Ex Parte McDysan et al

Board of Patent Appeals and Interferences

May 26, 2011

09723480 (B.P.A.I. May. 26, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte DAVE MCDYSAN, HOWARD LEE THOMAS, and LEI YAO
____________________

Appeal 2011-005567
Application 09/723,480
Technology Center 2400
____________________

Before JOSEPH L. DIXON, JAY P. LUCAS, and THU A. DANG,
Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

I. STATEMENT OF THE CASE
Appellants appeal from the Examiner’s final rejection of claims 1-43
under 35 U.S.C. § 134(a) (2002). We have jurisdiction under 35 U.S.C.
§ 6(b).
We reverse.

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A. INVENTION
According to Appellants, the invention relates in general to
communication networks and, in particular, to an Internet Protocol-centric
communication network (Spec. 1, ll. 25-26).

B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary and is reproduced below:
1. A method of communication in a network access
system, whereby functionality of the network access system is
distributed among an external processor, a programmable
access device, and an access router, said method comprising:

receiving a control message from the external processor,
by the programmable access device, to establish a configuration
of the programmable access device;

receiving, by the programmable access device, messages
from a first network external to the network access system via a
first network interface;

processing, by the programmable access device, the
messages from the first network to distinguish between various
message types and to establish a first subset of the received
messages and a second subset of the received messages;

communicating the first subset of the received messages
from the programmable access device to the external processor
for service processing in accordance with the configuration; and

routing the second subset of the received messages not
communicated to the external processor, via the access router,
from the network access system via a second network interface
different from the first network interface to a second network
external to the network access system, wherein the second
network is different from the first network.
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C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Grant US 5,027,269 June 25, 1991
Haas US 5,115,432 May 19, 1992
Feldman US 6,055,561 Apr. 25, 2000
Gai US 6,167,445 Dec. 26, 2000
Albert US 6,606,316 B1 Aug. 12, 2003
Gai II US 6,651,096 B1 Nov. 18, 2003
Gibson US 6,680,943 B1 Jan. 20, 2004
Mo US 7,133,403 B1 Nov. 7, 2006

Claims 1-4, 7-9, 12, 13, 17, 20-24, 27, 28, 31, 32, 36, 39, and 40 stand
rejected under 35 U.S.C. § 103(a) as unpatentable over Albert in view of
Gai.
Claims 5 and 25 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Albert in view of Gai and Haas.
Claims 16, 18, 35, and 37 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Albert in view of Gai and Feldman.
Claims 19 and 38 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Albert in view of Gai and Grant.
Claims 10, 11, 29, and 30 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Albert in view of Gai and Gai II.
Claims 6, 14, 15, 26, 33, 34, 42, and 43 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Albert in view of Gai and Gibson.
Claim 41 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Albert in view of Gai and Mo.

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II. ISSUE
Has the Examiner erred in concluding that the combined teachings of
Albert and Gai would have suggested “processing, by the programmable
access device, the messages from the first network to distinguish between
various message types and to establish a first subset of the received
messages and a second subset of the received messages” and “routing the
second subset of the received messages not communicated to the external
processor, via the access router, from the network access system via a
second network interface different from the first network interface to a
second network external to the network access system” (claim 1)? In
particular, the issue turns on whether there is any suggestion in Albert of
distinguishing between message types for the messages from a first network.

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Albert
1. Albert discloses sending packets from clients 201, 202, and 203
through a network 210 to a network device including at least one
forwarding agent 231 and 232, and at least one service manager 241
and 242, wherein a group of servers 220 receives the forwarded
packets from the network device (Fig. 2A; col. 6, ll. 15-44).
2. The forwarding agents 231 and 232 send the packet to a service
manager 241 or 242, and send a notification that the packet has been
seen to a service manager 241 or 242, while the service managers 241
and 242 send specific instructions to each of the forwarding agents
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231 and 232 detailing how certain flows of packets are to be
processed (col. 6, ll. 44-57).
3. Server 222 communicates with network 210 through either of the
forwarding agents, server 221 communicates with network 210
exclusively through forwarding agent 231, and server 223
communicates with network 210 exclusively through forwarding
agent 232 (Fig. 2A; col. 6, ll. 30 - 35).

