Ex Parte Zweig

Patent Trial and Appeal Board

Oct 31, 2012

11008061 (P.T.A.B. Oct. 31, 2012)

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.
11/008,061 12/09/2004 Jonathan Marcus Zweig 7001-596 9186
96695 7590 10/31/2012
Avaya Inc. and Withrow & Terranova
100 Regency Forest Drive
Suite 160
Cary, NC 27518
EXAMINER
SEFCHECK, GREGORY B
ART UNIT PAPER NUMBER
2477
MAIL DATE DELIVERY MODE
10/31/2012 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 PATENT TRIAL AND APPEAL BOARD
____________
Ex parte JONATHAN MARCUS ZWEIG
____________
Appeal 2010-007433
Application 11/008,061
Technology Center 2400
____________

Before JOSIAH C. COCKS, MICHAEL R. ZECHER, and
GLENN J. PERRY, Administrative Patent Judges.

ZECHER, Administrative Patent Judge.

DECISION ON APPEAL
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I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-20. Br. at 1. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
Appellant’s Invention
Appellant invented an apparatus and method directed to a multi-
homed broadband router that allows an internal network to communicate
with an external network, such as the Internet. Abstract. According to
Appellant, when a client device attempts to communicate with a host system
on the external network, the router determines whether a first or second
service provider establishes communications between the client device and
the host system. Id.
Illustrative Claim
Claims 1, 8, and 15 are independent claims. Independent claim
1 is illustrative:
1. A multi-homed router, comprising:
a first external-side port for exchanging packets over a
first communication link with a first service provider connected
to a communications network;
a second external-side port for exchanging packets over a
second communication link with a second service provider
connected to the communications network;
an internal-side port for exchanging packets with a client
device connected to an internal network; and
means for determining which one of the service providers
to use when establishing communications between the client
device and a host system connected to the communications
network, wherein the first and second communication links are
established via active connections with the first and second
service providers, respectively, prior to establishing
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communications between the client device and the host system
through one of the service providers.

Prior Art Relied Upon
Guerin US 6,243,754 B1 June 5, 2001
Nishimura US 2002/0194351 A1 Dec. 19, 2002
O’Neill US 2006/0047742 A1 Mar. 2, 2006
(filed June 15, 2004)

Rejections on Appeal
Claims 1, 3-5, 8, 10-12, and 15-18 were rejected under 35 U.S.C.
§ 102(b) as being anticipated by Guerin. Ans. at 3-6.
Claims 2 and 9 were rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Guerin and Nishimura. Id. at 6-7.
Claims 6, 7, 13, 14, 19, and 20 were rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Guerin and O’Neill. Id. at 7-
9.
Examiner’s Findings and Conclusions
The Examiner finds that Guerin’s Figure 1, which illustrates link
interfaces 111 and 113 coupling router 109 to service providers 105 and 107,
describes establishing communications or links via active connections with
the first and second service providers prior to determining which of the
service providers to use for establishing communications between the client
device and the host system, as required by independent claim 1. Ans. at 10.
Moreover, upon reviewing Appellant’s Specification for context, the
Examiner finds that the aforementioned cited disclosure in Guerin does not
differ from the claimed “active connections.” Ans. at 10-11 (citing Spec.
¶ [0032-0035]). The Examiner finds that Guerin’s disclosure of identifying
router ports to different remote host systems through the various addressing
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schemes of the associated networks and service providers amounts to a
reasonable interpretation of the claimed “active connections” because those
router ports are used for establishing control channels between external ports
of routers 109 and 117 and service providers 105 and 107. Ans. at 11.
Further, the Examiner finds that Guerin’s interfaces 111 and 113
describe the claimed “two active connections,” and Guerin’s control
channels describe the claimed “two communications links” established via
those “active connections.” Ans. at 12. The Examiner finds that Guerin
does not require creating a second control channel only if a first control
channel does not already exist. Id. The Examiner acknowledges that Guerin
discloses such a scenario, but finds that Guerin describes it as a variation to
other disclosures and not a requirement. Id. Instead, the Examiner finds that
Guerin discloses creating a second control channel to a router when both a
first and second site are serviced by that router. Ans. at 12-13 (citing col. 3
at ll. 60-63).
Appellant’s Contentions
Appellant contends that Guerin does not describe establishing
communications or links via active connections with the first and second
service providers prior to determining which of the service providers to use
for establishing communications between the client device and the host
system, as required by independent claim 1. Br. at 10 (emphasis in original).
Appellant argues that Guerin discloses deciding which service provider to
use prior to establishing communications with either of the service
providers. Br. at 10-11 (citing col. 5 at ll. 23-37 and col. 6 at ll. 4-18).
Moreover, Appellant asserts that Guerin’s physical link interfaces 111 and
113 are merely interfaces for possible connections. Id. (citing Figure 1 and
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col. 2 at ll. 54-59). Appellant alleges that Guerin does not disclose using
physical link interfaces 111 and 113 for active connections between the
router and the first and second service providers prior to determining which
one of the service providers to use when establishing communications
between the client device and host system. Id.
Further, Appellant contends that Guerin does not disclose establishing
two control channels prior to establishing communications through the
selected service provider. Br. at 12. Appellant acknowledges that although
Guerin discloses establishing a second control channel and second data
connection (citing col. 3 at ll. 58-64), this only occurs after the router at the
first site establishes a first control channel and selects a service provider. Br.
at 12. Moreover, Appellant argues that Guerin discloses creating a second
control channel only if a first control channel does not already exist. Id.
(citing col. 4, at ll. 1-5). Therefore, Appellant asserts that Guerin does not
disclose establishing two active connections for the two communication link
with the two service providers prior to establishing communications through
a selected one of the service providers. Id. (emphasis in original).
Appellant relies upon the same arguments presented for the
anticipation rejection of independent claim 1 to rebut the anticipation
rejections of independent claims 8 and 15. Br. at 10-12.

