Ex Parte Yu et al

Board of Patent Appeals and Interferences

Apr 24, 2011

10419798 (B.P.A.I. Apr. 24, 2011)

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.
10/419,798 04/22/2003 Junying James Yu 0023-0079 1778
44987 7590 04/25/2011
HARRITY & HARRITY, LLP
11350 Random Hills Road
SUITE 600
FAIRFAX, VA 22030
EXAMINER
GILLIS, BRIAN J
ART UNIT PAPER NUMBER
2441
MAIL DATE DELIVERY MODE
04/25/2011 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JUNYING JAMES YU, DENNIS C. FERGUSON,
HASAN F. UGURDAG, and ATSUSHI KASUYA
____________________

Appeal 2009-006076
Application 10/419,798
Technology Center 2400
____________________

Before JOSEPH L. DIXON, JAY P. LUCAS, and JAMES R. HUGHES,
Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-006076
Application 10/419,798
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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1,
4-8, and 11-35. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

The invention is directed to systems and methods for distributed data
forwarding. (Spec. 1). Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A method for preserving the order of blocks of data in a
plurality of data streams transmitted across a plurality of
processing paths, comprising:
receiving input blocks of data on the plurality of data
streams in a first order;
distributing the input blocks of data to the plurality of
processing paths;
determining an outgoing route for each of the blocks of
data by referencing routing data stored in memory;
receiving processed blocks of data from the plurality of
processing paths; and
re-ordering the processed blocks of data in the first order
based on a count for each block of data, where the count
comprises a number of routing data memory references
performed for each input block of data.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Frank
Lehr
Alfano
US 5,282,201
US 5,898,873
US 6,967,951 B2
Jan. 25, 1994
Apr. 27, 1999
Nov. 22, 2005
Carolan
Blaker
US 2001/0049729 A1
US 2003/0081600 A1
Dec. 6, 2001
May 1, 2003
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Application 10/419,798
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REJECTIONS
Claims 1, 5, 8, and 12 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Alfano, Carolan, and Frank. Ans. 3.
Claims 4 and 11 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Alfano, Carolan, Frank, and Lehr. Ans. 7.
Claims 6, 7, 13, and 14 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Alfano, Carolan, Frank, and Blaker. Ans. 8.
Claims 15-28 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Alfano, Carolan, and Blaker. Ans. 10.
Claims 29-31 and 35 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Blaker and Frank. Ans. 17.
Claims 32-34 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Alfano, Blaker, and Frank. Ans. 19.

ISSUE
Did the Examiner set forth a sufficient showing of obviousness of
independent claim 1? Specifically, does the combination of prior art
teachings teach or fairly suggest reordering the processed blocks of data
based upon a number of routing directory references performed by each
block? Furthermore, do the prior art combinations teach or fairly suggest
reordering the processed blocks of data based upon a “number” of various
claimed parameters recited in independent claims 8, 15, 19, 23, 26, 29, 32,
and 35?

Appeal 2009-006076
Application 10/419,798
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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)).
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).

ANALYSIS
We have thoroughly reviewed the respective positions advanced by
the Appellants and the Examiner. In so doing, we find, for essentially those
reasons expressed by Appellants, that the Examiner’s rejections are not
sustainable.
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Appellants argue that Alfano, Carolan, and Frank references do not
disclose or suggest reordering processed blocks of data in a first order based
on a count for each block of data, where in the count comprises a number of
routing data memory references performed for each input block of data, as
recited in independent claim 1. (App. Br. 9). We agree with Appellants and
find that portions of the references relied upon by the Examiner do not
specifically teach or fairly suggest the claimed “re-ordering the processed
blocks of data in the first order based on a count for each block of data,
where the count comprises a number of routing data memory references
performed for each input block of data” (claim 1) (emphasis added) (Ans. 4-
5).
Nor does the Examiner specifically identify a teaching or fair
suggestion of “based on a count” limitation in the responsive arguments
section of the Examiner’s answer. (Ans. 21-22). Therefore, we cannot
sustain the rejection of independent claim 1 and its respective dependent
claims. Independent claim 8 contains similar limitations concerning “the
count . . . .” We similarly cannot sustain the rejection of independent claim
8 and its respective dependent claims for the same reasons.
“The review authorized by 35 U.S.C. Section 134 is not a process
whereby the [E]xaminer . . . invite[s] the [B]oard to examine the application
and resolve patentability in the first instance.” Ex parte Braeken,
54 USPQ2d 1110, 1112 (BPAI 1999). We decline and will not resort to
speculation, unfounded assumptions, or hindsight reconstruction to make up
for this deficiency in the Examiner’s rejection.
With respect to independent claim 15, Appellants argue that the
combination of Alfano, Carolan, and Blaker does not teach or suggest the
“re-ordering the processed input data blocks based on a number of the one or
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more route look-ups associated with each of the input data blocks” as
claimed in independent claim 15. (App. Br. 14-16). We agree with
Appellants’ arguments as set forth at pages 14-16 of the Appeal Brief and do
not find that the relied upon portions of Alfano, Carolan, and Blaker teach or
fairly suggest the claimed invention is. Again, the Examiner does not
specifically identify a teaching or fair suggestion of “re-ordering the
processed input data blocks based on a number of the one or more route
look-ups associated with each of the input data blocks.” (Claim 15)
(emphasis added). Nor does the Examiner identify any teaching in the
rejection or the responsive arguments section of the Examiner’s Answer.
Therefore, we will sustain the rejection of independent claim 15 and its
dependent claims.
Appellants present similar arguments with respect to independent
claims 19, 23, 26, 29, 32, and 35 wherein the claim limitations recite “a
number . . .” with respect to various route look-ups, routing data references,
routing data lookups and the Examiner has not specifically addressed the “a
number . . .” portion of the limitation.
With respect to independent claims 19, 23 , and 26, the Examiner
relies upon the combination of Alfano, Carolan, and Blaker and does not
provide a specific showing of the claim limitations "to re-order the data
blocks based on a number of the one or more route look-ups associated with
each of the data blocks," "re-ordering the data blocks within each data
stream of the plurality of data streams by comparing a number of routing
data references associated with each of the data blocks" and " re-order the
data blocks within each data stream of the plurality of data streams by
comparing a number of routing data references associated with each of the
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data blocks," respectively. Therefore, we cannot sustain the rejection of
claims 19, 23, and 26 and their respective dependent claims.
With respect to independent claims 29, 35, the Examiner relies upon
the combination of Blaker and Frank and the Examiner does not provide a
specific showing of re-ordering the data according to the number of route
look-up operations performed. Therefore, we cannot sustain the rejection of
independent claims 29 and 35 and their respective dependent claims.
With respect to independent claim 32, the Examiner relies upon the
combination of Alfano, Blaker, and Frank and does not provide a specific
showing of the claim limitation "re-order the data blocks according to the
number of routing data look-up operations performed to determine the
routing path for each of the data blocks." Therefore, we cannot sustain the
rejection of independent claim 32 and its respective dependent claims.

CONCLUSIONS OF LAW
The Examiner erred in rejecting claims 1, 4-8, and 11-35 under 35
U.S.C. §103.

DECISION
For the above reasons, the Examiner’s rejections of claims 1, 4-8, and
11-35 are reversed.

REVERSED

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Application 10/419,798
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