International Business Machines Corporation

Patent Trials and Appeals Board

Mar 30, 2020

14177409 - (D) (P.T.A.B. Mar. 30, 2020)

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.
14/177,409 02/11/2014 Claude BASSO ROC920130194US2 2851
46797 7590 03/30/2020
Patterson & Sheridan, LLP
24 Greenway Plaza, Suite 1600
Houston, TX 77046
EXAMINER
RAZA, MUHAMMAD A
ART UNIT PAPER NUMBER
2449
NOTIFICATION DATE DELIVERY MODE
03/30/2020 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):
IBM@PATTERSONSHERIDAN.COM
Pair_eOfficeAction@pattersonsheridan.com
rociplaw@us.ibm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CLAUDE BASSO, JOSEP CORS,
VENKATESH K. JANAKIRAMAN, SZE-WA LAO,
SAMEER M. SHAH, DAVID A. SHEDIVY, ETHAN M. SPIEGEL,
NATARAJAN VAIDHYANATHAN, and COLIN B. VERRILLI
___________

Appeal 2019-001480
Application 14/177,409
Technology Center 2400
_________________

Before MICHAEL J. STRAUSS, DAVID J. CUTITTA II, and
PHILLIP A. BENNETT, Administrative Patent Judges.

CUTITTA, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1 and 3–8.2 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party-in-interest as
International Business Machines Corporation. Appeal Br. 3.
2 Claim 2 is cancelled. Appeal Br. 33.
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RELATED PROCEEDINGS
Appellant identifies co-pending application 14/161,347 as related to
the present application. Appeal Br. 4. Application 14/161,347 is the subject
of Appeal 2019-001477.

CLAIMED SUBJECT MATTER
Invention
According to Appellant, “the claimed invention improves
functionality of [a] network control software and switch because it allows
‘static entries [to] be aged out by the network control software, working
together with the physical switch, using an age bit.’” Appeal Br. 14 (citing
Spec. ¶ 52).3 This “solves the problem that ‘no traditional mechanisms exist
to age out [a] static entry’ that is inserted by network control software.” Id.
(citing Spec. ¶ 18).
Illustrative Claims
Claim 1 is independent. Claims 1 and 3, reproduced below with
limitations at issue italicized, are illustrative of the claimed subject matter:
1. A computer-implemented method for network control
software in communication with a switch over a network to
invalidate static entries in a forwarding database of the switch,
comprising:

3 We refer to: (1) the originally filed Specification filed February 11, 2014
(“Spec.”); (2) the Final Office Action mailed August 24, 2017 (“Final
Act.”); (3) the Appeal Brief filed April 9, 2018 (“Appeal Br.”); (4) the
Examiner’s Answer mailed October 12, 2018 (“Ans.”); and (5) the Reply
Brief filed December 12, 2018 (“Reply Br.”).
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inserting, by the network control software, a static entry
into the forwarding database of the switch;
setting, by the network control software, an age bit for
the static entry; and
periodically polling, by the network control software, the
forwarding database to determine whether the age bit has been
reset, wherein the age bit is reset by the switch to a not set state
when a source MAC address of a received packet hits on the
static entry,
wherein, in response to determining that the age bit has
been reset during the periodic polling, the network control
software sets the age bit again, and
wherein, in response to determining that the age bit has
not been reset for at least a threshold period of time during the
periodic polling, the network control software invalidates the
static entry.
3. The method of claim 1, wherein the static entry is
inserted into the forwarding database after validating a new
source MAC address that misses in the forwarding database or
a moved source MAC address that hits in the forwarding
database but routing information in a port field in the
forwarding database does not match an ingress port of a packet
including the source MAC address, wherein the validation
includes:
receiving, by the switch, a first packet;
if the first packet includes a new source MAC address,
inserting by the switch into the forwarding database a new
entry which includes the new source MAC address and a flag
which is set to indicate that the network control software has
been notified;
if the first packet includes a moved source MAC address,
updating by the switch an existing entry in the forwarding
database which includes the moved source MAC address by
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setting the flag for the existing entry to indicate that the
network control software has been notified, and
forwarding, by the switch, the first packet towards the
network control software.
Appeal Br. 33, 34 (Claims Appendix).

