Ex Parte Gan

Board of Patent Appeals and Interferences

Aug 24, 2010

09795454 (B.P.A.I. Aug. 24, 2010)

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.
09/795,454 03/01/2001 Der-Hwa Gan 0023-0037 4896
44987 7590 08/24/2010
HARRITY & HARRITY, LLP
11350 Random Hills Road
SUITE 600
FAIRFAX, VA 22030
EXAMINER
NANO, SARGON N
ART UNIT PAPER NUMBER
2457
MAIL DATE DELIVERY MODE
08/24/2010 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 DER-HWA GAN
____________

Appeal 2009-00583
Application 09/795,454
Technology Center 2400
____________

Before HOWARD B. BLANKENSHIP, ST. JOHN COURTENAY III, and
STEPHEN C. SIU, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-000583
Application 09/795,454

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STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
final decision rejecting claims 1-6, 8, 9, 11-13, and 15-21. Claims 7, 10, and
14 have been cancelled. We have jurisdiction over the appeal under 35
U.S.C. § 6(b).
We Affirm.
INVENTION
Appellant’s invention relates to techniques for forwarding data
through a primary path and/or a backup path on a network. (Spec. 1-2).
More particularly, the invention on appeal is directed to using fate sharing
information to compute a backup path by accessing and assigning cost
information, and computing a least cost path based, at least in part, on the
assigned the cost information. (Id. at 2).
Claim 1 is illustrative:
1. A method of establishing a fate sharing database,
comprising:

determining a relationship between at least two
links or nodes in a network;

designating a cost associated with the links or the
nodes based on the relationship; and

storing the designated cost and identifiers for the
associated links or the nodes in memory.

PRIOR ART
Rexford U.S. 6,633,544 B1 Oct. 14, 2003

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REJECTION
Appellant appeals the following rejection:
The Examiner rejected claims 1-6, 8, 9, 11-13, and 15-21 under 35
U.S.C. § 102(e) as anticipated by Rexford.

ISSUES
Based upon our review of the administrative record, we have
determined that the following issues are dispositive in this appeal:

Did the Examiner err in finding under § 102 that Rexford discloses:
“designating a cost associated with the links or the nodes
based on the relationship?” (Claim 1).

“wherein the relationship is such that the related links or
the related nodes become inoperable when a single event
occurs?” (Claim 18; see also the commensurate language
of claim 19).

“A database having entries . . . each entry comprising:
identifiers corresponding to respective links or
nodes that have a relationship to each other, the links or
the nodes forming a group; and
a cost associated with the group, the cost being
based on the relationship?” (Claim 4).

“accessing fate sharing information associated with a
group of links or nodes in the network when a link or
node from the group is used in the primary path?”
(Claim 5).

“wherein the fate sharing information relates the group of
links or nodes such that the group of links or nodes
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become inoperable when a single event occurs?” (Claims
20 and 21).

“accessing information indicative of a relationship
between a link in the primary path and a link not in the
primary path; [and] assigning a cost to the link not in the
primary path based on the relationship?” (Claims 9 and
13).

“a fate-sharing database storing identifiers corresponding
to respective links or nodes that have a relationship to
each other and a cost associated with each group of
related links or nodes, the cost being based on the
relationship; [and] a second process configured to switch
over to the backup path when the primary path becomes
inoperable?” (Claim 17).

FACTUAL FINDINGS (FF)
1. Appellant’s Specification discloses that “[a] relationship is determined
between a group of links and/or nodes in a network (step 400).
Examples of relationships are nodes or links that share a power
supply, are in close proximity, or share the same physical link or
node.” (Spec. 5, ll. 2-5).

2. Appellant’s Specification discloses that “[f]ate sharing information
relates groups of nodes or links according to common characteristics,
attributes, or shared resources (e.g., a shared power supply, close
proximity, same physical link). In one embodiment, fate-sharing
information includes costs associated with groups of nodes or links.”
(Spec. 3, ll. 5-8).

3. Rexford discloses that physical nodes are collected into a group
known as a peer group. (Col. 7, ll. 53-54, Fig. 1).

4. Rexford’s figure 4 shows an exemplary link cost metrics associated
with each link between adjacent nodes. (Fig. 4, col. 10, ll. 24-25).

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5. Rexford discloses that if a link is encountered that does not appear to
have enough available bandwidth, a backtracking process is
implemented. (Col. 14, ll. 4-7).

6. Rexford discloses an exemplary data structure for associating a set of
linked lists with a respective head pointer where data structure 714
stores a set of node identifiers. (Fig. 7e, col. 11, l. 65 through col. 12,
l. 1).

