10853012 (B.P.A.I. Aug. 29, 2012)

Ex Parte Feutz et al

Board of Patent Appeals and InterferencesAug 29, 2012

10853012 (B.P.A.I. Aug. 29, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/853,012 05/24/2004 Gary S. Feutz 2376.2010-000 4059 21005 7590 08/30/2012 HAMILTON, BROOK, SMITH & REYNOLDS, P.C. 530 VIRGINIA ROAD P.O. BOX 9133 CONCORD, MA 01742-9133 EXAMINER LI, GUANG W ART UNIT PAPER NUMBER 2478 MAIL DATE DELIVERY MODE 08/30/2012 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 GARY S. FEUTZ, THOMAS T. RARICK, and DEVINDRAN RAJAKRISHNA ____________________ Appeal 2010-003776 Application 10/853,012 Technology Center 2400 ____________________ Before JAMESON LEE, THOMAS S. HAHN, and JUSTIN T. ARBES, Administrative Patent Judges. ARBES, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-003776 Application 10/853,012 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-31, the only claims pending in the application on appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).1 We affirm-in-part. The claims are directed to a method, system, and computer-readable medium for determining link connectivity between nodes in a computer network. Claim 1 is exemplary: 1. A method for automatically identifying a network path in a network comprising: activating state changes at nodes along a network path, the state changes activated by a bit set in an overhead portion of a signal traveling along the network path, the bit being for purposes other than tracing a path; and correlating the state changes at the nodes in response to the signal to determine link connectivity between nodes to determine the network path. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Brimmage Soumiya US 6,049,529 US 7,136,357 B2 Apr. 11, 2000 Nov. 14, 2006 (filed Mar. 1, 2001) 1 Our decision will make reference to Appellants’ Amended Appeal Brief (“Br.,” filed March 20, 2009), and the Examiner’s Answer (“Ans.,” mailed October 26, 2009) and Final Rejection (“Final Rej.,” mailed June 12, 2008). Appeal 2010-003776 Application 10/853,012 3 REJECTIONS Claims 1-7, 9-17, and 19-31 were rejected under 35 U.S.C. § 102(b) as being anticipated by Brimmage. Ans. 3-12. Claims 8 and 18 were rejected under 35 U.S.C. § 103(a) as being unpatentable over Brimmage in view of Soumiya. Ans. 12-14. ISSUES Appellants argue on pages 6-10 of the Appeal Brief that the Examiner’s rejections of independent claims 1, 15, and 27-29, and dependent claims 8 and 18, are in error. Whether the Examiner erred in rejecting the claims turns on the following issues under 35 U.S.C. § 102(b): (1) Does Brimmage disclose “correlating the state changes at the nodes in response to the signal to determine link connectivity between nodes,” as recited in claim 1 and similarly recited in claims 15 and 27-29? (2) Does Brimmage disclose correlating state changes at nodes where the correlating includes “comparing the timing information of state changes and expected travel parameters of the signal,” as recited in claim 4 and similarly recited in claim 17? (3) Does Brimmage disclose correlating state changes at nodes where the correlating includes “transmitting a response signal over the network path,” as recited in claim 5? ANALYSIS I. Anticipation Rejection of Claims 1-3, 7, 9-16, and 19-31 (Brimmage) We select claim 1 as representative of claims 1-3, 7, 9-16, and 19-31, as Appellants make the same arguments with respect to independent claims 1, 15, and 27-29 and do not separately argue the patentability of the Appeal 2010-003776 Application 10/853,012 4 dependent claims. See Br. 6-10; 37 C.F.R. § 41.37(c)(1)(vii). Appellants argue that Brimmage does not disclose “correlating” state changes at nodes along a network path to determine link connectivity between the nodes for the following reasons: In order to be able to correlate information at the nodes, Brimmage would need to send an initial activation signal having a triggering alarm bit (e.g., X bit) to set off alarms at intermediate nodes, receive an alarm signal back from each node, and correlate information by comparing timing information of the state changes of the received alarm signals with initial activation signal. However, Brimmage merely sends a verification signal between its nodes. Brimmage does not receive alarm signals back from the nodes in response to his activation signal. Thus, Brimmage cannot correlate information in the nodes because he does not have the required information for comparing timing information of the state changes of the received alarm signals with the initial activation signal. Br. 7-8 (emphasis added). Thus, Appellants’ position is that to be able to correlate state changes at nodes in a computer network, a device must (1) receive an alarm signal back from each of the nodes, and (2) compare timing information for the state changes with other information. We do not see either requirement in claim 1. The claim merely recites “correlating the state changes at the nodes in response to the signal