Ex Parte Pepper

Board of Patent Appeals and Interferences

Aug 15, 2011

10382939 (B.P.A.I. Aug. 15, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte GERALD PEPPER
____________
Appeal 2009-011638
Application 10/382,939
1

Technology Center 2400
____________

Before MAHSHID D. SAADAT, ALLEN R. MACDONALD, and
MICHAEL R. ZECHER, Administrative Patent Judges.

ZECHER, Administrative Patent Judge.

DECISION ON APPEAL

1
Filed on March 6, 2003. The real party in interest is Ixia. (App. Br. 2.)
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I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) (2002) from the
Examiner’s final rejection of claims 1-27.
2
(App. Br. 2;
3
Reply Br. 2.) We
have jurisdiction under 35 U.S.C. § 6(b) (2008).
We affirm.
Appellant’s Invention
Appellant invented an apparatus and method for testing and analyzing
communications networks, systems, and devices. (Spec. 1, ¶ [0002].)
Illustrative Claim
1. An apparatus for generating dynamic streams for
network analysis comprising

a blaster unit to send at least one outgoing stream of data
units representing at least one session over a network when
respective session status information for the sessions indicate
that the sessions are enabled

a control unit to control over which sessions the blaster
unit will send the outgoing data units, including sending to the
blaster unit

session configuration information to instruct the blaster
unit how to form data units for the respective sessions

2
Appellant’s Notice of Appeal filed September 13, 2007, states that
“Applicant hereby appeals to the Board of Patent Appeals and Interferences
from the last decision of the [E]xaminer.” Neither the Appellant nor the
Examiner has subsequently withdrawn any of the pending claims.
Therefore, since the Final Rejection mailed June 14, 2007, indicates that
claims 1-27 are pending in the present application, all of Appellant’s
pending claims 1-27 are on appeal.
3
All references to the Appeal Brief are to the Appeal Brief filed November
5, 2007, which replaced the Appeal Brief filed on September 13, 2007.
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Application 10/382,939

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session status information to individually enable and
disable the sessions.

Prior Art Relied Upon
Beanland US 6,028,847 Feb. 22, 2000
Gustavsson US 2002/0080781 A1 June 27, 2002
Nemirovsky US 6,789,100 B2 Sept. 7, 2004
(filed on Feb. 8, 2002)
Van Gerrevink US 6,950,405 B2 Sept. 27, 2005
(hereinafter “Gerrevink”) (filed July 16, 2001)

Rejections on Appeal
Claims 1-12, 14-20, 22, and 24 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Gerrevink and
Beanland.
Claims 13, 21, 23, and 25-27 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination Gerrevink, Beanland, and the
knowledge possessed by an ordinarily skilled artisan at the time of the
claimed invention.
Appellant’s Contentions
Appellant contends that Gerrevink does not teach or suggest “when
respective session status information for the sessions indicate that the
sessions are enabled,” and “session status information to individually enable
and disable the sessions,” as recited in independent claim 1. (App. Br. 6;
Reply Br. 3.) In particular, Appellant argues that upon reviewing the present
Specification, the claimed phrase “enable and disable the sessions” should
be reasonably construed as transmitting data units of an enabled session at
the appropriate time intervals, and not transmitting data units of a disabled
session even when the appropriate time period occurs. (App. Br. 7-8.)
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Therefore, Appellant argues that Gerrevink’s disclosure of using an indexed
list to determine which traffic stream contains the next packet that should be
generated and sent does not teach or suggest “session status information to
individually enable and disable the sessions,” as claimed. (Id. at 8-9.)
Moreover, Appellant contends that it would be improper to adopt the
Examiner’s overly broad interpretation of the claimed “enable and disable
the sessions” because the Examiner unreasonably ignores the context
provided by Appellant’s Specification. (App. Br. 9-10; Reply Br. 3-5.)
Further, Appellant argues that there is insufficient rationale to modify
Gerrevink’s traffic generator to enable and disable individual streams. (App.
Br. 10-11.) Appellant also alleges that modifying Gerrevink’s traffic
generator to solve the same problem addressed by the claimed invention
becomes apparent only in hindsight after reading the disclosure of the
present application. (Reply Br. 5-6.)
Examiner’s Findings and Conclusions
The Examiner finds that the disclosure in Appellant’s Specification
pertaining to a “disabled session” and an “enabled session” is only an
example of how the claimed “apparatus” may treat a session that is marked
enabled or disabled. (Ans. 17.) The Examiner construes an “enabled
session” as a session that is being transmitted over the network, and a
“disabled session” as a session that is not being transmitted over the
network. (Id. at 17-18.) Therefore, the Examiner maintains that Gerrevink’s
disclosure of a traffic generator, which includes a packet generator that
selects the next traffic stream in a selected traffic class based on a traffic
stream index, teaches or suggests “when respective session status
information for the sessions indicate that the sessions are enabled,” and
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“session status information to individually enable and disable the sessions,”
as recited in independent claim 1. (Id. at 4.) Further, the Examiner finds
that there is sufficient rationale to modify Gerrevink’s traffic generator to
enable and disable individual traffic streams. (Id. at 18-19.)