REFERENCES
The references4 relied upon by the Examiner are:
Name Reference Date
Lu US 6,230,235 B1 May 8, 2001
Brown US 2003/0026259 A1 Feb. 6, 2003
Basso (“Basso ’873”) US 2004/0032873 A1 Feb. 19, 2004
Shimizu US 2004/0160954 A1 Aug. 19, 2004
Padmanabha US 2010/0146599 A1 June 10, 2010
Mmmadi US 2011/0274110 A1 Nov. 10, 2011
Curtis US 2015/0200812 A1 July 16, 2015
Basso (“Basso ’663”) US 2015/0207663 A1 July 23, 2015

REJECTIONS
The Examiner rejects claims 1 and 3–8 under 35 U.S.C. § 101 as
reciting patent-ineligible subject matter. Final Act. 6–10.
The Examiner rejects claims 1 and 3–8 under 35 U.S.C. § 112(a) as
failing to comply with the written description requirement. Id. 10–11.
The Examiner rejects claim 1 under 35 U.S.C. § 103 as obvious over
the combined teachings of Mmmadi, Shimizu, Lu, and Padmanabha. Id. at
11–14.

4 All citations to the references use the first-named inventor only.
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The Examiner rejects claims 3–5 under 35 U.S.C. § 103 as obvious
over the combined teachings of Mmmadi, Shimizu, Lu, Padmanabha, Curtis,
and Brown. Id. at 14–19.
The Examiner rejects claim 6 under 35 U.S.C. § 103 as obvious over
the combined teachings of Mmmadi, Shimizu, Lu, Padmanabha, Curtis,
Brown, and Basso ’873. Id. at 19–20.
The Examiner rejects claims 7 and 8 under 35 U.S.C. § 103 as
obvious over the combined teachings of Mmmadi, Shimizu, Lu,
Padmanabha, Curtis, Brown, and Basso ’663. Id. at 20–21.
The Examiner provisionally rejects claims 1 and 3–8 for obviousness-
type double patenting based on claims 9, 11–17, 19, and 20 of U.S. Patent
Application No. 14/161,347. Id. at 3–6.
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of Appellant’s arguments and evidence.
Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2017).
Subject Matter Eligibility Rejection
I. Principles of Law
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. See, e.g., Alice Corp. v. CLS Bank Int’l,
573 U.S. 208, 216 (2014).
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In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-step framework, described in Alice and Mayo.
Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 75–77 (2012)). In accordance with that framework, we first
determine to what concept the claim is directed. See Alice, 573 U.S. at 219
(“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
If the claim is directed to an abstract idea, we turn to the second part
of the Alice and Mayo framework, in which “we must examine the elements
of the claim to determine whether it contains an ‘inventive concept’
sufficient to ‘transform’ the claimed abstract idea into a patent-eligible
application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A claim
that recites an abstract idea must include ‘additional features’ to ensure ‘that
the [claim] is more than a drafting effort designed to monopolize the
[abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77). “[M]erely requir[ing]
generic computer implementation[] fail[s] to transform that abstract idea into
a patent-eligible invention.” Id.
The Office published revised guidance on the application of § 101.
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (hereinafter “Guidance”). In October 2019, the USPTO
published an update to that guidance. October 2019 Patent Eligibility
Guidance Update, 84 Fed. Reg. 55,942 (hereinafter “Guidance Update”).
Under the Guidance and the Guidance Update, in determining whether a
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claim falls within an excluded category, we first look to whether the claim
recites:
(1) Step 2A — Prong One: any judicial exceptions, including certain
groupings of abstract ideas (i.e., mathematical concepts, certain
methods of organizing human activity, such as a fundamental
economic practice, or mental processes); and
(2) Step 2A — Prong Two: additional elements that integrate the
judicial exception into a practical application (see MPEP5
§ 2106.05(a)–(c), (e)–(h)).
See Guidance, 84 Fed. Reg. 54–55 (“Revised Step 2A”). Only if a claim (1)
recites a judicial exception and (2) does not integrate that exception into a
practical application, do we then look to whether the claim (Step 2B):
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See id. at 56 (“Step 2B: If the Claim Is Directed to a Judicial Exception,
Evaluate Whether the Claim Provides an Inventive Concept.”).

