Ex Parte Shepherd et alDownload PDFPatent Trial and Appeal BoardAug 19, 201411693836 (P.T.A.B. Aug. 19, 2014) Copy Citation 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. 11/693,836 03/30/2007 Frederick B. Shepherd 10-29 9960 7590 08/20/2014 Ryan, Mason & Lewis, LLP Suite 205 1300 Post Road Fairfield, CT 06824 EXAMINER MIAN, OMER S ART UNIT PAPER NUMBER 2461 MAIL DATE DELIVERY MODE 08/20/2014 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 FREDERICK B. SHEPHERD and GORDON T. WILFONG ____________ Appeal 2012-002318 Application 11/693,836 Technology Center 2400 ____________ Before ROBERT E. NAPPI, JOHN A. EVANS, and CHARLES J. BOUDREAU, Administrative Patent Judges. BOUDREAU, Administrative Patent Judge. DECISION ON APPEAL Appellants1 appeal under 35 U.S.C. § 134(a) from the Final Rejection of claims 1–4, 6–13, and 15–20. (App. Br. 2.)2 We have jurisdiction under 35 U.S.C. § 6(b). 1 Appellants identify Lucent Technologies Inc. as the real party in interest. (App. Br. 1.) 2 Appellants state “Appellants hereby appeal the final rejection dated April 21, 2011, of claims 1 through 20 of the above-identified patent application” (App. Br. 1). However, the Examiner has indicated that claims 5 and 14 are objected to as being dependent upon a rejected base Appeal 2012-002318 Application 11/693,836 2 We affirm-in-part. STATEMENT OF THE CASE Appellants’ claimed invention relates to “networking routing techniques, and more particularly, to methods and apparatus for network routing using bifurcated flows.” (Spec. ¶ 1.) Claim 1, which is illustrative of the subject matter on appeal, reads as follows: 1. A routing method, comprising: obtaining a fractional flow on links between nodes in a set of nodes and a given destination, wherein each of said links has a load, l, and wherein a maximum load, L, is a maximum of said loads, l, on any link between a node in said set and said given destination; and generating a bifurcated flow between said set of nodes and said given destination from said fractional flow such that the maximum load on any link in said bifurcated flow does not exceed 2L, wherein said bifurcated flow allows a flow from a given node to be sent on at most two outgoing links, wherein one or more of said obtaining and generating steps are performed by a hardware device. Claims 19–20 stand rejected under 35 U.S.C. § 101 because the claimed invention is directed to non-statutory subject matter. (Ans. 4.) Claims 1, 7, 10, 16, and 19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Alicherry (US 2006/0291392 A1; published Dec. claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims (Final Action 2). Appeal 2012-002318 Application 11/693,836 3 28, 2006) and Phelps (US 2002/0118636 A1; published Aug. 29, 2002). (Ans. 5–6.) Claims 2 and 11 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Alicherry, Phelps, and Lun (US 2006/0146716 A1; published July 6, 2006). (Ans. 6–7.) Claims 3, 4, 6, 8, 9, 12, 13, 15, 17, 18, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Alicherry, Phelps, and Wan (US 6,772,102 B1; issued Aug. 3, 2004). (Ans. 7–10.) ANALYSIS Rejection under 35 U.S.C. § 101 Claims 19 and 20 are directed to “an article of manufacture, comprising a tangible machine readable recordable medium . . . .” The Examiner finds a “[c]omputer readable medium, as recited in [the] claims and the disclosure could include transitory signals.” (Ans. 4.) The Examiner explains that “[i]n order to give patentable weight to a computer readable medium claim, the claim must be recited in a way to exclude transitory media” and “suggests language to be included in the claim could be similar to ‘a non-transitory computer readable medium . . . .’” (Id.) Appellants contend that “a ‘tangible machine readable recordable medium’ excludes a signal or carrier.” (App. Br. 4.) Appellants further contend that their position is supported by certain guidance provided in the United States Patent and Trademark Office’s Official Gazette and Interim Examination Instructions. (App. Br. 