Ex Parte Riley

Board of Patent Appeals and Interferences

Jan 30, 2012

11078851 (B.P.A.I. Jan. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte DWIGHT D. RILEY
____________
Appeal 2009-013823
Application 11/078,851
1

Technology Center 2400
____________

Before GREGORY J. GONSALVES, JASON V. MORGAN, and
MICHAEL R. ZECHER, Administrative Patent Judges.

ZECHER, Administrative Patent Judge.

DECISION ON APPEAL

1
Filed on March 11, 2005. This application is a continuation in part of
application 10/209,846, filed on July 31, 2002. This application also claims
priority from provisional application 60/552,344, filed on March 11, 2004.
The real party in interest is Hewlett-Packard Development Co., L.P. App.
Br. 3.
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Application 11/078,851

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I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) (2002) from the
Examiner’s rejection of claims 1-23. App. Br. 5. We have jurisdiction
under 35 U.S.C. § 6(b) (2008).
We affirm-in-part.
Appellant’s Invention
Appellant invented an apparatus and method for a hierarchical
interconnect network. According to Appellant, the claimed invention is
directed to a network switch that comprises a plurality of ports each adapted
to couple to other devices external to the network switch, a controller
coupled to the plurality of ports, and a memory coupled to the controller.
The controller uses the routing information stored in the memory to identify
an alternative path through the network switch, wherein at least part of the
alternative path does not follow the inverted tree structure of the hierarchical
interconnect network. Abstract.
Illustrative Claim
1. A network switch, comprising:

a plurality of ports each adapted to couple to other
devices external to the network switch as part of a rooted
hierarchical interconnect network, the rooted hierarchical
interconnect network comprises an inverted tree structure that
originates with a root bus;

a controller coupled to the plurality of ports, the
controller defines an active path through the network switch,
the active path follows the inverted tree structure; and

a memory coupled to the controller, the memory
comprising routing information;

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wherein the controller uses the routing information to
identify an alternate path through the network switch that is an
alternative to the active path; and

wherein at least part of the alternate path does not follow
the inverted tree structure.

Prior Art Relied Upon
Bare US 6,473,403 B1 Oct. 29, 2002
(filed Jan. 11, 1999)

Akber Kazmi, Non-Transparent Bridging Makes PCI-Express HA
Friendly, 1-6 (Aug. 2003) available at http://www.commsdesign.com/
showArticle.jhtml?articleID=16501767 (last visited Jan. 27, 2012)
(“Kazmi”).

Rejections on Appeal
Claims 1, 3-9, and 11-20 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Bare. Ans. 4-9.
Claims 1, 2, 9, 10, and 21-23 stand rejected under 35 U.S.C. § 102(a)
as being anticipated by Kazmi. Id. at 9-13.
Appellant’s Contentions
1. Appellant contends that Bare discloses a meshed networked,
which has been “pruned” through the use of a spanning tree algorithm.
Consequently, Appellant argues that an ordinarily skilled artisan would have
recognized that Bare’s network architecture is a meshed network
architecture over which network traffic is limited to one or more hierarchical
paths within the meshed network, whereas the claimed invention requires a
rooted hierarchical network architecture over which network traffic is
extended to one or more alternate paths at least partially outside the
hierarchy. Further, Appellant alleges that Bare’s packet switch is not part of
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the “rooted hierarchical interconnect network” recited in independent claim
1 and, therefore, neither are the two busses located within the packet switch
(i.e., processor bus and data bus). App. Br. 11-12.
In response to the Answer, Appellant contends that the claim term
“rooted hierarchical interconnect” is old and well-known. In particular,
Appellant argues that the claimed “[a] rooted hierarchical interconnect”
comprises an inverted structure in which only one path exists from any pair
of nodes, and all packets pass through a root node. Appellant also alleges
that a rooted hierarchical interconnect has no redundant paths between
nodes. In light of this claim construction, Appellant reiterates that the
Examiner’s reliance on Bare to describe the claimed “rooted hierarchical
interconnect” is misplaced because Bare is directed to load balancing, or
choosing a particular path among multiple possible paths. Reply Br. 1-3.
2. Appellant contends that Kazmi discloses a control module
external to the switch fabric and, therefore, external to the switch within the
switch fabric. Consequently, Appellant argues that Kazmi does not describe
a controller internal to the switch and, therefore, internal to the claimed
“rooted hierarchical interconnect network” corresponding to the switch, as
required by independent claim 1. App. Br. 12-13.
Examiner’s Findings and Conclusions
1. The Examiner finds that Bare discloses a network made up of
switches that use the spanning tree protocol to limit the network by disabling
paths that are not part of the determined rooted tree hierarchy that originates
from a root switch. Consequently, the Examiner finds that Bare describes
“[a] network switch as part of a rooted hierarchical interconnect network,”
as recited in independent claim 1. Ans. 13-14.
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2. The Examiner finds that figure 4 of Kazmi illustrates a fully
redundant switch or router system that has a module design made up of
controller modules, switch modules, and port adapter modules. Therefore,
since the controller modules are internal to the switch or router system,
Kazmi describes “[a] network switch, comprising:…a controller…,” as
recited in independent claim 1. Ans. 17-18.

