10282438 (B.P.A.I. Jun. 14, 2011)

Ex Parte Finn

Board of Patent Appeals and InterferencesJun 14, 2011

10282438 (B.P.A.I. Jun. 14, 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. 10/282,438 10/29/2002 Norman W. Finn CIS0173US 6204 33031 7590 06/14/2011 CAMPBELL STEPHENSON LLP 11401 CENTURY OAKS TERRACE BLDG. H, SUITE 250 AUSTIN, TX 78758 EXAMINER BATES, KEVIN T ART UNIT PAPER NUMBER 2456 MAIL DATE DELIVERY MODE 06/14/2011 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 NORMAN W. FINN ____________ Appeal 2009-009501 Application 10/282,438 Technology Center 2400 ____________ Before HOWARD B. BLANKENSHIP, ST. JOHN COURTENAY, III, and JEFFREY S. SMITH, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-11 and 25-45, which are all the claims remaining in the application. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appeal 2009-009501 Application 10/282,438 2 Invention Appellant’s invention relates to a method and system for multi-bridge LAN aggregation. The method includes aggregating a plurality of LANs coupling a host to a first and a second intermediate network device. The system includes an intermediate network device. The intermediate network device includes a multi-bridge engine. The multi-bridge engine includes a tunnel engine coupled to a bridge interconnect port and a first physical port. Abstract. Representative Claim 1. A method comprising: aggregating a plurality of LANs wherein said aggregating comprises aggregating a first LAN and a second LAN, said first LAN couples a host to a first intermediate device and said second LAN couples said host to a second intermediate network device, said plurality of LANs comprising said first LAN and said second LAN, and subsequent to said aggregating, said first LAN and said second LAN are both usable to simultaneously transmit information from said host to said second intermediate network device. Prior Art Hewlett Packard, LAN Aggregation through Switch Meshing, 1-11 (1998). Amendment to Carrier Sense Multiple Access with Collision Detection (CSMA/CD) Access Method and Physical Layer Specification, IEEE Computer Society, 1-173 (2000). Appeal 2009-009501 Application 10/282,438 3 Examiner’s Rejections Claims 1-11 and 25-45 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hewlett-Packard and IEEE. ISSUE Has Appellant shown that the Examiner erred in finding that the combination of Hewlett-Packard and IEEE would have taught or suggested “subsequent to said aggregating, said first LAN and said second LAN are both usable to simultaneously transmit information from said host to said second intermediate network device,” as recited in claim 1? PRINCIPLES OF LAW Allocation of Burdens The allocation of burdens requires that the USPTO produce the factual basis for its rejection of an application under 35 U.S.C. §§ 102 and 103. In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984) (citing In re Warner, 379 F.2d 1011, 1016 (CCPA 1967)). The one who bears the initial burden of presenting a prima facie case of unpatentability is the Examiner. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). See also In re Jung, 637 F.3d 1365-66 (Fed. Cir. 2011) (the Examiner retains the burden to show invalidity). ANALYSIS Appellant contends that the combination of Hewlett-Packard and IEEE fails to teach “subsequent to said aggregating, said first LAN and said Appeal 2009-009501 Application 10/282,438 4 second LAN are both usable to simultaneously transmit information from said host to said second intermediate network device” as recited in claim 1. App. Br. 4-6. The Examiner finds that the material at pages 108, 110, and 120 of IEEE teaches “subsequent to said aggregating, said first LAN and said second LAN are both usable to simultaneously transmit information from said host to said second intermediate network device.” Ans. 4-5, 9-10. In particular, on page 5 of the Answer, the Examiner states that “IEEE discloses that an aggregator is assigned an integer identifier that is used by link aggregation control to uniquely identify the aggregator within the system, the most significant and second most significant octets are the first and second most significant octets of the port priority.” However, the Examiner does not explain how identifying the aggregator teaches “subsequent to said aggregating, said first LAN and said second LAN are both usable to simultaneously transmit information from said host to said second intermediate network device” as recited in claim 1. Similarly, the Examiner cites portions of IEEE discussing link aggregation and aggregate wait time (Ans. 9-10), but does not explain how the cited sections of IEEE teach “subsequent to said aggregating, said first LAN and said second LAN are both usable to simultaneously transmit information from said host to said second intermediate network device” as recited in claim 1. We do not sustain the rejection of claim 1 and dependent claims 2-11 under 35 U.S.C. § 103(a). Independent claims 25 and 36 each contain a limitation similar to that of claim 1 for which the rejection fails. We do not sustain the rejection of claims 25 and 36 and dependent claims 26-35 and 37-45 under 35 U.S.C. § 103(a). Appeal 2009-009501 Application 10/282,438 5 CONCLUSION OF LAW Appellant has shown that the Examiner erred in finding that the combination of Hewlett-Packard and IEEE would have taught or suggested “subsequent to said aggregating, said first LAN and said second LAN are both usable to simultaneously transmit information from said host to said second intermediate network device” as recited in claim 1. DECISION The rejection of claims 1-11 and 25-45 under 35 U.S.C. § 103(a) as being unpatentable over Hewlett-Packard and IEEE is reversed. REVERSED tj