Ex Parte Wu et al

Board of Patent Appeals and Interferences

May 7, 2010

09609690 (B.P.A.I. May. 7, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte HANDONG WU and ZBIGNIEW SUFLETA
____________

Appeal 2009-000455
Application 09/609,690
Technology Center 2400
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Decided: May 7, 2010
____________

Before JOSEPH L. DIXON, THU A. DANG, and
STEPHEN C. SIU, Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL

I. STATEMENT OF THE CASE
The Patent Examiner rejected claims 1-18 and 30. The Appellants
appeal therefrom under 35 U.S.C. § 134(a). We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
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A. INVENTION
The invention at issue on appeal relates to:

[a] packet processing device includes a control logic processor
for filtering packets according to a set of stored rules and an
arithmetic logic processor for executing packet processing
instructions based on the content of the packet. The control
logic processor spawns a new thread for each incoming packet,
relieving the arithmetic logic processor of the need to do so.
The control logic processor and the arithmetic logic processor
preferably are integrated via a thread queue. The control logic
processor preferably assigns a policy to each incoming packet.
A policy action table stores one or more policy instructions
which may be easily changed to update policies to be
implemented. The policy action table preferably maps a virtual
packet flow identification code to the physical memory address
of an action code and a state block associated to the
identification code. The arithmetic logic processor processes a
packet based on the stored policy assigned to that packet.

(Abstract.)

B. ILLUSTRATIVE CLAIM
Claim 1, which further illustrates the invention, follows.

1. An apparatus for processing data packets, comprising:

a first data processing unit adapted to filter incoming packets;

an addressable memory unit in which a plurality of instruction
sets for packet processing are stored;

a second data processing unit adapted to process incoming
packets according to one of said plurality of instruction sets after the
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filtering, based on a thread assigned to the incoming packets by the
first data processing unit; and

a data bus connecting the addressable memory unit and the first
and second data processing units.

C. REFERENCES
The Examiner relies on the following references as evidence:
Scales U.S. 5,761,729 June 2, 1998
Irwin U.S. 6,393,026 B1 May 21, 2002
(filed Sept. 17, 1998)
Kadambi U.S. 6,850,521 B1 Feb. 1, 2005
(filed Mar. 17, 2000)

D. REJECTIONS

Claim 1 stands rejected under 35 U.S.C. §102(e) as being anticipated
by Irwin.
Claims 2-16 and 30 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Irwin in view of Kadambi.
Claims 17 and 18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Irwin and Kadambi in view of Scales.

II. ISSUE
Has the Examiner erred in relying upon the teachings of Irwin to meet
the claimed "a first data processing unit adapted to filter incoming data
packets?"
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Has the Examiner erred in relying upon the teachings of Irwin to meet
the claimed "second data processing unit adapted to process incoming
packets according to one of said plurality of instruction sets after the
filtering, based on a thread assigned to the incoming packets by the first data
processing unit?"
Has the Examiner erred in relying upon the teachings of Irwin to meet
the claimed "a data bus connecting the addressable memory unit and the first
and second data processing units?"

III. PRINCIPLES OF LAW
35 U.S.C. § 103
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966). “[T]he Examiner bears
the initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). Furthermore, “‘there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness’ . . . [H]owever, the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007)(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006)).
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The question of obviousness is "based on underlying factual
determinations including . . . what th[e] prior art teaches explicitly and
inherently . . . ." In re Zurko, 258 F.3d 1379, 1383 (Fed. Cir. 2001).
A general allegation in the Brief that the claims define a patentable
invention without specifically pointing out how the language of the claims
patentably distinguishes over the cited references is insufficient. A
statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim. See 37 CFR §
41.37(c)(1)(vii). Appellants' appeal is based on a series of conclusory
arguments presented in the Brief. This form of argument is ineffective in
establishing the patentability of the claims on appeal. See Ex parte Belinne,
No. 2009-004693, slip op. at 7-8, http://www.uspto.gov/ip/boards/
bpai/decisions/inform/fd09004693.pdf (BPAI Aug. 10, 2009) (informative).