II. ISSUE
Has the Examiner erred in finding that Guerin describes “wherein the
first and second communication links are established via active connections
with the first and second service providers, respectively, prior to establishing
communications between the client device and the host system through one
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of the service providers[,]” as recited in independent claim 1, and similarly
recited in independent claims 8 and 15?

III. ANALYSIS
35 U.S.C. § 102(b) Rejection—Guerin
Claims 1, 8, and 15
Based on the record before us, we do not discern error in the
Examiner’s anticipation rejection of independent claim 1, which recites,
inter alia, “wherein the first and second communication links are established
via active connections with the first and second service providers,
respectively, prior to establishing communications between the client device
and the host system through one of the service providers.” We also do not
discern error in the Examiner’s anticipation rejection of independent claims
8 and 15, which recite a similar claim limitation.
We begin our analysis by first considering the scope and meaning of
the claim term “active connection,” which must be given its broadest
reasonable interpretation consistent with Appellant’s disclosure. See In re
Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997); see also In re Zletz, 893 F.2d
319, 321 (Fed. Cir. 1989) (stating that during examination “claims must be
interpreted as broadly as their terms reasonably allow”). Appellant’s
Specification states that:
[a]ny given client device 26 on the internal network 10 can
engage in multiple, active concurrent connections with the same
internal or external host system or with different remotes host
systems 20 using different [Transmission Control Protocol] or
[User Datagram Protocol] ports. These concurrent connections
can appear in the same address translation table or in different
address translation tables, depending upon whether the
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concurrent connections use the same or different service
providers. When there are concurrent connections listed in
different address translation tables 50, this indicates that the
client device 26 has established different connections through
different service provider 18. These concurrent connections
can be to the same host system or to different host systems as
illustrated by the following two examples shown in FIG 2[.]

Spec. ¶ [0032].
Upon reviewing the cited portion of Appellant’s Specification—which
is one of the few portions in the Specification that makes reference to “active
concurrent communications” in conjunction with the claimed invention—we
do not find that an explicit or special definition for the claim term “active
connection” is set forth. Therefore, we resort to its ordinary and customary
meaning. See Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005)
(en banc) (claim terms are “generally given their ordinary and customary
meaning”). Because the claim term “active” is a commonly understood
word, we will rely on a general purpose dictionary in ascertaining its
meaning. See Agfa Corp. v. Creo Products, Inc., 451 F.3d 1366, 1376 (Fed.
Cir. 2006) (noting that dictionaries may be helpful when claim construction
involves “little more than the application of widely accepted meaning of
commonly understood words”). Referring to a dictionary, the claim term
“active” can be defined as “capable of amplifying a signal or controlling
some function [. . .].”1 (Emphasis added). With this claim construction in
mind, we turn to the merits of the Examiner’s anticipation rejection.
We first look at Guerin’s Figure 1 reproduced below.

