
CONCLUSION
The combination of Alon and Filsfils does not disclose or fairly
suggest that, based on a determination that the provider edge device will not
be the active gateway for the connection, and regardless of whether a fault
has been detected, a fault message is sent to the customer edge device
indicating that a fault is currently associated with the link between the
customer edge device and the provider edge device.
DECISION
The Examiner's provisional double patenting rejection of claims 1 and
10 is affirmed. The Examiner's decision to reject claims 1-17 under 35
U.S.C. § 103 is reversed. We enter a new ground of rejection of claims 1-9.
In addition to affirming the Examiner's rejections of one or more
claims, this decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides "[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review."
37 C.F.R. § 41.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the examiner, in
which event the proceeding will be remanded to the examiner. ...
(2) Request rehearing. Request that the proceeding be reheard
under§ 41.52 by the Board upon the same record ....
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Should Appellants elect to prosecute further before the Examiner
pursuant to 37 C.F.R. § 41.50(b)(l), in order to preserve the right to seek
review under 35 U.S.C. § 141or145 with respect to the affirmed rejection,
the effective date of the affirmance is deferred until conclusion of the
prosecution before the Examiner unless, as a mere incident to the limited
prosecution, the affirmed rejection is overcome.
If Appellants elect prosecution before the Examiner and this does not
result in allowance of the application, abandonment, or a second appeal, this
case should be returned to the Patent Trial and Appeal Board for final action
on the affirmed rejection, including any timely request for rehearing thereof.
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
& 41.50(b)
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