to determine link connectivity between nodes to determine the network path,” and does not mention any responsive alarm signal or timing information. Appellants also do not propose any interpretation for the “correlating” language of the claim or point to anything in the Specification indicating that “correlating” requires both features. Moreover, dependent claims 4 and 5 recite the two features that Appellants argue are included in claim 1. Claim 4 recites that correlating Appeal 2010-003776 Application 10/853,012 5 includes “comparing the timing information of states changes and expected travel parameters of the signal,” and claim 5 recites that correlating includes “transmitting a response signal over the network path.” Claim 1 is presumed to not include the limitations of dependent claims 4 and 5, and Appellants provide no evidence to contradict the usual understanding of the claim. See Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005) (“the presence of a dependent claim that adds a particular limitation gives rise to a presumption that the limitation in question is not present in the independent claim”); Karlin Tech. Inc. v. Surgical Dynamics, Inc., 177 F.3d 968, 971-72 (Fed. Cir. 1999) (claim differentiation “normally means that limitations stated in dependent claims are not to be read into the independent claim from which they depend”). Thus, Appellants’ argument that “correlating” requires receiving an alarm signal back and comparing timing information is not persuasive. Appellants also argue that Brimmage does not mention “correlating information” and has “no need” to correlate state changes at the nodes. Br. 7. Appellants, however, do not specifically address the Examiner’s factual findings or explain how the Examiner allegedly erred in interpreting or applying the “correlating” language of claim 1. As the Examiner found, Brimmage uses the individual overhead X bits of a digital signal to transmit a path verification message from a source node to a destination node one bit at a time. Ans. 3-4, 14-15. The complete path verification message is reconstructed from the sequence of bits at the destination node and is indicative of “the integrity of a path connecting [the] two end nodes”; when the message indicates a failure in that path, a new path is used. See Brimmage, col. 3, ll. 5-23; col. 6, ll. 11-18; Figs. 1 (showing a path from Appeal 2010-003776 Application 10/853,012 6 source node 4 to access node 6 to various intermediate nodes to egress node 28 to destination node 32), 2 (showing an alternate path); Ans. 15. The changes in the state of the X bit at each of the nodes are therefore “correlated” to determine link connectivity between the nodes in the network path. See Ans. 14-15; Brimmage, col. 6, l. 30-col. 7, l. 33 (explaining how the state changes of the X bits are implemented). We also note that while claims 1, 15, and 27 do not specify to what the state changes at the nodes are correlated, claim 28 recites that the state changes are correlated “to the signal” and claim 29 recites that the state changes are correlated “with the path of the signal.” Appellants’ arguments do not distinguish between the different terminologies of the independent claims or specifically address the Examiner’s findings as to each claim. Br. 6-10. Nevertheless, as explained above, the overhead X bits are part of the original signal sent along the network path, and are used to cause state changes, construct a path verification message indicative of the integrity of the path, and implement a new path in the case of a failure. See Ans. 9-11, 14-15. Given the broad language of the claims, we see no error in the Examiner’s findings that the state changes are thereby “correlated” to both the original signal (which contains the X bits) and the signal path (whose integrity is verified by the sequence of X bits). Based on the record before us, we conclude that the preponderance of the evidence supports the Examiner’s finding that Brimmage discloses the “correlating” features of the claims. Accordingly, we sustain the anticipation rejection of independent claims 1, 15, and 27-29, as well as dependent claims 2, 3, 7, 9-14, 16, 19-26, 30, and 31, which are not Appeal 2010-003776 Application 10/853,012 7 separately argued. We address dependent claims 4-6 and 17 separately below. II. Anticipation Rejection of Claims 4 and 17 (Brimmage) Appellants argue with respect to independent claims 1 and 15 that Brimmage does not correlate state changes at the nodes because it does not “compar[e] timing information of the state changes of the received alarm signals with the initial activation signal.” Br. 7-8. While we do not agree with Appellants that the independent claims require comparing timing information to anything for the reasons explained above, dependent claims 4 and 17 recite “comparing the timing information” of state changes and “expected travel parameters” of the original signal.2 The Examiner cites Brimmage’s alarm indication signal (AIS) and the 780 millisecond predefined portion in which the X bits constituting the path verification message are sent in Brimmage as disclosing the recited feature. Ans. 4-5, 8 (citing Brimmage, col. 4, ll. 61-67; col. 5, ll. 41-61). It is unclear, however, what specific elements in Brimmage the Examiner is mapping to the “timing information” and “expected travel parameters” recited in the claims. Moreover, we do not see in the portions of Brimmage cited by the Examiner any comparison of one piece of information with another. For instance, the cited portions of Brimmage do not disclose comparing the 780 millisecond time period with anything. 