Ex Parte Ho et alDownload PDFPatent Trial and Appeal BoardSep 5, 201310717521 (P.T.A.B. Sep. 5, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BOON HO, SRIKANTH NATARAJAN, and DIPANKAR GUPTA ___________ Appeal 2011-003856 Application 10/717,521 Technology Center 2400 ____________ Before ERIC B. CHEN, JOHN A. EVANS, and DANIEL N. FISHMAN, Administrative Patent Judges. CHEN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-003856 Application 10/717,521 2 This is an appeal under 35 U.S.C. § 134(a) from the non-final rejection of claims 1-37, all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part and enter new grounds of rejection pursuant to our authority under 37 C.F.R. § 41.50(b). STATEMENT OF THE CASE Appellants’ invention relates to a method for monitoring a network containing routers using a backup routing protocol and organized in one backup router group that includes discovering a topology object model of the routers, detecting a condition of the one backup router group based on at least one threshold value, and displaying an indication of the detected condition. (Abstract.) Claims 1 and 35 are exemplary, with disputed limitations in italics: 1. A method for monitoring a network containing routers using a backup routing protocol and organized in at least one backup router group, comprising: discovering a topology object model of the routers; detecting a condition of the at least one backup router group based on at least one threshold value; and displaying an indication of the detected condition. 35. A data structure embodied within a computer readable medium for representing a backup routing protocol topology object model for a network, the data structure comprising: at least one network node object representing an element in the network; at least one network interface object for each at least one network node object, the at least one network interface object representing an interface of the network element corresponding to the each at least one network node object; Appeal 2011-003856 Application 10/717,521 3 an address object for each at least one network interface object, representing an address of the corresponding interface; a backup routing protocol group object representing network elements organized in a backup routing protocol group, the backup routing protocol group object including a virtual address of the backup routing protocol group and real addresses of the network elements in the backup routing protocol group; and an address state object for each of the real addresses of the network elements in the backup routing protocol group, including a state of the corresponding address. Claims 1, 3-6, 9-12, 14-17, 20-24, 26-29, and 32-37 stand rejected under 35 U.S.C. § 103(a) as being obvious by Ofek (U.S. Patent Application Publication No. 2004/0083284 A1; Apr. 29, 2004, filed Oct. 25, 2002) and Liu (U.S. Patent No. 7,197,660 B1; Mar. 27, 2007, filed June 26, 2002). Claims 2, 7, 8, 13, 18, 19, 25, 30, and 31 stand rejected under 35 U.S.C. § 103(a) as being obvious by Ofek, Liu, and Yip (U.S. Patent No. 6,954,436 B1; Oct. 11, 2005, filed Feb. 28, 2001). ANALYSIS Claims 1-34 First, we are unpersuaded by Appellants’ arguments (App. Br. 11-13; see also Reply Br. 1) that the combination of Ofek and Liu would not have rendered obvious independent claim 1, which includes the limitation “a network containing routers using a backup routing protocol and organized in at least one backup router group.” The Examiner found that the network security system of Liu, having a cluster that includes a security device and a recovery system, corresponds to the limitation “a network containing routers using a backup routing protocol Appeal 2011-003856 Application 10/717,521 4 and organized in at least one backup router group.” (Ans. 21; Liu, fig. 1, col. 4, ll. 21-30.) We agree with the Examiner. Liu relates to “network security systems and to redundancy protocols for network security systems.” (Col. 1, ll. 7-8.) Figure 1 of Liu illustrates a network security system 100 that includes a cluster 110 having security devices 102 and 104 and a first pair of switches 101 that connects the cluster 110 to a public network. (Col. 3, ll. 58-61.) Thus, Liu teaches the limitation “a network containing routers.” Figure 1 of Liu further illustrates that the cluster 110 includes a security device 102 having a recovery system 202. (Col. 4, ll. 7-8; see also col. 4, ll. 21-30.) Thus, Liu teaches the limitation “using a backup routing protocol and organized in at least one backup router group.” Appellants argue that “[t]here is no discussion in Ofek of configuring a network to contain routers that use a backup routing protocol, and that are organized in at least one backup router group.” (App. Br. 12; see also Reply Br. 1.) However, the Examiner cited Liu, rather than Ofek, for teaching the limitation “a network containing routers using a backup routing protocol and organized in at least one backup router group.” (Ans. 21.) Thus, we agree with the Examiner that the combination of Ofek and Liu would have rendered obvious independent claim 1, which includes the limitation “a network containing routers using a backup routing protocol and organized in at least one backup router group.” Second, we are unpersuaded by Appellants’ arguments (App. Br. 12- 13) that the combination of Ofek and Liu would not have rendered obvious independent claim 1, which includes the limitation “discovering a topology object model of the routers.” Appeal 2011-003856 Application 10/717,521 5 The Examiner found that the Topology Object Model of Ofek, which determines network topologies including physical elements (e.g., switches), corresponds to the limitation “discovering a topology object model of the routers.” (Ans. 4, 21; Ofek, ¶¶ [0021], [0023].) We agree with the Examiner. Ofek relates to “tracking the movement of data between data centers through different types of domains.” (Abstract.) In one embodiment, Ofek explains that “[n]etwork topologies are dynamically determined and objects corresponding to elements in the domains (entity objects) are stored in a Topology Object Model.” (¶ [0021].) Ofek further explains that the elements stored in the Topology Object Model include physical connections utilized (¶ [0021]) (e.g., a switch (¶ [0023])). Thus, Ofek teaches the limitation “discovering a topology object model of the routers.” Appellants argue that “there is no teaching or suggestion in Ofek of any mechanism for discovering topology information concerning such routers, or for evaluating conditions of such routers.” (App. Br. 12.) Contrary to Appellants’ arguments, Ofek explains that the Topology Object Model stores network topologies, including physical elements (¶ [0021]) (e.g., a switch (¶ [0023])). Appellants also argue that “[t]here is no teaching or suggestion in Liu of any mechanism for discovering topology information concerning such routers, or for evaluating conditions of such routers.” (App. Br. 13.) However, the Examiner cited to Ofek, rather than Liu, for teaching the limitation “discovering a topology object model of the routers.” (Ans. 4, 21.) Appeal 2011-003856 Application 10/717,521 6 Thus, we agree with the Examiner that the combination of Ofek and Liu would have rendered obvious independent claim 1, which includes the limitation “discovering a topology object model of the routers.” Third, we are unpersuaded by Appellants’ arguments (App. Br. 12-13) that the combination of Ofek and Liu would not have rendered obvious independent claim 1, which includes the limitation “detecting a condition of the at least one backup router group based on at least one threshold value.” The Examiner also found that the Topology Object Model of Ofek, which detects a change in status of physical elements (e.g. switches), corresponds to the limitation “detecting a condition.” (Ans. 4, 21; ¶¶ [0021], [0023].) The Examiner acknowledged that Ofek does not disclose the limitation “of the at least one backup router group based on at least one threshold value” (Ans. 5) and thus, relied upon Liu for teaching a network security system that includes a redundancy group and a path monitor (Ans. 5; Liu, col. 5, ll. 17-21). The Examiner concluded that “[i]t would have been obvious . . . to incorporate the recovery method taught by Liu into the system for providing data awareness disclosed by Ofek.” (Ans. 5.) We agree with the Examiner. Ofek explains that “[a] change in the status of an element is recorded in an associated entity object and in the entity objects of cross-referenced elements.” (¶ [0021].) Thus, Ofek teaches the limitation “detecting a condition.” As discussed previously, Figure 1 of Liu illustrates that the cluster 110, having security devices 102 and 104 and a first pair of switches 101 that connects the cluster 110 to a public network (col. 3, ll. 58- 61), also includes a security device 102 having a recovery system 202 (col. Appeal 2011-003856 Application 10/717,521 7 4, ll. 7-8; see also col. 4, ll. 21-30). Liu explains that each security device 102 is assigned to a redundancy group such that “one security device is designated the master, another security device is designated the primary backup.” (Col. 4, ll. 27-30.) Liu further explains that a “path monitor 228 detects failures of other devices within the cluster 110 (i.e., not local failures)” and “contains a failure threshold parameter that defines the threshold for what constitutes a ‘failure’ for other devices or paths in the system.” (Col. 5, ll. 17-21.) Thus, Liu teaches the limitation “a condition of the at least one backup router group based on at least one threshold value.” Appellants argue that “this ‘threshold’ disclosure of Liu that the Examiner relies on is not specifically related to detecting a condition of at least one backup router group based on a threshold value.” (App. Br. 13.) However, the Examiner cited Ofek, rather than Liu for teaching the limitation “routers.” (Ans. 4, 21.) Furthermore, Liu expressly explains that “failure threshold parameter that defines the threshold for what constitutes a ‘failure’ for . . . paths in the system” (col. 5, ll. 17-21), which would include the first pair of switches 101. Thus, we agree with the Examiner that the combination of Ofek and Liu would have rendered obvious independent claim 1, which includes the limitation “detecting a condition of the at least one backup router group based on at least one threshold value.” Last, we are unpersuaded by Appellants’ arguments (App. Br. 13; see also Reply Br. 2) that the combination of Ofek and Liu would not have rendered obvious independent claim 1, which includes the limitation “displaying an indication of the detected condition.” Appeal 2011-003856 Application 10/717,521 8 The Examiner found that the graphically presented Topology Object Model of Ofek corresponds to the limitation “displaying an indication of the detected condition.” (Ans. 4; Ofek, ¶ [0021].) We agree with the Examiner. Ofek explains that “[t]he information contained in the Topology Object Model is graphically presented to a user by displaying depictions of the physical and logical connections and datapaths used in data movement across multiple domains.” (¶ [0021].) Thus, Ofek teaches the limitation “displaying an indication of the detected condition.” Appellants argue that “[t]here is no teaching or suggestion in Ofek or in Liu of . . . displaying an indication of such a detected condition as part of a network monitoring operation.” (App. Br. 13; see also Reply Br. 2.) Contrary to Appellants’ arguments, Ofek expressly explains that “[t]he information contained in the Topology Object Model is graphically presented to a user.” (¶ [0021].) Thus, we agree with the Examiner that the combination of Ofek and Liu would have rendered obvious independent claim 1, which includes the limitation “displaying an indication of the detected condition.” Accordingly, we sustain the rejection of independent claim 1 under 35 U.S.C. § 103(a). Claims 3-6 and 9-11 depend from claim 1, and Appellants have not presented any substantive arguments with respect to these claims. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Therefore, we sustain the rejection of claims 3-6 and 9-11 under 35 U.S.C. Appeal 2011-003856 Application 10/717,521 9 § 103(a), for the same reasons discussed with respect to independent claim 1. Independent claims 12 and 24 recite limitations similar to those discussed with respect to independent claim 1, and Appellants have not presented any substantive arguments with respect to these claims. We sustain the rejection of claims 12 and 24, as well as dependent claims 14-17, 20-23, 26-29, and 32-34, for the same reasons discussed with respect to claim 1. Although Appellants nominally argue the rejection of dependent claims 2, 7, 8, 13, 18, 19, 25, 30, and 31 separately (App. Br. 17-19), the arguments presented do not point out with particularity or explain why the limitations of the dependent claims are separately patentable. Instead, Appellants merely provide a conclusory statement that Yip does not teach the features of these dependent claims without a sufficient explanation as to why these dependent claims are patentable over Yip. Accordingly, Appellants have not presented any substantive arguments with respect to these claims. See Lovin, 652 F.3d at 1357. We are not persuaded by these