GROUPING OF CLAIMS
Appellant argues claims 1, 2, and 3 as a group (App. Br. 5). We select
representative claim 1 to decide the appeal for this group. See 37 C.F.R.
§ 41.37(c)(1)(vii).
Appellant argues claims 5, 6, and 8 as a group (App. Br. 10). We
select representative claim 5 to decide the appeal for this group.
Appellant argues claims 9, 11, and 12 as a group (App. Br. 13). We
select representative claim 9 to decide the appeal for this group.
Appellant argues claims 13, 15, and 16 as a group (App. Br. 15). We
select representative claim 13 to decide the appeal for this group.
Appellant presents separate arguments for the remaining claims that
we address separately infra.

ANALYSIS
We consider Appellant’s arguments seriatim as presented in the
principal Brief at page 5 et seq.

Claim 1
We decide the question of whether the Examiner erred by finding that
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Rexford discloses:
“designating a cost associated with the links or the nodes
based on the relationship” (Claim 1).

Appellant acknowledges that “Rexford et al. discloses cost metrics
associated with each link of [figure] 4 and a lowest cost route between two
nodes.” (App. Br. 6). However, Appellant maintains that “nothing in the
cited portion of Rexford et al., or any other portion of Rexford et al.,
discloses or suggests designating a cost associated with the links or the
nodes based on the relationship (between at least two links or nodes in a
network), as required by claim 1.” (Id.).
We begin our analysis by observing that Appellant’s Specification
discloses that “[a] relationship is determined between a group of links and/or
nodes in a network (step 400). Examples of relationships are nodes or links
that share a power supply, are in close proximity, or share the same physical
link or node.” (FF 1).
As pointed out by the Examiner, the “relationship” as recited in claim
1 may be between at least two links or nodes. (Ans. 6). Consistent with
Appellant’s Specification (FF 1), we broadly but reasonably construe the
claimed “relationship” as reading on any close association or proximity
between at least two links or nodes. Given our construction, we agree with
the Examiner that Rexford discloses numerous relationships between two
nodes and between links, include the peer groups disclosed by Rexford.
(Ans. 6; see also FF 3).
Because Rexford’s figure 4 shows exemplary link cost metrics
associated with each link between adjacent nodes (i.e., a “relationship”
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between two nodes), we find Rexford discloses “designating a cost
associated with the links or the nodes based on the relationship,” as recited
in claim 1. (See FF 4).
For these reasons, we sustain the Examiner’s anticipation rejection of
representative claim 1 and claims 2-3 that fall therewith. See 37 C.F.R. §
41.37(c)(1)(vii).

Claim 18
We decide the question of whether the Examiner erred by finding that
Rexford discloses:
“wherein the relationship is such that the related links or
the related nodes become inoperable when a single event
occurs.” (Claim 18).

Addressing the Examiner’s reliance on figure 9 and column 14, lines
4-9 of Rexford, Appellant avers that “[t]his section of Rexford et al.
discloses a new path can be calculated from a source to a destination when a
link is encountered that does not appear to have enough available bandwidth.
Neither this section nor [figure] 9 of Rexford et al. discloses or suggests
determining a relationship between at least two links or nodes in a network,
where the relationship is such that the related links or the related nodes
become inoperable when a single event occurs, as required by claim 18.”
(App. Br. 8).
We disagree with Appellant for essentially the same reasons set forth
by the Examiner in the Answer (7). We find Rexford discloses a
relationship between at least two links or nodes in a network, as discussed
supra regarding claim 1. (FF 3-4). We also find Rexford discloses the
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occurrence of a single event, i.e., when a link is encountered that does not
appear to have enough available bandwidth, wherein the relationship is such
that the related links or the related nodes become inoperable due to
insufficient bandwidth. (FF 5). For these reasons, we sustain the Examiner’s
anticipation rejection of dependent claim 18.

Claim 4
We decide the question of whether the Examiner erred by finding that
Rexford discloses:
“A database having entries . . . each entry comprising:
identifiers corresponding to respective links or
nodes that have a relationship to each other, the links or
the nodes forming a group; and
a cost associated with the group, the cost being
based on the relationship.” (Claim 4).