II. ISSUE
Has Appellant shown that the Examiner erred in concluding that the
combination of Gerrevink and Beanland renders independent claim 1
unpatentable? In particular, the issue turns on whether:
(a) the proffered combination teaches or suggests “when respective
session status information for the sessions indicate that the sessions are
enabled,” as recited in independent claim 1;
(b) the proffered combination teaches or suggests “session status
information to individually enable and disable the sessions,” as recited in
independent claim 1; and
(c) the Examiner provides sufficient rationale for the proffered
combination.

III. FINDINGS OF FACT
The following Findings of Fact (hereinafter “FF”) are shown by a
preponderance of the evidence.
Gerrevink
FF 1. Gerrevink’s figure 1 depicts a block diagram of a test system
(100) that implements a traffic stream generator. (Col. 4, ll. 17-19.) In
particular, Gerrevink discloses providing a traffic or stream generator (103)
for generating realistic network traffic (e.g., Internet traffic). (Id. at ll. 32-
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34.) Gerrevink discloses that the traffic generator (103) produces data
packets for each of the output data streams and releases the generated
packets into these streams at a time designated by the departure scheduler
(104). (Id. at ll. 53-56.)
FF 2. Gerrevink discloses that the stream generator effectively tests
equipment (e.g., an IP router), by configuring routes (e.g., network
addresses) in the forwarding table that consists of many different network
sizes and network addresses, which can be non-consecutive. (Col. 5, ll. 1-5.)
FF 3. Gerrevink’s figure 3 depicts a flow chart illustrating the steps
performed by the traffic stream generator (103). (Id. at ll. 50-52.) In step
(320), Gerrevink discloses that the packet generator (182) selects a next
traffic stream in the selected traffic class based on a traffic stream index.
(Col. 6, ll. 6-8.) Gerrevink discloses that each traffic class has a plurality of
traffic streams that can be managed as a list (e.g., a linked list). (Id. at ll. 8-
10.)

IV. ANALYSIS
Claim 1
Independent claim 1 recites, inter alia: 1) “when respective session
status information for the sessions indicate that the sessions are enabled;”
and 2) “session status information to individually enable and disable the
sessions.”
First, we consider the scope and meaning of the claimed phrase
“enable and disable the session,” which must be given the broadest
reasonable interpretation consistent with Appellant’s disclosure. As
explained in In re Morris, 127 F.3d 1048 (Fed. Cir. 1997):
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[T]he PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in
the art, taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant's specification.
Id. at 1054. See also In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) (stating
that “claims must be interpreted as broadly as their terms reasonably
allow.”). Appellant’s Specification states that:
[t]he session status information may indicate whether a session
is enabled or disabled. If a specific session is disabled, the
background overlay engine 244 will not allow data units for the
specified session 254 to be transmitted. This may be
accomplished by ignoring the signal from the scheduler 242. If
a specific session is enabled, then the background overlay
engine 244 responds to signals from the scheduler 242, and
causes data units for the specified session 254 to be transmitted.

(Spec. 12, ¶ [0035].)

Upon reviewing Appellant’s Specification for context, we agree with
the Examiner that the claimed phrase “enable and disable the session” may
be broadly, but reasonably construed as follows: 1) an enabled session
allows transmission of data units over a network; and 2) a disabled session
does not allow transmission of data units over a network. (Ans. 17-18.)
Moreover, we note that Appellant's proposed claim construction relies
on the alleged differences between Gerrevink and features from the present
Specification that are not explicitly recited in independent claim 1, e.g., a
disabled session will not send a data unit even when the scheduler indicates
that a data unit should be sent. (App. Br. 7-8.) Such unclaimed features
should not be read into independent claim 1 from the present Specification.
See In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
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As detailed in the Findings of Fact section above, Gerrevink discloses
a traffic or stream generator that tests equipment by generating realistic
network traffic. (FFs 1 and 2.) In particular, Gerrevink discloses that the
traffic generator effectively tests equipment by generating and releasing data
packets into output traffic streams in a non-consecutive order at a time
designated by a departure scheduler. (Id.) Gerrevink also discloses that the
traffic generator incorporates a packet generator that manages output traffic
streams in a list and selects the next output traffic stream in a traffic class
based on a traffic stream index. (FF 3.)
We find that Gerrevink’s disclosure teaches or suggests that the traffic
generator effectively tests equipment by using a time designated by the
scheduler, and the information from a traffic stream index, to generate and
select the next output traffic stream of data packets over a network. In
particular, we find that an ordinarily skilled artisan would have understood
that Gerrevink’s traffic generator enables the transmission of a traffic stream
of data packets when information from the traffic stream index indicates that
such traffic stream is the next output traffic stream on a list. We find that an
ordinarily skilled artisan would have also understood that Gerrevink’s traffic
generator disables the transmission of a traffic stream of data packets when
information from the traffic stream index indicates that such traffic stream is
not the next output traffic stream on the list. Therefore, consistent with our
claim construction above, we find that Gerrevink teaches or suggests “when
respective session status information for the sessions indicate that the
sessions are enabled,” and “session status information to individually enable
and disable the sessions,” as recited in independent claim 1.
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Rationale to Combine
We are not persuaded by Appellant’s argument that there is
insufficient rationale to modify Gerrevink’s traffic generator to enable and
disable individual streams. (App. Br. 10-11.) The U.S. Supreme Court has
held that “[t]he combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results.” KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). The
Court further instructs that:
[o]ften it will be necessary for a court to look to interrelated
teachings of multiple patents; . . . and the background
knowledge possessed by a person having ordinary skill in the
art, all in order to determine whether there was an apparent
reason to combine the known elements in a the fashion claimed
by the patent at issue.

