Ex Parte Shepherd et al

Patent Trial and Appeal Board

May 29, 2014

11647273 (P.T.A.B. May. 29, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD

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Ex parte FREDERICK BRUCE SHEPHERD,
MARINA K. THOTTAN, and
PETER J. WINZER
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Appeal 2011-011259
Application 11/647,273
Technology Center 2400
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Before CARLA M. KRIVAK, STANLEY M. WEINBERG, and
DANIEL N. FISHMAN, Administrative Patent Judges.

KRIVAK, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-3 and 7-9. Claims 4-6 and 10-12 have been canceled (App. Br. 1).
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

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STATEMENT OF THE CASE
Appellants’ claimed invention is directed to “methods and devices for
splitting traffic in (S)RLB [Selective Randomized Load Balancing] based
networks in an intelligent way” (Spec. ¶ [0007]).
Independent claim 1, reproduced below, is representative of the
subject matter on appeal.
1. A method for providing ingress routing in selective,
randomized load balanced based (SRLB) networks comprising:

directly routing a fraction of traffic to a subset of
intermediate or egress nodes in the SRLB network through
statically configured circuits that directly connect an ingress node
in the SRLB network with one or more of the intermediate or
egress nodes by looking at packet headers within incoming traffic
at the ingress node and routing the fraction of traffic to the
intermediate or egress nodes associated with destinations in the
headers; and

using any remaining capacity of the circuits for routing best
effort traffic using either SRLB or direct routing.

REFERENCES and REJECTIONS
The Examiner rejected claims 1 and 7 under 35 U.S.C. § 103(a) based
upon the teachings of Nagesh (US 2005/0185584 Al, Aug. 25, 2005) and
Doshi (US 2005/0195741 Al, Sept. 8, 2005).
The Examiner rejected claims 2, 3, 8, and 9 under 35 U.S.C. § 103(a)
based upon the teachings of Nagesh, Doshi, and Babiarz (US 2007/0041326
A1, Feb. 22, 2007).1

1 The Examiner failed to repeat the rejection of claims 2, 3, 8, and 9 in the
Examiner’s Answer mailed April 19, 2011. However, the Final Rejection
mailed August 26, 2010, from which appeal is taken (see Notice of Appeal
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ANALYSIS
Appellants contend the Examiner is incorrect in finding Nagesh
discloses the same intermediate nodes as recited in Appellants’ claims and
“Nagesh appears to only look at packet headers at intermediate nodes after
the traffic has been ‘split’ and sent to the intermediate nodes” (App. Br. 4).
Upon consideration of the evidence on this record and each of
Appellants’ contentions, we find the preponderance of evidence supports the
Examiner’s conclusions that the subject matter of Appellants’ claims 1-3 and
7-9 are unpatentable over the combination of Nagesh, Doshi, and Babiarz.
Accordingly, we sustain the Examiner’s rejections of each of these claims
for the reasons set forth in the Answer (Ans. 6-11). For emphasis only, we
provide the following.
Appellants’ contention that Nagesh discloses intermediate nodes that
“do not appear to be the same as the claimed intermediate nodes” is not
persuasive (App. Br. 4). Appellants have not provided a definition for the
term “intermediate node” and it is not defined in either Appellants’ claims or
Appellants’ Specification. In the absence of an explicit definition, the
Examiner may adopt the broadest reasonable definition of the term
consistent with the Specification. In re Morris, 127 F.3d 1048, 1053-54
(Fed. Cir. 1997). Thus, there is nothing precluding the Examiner’s
interpretation that the ingress node is also the intermediate node (Ans. 9).
Appellants’ contentions that “Nagesh appears to only look at packet
headers at intermediate nodes, after the traffic has been ‘split’ and sent to the

filed November 22, 2010) clearly rejects these claims. Appellants
understood the rejection of claims 2, 3, 8, and 9 and presented arguments
directed to the rejection (App. Br. 5). Thus, we find the Examiner’s
omission harmless error.
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intermediate nodes” (App. Br. 4) and “packet headers are apparently looked
at only after traffic has been routed” are also not persuasive (App. Br. 5).
We agree with the Examiner’s finding Nagesh discloses the claim limitation
“intermediate or egress node” as Nagesh discloses egress nodes directly
connected to an ingress node (Ans. 9). The Examiner broadly and reasonably
interprets Nagesh’s Fig, 2D Node 1 as both an ingress and an intermediate
node. That is, Node 1 distributes a fraction of a data flow to itself and then
looks at the headers in the data flow for routing to an intermediate node
(Ans. 10; Nagesh ¶¶ [0031], [0032]).
In Appellants’ Reply Brief, we are asked to consider arguments that
could have been presented in the Principal Brief on Appeal, but were not. In
the absence of a showing of good cause, we conclude the regulations set out
in 37 C.F.R. § 41, Practice Before the Board of Patent Appeals and
Interferences, do not require the Board to consider such belated arguments.
For a full discussion of this issue, see Ex Parte Borden, 93 USPQ2d 1473
(BPAI 2010) (Informative). Even if we consider these arguments, we find
the term “statically configured circuits” is not defined in paragraph [00010]
of the Specification, contrary to Appellants assertion (Reply Br. 1). We
therefore agree with the Examiner’s broad but reasonable interpretation the
statically configured circuits recited in the claims are the same as Nagesh’s
circuits inside Nodes 1, 2, and 8 (Ans. 7, 9).
Thus, in light of the broad terms recited in the claims and the
arguments presented, Appellants’ have failed to persuasively distinguish
their claimed invention over the prior art relied on by the Examiner.
Therefore, we sustain the Examiner’s rejection of independent claims 1 and
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7, and dependent claims 2, 3, 8, and 9, not separately argued with
particularity (App. Br. 3, 5; Reply Br. 3).

DECISION
The Examiner’s decision rejecting claims 1-3 and 7-9 under 35 U.S.C.
§ 103 is affirmed.
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

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