Addressing the Examiner’s reliance on figure 5 and column 10, lines
40-50 of Rexford, Appellant states that “[w]hile this section of Rexford et al.
appears to disclose that a route through the network depicted in [figure] 5
can be associated with a total cost, neither this section nor [figure] 5 of
Rexford et al. discloses or suggests a database having entries, where each
entry includes a cost associated with the group, where the cost is based on
the relationship of respective links or nodes to each other, as required by
claim 4.” (App. Br. 9).
As discussed above, we note that “Rexford’s figure 4 shows
exemplary link cost metrics associated with each link between adjacent
nodes.” (FF 4). Rexford discloses that “physical nodes are collected into a
group known as a peer group.” (FF 3). Thus, we agree with the Examiner’s
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finding that Rexford discloses a “database having entries . . . each entry
comprising identifiers corresponding to respective links or nodes that have a
relationship to each other” (claim 4) as link state information. (See Ans. 7).
In particular, we find the “database having entries” limitation is met by
Rexford’s disclosure of an exemplary data structure for associating a set of
linked lists (i.e., a type of “database” that stores data or pointers to data) with
a respective head pointer where data structure 714 stores a set of node
identifiers. (FF 6). For these reasons, we sustain the Examiner’s
anticipation rejection of independent claim 4.

Claim 19
We observe that claims 18 and 19 recite commensurate limitations but
depend upon different respective independent claims. Therefore, we sustain
the Examiner’s rejection of claim 19 (which depends from independent
claim 4) for the same reasons discussed above regarding claim 18 (which
depends from independent claim 1).

Claim 5
We decide the question of whether the Examiner erred by finding that
Rexford discloses:
“accessing fate sharing information associated with a
group of links or nodes in the network when a link or
node from the group is used in the primary path” (Claim
5).

Addressing the Examiner’s reliance on column 8, lines 65-67 and
column 12, lines 44-48 of Rexford, Appellant states, inter alia, that “[t]he
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phrase ‘fate sharing’ has a well known meaning in the art. One skilled in the
art will appreciate that link state information (i.e., information regarding the
state of a link) is not equivalent to fate sharing information.” (App. Br. 12).
Appellant contends that since Rexford does not disclose accessing fate
sharing information, Rexford cannot disclose computing a least cost path
based, at least in part, on the fate sharing information, as required by claim
5. (Id.).
We observe that Appellant has not argued a particular definition for
“fate sharing” information. (Id.). Appellant’s Specification broadly
discloses that “[f]ate sharing information relates groups of nodes or links
according to common characteristics, attributes, or shared resources (e.g., a
shared power supply, close proximity, same physical link). In one
embodiment, fate-sharing information includes costs associated with groups
of nodes or links.” (FF 2) (emphasis added).
Because Rexford’s figure 4 shows exemplary link cost metrics
associated with each link between adjacent nodes, we find Rexford discloses
“accessing fate sharing information associated with a group of links or nodes
in the network when a link or node from the group is used in the primary
path” (Claim 5). We read the claimed “primary path” on Rexford’s “lowest
cost route” in figure 4 as described in column 10, lines 27-29.
For these reasons, we sustain the Examiner’s anticipation rejection of
representative claim 5, and claims 6 and 8 that fall therewith. See 37 C.F.R.
§ 41.37(c)(1)(vii).
Claim 20
We decide the question of whether the Examiner erred by finding that
Rexford discloses:
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“wherein the fate sharing information relates the group
of links or nodes such that the group of links or nodes
become inoperable when a single event occurs.” (Claim
20).

Addressing the Examiner’s reliance on figure 9 and column 14, lines
4-9 of Rexford, Appellant states that “[t]his section of Rexford et al.
discloses a new path can be calculated from a source to a destination when a
link is encountered that does not appear to have enough available bandwidth.
Neither this section nor [figure] 9 of Rexford et al. discloses or suggests fate
sharing information that relates the group of links or nodes such that the
group of links or nodes becomes inoperable when a single event occurs, as
required by claim 20.” (App. Br. 13).
Consistent with Appellant’s Specification, we broadly but reasonably
construe “fate-sharing information” as including costs associated with
groups of nodes or links. (FF 2). We find Rexford discloses groups of links
or nodes (FF 3), and exemplary link cost metrics associated with each link
between adjacent nodes (FF 4). We find Rexford disclose a group of links
or nodes that become inoperable when a single event occurs, for the same
reasons discussed above regarding claims 18 and 19. Therefore, we find
Rexford discloses “wherein the fate sharing information relates the group of
links or nodes such that the group of links or nodes become inoperable when
a single event occurs.” (Claim 20).
For these reasons, we sustain the Examiner’s anticipation rejection of
dependent claim 20.
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Claim 9
We decide the question of whether the Examiner erred by finding that
Rexford discloses:
“accessing information indicative of a relationship
between a link in the primary path and a link not in the
primary path; [and] assigning a cost to the link not in the
primary path based on the relationship.” (Claim 9).