II. The Examiner’s § 101 Rejection
The Examiner determines that illustrative6 claim 1 is directed to a
judicial exception: an abstract idea. Final Act. 6–10; Ans. 4–16. According

5 All Manual of Patent Examining Procedure (“MPEP”) citations herein are
to MPEP, Rev. 08.2017, January 2018.
6 Appellant argues claims 1 and 3–8 as a group with respect to the § 101
rejection. Appeal Br. 8–18. We select independent claim 1 as illustrative of
the group. See 37 C.F.R. § 41.37(c)(1)(iv).
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to the Examiner, the claimed “steps describe the concept of maintain[ing]
entries in a forwarding database/table or merely maintaining entries in a
database/table, which corresponds to concepts identified as abstract ideas by
the courts.” Final Act. 6 (emphasis omitted). The Examiner determines
claim 1 recites “the additional limitations of a generic computer components
at a high level of generality.” Id. at 9 (emphasis omitted). The Examiner
concludes the claim does not integrate the abstract idea into a practical
application because the claim does not recite “an algorithm that would
improve the functionality of the technology and its broadest reasonable
interpretation comprises only maintain entries in a forwarding database/table
or merely maintaining entries in a database/table through the use of some
unspecified generic computers and interface.” Id. at 10.

III. Appellant’s Arguments
We summarize Appellant’s dispositive arguments in favor of
eligibility as follows: (1) “the claimed invention improves functionality of
the network control software and switch because it allows ‘static entries [to]
be aged out by the network control software, working together with the
physical switch, using an age bit’” (Appeal Br. 14 (citing Spec. ¶ 52); (2) the
claimed invention solves the problem that ‘no traditional mechanisms exist
to age out [a] static entry’ that is inserted by network control” (Appeal
Br. 15 (citing Spec. ¶ 18); and (3) “the claims recite particular steps that
improve computer network technology and, in particular, improve the
functionality of a network control software and switch by, among other
things, allowing static entries used for routing to be aged out” (Appeal
Br. 14 (emphases omitted); Reply Br. 4).
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IV. Our Review, Guidance, Step 1
We analyze the claims and the Examiner’s rejection in view of the
Guidance, and we adopt the nomenclature for the steps used in the
Guidance. As an initial matter, the claims must recite at least one of four
recognized statutory categories, namely, machine, process, article of
manufacture, or composition of matter. MPEP § 2106(I); see 35 U.S.C.
§ 101. Appellant’s claims 1 and 3–8 recite a method (i.e., a “process”).
Thus, the pending claims recite a recognized statutory category of § 101 and
we turn to the two-step Alice/Mayo analysis applied in accordance with the
Guidance.

V. Step 2A, Prong 1 in the Guidance (Alice/Mayo–Step 1)
(Judicial Exceptions)
Here, we determine whether illustrative claim 1, being directed to a
statutory class of invention, nonetheless falls within a judicial exception.
Guidance, 84 Fed. Reg. 51. Claim 1 recites a “computer-implemented
method” comprising steps including “inserting . . . a static entry into the
forwarding database” and “setting . . . an age bit for the static entry.”
Appeal Br. 33. Apart from the additional elements including network
control software and a forwarding database, these steps recite collecting and
manipulating data. Accordingly, we agree with the Examiner that the claim
relates to organizing or analyzing information in a way that can be
performed mentally or by a human using a pen and paper, in view of our
controlling precedent. See Final Act. 6 (“Collecting, displaying, and
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manipulating data Int. Ventures v. Cap One Financial7); Collecting
information, analyzing it, and displaying certain results of the collection and
analysis (Electric Power Group8)”).
Because we agree with the Examiner’s conclusion that independent
claim 1 recites at least one abstract idea, we next determine whether the
claim recites a practical application of the abstract idea.