1 The Collins English Dictionary, © HarperCollins Publishers (2000)
(retrieved from http://www.xreferplus.com/entry/hcengdict/active) (last
visited Oct. 24, 2012).
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Guerin’s Figure 1 illustrates a block diagram outlining an Internet Service
Provider (“ISP”) selection scheme. Col. 2 at ll. 15-17. Guerin discloses that
network site 101 connects to ISP networks 105 and 107 via router 109. Id.
at ll. 54-55. Guerin discloses that router 109 has three interfaces: (1)
interface 111 connects router 109 to ISP network 105; (2) interface 113
connects router 109 to ISP network 107; and (3) interface 115 connects
router 109 to network site 101. Id. at ll. 55-58. Further, Guerin discloses
that router 109 establishes a control channel with router 117. Col. 3 at ll. 14-
15.
Consistent with our claim construction supra, we find that Guerin’s
link interfaces 111 and 113 control communication functions between router
109 and ISP networks 105 and 107 by allowing router 109 to establish a
control channel for exchanging data with router 117. As such, we agree with
the Examiner that Guerin’s link interfaces 111 and 113 amount to the
claimed “active connections.” Ans. at 10-11. Moreover, we note that
Guerin discloses that router 109 may establish a second control channel for
exchanging data with router 117. Col. 3 at ll. 58-65. Consequently, we
agree with the Examiner that Guerin’s first and second control channels
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amount to the claimed “communication links” (Ans. at 12) because they
serve as conduits for exchanging or communicating data. Given that
Guerin’s router 109 is capable of establishing a first control channel via link
interface 111 with ISP network 105, and a second control channel via link
interface 113 with ISP network 107, we find that Guerin sufficiently
describes “the first and second communication links are established via
active connections with the first and second service providers,” as recited in
independent claim 1.
Further, we note that establishing communications between remote
devices (e.g., client device, host system, etc.) located in Guerin’s network
sites 101 and 103 necessarily includes first establishing a control channel
through either ISP network 105 or 107. In light of our analysis supra, we
find that Guerin implicitly contemplates establishing two link interfaces 111
and 113 for two control channels with two ISP networks 105 and 107 prior
to establishing communications between two remote devices located in
network sites 101 and 103 through a selected one of the ISP networks.
Therefore, we find that Guerin sufficiently describes establishing “the first
and second communication links [] via active connections with the first and
second service providers, respectively, prior to establishing communications
between the client device and the host system through one of the service
providers[,]” as recited in independent claim 1. It follows that the Examiner
has not erred in finding that Guerin anticipates independent claims 1, 8, and
15.
Claims 3-5, 10-12, and 16-18
Appellant does not provide separate and distinct arguments for
patentability with respect to dependent claims 3-5, 10-12, and 16-18. See
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Br. at 10-12. Therefore, we accept Appellant’s grouping of these dependent
claims with their underlying base claim. Id. at 12. Consequently, dependent
claims 3-5, 10-12, and 16-18 fall with independent claims 1, 8, and 15,
respectively. See 37 C.F.R. § 41.37(c)(1)(vii).
35 U.S.C. § 103(a) Rejection—Combination of Guerin and Nishimura
Claims 2 and 9
Appellant contends that Nishimura does not cure the above-noted
deficiencies in Guerin. Br. at 13. As discussed supra, there are no such
deficiencies in Guerin for Nishimura to remedy. It follows that the
Examiner has not erred in concluding that the combination of Guerin and
Nishimura renders dependent claims 2 and 9 unpatentable.
35 U.S.C. § 103(a) Rejection—Combination of Guerin and O’Neill
Claims 6, 7, 13, 14, 19, and 20
Appellant contends that O’Neill does not cure the above-noted
deficiencies in Guerin. Br. at 13. As discussed supra, there are no such
deficiencies in Guerin for O’Neill to remedy. It follows that the Examiner
has not erred in concluding that the combination of Guerin and O’Neill
renders dependent claims 6, 7, 13, 14, 19, and 20 unpatentable.

IV. CONCLUSIONS
For the foregoing reasons, the Examiner has not erred in rejecting: (1)
claims 1, 3-5, 8, 10-12, and 15-18 as being anticipated under 35 U.S.C.
§ 102(b); and (2) claims 2, 6, 7, 9, 13, 14, 19, and 20 as being unpatentable
under 35 U.S.C. § 103(a).

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V. DECISION
We affirm the Examiner’s decision to reject claims 1-20.
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