Ex Parte so et al

Patent Trial and Appeal Board

Mar 26, 2014

12122035 (P.T.A.B. Mar. 26, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte NING SO and SHERMAN HUANG
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Appeal 2011-011971
Application 12/122,035
Technology Center 2400
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Before CAROLYN D. THOMAS, MICHAEL J. STRAUSS, and
DANIEL N. FISHMAN, Administrative Patent Judges.

FISHMAN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-011971
Application 12/122,035

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This is an appeal under 35 U.S.C. § 134(a) of the final rejection
claims 1-5, 8-12, and 15-20. Claims 6, 7, 13, and 14 are objected to as
dependent from rejected claims but found otherwise allowable. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
THE INVENTION
Appellants’ invention relates to interworking traffic onto a composite
transport group (CTG). An attribute associated with a composite transport
group is determined based on a characteristic of a traffic flow associated
with a label-switched network. The traffic flow is mapped to one or more
component connections of the composite transport group based on the
attribute. Abstract.
Claim 1, reproduced below, is illustrative with disputed limitations in
italics:
1. A method comprising:
determining an attribute associated with a composite
transport group of a composite transport group domain, based
on a characteristic of a traffic flow associated with a label-
switched domain; and
mapping the traffic flow to one or more component
connections of the composite transport group based on the
attribute,
wherein the one or more component connections host at
least a portion of the traffic flow associated with the label-
switched domain.
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Application 12/122,035

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THE REJECTIONS
Claims 1, 3, 8, and 10 are rejected under 35 U.S.C. § 102(e) as
anticipated by Yong (US 2008/0279103 A1).
Claims 2 and 9 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Yong and Goguen (US 6,665,273 B1).
Claims 4 and 11 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Yong and Farnsworth (US 6,377,554 B1).
Claims 5 and 12 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Yong, Farnsworth, and Goguen.
Claims 15-20 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Goguen and Yong.

Rather than repeat all arguments here, we refer to Appellants’ Appeal
Brief (“App. Br.” filed March 21, 2011), Appellants’ Reply Brief (“Reply
Br.” filed June 22, 2011), and the Examiner’s Answer (“Ans.” mailed April
22, 2011) for the respective positions of Appellants and the Examiner. Only
those arguments actually made by Appellants have been considered in this
decision. Arguments that Appellants did not make in the Briefs have not
been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii).

THE 102 REJECTION
In rejecting independent method claim 1, the Examiner finds Yong
teaches all recited elements. Ans. 4-5. Appellants argue the Examiner erred
because Yong fails to teach the disputed limitations contending:
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Nowhere in the entire disclosure of the Yong et al. reference is
there any disclosure of determining an attribute associated
with a composite transport group of a composite transport
domain, based on a characteristic of a traffic flow associated
with a label-switched domain. Furthermore, Yong et al. fails
to disclose that any of the CTG components 104 are of a
composite group domain and include one or more component
connections that host at least a portion of a traffic flow
associated with a label-switched domain.
App. Br. 10. Appellants further argue the Examiner erred by reading both
the composite transport group domain and the label-switched domain on
packet transport network (PTN) 102 of Yong. Id.

Issues
Appellants’ arguments present us with the following issues:
1. Has the Examiner erred in finding that Yong teaches the disputed
limitations of claim 1?
2. Has the Examiner erred by reading both recited domains of claim 1
on Yong’s PTN?

Analysis
Issue 1
Appellants argue anticipation under § 102 requires “identical
disclosure,” “identically disclosed subject matter,” or “exact correspondence
between the contents of the applied reference and the claimed elements.”
App. Br. 11 (emphasis omitted). Based on this interpretation of the standard
for anticipation, Appellants contend the Examiner “has committed clear
error” by failing to find the identical disclosure or exact correspondence in
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terminology and has thereby failed to establish a prima facie case of
anticipation. Id.
We are not persuaded that the Examiner erred. There is no ipsissimis
verbis test for determining whether a reference discloses a claim element,
i.e., identity of terminology is not required. In re Bond, 910 F.2d 831, 832
(Fed. Cir. 1990). Further, as regards establishing a prima facie case of
anticipation:
[A]ll that is required of the [Patent] [O]ffice to meet its prima
facie burden of production is to set forth the statutory basis of
the rejection and the reference or references relied upon in a
sufficiently articulate and informative manner as to meet the
notice requirement of [35 U.S.C.] § 132.
In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011). We find that the
Examiner has met this burden with respect to the rejection of claim 1. The
Examiner has identified the relevant portions of Yong and has read the claim
limitations on specific portions of the identified, relevant portions. Ans. 4-5.
In view of the above discussion, we are not persuaded the Examiner
erred in finding that Yong teaches the disputed limitations of claim 1.

Issue 2
Appellants further argue the Examiner erred by reading both the
recited composite transport group domain and the label-switched domain of
claim 1 on Yong’s PTN 102. Appellants argue specifically:
One of ordinary skill in the art would certainly not interpret a
composite transport group domain as simply being any network
that contains composite transport group components. Even if,
arguendo, such an assertion had any merit, it is completely
unreasonable to consider the PTN 102 as being both a
composite transport group domain and a label-switched
domain.
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App. Br. 10; see also Reply Br. 4. Appellants contend the Examiner’s
interpretation of the recited domains both reading on Yong’s PTN 102 is
inconsistent with the understanding of ordinary skilled artisans. App. Br.
10-11, see also, Reply Br. 4. We are not persuaded. The Examiner explains
that “composite transport group domain” is broadly but reasonably
understood to encompass “any network or system that contains at least one
composite transport group (CTG)” and, since Yong’s PTN 102 shows two
CTGs 104, “PTN 102 constitutes a ‘composite transport group domain.’”
Ans. 22. The Examiner further explains that Yong teaches that PTN 102
could be an “MPLS [(i.e., label-switched)] network” and thus, the Examiner
explains:
Because PTN 102 (1) contains CTGs and (2) may be an MPLS
network, the Examiner interprets PTN 102 as both a “composite
transport group domain” and a “label-switched domain[.]”[ ]
The two domains are not mutually exclusive in Yong; therefore
the Examiner does not interpret the two domains as mutually
exclusive within the claims.
Id. We find the Examiner’s interpretation reasonable. We are not persuaded
by Appellants’ argument because Appellants have provided no evidence that
the Examiner’s interpretation is in any manner inconsistent with the plain
meaning of the claims, with the Specification, or with the common
understanding of the ordinary skilled artisan. Rather, Appellants merely
assert such an inconsistency without providing evidence of such. It is well
settled that mere attorney’s 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); In re De Blauwe, 736 F.2d
699, 705 (Fed. Cir. 1984). Attorney argument is not evidence. In re
Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such argument take
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the place of evidence lacking in the record. Meitzner v. Mindick, 549 F.2d
775, 782 (CCPA 1977).
In view of the above discussion we are not persuaded the Examiner
erred by reading both recited domains of claim 1 on Yong’s PTN.
For the above reasons, we are not persuaded that the Examiner erred
in rejecting claim 1 and claims 3, 8, and 10 argued together with claim 1.
App. Br. 11-12.

THE 103 REJECTIONS
Appellants argue the Examiner erred in rejecting claims 2, 4, 5, 9, 11,
12, and 15-20 for the same reasons as claim 1 (App. Br. 12-15) and, for the
same reasons as claim 1, we are not persuaded.

DECISION
For the above reasons, the Examiner decision to reject claims 1-5,
8-12, and 15-20 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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