VI. Step 2A, Prong Two in the Guidance
(Integration into a Practical Application)
We now determine whether the recited judicial exception is integrated
into a practical application of that exception by: (a) identifying whether
there are any additional elements recited in the claim beyond the judicial
exception or exceptions; and (b) evaluating those additional elements
individually and in combination to determine whether they integrate the
exception into a practical application. Guidance, 84 Fed. Reg. 54–55. This
evaluation requires an additional element or a combination of additional
elements in the claim to apply, rely on, or use the judicial exception in a
manner that imposes a meaningful limit on the judicial exception, such that
the claim is more than a drafting effort designed to monopolize the
exception. Id at 54.
The Examiner determines claim 1 recites additional elements
including “‘network control software” for managing ‘forwarding table’ on a
‘switch.’” Ans. 9. The Examiner determines the additional elements do not

7 Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
(Fed. Cir. 2015).
8 Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016).
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integrate the recited judicial exception into a practical application of the
exception because claim 1
is not similar to claimed patent’s innovative logical model for a
computer database (p. 2–3), nor does the claim here have similar
specific asserted improvement in computer capabilities (p. 7) as
in the Enfish9 patent. Rather here, the claim is directed to
automating the human behavior or task. (See Enfish Memo
and Enfish v. Microsoft, May 2016). In addition, simply limiting
the invention to a technological environment does “not make an
abstract concept any less abstract under step one.”
Id. at 8–9.
We disagree with the Examiner’s conclusion that the additional
elements do not integrate the recited judicial exception into a practical
application of the judicial exception. The last limitation of claim 1 recites
“wherein, in response to determining that the age bit has not been reset for at
least a threshold period of time during the periodic polling, the network
control software invalidates the static entry.” Considering this limitation in
view of the claim as a whole, we disagree with the Examiner’s determination
that the claim is limited to automating a human behavior. Appellant’s
Specification explains that the claimed network control software provides “a
different mechanism than traditional dynamic entry aging . . . to invalidate
static entries that are not being used.” Spec. ¶ 46. This is accomplished by
resetting an age bit to indicate that a particular static entry in a forwarding
database of a packet switch is still being used and by invalidating the static
entry “in response to determining that the age bit has not been reset for at
least a threshold period of time during the periodic polling.” Appeal Br. 33,

9 Citing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016).
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claim 1; Spec. ¶ 49. By invalidating the static entry, the claim transforms
the state of the static entry from valid to invalid to indicate that the entry has
aged out. This “solves the problem that ‘no traditional mechanisms exist to
age out [a] static entry’ that is inserted by network control software.”
Appeal Br. 14 (citing Spec. ¶ 18). Thus, in view of this limitation, claim 1
as a whole recites an improvement in technology and applies the abstract
idea in a meaningful way such that the claim as a whole is more than a
drafting effort designed to monopolize the judicial exception.
Accordingly, claim 1 integrates the abstract idea into a practical
application and, therefore, is not directed to a judicial exception. “If the
recited exception is integrated into a practical application of the exception,
then the claim is eligible at Prong Two of revised Step 2A. This concludes
the eligibility analysis” and, thus, we need not reach step 2B of the
Alice/Mayo inquiry. Guidance, 84 Fed. Reg. 54.
For these reasons, under the Guidance, we do not sustain the patent
eligibility rejection of independent claim 1, as well as the rejection of
dependent claims 3–8, which are rejected for similar reasons.