IV. ANALYSIS
Appellants argue that the prior art “is devoid of any teaching of the
claimed first and second subsets of received messages, wherein the second
subset is routed, via the access router, via a second network interface
different from the first network interface, to a second network external to the
network access system” (App. Br. 8-9, emphasis omitted). In particular,
Appellants explain that “the service manager [of Albert] is not receiving
messages that have been divided into two subsets” but rather, “the traffic
bound for the group of services 220 is divided into two groups, one group
passing through forwarding agent 231 and the other group passing through
forwarding agent 232” wherein “[t]he traffic originating from network 210 is
divided between the two forwarding agents, rather than being sent to the
service manager” (Reply Br. 4).
As the Examiner states, in a prior Decision, the Board of Patent
Appeals and Interferences (Board) determined that Albert anticipates the
servers are on a second network external to the first network (Ans. 15-16).
However, though the Examiner also states that the Board also determined
that Albert also anticipates “the second subset of packets are routed via a
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second network interface” (id. at 16), such determination was not made by
this Board since such “second subset” was not previously claimed. That is,
we agree with Appellants that we did not address the “second subset” feature
in the prior Decision (Reply Br. 4).
After reviewing the record on appeal, we agree with Appellants and
find that the prior art cited by the Examiner does not teach or suggest
“processing, by the programmable access device, the messages from the first
network to distinguish between various message types and to establish a first
subset of the received messages and a second subset of the received
messages” and “routing the second subset of the received messages not
communicated to the external processor, via the access router, from the
network access system via a second network interface different from the first
network interface to a second network external to the network access
system” as required by claim 1. We agree with Appellants’ argument that
Albert does not even disclose a second network that is “receiving messages
that have been divided into two subsets” (Reply Br. 4). In fact, we cannot
find any teaching or suggestion in the portions of Albert and Gai cited by the
Examiner of distinguishing between message types for messages from a first
network and thus establish first and second subsets.
Albert discloses sending packets from a network to a network device
such as a forwarding agent (FF 1), wherein the forwarding agent sends the
packet to a service manager (FF 2) and a particular server communicates
with network exclusively through a particular forwarding agent (FF 3). As
Appellants explain, “the traffic bound for the group of services 220 is
divided into two groups, one group passing through forwarding agent 231
and the other group passing through forwarding agent 232” wherein “[t]he
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traffic originating from network 210 is divided between the two forwarding
agents” (Reply Br. 4). That is, the traffic either passes through one
forwarding agent or another forwarding agent, but the traffic coming from
either forwarding agent is never distinguished and first and second subsets
are never established from either forwarding agent. Thus, though we agree
with the Examiner that a “first network” could be interpreted broadly as
reading on the network of forwarding agents, we find that messages from
such “first network” are not distinguished between various message types to
establish a first subset and a second subset of the received messages, as
required by claim 1.
Thus, though we agree with the Examiner that Albert discloses
“servers on a second network external to the first network” (Ans. 15-16) , we
do not find any teaching or fair suggestion of “processing, by the
programmable access device, the messages from the first network to
distinguish between various message types and to establish a first subset of
the received messages and a second subset of the received messages” and
thus “routing the second subset of the received messages not communicated
to the external processor, via the access router, from the network access
system via a second network interface different from the first network
interface to a second network external to the network access system” as
required by claim 1.
As such, we reverse the rejection of representative claim 1 and claims
2-4, 7-9, 12, 13, 17, 20-24, 27, 28, 31, 32, 36, 39, and 40 falling therewith.
We also find that Haas, Feldman, Grant, Gai II, Gibson and Mo also
do not cure these noted deficiencies of Albert and Gai. As such, we also
reverse the rejection of claims 5 and 25 over Albert in view of Gai and Haas;
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the rejection of claims 16, 18, 35, and 37 over Albert in view of Gai and
Feldman; the rejection of claims 19 and 38 over Albert in view of Gai and
Grant; the rejection of claims 10, 11, 29, and 30 over Albert in view of Gai
and Gai II; the rejection of claims 6, 14, 15, 26, 33, 34, 42, and 43 over
Albert in view of Gai and Gibson; and the rejection of claim 41 over Albert
in view of Gai and Mo.

V. CONCLUSION AND DECISION
Appellants have shown that the Examiner erred in holding claims 1-43
unpatentable under 35 U.S.C. § 103(a). Accordingly, we do not sustain the
Examiner’s rejection with respect to any claim on appeal. Therefore, the
Examiner’s decision rejecting claims 1-43 is reversed.

REVERSED

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