4, 5.) Appellants further argue: “In addition, claim 19 is directed to processing a flow on links between nodes in a set of nodes and a given destination. These highlighted terms are all Appeal 2012-002318 Application 11/693,836 4 physical things and explicitly emphasize a particular practical application. Thus, claim 19 is not directed to a transitory signal.” (App. Br. 5.) We are not persuaded of error. As cited by Appellants, the Official Gazette states that “[t]he broadest reasonable interpretation of a claim drawn to a computer readable medium . . . typically covers forms of non-transitory tangible media and transitory propagating signals per se in view of the ordinary and customary meaning of computer readable media” (Subject Matter Eligibility of Computer Readable Media, 1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010) (emphasis added)). Signals are not patentable eligible subject matter under § 101. In re Nuijten, 500 F.3d 1346, 1357 (Fed. Cir. 2007). See also MPEP § 2106(I) (9th ed., Rev. 11 Mar. 2014) and Ex parte Mewherter, 107 USPQ2d 1857 (PTAB 2013). Claims that are so broad that they read on nonstatutory as well as statutory subject matter are unpatentable. Cf. In re Lintner, 458 F.2d 1013, 1015 (CCPA 1972) (citation omitted) (“Claims which are broad enough to read on obvious subject matter are unpatentable even though they also read on nonobvious subject matter.”). Although claim 19 recites the terms “tangible” and “recordable,” it does not necessarily exclude “transitory” media such as signals.3 Accordingly, we sustain the Examiner’s rejection of claim 19, as well as of dependent claim 20 not separately argued, under 35 U.S.C. § 101. 3 We are also unpersuaded by Appellants’ assertion that “the USPTO has indicated that a ‘tangible’ medium excludes non-statutory subject matter” during the prosecution of U.S. Patent Application Serial No. 12/173,573. (Reply Br. 3.) That the Examiner in that matter may have—properly or improperly—found a claim reciting “a tangible computer usable readable medium” does not create binding precedent and has no legal significance in this matter. Appeal 2012-002318 Application 11/693,836 5 Rejection under 35 U.S.C. § 103(a) Claims 1, 10, and 19 The Examiner finds that Alicherry discloses all features of independent claims 1, 10, and 19, with the exception that Alicherry “does not explicitly disclose that the bifurcated flow is from a fractional flow such that the maximum load on any link in said bifurcated flow does not exceed 2L.” (Ans. 5.) The Examiner further finds, however, that Phelps discloses that feature, and that “[a] person of ordinary skill in the art working with the invention of ALICHERRY would have been motivated to use the teachings of PHELPS in order to avoid loss of traffic in case of a failure of a link or a node in the network.” (Ans. 6.) Appellants contend that Alicherry does not disclose or suggest a bifurcated flow as recited in claims 1, 10, and 19. According to Appellants: [E]ach independent claim expressly requires that “said bifurcated flow allows a flow from a given node to be sent on at most two outgoing links.” Thus, a bifurcated flow may be sent from the node v to a sink t on at most two outgoing arcs. Alicherry et al. do not disclose or suggest such bifurcated flows at all. Rather, Alicherry et al. teach splitting a flow into “at least two sub- flows.” See, for example, Abstract. There is no disclosure or suggestion that the flow is divided into at most two sub-flows. (App. Br. 6.) We are not persuaded of error. The Examiner cites, inter alia, paragraphs 25, 30, and 52–54 and Figures 1B and 3 of Alicherry in support of the rejection of claims 1, 10, and 19 (see, e.g., Ans. 13). Paragraph 25 of Alicherry teaches that “[i]n intra-flow splitting, packets of the same flow may be sent over different paths” and that “each path will carry a fraction of Appeal 2012-002318 Application 11/693,836 6 the traffic flow.” (Alicherry ¶ 25.) Moreover, “[t]his fraction may be decided