Id. at 418. Additionally, the Court instructs that:
“[[r]]ejections on obviousness grounds cannot be sustained by
mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness”… however, the
analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.

Id. (citation omitted).
Upon reviewing the record before us, we find that the Examiner’s
suggestion for the proposed modification in the prior art suffices as an
articulated reason to establish the prima facie case of obviousness. In
summary, we find that an ordinarily skilled artisan in the art of testing and
analyzing communications networks, at the time of the claimed invention,
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would have modified Gerrevink’s traffic generator to enable or disable the
transmission of a traffic stream of data packets depending on whether
information from the traffic stream index indicates that such traffic stream is
the next output traffic stream on a list. (FFs 1-3.) This would predictably
result in cycling through different traffic streams. (FF 3.)
Further, as prescribed by the controlling case law, while it is often
necessary for an Examiner to identify a reason for combining the familiar
elements obtained from the prior art in establishing a prima facie case of
obviousness, the identification of such a reason is not a sine qua non
requirement. So long as the Examiner provides an articulated reasoning
with some kind of a rational underpinning to substantiate the obviousness
rejection, such a conclusion is proper. See KSR, 550 U.S. at 418. In this
case, the Examiner provided more than just a mere conclusory statement.
The Examiner stated that the suggestion or motivation for individually
enabling and disabling the sessions in Gerrevink would have been that
Gerrevink already teaches cycling through different traffic streams. (Ans.
4.) The enabling and disabling is based on the traffic stream index that is
currently selected or is next on the list. (Id.; see also FF 3.) In our view,
such statements suffice as an articulated reason with a rational underpinning
to support the proffered combination. As noted above, the case law allows
the Examiner to look to the state of the prior art, including the knowledge of
an ordinarily skilled artisan, to surmise such a reason for combining the
known elements of the prior art. Consequently, the Examiner’s reliance on
Gerrevink in order to arrive at an articulated reason with a rational
underpinning to support the proffered combination is proper.
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For the same reasons as set forth above, we are not persuaded by
Appellant’s argument that the Examiner improperly engages in
impermissible hindsight reconstruction, which was argued by Appellant for
the first time in the Reply Brief. (Reply Br. 5-6.) It follows that Appellant
has not shown that the Examiner erred in concluding that the combination of
Gerrevink and Beanland renders independent claim 1 unpatentable.
Claims 12, 16, and 25
Appellant offers the same or similar arguments set forth in response to
the obviousness rejection of independent claim 1 to rebut the obviousness
rejection of independent claims 12, 16, and 25. (App. Br. 11-16; Reply Br.
6-9.) We have already addressed these arguments in our discussion of
independent claim 1, and we found them unpersuasive. It follows that
Appellant has not shown that the Examiner erred in concluding that: 1) the
combination of Gerrevink and Beanland renders independent claims 12 and
16 unpatentable; and 2) the combination of Gerrevink, Beanland, and the
knowledge possessed by an ordinarily skilled artisan at the time of the
claimed invention renders independent claim 25 unpatentable.

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V. CONCLUSION OF LAW
Appellant has not shown that the Examiner erred in rejecting
independent claims 1, 12, 16, and 25, or claims 2-11, 13-15, 17-24, 26, and
27 not separately argued, as being unpatentable under 35 U.S.C. § 103(a).
4

VI. DECISION
We affirm the Examiner’s decision to reject claims 1-27.
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

msc

4
Since Appellant has presented no arguments with respect to claims 18-20
(see App. Br. 2), the rejection of claims 18-20 under 35 U.S.C. §103(a) as
being unpatentable over the combination of Gerrevink and Beanland is
summarily sustained. See Manual of Patent Examining Procedure §
1205.02, 8th ed., Rev. 8, July 2010 (“If a ground of rejection stated by the
examiner is not addressed in the appellant's brief, that ground of rejection
will be summarily sustained by the Board.”).