II. ISSUES
1. Did the Examiner err in finding that Bare describes “…[a]
network switch as part of a rooted hierarchical interconnect network,” as
recited in independent claim 1?
2. Did the Examiner err in finding that Kazmi describes “[a]
network switch, comprising:…a controller…” that identifies both the active
and alternative paths, as recited in independent claim 1?

III. FINDINGS OF FACT (“FF”)
Bare
FF 1. Bare discloses a spanning tree protocol that disables redundant
paths in order to avoid broadcast storms. Only when a path fails does Bare
disclose enabling a redundant path and using it for exchanging data.
Therefore, Bare discloses that the spanning tree protocol precludes
aggregation of available bandwidth to improve communication bandwidth
by using multiple redundant paths in parallel. Col. 4, ll. 54-60.
FF 2. Bare’s figure 2 illustrates a switch network wherein the
spanning tree protocol has disabled redundant links. Col. 8, ll. 1-3; figure 2.
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FF 3. Bare discloses that since the spanning tree protocol adds path
costs from a root switch, it may be possible for a load balance path to appear
as a higher cost path in some configurations depending on which switch
becomes the root. Col. 79, ll. 64-67.
Kazmi
FF 3. Kazmi’s figure 4 illustrates an example of a fully redundant
switch or router system. In particular, Kazmi discloses that the switch and
router system interconnects two control modules and two switch fabric
modules using Peripheral Component Interconnect (“PCI”) Express
switches. Kazmi also discloses connecting port adapters to both switch
fabrics. Pgs. 4-5; figure 4.