IV. ANALYSIS

Anticipation
At the outset, we note that Appellants' arguments directed towards
independent claim 1, which is a rejection based upon anticipation, are mostly
drafted in language directed toward an obviousness rejection. For example,
Appellants use the language "fails to even suggest . . . ." "Appellants assert
that it would be an obvious to include filtering . . . " and "it would be
unobvious to modify Irwin to . . . ." Finally, with respect to the data bus
Appellants argue that "Irwin fails to teach a data bus connecting an
addressable memory unit to the first and second data processing units."
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(App. Br. 11-13). Therefore, a majority of Appellants' arguments are
directed to the incorrect statutory basis for the rejection except for the "data
bus" argument.
Therefore, we will start with the “data bus" argument which addresses
the correct statutory ground of rejection, the Examiner in the responsive
arguments at pages 17-18 of the Answer further embellishes the rejection
and relies upon the teachings of Irwin at columns 6 and 7 which teach that
"the addressable memory and the first and second processing units are
connected by a data bus as they all load data and data is transferred from one
to another and bus must be connected by a data bus. The data bus is
inherently necessary." (Answer 17-18). We agree with the Examiner that a
data bus would necessarily be present to transfer the data. Therefore,
Appellants have not shown error in the Examiner's showing of anticipation
based upon this argument.
With respect to the remainder of Appellants' arguments with respect to
independent claim 1, Appellants assert that the excerpts relied upon by the
Examiner concerning the processing for forwarding a data packet as taught
by Irwin in columns 5 and 6 fails to suggest the claimed "filter[ing]
incoming packets." (App. Br. 10-11). While Appellants' argument is drafted
with respect to obviousness and the rejection is based upon anticipation, we
will attempt to loosely interpret Appellants' arguments as directed towards
anticipation.
At the outset, we find Appellants' lengthy Brief and Reply Brief to be
rather repetitive and cumulative in their presentation of their case and find
very little analysis and explanation beyond merely cutting and pasting from
the record and the reference. We find this presentation to obscure or
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obfuscate Appellants’ position rather than provide a brief focused argument
to identify and differentiate the claimed invention from prior art teachings.
With respect to argued elements of the claimed invention, Appellants
repeat the teachings of the reference a number of times (in verbatim and
slightly rewritten) with respect to each teaching relied upon by the Examiner
and then summarily concludes that the teachings fail to suggest the claimed
limitation. (App. Br. 10-13). However, Appellants provide no further
substantive commentary with respect to this limitation of the claim to
distinguish this limitation.
As Appellants are making a general allegation of patentability without
specifically pointing out how the claim language patentably distinguishes
over the applied art, Appellants’ argument cannot establish Examiner error.
See 37 C.F.R. 1.111(b); see also 37 C.F.R. § 41.37 (c)(1)(vii) (“A statement
which merely points out what a claim recites will not be considered an
argument for separate patentability of the claim.”).
The Examiner identifies in the responsive arguments at pages 16-17
that the definition of "filtering" is a device or a program that separates data,
which is exactly what the forwarding of Irwin is doing wherein Irwin
teaches at column 6 assigning a program counter to incoming packets and
forwards them using the forwarding program.
The Examiner further identifies at page 17 of the Answer that
Appellants' arguments with respect to column 1 of Irwin are directed to a
separate prior art discussion which is not relied upon by the Examiner in the
anticipation rejection, but this teaching additionally teaches forwarding
through the use of different interfaces which the Examiner equates to
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filtering. We agree with the Examiner's reasoning that this portion of Irwin
also teaches filtering of incoming data packets.
Appellants have identified no express definition of "filtering" in their
Specification nor have Appellants presented any express definition in their
Briefs as to the proper interpretation for "filtering." Therefore, we accept
the Examiner's reasonable interpretation and the application of Irwin thereto.
In this decision, we have considered only those arguments actually
made by Appellants. Arguments which Appellants could have made but did
not make in the Brief have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(1)(vii).
Appellants reiterate the teachings of Irwin at page 12 of the Brief and
contend that Irwin fails to teach or suggest the claimed "a second data
processing unit adapted to process incoming packets according to one of said
plurality of instruction sets after the filtering, based on a thread assigned to
the incoming packets by the first data processing unit." Again, Appellants
reiterate that Irwin fails to suggest any sort of "' filtering,' as claimed by
appellant[s], let alone in the specific context claimed by appellant[s]." (App.
Br. 13). Here, Appellants do not identify what specific "context" is intended
in the argument. We find no specific context or definition of the filtering in
the language of independent claim 1.
Appellants' arguments appear to be based upon the difference in
interpretation of what is "filtering," as discussed above. Appellants'
argument does not show error in the reasonableness of the Examiner's
interpretation and showing. Therefore, Appellants' argument has not shown
error in the Examiner's showing of anticipation of independent claim 1, and
we will sustain the rejection thereof.
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Obviousness
With respect to dependent claims 2 and 16, the Appellants summarily
argue that the "prior art excerpts, as relied upon by the Examiner, fail to
teach or suggest all of the claim limitations, as noted above" and the claims
are not met by the prior art for the reasons argued with respect to Issue #1,
Group #1. (App. Br. 14-15). Since we did not find Appellants' arguments
persuasive with respect to independent claim 1 and found no elements of the
claimed invention lacking, we similarly find Appellants' reliance upon the
same arguments unavailing with respect to obviousness. The Examiner
argues that Appellants have presented no arguments. (Answer 18).
Therefore, Appellants’ general allegation does not show error in the
Examiner's reasoned conclusion of obviousness, and we will sustain the
rejection of dependent claim 2 and dependent claim 16 grouped therewith.
With respect to dependent claims 3, 5, 13, and 14, Appellants have
argued the claims as a group, and we will select dependent claim 3 as the
representative claim for the group. Appellants reiterate the teachings of
Irwin and Kadambi. (App. Br. 15-16). The Examiner maintains that
Appellants do not provide arguments other than stating the portions relied on
in Kadambi do not disclose the claim. We agree with the Examiner. The
Examiner further identifies column 35, lines 57-64, of Kadambi to teach a
rules table which the Examiner relies upon as the claimed "policy action
table" which stores at least one data processing policy. (Answer 18). We
find the Examiner's position to be reasonable, and we find Appellants'
general statement of a lack of teaching or suggestion by the relied upon
teachings to be unsupported and unavailing. Therefore, we conclude that
Appellants have not shown error in the Examiner's reasoned conclusion of
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obviousness, and we will sustain the rejection of dependent claims 5, 13, and
14 grouped therewith by Appellants.
With respect to dependent claim 4, Appellants reiterate the teachings
of Kadambi. (App. Br. 17). The Examiner maintains that Appellants do not
provide arguments other than stating the portions relied on in Kadambi do
not disclose the claim. (Ans. 19). We agree with the Examiner. We find
the Examiner's position to be reasonable, and we find Appellants' general
statement of a lack of teaching or suggestion by the relied upon teachings to
be unsupported and unavailing. Therefore, we conclude that Appellants
have not shown error in the Examiner's reasoned conclusion of obviousness,
and we will sustain the rejection of dependent claim 4.
With respect to dependent claims 6-12, Appellants have argued the
claims as a group, and we will select dependent claim 6 as representative
claim for the group. Appellants reiterate the teachings of Kadambi. (App.
Br. 18-19). The Examiner maintains that Appellants do not provide
arguments other than stating the portions relied on in Kadambi do not
disclose the claim. (Ans. 20). We agree with the Examiner. Therefore, we
conclude that Appellants have not shown error in the Examiner's reasoned
conclusion of obviousness, and we will sustain the rejection of dependent
claim 6 and claims 7-12 which have not been separately argued and grouped
therewith by Appellants.
With respect to dependent claim 15, Appellants again reiterate the
teachings of Kadambi. (App. Br. 20). The Examiner maintains that Irwin
and Kadambi teach a temporary storage of packets before processing by the
second data processing unit. The Examiner additionally identifies column
30 of Kadambi which discloses priority queues and column 10 of Irwin
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which discloses a packet buffer to further buttress the Examiner's initial
showing. (Ans. 20). We find the Examiner's initial reliance upon parsing to
teach and suggest a temporary storage before processing by the second data
processing unit and the additional teachings further evidence temporary
storage before processing by the second data processing unit. We find no
limitation on the duration of time wherein most intermediary processing
would encompass some buffering or temporary storage meeting the broad
language of the claim. Therefore, Appellants have shown no error in the
Examiner's reasoned conclusion of obviousness, and we will sustain the
rejection of dependent claim 15.

