Ex Parte Tatman

Patent Trial and Appeal Board

Aug 21, 2013

10973203 (P.T.A.B. Aug. 21, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_____________

Ex parte LANCE TATMAN
_____________

Appeal 2011-007080
Application 10/973,203
Technology Center 2400
______________

Before CARL W. WHITEHEAD JR., ERIC S. FRAHM, and
ANDREW J. DILLON, Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-007080
Application 10/973,203

2

STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) of the final
rejection of claims 2, 3, and 6-18. 1 Claims 1, 4, and 5 have been canceled.
We reverse.
Appellant’s Invention
Appellant’s disclosed invention is directed to “Border Gateway
Protocol (BGP) routing protocol messages in a switched Internet Protocol
(IP) network” (Spec. 1:5-8). Routers, also called BGP peers, manage tables
of network reachability information by exchanging messages using the BGP
protocol (Spec. 1:20-26). Claim 10 is representative of the invention and is
reproduced below, with emphasis added to disputed limitations:
10. A method of recording Border Gateway Protocol
(BGP) messages from BGP peers, the method comprising:
establishing a passive link with at least one BGP peer to
receive BGP messages from the at least one BGP peer;
time-stamping and recording the received BGP messages
upon arrival; and

1 We note that Appellant’s claims 2, 3, 6-9, 11, 12, and 14-17 improperly
depend from higher number claims. Each dependent claim must refer to a
preceding claim. 37 C.F.R. § 1.75(c); see MPEP § 608.01(n)(I)(B)(2), Rev.
9, August 2012. “When claims are added, they must be numbered by the
applicant consecutively beginning with the number next following the
highest numbered claim previously presented . . . .” (MPEP § 608.01(j)).
We will treat the improper dependency of claims 2, 3, 6-9, 11, 12, and 14-17
as harmless error for purposes of this appeal. It is recommended the
Examiner review these claims for compliance with the rules should there be
further prosecution.
Appeal 2011-007080
Application 10/973,203

3

maintaining the link with the at least one BGP peer
across a selected BGP error, wherein maintaining the link
comprises recording, but not sending, a notification message in
response to the selected BGP error.

Examiner’s Rejection
The Examiner has rejected claims 2, 3, and 6-18 under 35 U.S.C.
§ 103(a) as being unpatentable over Labovitz (US 2005/0018602 A1) and
Scudder (US 2005/0177634 A1). Ans. 3-6.
Examiner’s Findings and Conclusions
The Examiner determines that Labovitz fails to meet the limitation of
claim 10 of “recording, but not sending, a notification message in response
to” a BGP error, and relies upon Scudder (¶¶ [0010] and [0015]) as
disclosing the “not sending, a notification message” limitation of claim 10
(Ans. 3-6). The Examiner finds that page 5, lines 1-5 of Appellant’s
Specification discloses that notification messages are sent corresponding to a
connection being closed, and then “correlates a notification message to any
message which immediately closes a connection” (Ans. 7). On this basis,
the Examiner determines that “Scudder discloses maintaining the link by
sending a modified notification message which is not the same as sending
the conventional notification message (correlating to the notification
message of the claim)” (Ans. 5).

ISSUE
Based on Appellant’s arguments at pages 6-12 of the Appeal Brief,
the dispositive issue presented on appeal is:
Appeal 2011-007080
Application 10/973,203

4

Did the Examiner err in rejecting claims 2, 3, and 6-18 because the
combination of references (Labovitz and Scudder), and more specifically
Scudder, fails to teach or suggest “recording, but not sending, a notification
message in response to” a BGP error, as recited in independent claim 10, and
similarly recited in remaining independent claims 13 and 18?

ANALYSIS
We have reviewed Appellant’s arguments in the Brief and we concur
with Appellant’s conclusion that the Examiner erred in finding that the
combination of references, and specifically Scudder (see ¶ [0010] and
[0015]), teaches or suggests “recording, but not sending, a notification
message in response to” a BGP error, as recited in independent claim 10, and
similarly recited in remaining independent claims 13 and 18.
Scudder discloses sending a notification message (¶ [0010]), opposite
of the recited “not sending” limitation found in the independent claims on
appeal. The Examiner has not shown otherwise. We agree with Appellant
(Br. 9) that page 5, lines 1-4 of the Specification supports the conclusion that
Scudder teaches that it is conventional to send a notification messaging in
response to an error condition.
Page 5 of the Specification provides, in pertinent part, the following
about BGP messages:
KeepAlive messages are sent periodically to ensure the liveness
of the connection. Notification messages are sent in response
to errors or special conditions. If a connection encounters an
error condition, a notification message is sent and the
connection is closed.
Appeal 2011-007080
Application 10/973,203

5

It should be noted that under RFC 1771, the connection
between peers is closed if a connection encounters an error
condition. When the connection is opened for the first time, or
reopened recovering from an error, according to RFC 1771, the
entire BGP routing table destined for that peer is sent. Such
errors include failure to respond in a timely fashion to a
KeepAlive message, message header errors (Type 1), update
errors (Type 3), hold timer expired errors (Type 4), and finite
state machine errors (Type 5).
(Spec. 5:1-12) (emphasis added).
We agree with the Examiner (Ans. 7-8) that Labovitz teaches
recording BGP messages from peers, and Scudder (¶ [0010]) teaches
sending a notification message, and then closing the connection. More
specifically, Scudder discloses that a “shutdown router sends a conventional
BGP Notification message” and that “[s]ubsequently to sending the
Notification message, the shutdown router closes the TCP sessions over
which the connections are established” (¶ [0010]). Scudder also discloses a
“modified Notification message” or “Graceful Shutdown Notification
message” which contains novel subcodes which are added in response to
detecting an error (¶ [0015]). Further, the Examiner finds that Scudder
discloses sending the modified notification message (Ans. 7).
In this light, we find ourselves in agreement with Appellant (Br. 8)
that Scudder sends a notification message, contrary to claim 10 which recites
not sending the notification message, and that Scudder teaches sending a
notification message similar to the disclosure at page 5, lines 1-5 of
Appellant’s Specification (Br. 9), which is conventional. In other words,
Scudder (either the notification message or the modified notification
message) and page 5, lines 1-5 of Appellant’s Specification describe what is
conventional: sending a notification message in response to a BGP error and
Appeal 2011-007080
Application 10/973,203

6

closing the connection. This is the opposite of what is claimed, which is not
sending the notification message (see claims 10, 13, and 18). Scudder, and
therefore the combination of Labovitz and Scudder, fails to teach or suggest
recording, but not sending, a notification message in response to a BGP error
as claimed.
Accordingly, we do not sustain the Examiner’s rejection of
independent claim 10, nor will we sustain the Examiner’s rejection of claims
2, 3, and 6-9 depending therefrom. For similar reasons we also do not
sustain the Examiner’s rejection of remaining independent claims 13 and 18
and claims 11, 12, and 14-17 depending respectively therefrom which
contain similar subject matter as claim 10.

CONCLUSION
The Examiner erred in rejecting claims 2, 3, and 6-18 over the
combination of Labovitz and Scudder because Scudder fails to teach
“recording, but not sending, a notification message in response to” a BGP
error, as recited in independent claim 10, and as similarly recited in
remaining independent claims 13 and 18.

DECISION
The decision of the Examiner to reject claims 2, 3, and 6-18 is
reversed.

REVERSED
llw