based on link capacities and/or the current load.” (Id.) Figure 1B, as described in paragraph 30, illustrates an intra-flow splitting scheme in which a flows X1 and X2 from node R1 to node R6 are split (i.e., “bifurcated,” in the parlance of the claims), with some fractions q1 of flow X1 and q2 of flow X2 taking path R1-R2-R3-R6 and the remaining 1-q1 of flow X1 and 1-q2 of flow X2 taking path R1-R4-R5-R6. (i.e., “two outgoing links” in the parlance of the claims). Similarly, as explained in paragraph 52 of Alicherry, Figure 3 of Alicherry illustrates a network with “two parallel links between a source node S and a destination node D, with each link carry[ing] traffic Xk(t), k=1,2 respectively.” In both Figures 1B and 3, therefore, Alicherry illustrates a flow being divided into two sub-flows, or in other words, a “bifurcated flow . . . sent on at most two outgoing links.” Appellants’ italicization of the phrases “at most two” and “at least two” in the block quotation above (cf. App. Br. 6) appears intended to imply that because Alicherry also discloses, in sections other than those relied upon by the Examiner, that a flow could be split into “at least” two sub- flows (see, e.g., Alicherry, Abstract, ¶ 8), that would negate the force of the disclosure of the cited examples that include exactly two sub-flows against the pending claims. We disagree. The claim language “at most two” includes exactly two, and as shown above, Alicherry clearly teaches embodiments that having exactly two sub-flows. Based on those teachings, we see no error in the Examiner’s finding (Ans. 5) that Alicherry discloses “generating a bifurcated flow between said set of nodes and said given destination, wherein said bifurcated flow allows Appeal 2012-002318 Application 11/693,836 7 a flow from a given node to be sent on at most two outgoing links,” as recited in claims 1, 10, and 19. Appellants additionally contend that Phelps does not disclose or suggest “that the maximum load on any link in said bifurcated flow does not exceed 2L.” According to Appellants: The Examiner proposes a hypothetical (not suggested by Phelps) wherein 3 links 120, 128 and 132, leaving node A are apparently assumed to each carry 33.3% of the total outgoing traffic. Assuming one link 130 is terminated, the Examiner assumes that the 33.3% load previously carried by the terminated link is redistributed to the remaining two links. Significantly, L, as defined in each independent claim, is “a maximum of said loads, l, on any link between a node in said set and said given destination.” The Examiner’s assumption that L is 100% is inconsistent with the claim language. In the example developed by the Examiner, for the 3 links 120, 128 and 132, L is 33%! Phelps does not disclose or suggest how the load previously carried by the terminated link is redistributed. In particular, Phelps does not disclose or suggest “that the maximum load on any link in said bifurcated flow does not exceed 2L.” There is no mechanism in Phelps to ensure that no link in the bifurcated flow gets a load of more than 2L. (App. Br. 6–7.) We are again not persuaded of any error. As explained by the Examiner (Ans. 14–15), the “hypothetical” that Appellants allege is “not suggested by Phelps” is expressly disclosed in paragraph 29 and Figure 3 of Phelps. Phelps specifically teaches: [C]omputing node 100 is interconnected to three (3) other computing nodes over three communication links namely 120[,] 128[, and] 132. In the course of normal operation, each communication link has a spare transport capacity of at least Appeal 2012-002318 Application 11/693,836 8 about 1/3=33% of its total transport capacity and therefore carries at most about 2/3=66% of its total transport capacity. (Phelps ¶ 29.) Contrary to Appellants’ argument (cf. App. Br. 6), Phelps does disclose how the load previously carried by the terminated link is redistributed: “When one of the communication links fails, the traffic carried on that communication link can be split between the