Ex Parte Shao et al

Patent Trial and Appeal Board

Dec 15, 2016

12902703 (P.T.A.B. Dec. 15, 2016)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
S JO920105002US3 002CP 2555
EXAMINER
COSTIN, JEREMY M
ART UNIT PAPER NUMBER
2413
MAIL DATE DELIVERY MODE
12/902,703 10/12/2010
125781 7590 12/15/2016
Schmeiser, Olsen & Watts LLP
33 Boston Post Road West
Suite 410
Marlborough, MA 01752
Bill Shao
12/15/2016 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BILL SHAO, CYNTHIA ANN GABRIEL, and TIENWEI CHAO
Appeal 2015-008253
Application 12/902,7031
Technology Center 2400
Before JOSEPH L. DIXON, JENNIFER L. McKEOWN, and
SCOTT B. HOWARD, Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1—30, which constitute all of the claims pending in this application.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellants identify International Business Machines Corporation as the
real party in interest. App. Br. 3.
Appeal 2015-008253
Application 12/902,703
THE INVENTION
The disclosed and claimed invention is directed “to techniques for
managing traffic flow among servers in a data center.” Spec. 12.
Claim 4, reproduced below along with independent claim 1 from
which it depends, is illustrative of the claimed subject matter:
1. In a data center with a switch device in
communication with a plurality of servers, a method of
processing an Ethernet frame comprising:
determining, by the switch device, from content in a
header of the Ethernet frame received from an initiating system
by the switch device, a first of a plurality of ports of the switch
device through which to forward the frame to a first server of the
plurality of servers;
inserting, by the switch device, a value into a VLAN
(virtual Local Area Network) tag in the header of the frame
before forwarding the frame, said value representing one or more
policies to govern the processing of the frame by the first server;
forwarding, by the switch device, the frame to the first
server; and
performing, by the first server, a specific action related to
processing the frame based on the value inserted into the VLAN
tag.
4. The method of claim 1, further comprising:
modifying, by the first server, the value in the VLAN tag
of the header of the frame before returning the frame to the
switch device;
returning the frame, with the VLAN tag modified by the
first server, to the switch device; and
forwarding, in response to the switch device receiving the
modified VLAN tag from the first server, the frame from the
switch device to a second server of the plurality of servers
without first returning the frame to the initiating system.
2
Appeal 2015-008253
Application 12/902,703
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Van Bemmel US 2007/0180113 A1 Aug. 2, 2007
Lindholm US 2008/0002579 A1 Jan. 3, 2008
Wang US 2008/0163372 A1 July 3, 2008
Quinn US 2008/0177896 A1 July 24, 2008
REJECTIONS
Claims 1—6, 8—11, 15—17,2 3and 21—26 stand rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Quinn in view of Lindholm.
Final Act. 2—11.
Claims 7,12, and 27—30 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Quinn in view of Lindholm and Wang.
Final Act. 11—14.
Claims 13 and 14 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Quinn in view of Lindholm, Wang, and Van
Bemmel. Final Act. 14—16.
Claims 18—20 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Quinn in view of Lindholm and Van Bemmel.
Final Act. 16—18.
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellants’
arguments that the Examiner erred. In reaching this decision, we have
2 Although the heading of the rejection in the Final Action does not identify
claim 17 as rejected on this ground (Final Act. 2), the Examiner provides a
basis for rejecting claim 17 (Final Act. 9).
3
Appeal 2015-008253
Application 12/902,703
considered all evidence presented and all arguments made by Appellants.
We are persuaded by Appellants’ arguments regarding claims 4—6, 18—20,
and 25 that, on the current record, the Examiner erred. However, we are not
persuaded by Appellants’ arguments that the Examiner erred in rejecting
claims 1—3, 7—17, 21—24, and 26—30.
