Ex Parte Hofer

Patent Trial and Appeal Board

Nov 29, 2012

11350567 (P.T.A.B. Nov. 29, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte SCOTT B. HOFER
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Appeal 2010-007599
Application 11/350,567
Technology Center 2400
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Before DAVID M. KOHUT, BRYAN F. MOORE, and LARRY J. HUME,
Administrative Patent Judges.

MOORE, Administrative Patent Judge.

DECISION ON APPEAL

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This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1, 3-5 and 21-24. App. Br. 1. Claims 2 and 6-20 are
cancelled. Id. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

INVENTION
The invention is directed to re-routing of network packets to an
alternate (or recovery) site. See Spec., 1:3-4.
Claim 1 is representative of the invention and reproduced
below:
1. A method for routing to a first site, packets addressed to a
second site after a failure at said second site, said first site
comprising a first server, a first edge router for a first network
comprising said first server, and a first Internet Service
Provider (ISP) coupling said first edge router to an Internet,
said second site comprising a second server, a second edge
router for a second, different network comprising said second
server, and a second ISP coupling said second edge router to
said Internet, said method comprising the steps of:

responsive to a determination that said first server has an
Autonomous System Number (ASN) and is a backup to said
second server, said first edge router automatically generating
and announcing to said first ISP a first route to a common IP
address for both said first and second servers such that said first
route to said IP address via said first edge router is less
preferred than a second route to said IP address via said second
edge router, and in response, said first ISP updating a first
routing table in said first ISP to route packets from said Internet
which are received by said first ISP and addressed to said IP
address to said first edge router en route to said first server, and
announcing said first route to said Internet;

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said second router automatically generating and announcing to
said second ISP said second route, and in response, said second
ISP updating a second routing table in said second ISP to route
packets from said Internet which are received by said second
ISP and addressed to said IP address to said second edge router
en route to said second server, and announcing said second
route to said Internet, such that packets from said Internet
which are addressed to said IP address are more likely to be
routed to said second ISP than said first ISP while said first
edge router and said first ISP announce said first route and said
second edge router and said second ISP announce said second
route; and

subsequently, said second router and said second ISP ceasing to
broadcast said announcement of said second route due to a
nonoperational state of said second site and said first router and
said first ISP continuing to announce said first route due to said
operational state of said first site, such that subsequent packets
from said Internet addressed to said IP address are routed to
said first ISP bypassing said second ISP.

REFERENCES
Lakshmi Narayanan US 2004/0109458 A1 Jun. 10, 2004
Naseh US 2006/0195607 A1 Aug. 31, 2006
Munirajan US 2006/0235997 A1 Oct. 19, 2006

REJECTIONS AT ISSUE
Claims 1 and 3 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Naseh. Ans. 3-6.
Claims 21 and 22 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Naseh. Ans. 7-12.
Claims 4 and 23 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Naseh and Munirajan. Ans. 12-13.
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Claims 5 and 24 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Naseh and Lakshmi. Ans. 14-15.

ISSUE
1. Did the Examiner err finding that Naseh discloses the following
limitations in claim 1:
a. first edge router automatically generating and announcing to
said first ISP a first route to a common IP address for both
said first and second servers such that said first route to said
IP address via said first edge router is less preferred than a
second route to said IP address via said second edge router
[and]. . . said second router and said second ISP ceasing to
broadcast said announcement of said second route due to a
nonoperational state of said second site and said first router
and said first ISP continuing to announce said first route due
to said operational state of said first site, such that
subsequent packets from said Internet addressed to said IP
address are routed to said first ISP bypassing said second
ISP. [;] and
b. responsive to a determination that said first server has an
Autonomous System Number (ASN) and is a backup to said
second server, said first edge router automatically generating
and announcing to said first ISP a first route to a common IP
address for both said first and second servers such that said
first route to said IP address via said first edge router is less
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preferred than a second route to said IP address via said
second edge router, and in response, said first ISP updating a
first routing table in said first ISP to route packets from said
Internet which are received by said first ISP and addressed
to said IP address to said first edge router en route to said
first server and announcing said first route to said Internet
[?]
ANALYSIS
Appellant presents arguments with respect to claim 1. Appellant
argues that Naseh does not disclose:
the first router broadcasts a less preferential path than is
broadcast by the second router, and upon a failure at the second
site, the second router ceases to broadcast announcements of the
IP address, such that the first router and its ISP become the
preferential path to the IP address (because the first router is no
longer "competing" with the second router or the shortest path).

App. Br. 12. We are not persuaded by this argument.
We note that, as listed in limitation “a” of the Issues section, claim 1
recites a “non-operational state” of the second site not a “failure” of the
second site. While the Specification discusses a failure of the second site
(Spec. 10:3-9), claim 1 uses the broader term “non-operational state.” The
importation of a narrow embodiment into the broader independent claim 1 is
improper. See SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870,
875 (Fed. Cir. 2004) (“For example, a particular embodiment appearing in
the written description may not be read into a claim when the claim language
is broader than the embodiment.”). Id. (citation omitted). Thus, Appellant’s
argument is not commensurate with the scope of the claims.
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Given the above construction, we find that Naseh discloses that when
a preferred data center is taken out of service, the system switches to the
secondary data center. Naseh [0026]. Therefore, we agree with the
Examiner that the term “non-operational state” encompasses a data center
that has been taken out of service. Ans. 15.
Appellant also focuses on the limitation that the second router ceases
to broadcast announcements of the IP address. We agree with the
Examiner’s finding that one of ordinary skill in the art at the time of the
invention would recognize that “[i]f a data center is taken out of service (i.e.,
power down or due to a disaster), then it will no longer broadcast
announcements of an IP address.” Ans. 15-16. Therefore, we find ample
support for the Examiner’s finding that Naseh discloses limitation “a” from
the Issues section above. Id.
Appellant argues that Naseh does not disclose limitation “b” from the
Issues section above. Br. 8-9. We disagree. Appellant fails to meet the
burden of demonstrating error in the Examiner’s prima facie case of
obviousness as to this limitation. Merely repeating claim limitations and
stating that the references fail to teach the limitations, or that motivation is
lacking, as Appellant does (Id.), does not rebut the Examiner's prima facie
case. We find ample support for the Examiner’s finding that Naseh
discloses the limitation at issue. See Ans. 16-19.
For the reasons above, we sustain the Examiner’s decision to reject
claim 1. Claims 3-5 and 21-24 are not argued separately and thus fall with
claim 1.
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DECISION
The Examiner’s decision to reject claims 1, 3-5 and 21-24 is affirmed.
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

ELD