two other remaining communication links.” (Phelps ¶ 29) Moreover, because Phelps teaches both that “[i]n the course of normal operation, each communication link . . . carries at most about 2/3=66% of its total transport capacity,” and that “[w]hen one of the communication links fails, the traffic carried on that communication link can be split between the two other remaining communication links,” it is apparent that the load on each link in the resulting bifurcated flow would be 99% of its total transport capacity. In the parlance of the claims, each of the loads, l, on the original links, as well as the “maximum of said loads,” L, is 66% of total transport capacity. Because 99% is only 1.5 times 66%, and thus, 1.5L; and 1.5L is less than 2L, there is no error in the Examiner’s finding (Ans. 6) that Phelps discloses that “the maximum load on any link in said bifurcated flow does not exceed 2L.” Accordingly, we sustain the Examiner’s rejection of claims 1, 10, and 19 under 35 U.S.C. § 103(a). Appeal 2012-002318 Application 11/693,836 9 Claims 2–4, 7, 11–13, 16, and 20 Appellants do not present any argument in the Appeal Brief with respect to claims 2–4, 7, 11–13, 16, and 20.4 Accordingly, we sustain the Examiner’s rejection of those claims under 35 U.S.C. § 103(a). Claims 6 and 15 Claims 6 and 15 depend from claims 3 and 12, respectively, which in turn depend from claims 1 and 10, respectively. Claims 6 and 15 each recite that “wherein said one or more flow simplifying operations generate a tree graph, T, with bipartition classes X and Y such that each node of X has degree at least two and T contains a node s ∈ X with at most one non-leaf neighbor in T.” The Examiner finds that Wan, at Figure 4 and column 4, lines 39–48, “expressly discloses [a] method comprising the step of applying one or more flow simplifying operations to said fractional flow,” as recited in claims 3 and 12 (Ans. 8.) The Examiner additionally finds that graph GC in Figure 4 of Wan “would be reasonably interpreted as graph T with bipartition classes X and Y such that node of X has at least degree two and s belonging to X has at most one non-neighbor in T” (Ans. 8, 17). In response, Appellants argue: The contraction Graph GC in FIG. 4 and the associated text do not disclose or suggest flow simplifying operations that generate a tree graph, and do not disclose or suggest that each node of X has degree at least two and T contains a node s ∈ X with at most one non-leaf neighbor in T. The 4 Indeed, notwithstanding their initial statement that “Appellants hereby appeal the final rejection dated April 21, 2011, of claims 1 through 20 of the above-identified patent application” (App. Br. 1), Appellants later state that only “[c]laims 1, 6, 8, 9, 10, 15, and 17-19 are being appealed” (id. at 2.) App App contr node only in FI node of ed (Rep a dia the l (Wan As fo and a wher bott grap “nod recit “deg conn eal 2012-0 lication 11 action Gr s and relay a parent n G. 4 does of class X ges incide ly Br. 5). We are n gram show eft into the 4:39–55; und by th subclass e the degr om subcla h Gc is inte e s” consi ed in the c ree at leas ections to 02318 /693,836 aph GC in nodes an ode and tw not disclo has degre nt to the n ot convin ing the co simpler tr see also 3 e Examine with two n ee of the n ss is interp rpreted as stent the co laims. Mo t two,” as two other FIG. 4 is a d merging o child no se or sugge e at least t ode, in a k ced of erro ntraction ee graph G :11–17, 3 r, graph G odes (bott ode is two reted as Y an elemen ndition “s reover, to recited in t nodes. Th 10 trivial tre relay path des. Amo st a bipart wo. The d nown man r. Figure of the tree c with on :53–54.). c “shows a om). Top (two edge .” (Ans. 1 t of class ∈ X” (rea p node s h he claims) e two bott e that resu s. The res ng other d ition class egree of a ner. 4 of Wan, graph Gs w ly three no subclass subclass s coming 7.) Becau X, it can b d, “s is an as a degre , meaning om nodes lts from de ultant Gra istinctions X such th node