Ex Parte Tchapda

Patent Trial and Appeal Board

Jul 26, 2017

13770427 (P.T.A.B. Jul. 26, 2017)

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.
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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.)
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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)
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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
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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
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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.
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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
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