arguments for the reasons discussed with respect to claims 1, 12, and 24, from which claims 2, 7, 8, 13, 18, 19, 25, 30, and 31 depend. Accordingly, we sustain this rejection. Claims 35-37 We are persuaded by Appellants’ arguments (App. Br. 14-15) that the combination of Ofek and Liu would not have rendered obvious independent claim 35, which includes the limitation “the backup routing protocol group object including a virtual address of the backup routing protocol group and Appeal 2011-003856 Application 10/717,521 10 real addresses of the network elements in the backup routing protocol group,” as recited in independent claim 35. The Examiner found that the security devices of Liu, each having an IP address and a MAC address, correspond to the limitation “the backup routing protocol group object including a virtual address of the backup routing protocol group and real addresses of the network elements in the backup routing protocol group.” (Ans. 12.) We do not agree. Figure 9 of Liu illustrates a transparent security gateway 900 that hides the existence of the security devices 901 and 902. (Col. 10, ll. 28-30.) Liu explains that “[t]he security devices run in Active/Passive mode, though each will have its own primary IP and MAC addresses from which to perform IP Tracking.” (Col. 10, ll. 36-38.) Although the Examiner cited the IP (Internet Protocol) and MAC (media access control) addresses of the security devices 901, 902 of Liu (Ans. 12), the Examiner has provided insufficient evidence to support a finding that either the IP address or the MAC address is a “virtual address,” much less the limitation “the backup routing protocol group object including a virtual address of the backup routing protocol group and real addresses of the network elements in the backup routing protocol group.” Accordingly, we are persuaded by Appellants’ arguments that “Liu fails to teach or suggest that either of these [IP or MAC] addresses is a virtual address or a virtual address of the backup routing protocol group.” (App. Br. 15.) Accordingly, we do not sustain the rejection of independent claim 35 under 35 U.S.C. § 103(a). Claims 36 and 37 depend from independent claim 35. We do not sustain the rejection of claims 36 and 37 under 35 Appeal 2011-003856 Application 10/717,521 11 U.S.C. § 103(a) for the same reasons discussed with respect to independent claim 35. NEW GROUND OF REJECTION UNDER 37 C.F.R. § 41.50(b) We enter the following new ground of rejection: Claims 24-37 are rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. Consistent with U.S. Patent and Trademark Office policy, [t]he broadest reasonable interpretation of a claim drawn to a computer readable medium (also called machine readable medium and other such variations) typically covers forms of non-transitory tangible media and transitory propagating signals per se in view of the ordinary and customary meaning of computer readable media, particularly when the specification is silent. See U.S. Patent & Trademark Office, Subject Matter Eligibility of Computer-Readable Media, 1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010); see also Ex parte Mewherter, No. 2012-007692 (PTAB May 8, 2013) (precedential). Accordingly, claims 24-37 are directed to non-statutory subject matter. See In re Nuijten, 500 F.3d 1346, 1356-57 (Fed. Cir. 2007) (“A transitory, propagating signal like Nuitjen’s is not a ‘process, machine, manufacture, or composition of matter.’ . . . [T]hus, such a signal cannot be patentable subject matter.”); see also MPEP § 2106 (I) (“Non-limiting examples of claims that are not directed to one of the statutory categories . . . [include] transitory forms of signal transmission (for example, a propagating electrical or electromagnetic signal per se.”)). Appeal 2011-003856 Application 10/717,521 12 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 that 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 proceedings (37 C.F.R. § 1.197 (b)) 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 37 C.F.R. § 41.52 by the Board upon the same record …. DECISION The Examiner’s decision to reject claims 1-34 is affirmed. However, the Examiner’s decision to reject claims 35-37 is reversed. New ground of rejection has been entered under 37 C.F.R. § 41.50(b) for claims 24-37, rejected under 35 U.S.C. § 101 as being directed to non- statutory subject matter. AFFIRMED-IN-PART 37 C.F.R. § 41.50(b) msc Copy with citationCopy as parenthetical citation