Claims 1—3, 7—11, 15—17, 21—24, and 26—30
With regard to claims 1—3, 7—11, 15—17, 21—24, and 26—30,
Appellants have not identified any errors in the Examiner’s findings. See
App. Br. 16—20. “If an appellant fails to present arguments on a particular
issue — or, more broadly, on a particular rejection — the Board will not, as
a general matter, unilaterally review those uncontested aspects of the
rejection.” Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential).
Accordingly, we summarily affirm the Examiner’s decision rejecting
claims 1—3, 7—11, 15—17, 21—24, and 26—30.
Claims 4—6, 18—20, and 25
Appellants argue the Examiner erred in finding Lindholm teaches an
external function unit 90 — which the Examiner maps to the first server —
that modifies “the value in the VLAN tag of the header of the frame before
returning the frame to the switch device,” as recited in claim 4:
In other words according to Lindholm’s teachings in FIG.
9 a packet travels via VLAN 1 to the FPC 10i, is pre-processed
in lli, then traverses via internal forwarding 121 for flow and
processing classification in 131 where a first flow and processing
sequence A is selected from the table/cache of FIG. 6. The
packet next travels via internal forwarding 12 \ to external
4
Appeal 2015-008253
Application 12/902,703
forwarding 19i and then to the external function unit 90
according to logical address LA=7 and VLAN 3. Eventually the
packet leaves unit 90 via VLAN 2 to return to the FPC 10i where
the packet is again pre-processed in 111 and a different VLAN
tag is extracted corresponding to sequence B in the forwarding
table. The packet travels to a different destination according to
LA=8 and VLAN 4.
App. Br. 18; see also Reply Br. 2-4 (citing Lindholm 199).
The Examiner finds Lindholm teaches the disputed limitation. Final
Act. 6; Ans. 3^4. Specifically, the Examiner finds Lindholm teaches that
“[ajfter processing has been terminated by the external function 90, the
packet is returned to the flow processing core on a specific VLAN, here
VLAN 2. The external function can be said to use the FPC as its default
route and VLAN 2 as its default interface.” Final Act. 6 (emphasis omitted)
(citing Lindholm Fig. 9,1100). The Examiner further finds Lindholm
“teach[es] the claim 4 feature that the first server, which in this case is
assumed to be the external function unit 90, modifies the value in the VLAN
tag of the header of the frame before returning the frame to the switch device
(which in this case is considered to be the FPC 10).” Ans. 3. Additionally,
the Examiner finds “[ojbviously if the packet is being received on VLAN 3
and is processed wherein VLAN tagging is supported and send back on
VLAN 2 after processing, the VLAN tag is modified from VLAN 3 to
VLAN 2 when VLAN tagging is supported.” Ans. 4.
We are persuaded by Appellants’ arguments as the Examiner has not
identified sufficient evidence or provided sufficient explanation as to how
Lindholm teaches the first server modifying “the value in the VLAN tag of
the header of the frame before returning the frame to the switch device,” as
5
Appeal 2015-008253
Application 12/902,703
recited in claim 4.3 Instead, Lindholm teaches the pre-processing means
11—which is part of the flow processing core 10i and not the external
function unit 90—selecting the flow path prior to the packet being sent to the
first server (external function unit 90):
The pre-processing means 111 will detect the packet, and
here, supposing that VLAN tagging is supported, the pre­
processing Hi means will extract the VLAN tag. The value or
the VLAN tag will be used during inspection/classification in
order to identify the flow and assign a processing sequence. It is
here supposed that sequence A is selected which consists of
logical address 2, logical address 7 in this order. Further a
sequence is defined which is denoted sequence B, which here is
supposed to consist of the steps with logical address 3, logical
address 8 in this order. In this embodiment it is supposed that
sequence A is selected.
Lindholm 199. Therefore, the cited sections of Lindholm do not teach the
external function unit modifying the value of the VLAN tag.
Accordingly, we are constrained on this record to reverse the
Examiner’s rejection of claim 4, along with the rejection of claim 25, which
recites a limitation commensurate in scope to the disputed limitation
discussed above, and dependent claims 5 and 6.