Written Description Rejection under 35 U.S.C. § 112(a)
The Examiner finds the Specification does not provide adequate
written description support for “wherein the age bit is reset by the switch to
a not set state when a source MAC address of a received packet hits on the
static entry,” as recited in illustrative claim 1. Final Act. 11 (emphasis
omitted). Specifically, the Examiner finds “the specification does not state
that the age bit is reset by the switch to a not set state.” Ans. 17.
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Appellant argues the Specification adequately describes resetting the
switch to a not set state:
As clear to persons skilled in the art from this description, the
claimed “age bit” can either be “set” or “not” set. In particular,
the “age bit” of a static entry is initially set when the static entry
is inserted into the forwarding database. Periodic polling is then
performed to determine if the “age bit” is “still set” as it initially
was or is “not” set, i.e., in a “not set state,” with a change to the
“not” set state occurring when the switch “reset[s]” the “age bit”
in response to a hit on the corresponding “static entry.” Further,
this interpretation comports with the dictionary definition of
“reset” as “set[ting] again or differently.” such as the claimed
resetting of an age bit from an initial “set” state to the different
not set” state when a hit on a static entry occurs, which is also
described in paragraph 0048 the specification, reproduced above.
Appeal Br. 17–18.
We are persuaded. The Federal Circuit guides us to evaluate issues of
written description using the following standard:
In order to satisfy the written description requirement, the
disclosure as originally filed does not have to provide in haec
verba support for the claimed subject matter at issue.
Nonetheless, the disclosure must . . . convey with reasonable
clarity to those skilled in the art that . . . [the inventor] was in
possession of the invention. Put another way, one skilled in the
art, reading the original disclosure, must immediately discern the
limitation at issue in the claims. That inquiry is a factual one and
must be assessed on a case-by-case basis.
Purdue Pharma L.P. v. Faulding Inc., 230 F.3d 1320, 1323 (Fed. Cir. 2000)
(alterations in original) (internal quotation marks and citations omitted).
The Specification essentially discloses toggling an age bit between
two states. Appellant argues these states include a set state and a not set
state. Appeal Br. 17–18. The Specification discloses that the network
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control software polls the forwarding database to determine the state of the
age bit. Spec. ¶¶ 48–50. Even though the Specification does not describe
the “not set” state in haec verba, we agree with Appellant that the “not set
state” would have been conveyed with reasonable clarity to those skilled in
the art. For example, the portion of the Specification cited by Appellant
states that “[t]he network control software may thus poll the forwarding
database to determine whether the age bit is still set or not [set].”
Spec. ¶ 48. Thus, we find persuasive Appellant’s argument that the
Specification discloses toggling an age bit between a set and a not set state
and also supports resetting the age bit to a not set state, as recited in claim 1.
Reply Br. 8–9; Appeal Br. 18. We are, therefore, persuaded an ordinarily
skilled artisan, reading the original disclosure, would have understood the
inventors were in possession of the limitation at issue.
Accordingly, we do not sustain the Examiner’s rejection of claims 1
and 3–8 under 35 U.S.C. § 112(a) as failing to comply with the written
description requirement.

