Ex Parte TchapdaDownload PDFPatent Trial and Appeal BoardJul 26, 201713770427 (P.T.A.B. Jul. 26, 2017) 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. 13/770,427 02/19/2013 Yves Constantin Tchapda 46046-224130 1096 23643 7590 07/28/2017 Barnes & Thornburg LLP (IN) 11 S. Meridian Street Indianapolis, IN 46204 EXAMINER RIVAS, SALVADOR E ART UNIT PAPER NUMBER 2479 NOTIFICATION DATE DELIVERY MODE 07/28/2017 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): INDocket@btlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte YVES CONSTANTIN TCHAPDA Appeal 2017-002780 Application 13/770,427 Technology Center 2400 Before CARLA M. KRIVAK, DEBRA K. STEPHENS, and JON M. JURGOVAN, Administrative Patent Judges. JURGOVAN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2017-002780 Application 13/770,427 STATEMENT OF THE CASE Appellant1 seeks review under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1—34. We have jurisdiction over this Appeal pursuant to 35 U.S.C. § 6(b). We affirm.2 CLAIMED SUBJECT MATTER The Specification describes a control element (“virtualization proxy controller”) acting as a proxy to generate data packets on behalf of a source device. (Spec. 70, 71; Abstract.) The control element includes the source device’s identifier in the packets it transmits so that a destination device can determine the source to which the packets pertain. (Id.) This enables, for example, the destination device to apply security measures appropriate for the source device. (Id.) Appellant states the disclosed methods are useful in input/output (I/O) virtualization to allow secure sharing of resources, such as memory, among multiple I/O devices. (Id.) Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of processing data packets, each data packet comprising source indication data for indicating a device that created the data packet, the method comprising: creating a first data packet at a control element, the source indication data of the first data packet comprising data indicating 1 Appellant identifies Micron Technology, Inc. as the real party in interest. (App. Br. 2.) 2 Our Decision refers to the Specification (“Spec.”) filed February 19, 2013, the Final Office Action (“Final Act.”) mailed June 4, 2015, the Appeal Brief (“App. Br.”) filed April 13, 2016, the Examiner’s Answer (“Ans.”) filed October 6, 2016, and the Reply Brief (“Reply Br.”) filed December 6, 2017. 2 Appeal 2017-002780 Application 13/770,427 a first source different from said control element, and further comprising data indicating that the first data packet was created by the control element; and transmitting the first data packet to a destination configured to determine a source of the first data packet based on the source indication data. (App. Br. 17 — Claims App’x.) REJECTIONS & REFERENCES In the Final Office Action, the Examiner rejects claims 1—34 for nonstatutory obviousness-type double patenting over US Application No. 12/430,480, now issued as US 8,401,000 B2. (Final Act. 3—12.) Appellant filed a terminal disclaimer (App. Br. 15) and the Examiner withdrew the rejection (Ans. 2). Accordingly, this rejection is not before us in this Appeal. The Examiner rejects claim 31 under 35 U.S.C. § 102(b) based on Gossain et al. (US 2007/0165592 Al, published July 19, 2007). (Final Act. 13-15.) The Examiner rejects claims 1—30 and 32—34 under 35 U.S.C. § 103(a) based on various combinations of Gossain, Kojima (US 2003/00152162 Al, published August 14, 2003), Arndt et al. (US 2006/0193327 Al, published August 31, 2006), Kloeppner et al. (US 2008/0209099 Al, published August 28, 2008), Sharma et al. (US 2003/0217219 Al, published November 20, 2003), and Olarig (US 6,175,889 Bl, issued January 16, 2001). (Final Act. 16—55.) 3 Appeal 2017-002780 Application 13/770,427 ANALYSIS § 102(b) Rejection “A rejection for anticipation under section 102 requires that each and every limitation of the claimed invention be disclosed in a single prior art reference.” In re Buszard, 504 F.3d 1364, 1366 (Fed. Cir. 2007) (quoting In re Paulsen, 30 F.3d 1475, 1478-79 (Fed. Cir. 1994)). Anticipation under 35 U.S.C. § 102 is a question of fact. Brown v. 3M, 265 F.3d 1349, 1351 (Fed. Cir. 2001). Appellant and the Examiner generally agree in their interpretations of Gossain, the reference cited in the rejection. (Final Act. 13—15 citing Gossain 135, Figs. 2, 4, Ans. 4, App. Br. 6—8, 14, 15, Reply Br. 2, 3.) Specifically, both acknowledge Gossain describes that a routable device may act as a proxy for a non-routable device, and when routing a packet from the non-routable device to a destination for which it does not know the next hop on the network, the routable device generates a route request (RREQ) packet 400 to ask other devices where it should send the packet. (Final Act. 13—15; App. Br. 6—8) (See, e.g., Gossain 135.) Gossain’s RREQ packet includes an Originating Device Field 405 to identify the non-routing device that generated a packet to be routed, and a Source Field 410 set to the address of the routable device generating the RREQ packet. (Gossain 135.) For ease of reference, we set forth the pertinent disclosure of Gossain, italicized to indicate the findings set forth above. A routable device generates a Route Request (RREQ) packet when it receives a packet for an unknown destination, and the packet is originated by itself or by some non-routable device proxied by itself. A typical format of a RREQ packet 400 in accordance with the present invention is shown in FIG. 4. The RREQ packet format in the present invention, (i.e. MSR4) 4 Appeal 2017-002780 Application 13/770,427 includes an additional Originating Device Field 405 together with a Source Field 410. The Source Field 410 of the RREQ packet 400 is set to the address of the routable device which is originating the RREQ 400. The Originating Device Field 405 includes an address set to an address of the routable device when the traffic