With respect to independent claim 30, the Examiner sets forth the
grounds of rejection at pages 10-14 of the Answer and responsive arguments
at pages 21-26 of the Answer. Appellants again reiterate the teachings of
Irwin and Kadambi for each of the argued claim limitations at pages 20-30
of the principal Brief and Appellants reiterate the claim limitations and
generally assert that the teachings of the references do not suggest the
claimed limitations. As discussed above, we find the above presentation of
arguments to be unpersuasive of the error in the Examiner's rejection. As
discussed above with respect to independent claim 1, we find that Irwin does
teach "filtering incoming packets" which appears to be the base premise of
Appellants' arguments. We find the Examiner has addressed all limitations
of the claim and Appellants have not identified any substantive error therein.
Therefore, we will sustain the rejection of independent claim 30.

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With regards to dependent claims 17 and 18, Appellants contend that
the claims are not met by the prior art for the reasons argued with respect to
Issue #2, Group #1 which refers to dependent claim 2 (and did not set forth
separate arguments for patentability) which incorporated the arguments
made with respect to independent claim 1 based upon anticipation. (App.
Br. 30). Since we did not find those arguments persuasive, and Appellants
have not set forth separate arguments for patentability, we similarly do not
find this argument persuasive with respect to dependent claim 17 and
dependent claim 18 which is grouped therewith.

Appellants’ Reply Brief is drafted in the same format as Appellants’
principal brief whereby Appellants repeat the teachings of the references and
summarily and generally conclude that the references do not teach or suggest
each of the argued limitations as we discussed above. We have considered
Appellants' generalized contentions in the Reply Brief and find them
unavailing. As Appellants are making general allegations of patentability
without specifically pointing out how the claim language patentably
distinguishes over the applied art, Appellant’s argument cannot establish
Examiner error. See 37 C.F.R. 1.111(b); see also 37 C.F.R. § 41.37
(c)(1)(vii) (“A statement which merely points out what a claim recites will
not be considered an argument for separate patentability of the claim.”).

V. CONCLUSION
For the aforementioned reasons, we conclude that the Examiner has
not erred in the rejection of independent claim 1 based upon anticipation and
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the Examiner has not erred in the rejection of independent claim 30 and
dependent claims 2-18 based upon obviousness.

VI. ORDER
We affirm the anticipation and obviousness rejections of claims 1-18
and 30.

AFFIRMED

erc

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