Ex Parte Wang

Patent Trial and Appeal Board

Aug 21, 2014

11616931 (P.T.A.B. Aug. 21, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte XUAN WANG
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Appeal 2012-001607
Application 11/616,931
Technology Center 2400
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Before JOHNNY A. KUMAR, MICHAEL J. STRAUSS, and
DANIEL N. FISHMAN, Administrative Patent Judges.

KUMAR, Administrative Patent Judge.

DECISION ON APPEAL
Appellant seeks review under 35 U.S.C. § 134(a) of a final rejection
of claims 1–8. We have jurisdiction over the appeal of these claims pursuant
to 35 U.S.C. § 6(b).
We AFFIRM.

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STATEMENT OF CASE1
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below:
1. A method of implementing load allocation in a home
agent apparatus of a communication network, the method
comprising:
routing, by at least one ingress processor, data packets
from an external network to a mobile user using an IP tunnel
protocol;
routing, by a first user router, the data packets received
by the first user router from the mobile user via the external
network to the ingress processor;
maintaining, by a controller, a tunnel IP address of the
mobile user and a dynamic route list associating the tunnel IP
address with the ingress processor;
notifying, by the controller, the ingress processor of the
tunnel IP address of the mobile user; and
notifying, by the controller, the first user router of the
dynamic route list, the first user router configured to allocate
the data packets based on the dynamic route list.

REJECTION
The Examiner rejected claims 1–8 under 35 U.S.C. § 103(a) as being
unpatentable over Haverinen (US 2001/0021175 A1, Sept. 13, 2001) in view
of the background of Haverinen. Ans. 5–8.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
contentions that the Examiner has erred. Further, we have reviewed the

1 Our Decision will make reference to Appellant’s Appeal Brief (“Br.,” filed
June 6, 2011), and the Examiner’s Answer (“Ans.,” mailed July 26, 2011).
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Examiner’s response to claims 1–8 that has been argued by the Appellant.
Br. 11–19.
We disagree with Appellant’s conclusions. We adopt as our own
(1) the findings and reasons set forth by the Examiner in the action from
which this appeal is taken and (2) the reasons set forth by the Examiner in
the Examiner’s Answer in response to Appellant’s Appeal Brief. Ans. 5–12.
We concur with the conclusions reached by the Examiner. We highlight and
address specific findings and arguments for emphasis as follows.
Based on Appellant’s arguments in the Appeal Brief (Br. 12–19), the
principal and dispositive issue of whether the Examiner erred in rejecting
claims 1–8 turns on whether Haverinen teaches and/or suggests “routing, by
a first user router, the data packets received by the first user router from the
mobile user via the external network to the ingress processor,” as set forth in
claim 1, and similarly recited in independent claim 5 (hereinafter “the
disputed limitation”).2, 3
Appellant admits that “the cited reference [Haverinen] does in fact
disclose the routing of data packets” but argues that “Haverinen discloses
routing via a tunneling protocol to a mobile node via a foreign agent FA.”
Br. 14 (emphasis omitted).
In particular, Appellant contends,
According to paragraph [0026] of Haverinen, the primary
home agent PHA processes all Mobile IP messages (from the

2 Separate patentability is not argued for dependent claims 2, 4, 6, and 8.
Except for our ultimate decision, these claims are not discussed further
herein.
3 Appellant contends that independent claim 5 should be patentable for
similar reasons as claim 1. Br. 15.
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foreign agent FA or the mobile node MN), and when needed,
the primary home agent PHA transmits messages to a
secondary home agent SHA. In other words, Haverinen
discloses a home agent that routes messages from a mobile
node to another (secondary) home agent not an “ingress
processor” where the ingress processor routes “data packets
from an external network to a mobile user using an IP tunnel
protocol,” as required by claim 1.
Br. 13.
The Examiner finds:
“[T]he primary home agent (PHA) is arranged to process all
mobile IP messages (from the foreign agent or the mobile
node)” coupled with the fact that a PHA is a routing device
which possesses a routing entity, as admitted by Appellant on
page 4 of this brief, characterized in that while away from its
home network, a mobile node is associated with a care-of-
address (COA) that identifies its current location and its home
address is associated with the local endpoint of a tunnel to its
PHA, which in turn processes all mobile IP messages, therefore
the PHA possesses an ingress processor. Mobile IP specifies
how a mobile node registers with its PHA and how the PHA
routes datagrams to the mobile node through the tunnel.
Ans. 9 (emphasis ours). In other words, the Examiner finds that Haverinen’s
PHA meets the disputed limitation.
We are not persuaded the Examiner has erred because Appellant
provides no persuasive evidence of the alleged error. Specifically, Appellant
provides no persuasive evidence or argument regarding why the PHA as
taught by Haverinen does not meet the claimed disputed limitation. Rather,
Appellant merely provides conclusory remarks that Haverinen’s PHA is
different from what is claimed. Br. 12–15. It is well settled that mere
attorney’s arguments and conclusory statements, which are unsupported by
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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 the place of
evidence lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782
(CCPA 1977).
Regarding dependent claims 3 and 7, while Appellant raised
additional arguments for patentability (Br. 16–19), we find that the
Examiner has rebutted in the Answer each and every one of those arguments
supported by sufficient evidence. Ans. 7–8, 10–12.
We observe that no Reply Brief is of record to rebut such findings
including the Examiner’s responses to Appellant’s arguments. Therefore,
we adopt the Examiner’s findings and underlying reasoning, which are
incorporated herein by reference.
Consequently, we conclude there is no reversible error in the
Examiner’s rejections of claims 1–8.
CONCLUSION
The Examiner did not err in rejecting claims 1–8 under 35 U.S.C.
§ 103(a) as being unpatentable over Haverinen, in view of the background of
Haverinen.

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DECISION
The Examiner’s decision rejecting claims 1–8 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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