2 Dependent claim 17 recites expected travel parameters of “the first signal,” which we read as referring to the activation signal that independent claim 15 calls “the signal” or “the activation signal.” Appeal 2010-003776 Application 10/853,012 8 Accordingly, based on the record before us, we do not sustain the anticipation rejection of claims 4 and 17. III. Anticipation Rejection of Claims 5 and 6 (Brimmage) Appellants argue with respect to independent claim 1 that Brimmage does not correlate state changes at the nodes because it does not “receive alarm signals back from the nodes in response to [an] activation signal.” Br. 7-8. Again, while we do not agree with Appellants that independent claim 1 requires receiving a responsive alarm signal for the reasons explained above, dependent claim 5 recites “transmitting a response signal over the network path.” The Examiner cites the following excerpt from Brimmage as allegedly disclosing the feature: [E]ven though the present invention has been explained in terms of using the X bit of an M frame in the DS3 format, the inventors perceive the invention to cover other formats using other bits for integrating path verification messages into data signals that are being routed in a telecommunications network. See Brimmage, col. 8, ll. 46-51; Ans. 5. The Examiner, however, does not point to any particular signal in Brimmage as constituting the claimed “response signal” transmitted over the network path. Moreover, Brimmage’s statement that unspecified “other” formats and bits may be used with the disclosed invention is insufficient for anticipation purposes. See Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1255- 56 (Fed. Cir. 1989) (“Anticipation requires that every limitation of the claim in issue be disclosed, either expressly or under principles of inherency, in a single prior art reference.”). Appeal 2010-003776 Application 10/853,012 9 Accordingly, based on the record before us, we do not sustain the anticipation rejection of claim 5, as well as claim 6, which depends from claim 5. IV. Obviousness Rejection of Claims 8 and 18 (Brimmage/Soumiya) As to the obviousness rejection of claims 8 and 18, Appellants argue that Soumiya does not cure the alleged “correlating” deficiency of independent claims 1 and 15, and a person of ordinary skill in the art would not have had reason to combine the teachings of Brimmage and Soumiya to correlate state changes as recited in the independent claims. Br. 10-11. For the reasons discussed above, we agree with the Examiner that Brimmage alone discloses the “correlating” features of the independent claims. Appellants do not identify any other alleged errors in the Examiner’s reasoning to overcome the obviousness conclusion as to claims 8 and 18. Accordingly, we sustain the obviousness rejection of claims 8 and 18. CONCLUSION Appellants have persuaded us of error in the Examiner’s decision to reject claims 4-6 and 17 under 35 U.S.C. § 102(b), but have not persuaded us of error in the Examiner’s decision to reject claims 1-3, 7, 9-16, and 19- 31 under 35 U.S.C. § 102(b) and claims 8 and 18 under 35 U.S.C § 103(a).3 3 We have decided the appeal before us. However, should there be further prosecution of claim 28, which recites a “computer-readable medium having stored thereon sequences of instructions,” the Examiner’s attention is directed to 35 U.S.C. § 101 and U.S. Patent & Trademark Office, Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski v. Kappos, 75 Fed. Reg. 43,922 (July 27, 2010); David J. Footnote continued on next page. Appeal 2010-003776 Application 10/853,012 10 DECISION For the above reasons, the rejection of claims 1-3, 7, 9-16, and 19-31 under 35 U.S.C. § 102(b) is affirmed, the rejection of claims 8 and 18 under 35 U.S.C. § 103(a) is affirmed, and the rejection of claims 4-6 and 17 under 35 U.S.C. § 102(b) 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)(iv). AFFIRMED-IN-PART rwk Kappos, Subject Matter Eligibility of Computer Readable Media, 1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010); and U.S. Patent & Trademark Office, Interim Examination Instructions for Evaluating Subject Matter Eligibility Under 35 U.S.C. § 101, Aug. 24, 2009, available at http://www.uspto.gov/web/offices/pac/dapp/opla/2009-08- 25_interim_101_instructions.pdf.