IV. ANALYSIS
35 U.S.C. § 102(b) Rejection—Bare
Claims 1, 9, and 16
We do not find error in the Examiner’s anticipation rejection of
independent claim 1. Independent claim 1 recites, inter alia, “…[a] network
switch as part of a rooted hierarchical interconnect network.”
At the outset, we accept Appellant’s claim construction with respect
to the disputed claim term “a rooted hierarchical interconnect network.” See
Reply Br. 1. That is, after reviewing Appellant’s Specification for context
(see Abstract and ¶ [0003]), we agree with Appellant that “a rooted
hierarchical interconnect network” can be broadly, but reasonable construed
as a network that includes an inverted tree structure in which only one path
exists from any pair of nodes (i.e., there are no redundant paths between
nodes), and packets originating from a node at the end of one branch may
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not be able to reach a node at the end of another branch without passing
through a root node. See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004). With this claim construction in mind, we turn to the
merits of the Examiner’s anticipation rejection.
We find that Bare’s disclosure of a root switch (FF 3), in conjunction
with using a spanning tree algorithm to prune the switch network (FFs 1 and
2), describes a network architecture that includes a tree structure expanding
out from a root switch. Moreover, since Bare’s network precludes the use of
redundant paths and calculates the cost of a path from the root switch (FFs 1
and 3), we find that there are no redundant paths between switches (i.e., only
one path exists from any pair of switches), and packets originating from a
switch at the end of one branch may not be able to reach a switch at the end
of another branch without passing through the root switch. Therefore,
consistent with our claim construction supra, we find that Bare describes
“…[a] network switch as part of a rooted hierarchical interconnect network,”
as recited in independent claim 1. It follows that the Examiner has not erred
in finding that Bare anticipates independent claim 1.
Appellant offers the same arguments set forth in response to the
anticipation rejection of independent claim 1 to rebut the anticipation
rejection of independent claims 9 and 16. See App. Br. 12-13. We have
already addressed this argument in our discussion of independent claim 1,
and we found it unpersuasive. Therefore, the Examiner has not erred in
finding that Bare anticipates independent claim 9 and 16.
Claims 3-8, 11-15, and 17-20
Appellant does not provide separate and distinct arguments for
patentability with respect to dependent claims 3-8, 11-15, and 17-20. See
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App. Br. 11-13; Reply Br. 1-3. Therefore, we select independent claim 1 as
representative of these aforementioned claims. See 37 C.F.R.
§ 41.37(c)(1)(vii). Consequently, the Examiner has not erred in rejecting
dependent claims 3-8, 11-15, and 17-20 for the same reasons set forth in our
discussion of independent claim 1.
35 U.S.C. § 102(a) Rejection—Kazmi
Claim 1
We find error in the Examiner’s anticipation rejection of independent
claim 1. Independent claim 1 recites, inter alia, “[a] network switch,
comprising:…a controller…” that identifies both the active and alternative
paths.
At best, we find that Kazmi’s switch and router system includes two
control modules, two switch fabrics, and numerous port adapters connected
to both switch fabrics. FF 4. However, since the control modules are
external to the switch fabrics and, therefore, external to the PCI Express
switches within each switch fabric, we agree with Appellant that Kazmi does
not describe a network switch comprising a controller that identifies both the
active and alternative paths, as required by independent claim 1. See App.
Br. 13-14. While the Examiner relies upon Kazmi’s switch or router system
that includes two internal controller modules to describe the disputed
limitation, we are at a loss to understand how the switch and router system,
which also includes two switch fabrics, can somehow describe a network
switch comprising a controller. That is, the Examiner’s stated position that
Kazmi’s switch or router system that includes two internal controller
modules describes a network switch comprising a controller (see Ans. 17) is
unreasonable in light of the fact that the switch and router system also
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includes two internal switch fabrics. FF 4. We note that while multiple
switches may constitute a single switch fabric, multiple switch fabrics do not
amount to a single switch.
Moreover, in light of our claim construction supra, we fail to see how
Kazmi’s switch and router system describes “a rooted hierarchical
interconnect network,” as claimed. Consequently, we find that the Examiner
improperly relied upon Kazmi to describe the disputed claim limitation.
Since Appellant has shown at least one error in the rejection of
independent claim 1, we need not reach the merits of Appellant’s other
arguments. It follows that the Examiner has erred in finding that Kazmi
anticipates independent claim 1.
Claims 2, 9, 10, and 21-23
Since independent claims 9 and 21, and dependent claims 2, 10, 22,
and 23, either recite the same or similar claim limitations as independent
claim 1, or incorporate such limitations by reference, we find that the
Examiner has erred in rejecting these claims for the same reasons set forth in
our discussion of independent claim 1.

V. CONCLUSIONS OF LAW
1. The Examiner has not erred in rejecting claims 1, 3-9, and 11-
20 as being anticipated under 35 U.S.C. § 102(b).
2. The Examiner has erred in rejecting claims 1, 2, 9, 10, and 21-
23 as being anticipated under 35 U.S.C. § 102(a).

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VI. DECISION
1. We affirm the Examiner’s decision to reject claims 1, 3-9, and
11-20 as being anticipated under 35 U.S.C. § 102(b).
2. We reverse the Examiner’s decision to reject claims 1, 2, 9, 10,
and 21-23 as being anticipated under 35 U.S.C. § 102(a).
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-IN-PART

ELD