With respect to claims 18—20, Appellants rely on the arguments set
forth above with regard to claim 4 and contend that because Van Bemmel
does not cure the shortcomings of the other references applied against claim
4, the Examiner failed to make a prima facie case of obviousness for these
claims. App. Br. 20. Independent claim 18 recites a limitation
commensurate in scope to the disputed limitations discussed above for claim
3 Because we agree with at least one of the dispositive arguments advanced
by Appellants, we need not reach the merits of Appellants’ other arguments.
6
Appeal 2015-008253
Application 12/902,703
4 and the Examiner has not shown that Van Bemmel cures the deficiency of
Lindholm discussed above. Therefore, we also do not sustain the
Examiner’s obviousness rejection of claim 18, along with the rejections of
dependent claims 19 and 20.
Claims 12—14
With respect to claim 12, Appellants rely on the arguments set forth
above with regard to claim 4 and contend that Wang does not cure the
shortcomings of the other references applied against claim 4, the Examiner
failed to make a prima facie case of obviousness for these claims. App. Br.
19.
Claim 12 is directed to a “switching] device” that “includes logic
configured to perform a specific action based on the value modified by the
recipient device in the VLAN tag of the header of the frame when the frame
returns from the recipient device.” App. Br. 23 (Claims App’x). Unlike the
method of claim 4, claim 12 focuses on the logic of the switch and does not
recite a server modifying “the VLAN tag of the header.” Therefore,
although claim 12 requires logic configured to perform specific actions
based on the modified VLAN tag, it does not recite that the VLAN tag of the
header actually has to be modified. Because Appellants’ arguments directed
to whether the prior art teaches a server modifying the VLAN tag of the
header are not commensurate with the scope of the claims, they are
unpersuasive. See In re Self, 671 L.2d 1344, 1348 (CCPA 1982).
Appellants further contend that
Lindholm also does not disclose or suggest the claim 4 feature
of forwarding, in response to the switch device receiving the
modified VLAN tag from the first server, the frame from the
7
Appeal 2015-008253
Application 12/902,703
switch device to a second server of the plurality of servers
without first returning the frame to the initiating system.
App. Br. 18. Appellants merely summarize the claim language and make a
naked assertion that the prior art does not teach the limitation. That is
insufficient to raise an argument that that Examiner erred. See In re Lovin,
652 F.3d 1349, 1357 (Fed. Cir. 2011) (Rule 41.37 requires “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.”); see also 37 C.F.R. § 41.37(c)(l)(iv) (“A statement
which merely points out what a claim recites will not be considered an
argument for separate patentability of the claim.”). Because Appellants have
not identified any specific errors in the Examiner’s findings, “the Board will
not, as a general matter, unilaterally review those uncontested aspects of the
rejection.” Frye, 94 USPQ2d at 1075.
Moreover, Appellants have not presented any evidence that if the
switch of Quinn or Findholm received a packet in which the VFAN tag of
the header had been modified, the switch would not route the packet based
on modified VFAN tag. It is well settled that mere attorney arguments and
conclusory statements, which are unsupported by factual evidence, are
entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
(attorney argument is not evidence). Accordingly, we are not persuaded by
Appellants’ argument the Examiner erred.
Therefore, we sustain the Examiner’s rejection of claim 12.
With respect to dependent claims 13 and 14, Appellants merely
contend that because the additional references used in the rejections of these
claims (Van Bemmel) does not cure the shortcomings of the other references
8
Appeal 2015-008253
Application 12/902,703
applied against claim 12, the Examiner failed to make a prima facie case of
obviousness for these claims. App. Br. 19. Because we determine that the
rejection of claim 12 is not erroneous for the reasons discussed above, we
sustain the rejections of these claims.
DECISION
For the above reasons, we affirm the Examiner’s decision rejecting
claims 1—3, 7—17, 21—24, and 26—30.
For the above reasons, we reverse the Examiner’s decision rejecting
claims 4—6, 18—20, and 25.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
9