was generated by itself. Alternatively, the Originating Device Field 405 can include an address set to an address of a non-routable device in the case where the traffic was generated by a non-routable device currently proxied by itself (id.) Figure 4 of Gossain, shown below, illustrates an exemplary RREQ Packet Format. A 465 ' 1 m 4151 ORIGINATING DEVICE SOURCE T«NG CURRENT hop NEXT HOP OTHER FIELDS The RREQ packet format, includes Originating Device Field 405 (which may indicate the address of the non-routable device as originating a packet to be routed and that is proxied by a routable device) and Source Field 410 (which may indicate the address of the routable device requesting an address to route the packet). (Gossain 135). Although Appellant and the Examiner generally agree on what Gossain discloses, they diverge in their views concerning the proper interpretation of the claim language. (Final Act. 14—15, App. Br. 8.) Appellant contends that Gossain’s RREQ packet includes data from two different data packets, whereas the claim language recites that the request packet contains data of only one packet. (Id.) The particular claim language Appellant contends supports this argument, is that the packet includes 5 Appeal 2017-002780 Application 13/770,427 “source indication data for indicating a device that created the data packet.” (Id.) The Examiner finds Gossain teaches the claimed limitation, notwithstanding that Gossain may involve multiple packets. (Id.) Appellant’s argument regarding claim 31, is unpersuasive for at least two reasons. First, Appellant’s argument against claim 31 under § 102(b) refers back to the argument made with respect to claim 1 under § 103(a). (App. Br. 14—15.) However, claims 1 and 31 are not the same in relevant respects. Specifically, claim 1 is a method reciting “source identification data for indicating a device that created the data packet” that “compris[es] data indicating a first source different from said control element.” (App. Br. 17 — Claims App’x.) In contrast, the corresponding limitation of device claim 31 states “the source indication data is intended to indicate a source of the request data packet.” (App. Br. 21 — Claims App’x.) This intended-use limitation is not entitled to patentable weight because what the data is intended to indicate does not affirmatively set forth what it does indicate. See In re Sinex, 309 F.2d 488, 492 (CCPA 1962) (statement of intended use in an apparatus claim failed to distinguish over the prior art apparatus). Furthermore, since the claimed “source identification data” may or may not indicate a source of a request data packet, any data whatsoever would fall within the scope of this claim limitation (including the data in the Originating Device Field of Gossain’s RREQ packet, as the Examiner finds). Accordingly, Appellant’s reliance on this intended-use claim limitation is ineffective to demonstrate error in the Examiner’s rejection. Second, there is no language in the claim requiring that the control element generates the request packet by itself without using any packet from the source device. Thus, Appellant’s argument that only the control 6 Appeal 2017-002780 Application 13/770,427 element, and no other component, generates a request packet (App. Br. 8), is not supported by corresponding language in the claim. It is well-established law that a limitation not appearing in the claim cannot be relied upon for patentability. In re Self, 671 F.2d 1344, 1348 (CCPA 1982). To summarize our findings, we agree with the Examiner that Gossain discloses the argued features of claim 31. Particularly, we regard Gossain’s Source Field address to be equivalent to the claimed “identifier to determine whether said request data packet was generated by a control element,” where the “control element” is Gossain’s routable device. (Gossain 135, Fig. 4.) Gossain’s Originating Device Field address equates to the claimed “source indication data [that] is intended to indicate a source of the request data packet,” where the “source” is the non-routable device. (Id.) The “control element [i.e., Gossain’s routable device] is different from an entity indicated in source indication data of the request data packet [i.e., Gossain’s non- routable device],” as recited in claim 31. Thus, the argued limitation is disclosed by Gossain, and we sustain the Examiner’s rejection. § 103(a) Rejections Appellants argue against the rejection of claims 1—30 and 32—34 under 35 U.S.C. § 103(a) on the same basis as the rejection of claim 31 under 35 U.S.C. § 102(b). (App. Br. 5—15.) We do not find Appellant’s arguments persuasive for the stated reasons. For example, claim 24 has an intended-use limitation similar to claim 31, and, therefore, for the stated reasons, Appellant’s argument concerning this intended-use limitation is ineffective to distinguish over the cited references. In addition, we find Appellant’s argument is not supported by corresponding language in the claims that would distinguish over Gossain. 7 Appeal 2017-002780 Application 13/770,427 For example, the claims do not state the data packet generated by the control element is not based on any other packet or on data received from the source device. Therefore, for the stated reasons, we agree with the Examiner a person of ordinary skill in the art would have considered the claimed invention obvious over Gossain combined with the other cited references. (Final Act. 16—55.) As the Examiner provides “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness” (Final Act. 16—55), we sustain the Examiner’s rejections. See KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). DECISION We affirm the Examiner’s rejection of claim 31 under 35 U.S.C. § 102(b). We affirm the Examiner’s rejection of claims 1—30 and 32—34 under 35 U.S.C. § 103(a). 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 8 Copy with citationCopy as parenthetical citation