Addressing the Examiner’s reliance on column 8, lines 4-12 of Rexford,
Appellant states:
This section of Rexford et al. in no way discloses or
suggests assigning a cost to the link not in the primary
path based on a relationship between a link in the
primary path and the link not in the primary path, as
required by claim 9. In fact, this section of Rexford et al.
does not even relate to assigning costs to links.
(App. Br. 14).
In the rejection of claim 9 (Ans. 4), the Examiner relies not just upon
column 8, lines 4-12 of Rexford (as discussed above by Appellant), but also
upon column 13, lines 59-63 regarding multiple cost routes as disclosed in
reference to Rexford’s figure 9. (Ans. 4). In addition, the Examiner finds
Rexford discloses the limitations of claim 9 at column 13, line 66 through
column 14, line 3, and column 14, lines 4-9. (Id.).
Appellant particularly asserts that “[t]he Examiner does not explain
how the above section of Rexford et al. relates to assigning a cost to the link
not in the primary path based on a relationship between a link in the primary
path and the link not in the primary path.” (App. Br. 14).
To the contrary, we find the Examiner does in fact explain that “costs
are assigned to nodes/links based on updated link-state information
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(available resources {capacity, bandwidth, etc} on [the] network)).” (Ans.
4). We find Rexford’s “first feasible route” is a primary path (col. 14, l. 2),
and, when a link is found not to have enough bandwidth (indicated by the
“X” shown between nodes in figure 9), a backtracking process is performed
to locate a new “backup” path (i.e., a link not in the primary (“first feasible
route”) path). (FF 5).
On this record, we find Appellant’s arguments unpersuasive of
Examiner error because the Examiner does proffer an explanation and
Appellant failed to address it.2 (App. Br. 14; Ans. 4). Nor does Appellant
further address the Examiner’s rejection of claim 9 in the Reply Brief.
Therefore, we sustain the Examiner’s anticipation rejection of representative
claim 9 and claims 11-12 that fall therewith. See 37 C.F.R. §
41.37(c)(1)(vii).
Claim 21
We observe that claims 20 and 21 recite identical limitations but
depend upon different respective independent claims. Therefore, we sustain
the Examiner’s rejection of claim 21 (which depends from independent
claim 9) for the same reasons discussed above regarding claim 20 (which
depends from independent claim 5).

Claim 13
We decide the question of whether the Examiner erred by finding that
Rexford discloses:

2 Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(vii).

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“accessing information indicative of a relationship
between a node in the primary path and a node not in the
primary path; [and]
assigning a cost to the node not in the primary path
based on the relationship” (Claim 13).

Addressing the Examiner’s reliance on column 8, lines 4-12 lines of
Rexford, Appellant states that “[t]his section of Rexford et al. discloses that
nodes 110a-110h maintain their own view of available link resources,
distribute link-state information to other switches, and select routes for new
connections. This section of Rexford et al. in no way discloses or suggests
assigning a cost to a node not in the primary path based on a relationship
between a node in the primary path and the node not in the primary path, as
required by claim 13. In fact, this section of Rexford et al. does not even
relate to assigning costs to nodes, but merely link-state information.” (App.
Br. 16).
Based upon our review of the record, we will sustain the Examiner’s
rejection of representative claim 13 for the same reasons discussed above
regarding independent claim 9. Claims 15 and 16 fall therewith. See 37
C.F.R. § 41.37(c)(1)(vii).
Claim 17
We decide the question of whether the Examiner erred by finding that
Rexford discloses:
“a fate-sharing database storing identifiers corresponding
to respective links or nodes that have a relationship to
each other and a cost associated with each group of
related links or nodes, the cost being based on the
relationship; [and] a second process configured to switch
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over to the backup path when the primary path becomes
inoperable” (Claim 17).

Addressing the Examiner’s reliance on figure 5, and column 10, lines
40-45 of Rexford, Appellant states that “[t]he Examiner did not address the
second process recited in claim 17. Instead, the Examiner merely refers to
the rejection of claims 4, 5, and 9 ([F]inal Office Action, pg. 6). Claims 4, 5,
and 9 do not, however, recite the second process of claim 17. Accordingly,
a proper case of anticipation has not been established with respect to claim
17.” (App. Br. 17-18).
As discussed above regarding the Examiner’s rejection of claim 9, we
find Rexford’s “first feasible route” is a primary path (col. 14, l. 2), and,
when a link is found not to have enough bandwidth (as indicated by the “X”
shown between nodes in figure 9), a backtracking process is performed to
locate a new “backup” path (i.e., a link not in the primary (“first feasible
route”) path). (FF 5). Therefore, we find Appellant’s “second process” is
clearly met by Rexford’s “backtracking process” that switches over to the
new “backup” path when the primary (first feasible route) path becomes
inoperable. Accordingly, we sustain the Examiner’s rejection of independent
claim 17.
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DECISION
We affirm the Examiner’s § 102 rejection of claims 1-6, 8, 9, 11-13,
and 15-21.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

ORDER
AFFIRMED

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