is th reproduce ith twelv des on the with a nod is interpret out of the se the top e designat element o e of exactl that it has in graph G leting leaf ph GC has , Graph G at each e number d below, i e nodes on right. e (top) ed as X node) and node in ed as f X”) y two (i.e. c are both C s , Appeal 2012-002318 Application 11/693,836 11 “leaf” nodes, meaning that they are each connected to only other node (see Wan 4:1–3), in particular, to top node s. Moreover, because top node s is connected only to two leaf nodes, top node s has zero (i.e., “at most one,” as recited in the claims) non-leaf neighbors in graph Gc (i.e., “T”). (See Ans. 17.) Therefore, we see no error in the Examiner’s finding (Ans. 8) that the combination of Alicherry, Phelps, and Wan discloses “a routing method and apparatus, wherein said one or more flow simplifying operations generate a tree graph, T, with bipartition classes X and Y such that each node of X has degree at least two and T contains a node s ∈ X with at most one non-leaf neighbor in T,” as recited in claims 6 and 15, respectively. Accordingly, we sustain the Examiner’s rejection of claims 6 and 15 under 35 U.S.C. § 103(a). Claims 8, 9, 17, and 18 Claims 8 and 17 each recite “wherein for a given node, s, having two child nodes, where one of said child nodes is a leaf node, wherein said redirecting step allocates any additional flow into node, s, to said leaf node when said node, s, is removed.” Claims 9 and 18 each recite “wherein for a given node, s, having at least three child nodes, where at least two of said child nodes are leaf nodes, wherein said redirecting step allocates flow from any non-leaf child nodes among said leaf nodes and allocates any additional flow into node, s, to said leaf nodes when said node, s, is removed.” Citing again to Figure 4 and portions of columns 3 and 4 of Wan, the Examiner finds Wan discloses the above-recited features of claims 8, 9, 17, and 18 (Ans. 9–10, 18). Appeal 2012-002318 Application 11/693,836 12 Appellants argue with respect to claims 8 and 17 that “Wan does not disclose or suggest the removal of a node that has two child nodes, where one of the child nodes is a leaf node. In other words, no removed node in Graph Gs has two child nodes, one which is a leaf node.” (App. Br. 8). According to Appellants, “all of the removed nodes 11, 12 (solid black circles) in Graph Gs are either leaf nodes 11 (i.e., no child nodes at all) or relay nodes 12 (one input node and one output node).” (App. Br. 8.) Appellants similarly argue with respect to claims 9 and 18 that Wan does not disclose or suggest the removal of a node that has at least three child nodes, where at least two of the child nodes are leaf nodes. (App. Br. 8–9.) We agree with Appellants that the portions of Wan cited by the Examiner do not disclose or suggest the removal of a node that has two child nodes, as recited in claims 8 and 17, let alone at least three child nodes, as recited in claims 9 and 18. As Appellants argue, all of the removed nodes in Graph Gs have either no child nodes (i.e., nodes 11) or only a single child node (i.e., nodes 12). Accordingly, we cannot sustain the Examiner’s rejection of claims 8, 9, 17, and 18 under 35 U.S.C. § 103(a) on the present record. DECISION The rejection of claims 19 and 20 under 35 U.S.C. § 101 is affirmed. The rejection of claims 1, 7, 10, 16, and 19 under 35 U.S.C. § 103(a) as being unpatentable over Alicherry and Phelps is affirmed. The rejection of claims 2 and 11 under 35 U.S.C. § 103(a) as being unpatentable over Alicherry, Phelps, and Lun is affirmed. Appeal 2012-002318 Application 11/693,836 13 The rejection of claims 3, 4, 6, 12, 13, 15, and 20 under 35 U.S.C. § 103(a) as being unpatentable over Alicherry, Phelps, and Wan is affirmed. The rejection of claims 8, 9, 17, and 18 under 35 U.S.C. § 103(a) as being unpatentable over Alicherry, Phelps, and Wan is reversed. 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 kme Copy with citationCopy as parenthetical citation