Obviousness Rejection of Claim 1
The Examiner rejects independent claim 1 under 35 U.S.C. § 103 as
unpatentable over the combined teachings of Mmmadi, Shimizu, Lu, and
Padmanabha. Final Act. 14–17. We agree with the rejection and adopt the
Examiner’s findings in the Final Office Action and the Answer as our own.
Of particular relevance, the Examiner relies on the combined teachings of
Mmmadi and Shimizu to teach “inserting, by the network control software, a
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static entry into the forwarding database of the switch,” as recited in claim 1.
Id. at 12.
Appellant argues Shimizu does not “teach the claimed ‘static entry’
being inserted into the database of a switch by ‘network control software’
that is ‘in communication with [the] switch over a network.’” Appeal
Br. 18. (emphasis omitted) “Nor does Shimizu’s disclosure that static
routing entries can be “otherwise statically established” teach the claimed
“inserting, by the network control software [in communication with a switch
over a network], a static entry into the forwarding database of the switch.”
Id. at 19.
The Examiner responds “Mmmadi teaches ‘A computer-implemented
method for network control software in communication with a switch over a
network to invalidate entries in a database of the switch, wherein the
database is a forwarding database.’” Ans. 20; see Final Act 11 (citing
Mmmadi ¶¶ 11, 18, 19, 21, 31, 38). “Appellant never presents any type of
argument regarding Mmmadi and solely attacks Shimizu” and therefore
“Appellant is admitting that Mmmadi teaches . . . ‘network control software
[is] in communication with a switch . . .’ and ‘. . . forwarding database’” as
set forth in the Final Action. Id. at 20–21.
We agree with the Examiner that Appellant’s arguments are
unpersuasive because the rejection relies on the combined teachings of
Mmmadi and Shimizu to teach or suggest the limitation at issue and
Appellant argues Shimizu alone. Therefore, the arguments are not
responsive to the Examiner’s rejection. See Nat’l Steel Car, Ltd. v.
Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1336–37 (Fed. Cir. 2004) (rejecting
argument directed at the wrong reference).
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Appellant presents new arguments in the Reply Brief based on the
combination of Mmmadi and Shimizu. Reply Br. 9–18. We decline to
consider such arguments raised for the first time in the Reply Brief. These
arguments are waived in the absence of a showing of good cause by
Appellant, because the Examiner has not been provided a chance to respond.
See 37 C.F.R. § 41.41(b)(2); In re Hyatt, 211 F.3d 1367, 1373 (Fed. Cir.
2000) (noting that an argument not first raised in the brief to the Board is
waived on appeal); Ex parte Nakashima, 93 USPQ2d 1834, 1837 (BPAI
2010) (informative) (explaining that arguments and evidence not timely
presented in the principal Brief, will not be considered when filed in a Reply
Brief, absent a showing of good cause). Appellant has provided no such
showing of good cause.
Thus, we determine the Examiner has shown that the combination of
Mmmadi and Shimizu teaches or suggests all elements of the limitation at
issue here and that Appellant has not demonstrated error in the Examiner’s
findings.
Claim 1 also recites “setting, by the network control software, an age
bit for the static entry . . . wherein the age bit is reset by the switch to a not
set state when a source MAC address of a received packet hits on the static
entry.” Appeal Br. 33.
The Examiner relies on the combined teachings of Mmmadi, Shimizu,
Lu, and Padmanabha to teach the limitation at issue. Final Act. 12–14. Of
particular relevance, the Examiner finds Shimizu teaches static entries.
Final Act. 12 (citing Shimizu ¶ 19 (“Within routing table module 16, the
routing information may contain static and dynamic entries”), ¶¶ 23–26).
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Appellant argues the cited references do not teach the claimed setting
and resetting because “Lu and Padmanabha at best disclose aging out
‘entr[ies],’ but not aging out the claimed static entry.’ Appellant argues that
the term ‘static entry’ (and its equivalents) does not appear anywhere in Lu
and Padmanabha.” Appeal Br. 21 (emphases omitted). “That is, Lu and
Padmanabha are completely silent as to aging out the claimed ‘static entry.’”
Id. (emphases omitted).
The Examiner responds, “Appellant’s argument is a piecemeal attack
of the Examiner’s obviousness-type rejection” because “Appellant entirely
ignores the Shimizu’s teaching of static entry, as provided on pages 11–14 of
the Final Rejection.” Ans. 34 (emphases omitted).
We agree with the Examiner that Appellant’s arguments are
unpersuasive because the rejection relies on the combined teachings of
Mmmadi, Shimizu, Lu, and Padmanabha to teach the limitation at issue and
Appellant argues only Lu and Padmanabha. Therefore the arguments are not
responsive to the Examiner’s rejection. See Nat’l Steel Car, 357 F.3d at
1336–37).
Next, Appellant argues “Shimizu’s static entry cannot be aged out in
the manner that entries in Lu or addresses in Padmanabha are without a
fundamental change to the principle of operation disclosed in Shimizu.”
Appeal Br. 22 citing In re Ratti, 270 F.2d 810, 813 (CCPA 1959).
The Examiner finds “Appellant merely presents conclusionary
argument that there would be ‘substantial reconstruction’ without supporting
his conclusionary argument with any type evidence.” Ans. 54 (emphasis
omitted). “Additionally, the ‘principle of operation’ as used in In re Ratti
referred to physical constraints that simply are not applicable to software –
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software modules can be slotted into any program and will do what the
modules do.” Id. at 55. (emphasis omitted).
Appellant’s argument that the Examiner’s reliance on the combined
teachings of the references would fundamentally change Shimizu’s principle
of operation is not supported by evidence found in the record and is, instead,
supported only by attorney argument which “cannot take the place of
evidence.” In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). As a result,
Appellant fails to demonstrate why the constraints of In re Ratti would apply
to Appellant’s software.
Next, Appellant argues “[t]he cited references disclose steps
performed by components within a network device (such as a switch) itself
or by a system administrator, rather than the claimed steps performed by
‘network control software in communication with a switch over a network’.”
Appeal Br. 23 (emphases omitted).
This argument is unpersuasive because Appellant does not address the
Examiner’s finding that Mmmadi teaches network control software in
communication with a switch over a network performing comparable steps.
See Final Act 8 (citing Mmmadi ¶¶ 11, 18, 19, 21, 31, 38); Ans. 20.
The Examiner correctly finds that “[t]he supervisory agent 162 in
Mmmadi is equivalent to the network control software in the claim, [and] the
virtual switch 130 in Mmmadi is equivalent to the switch in the claim.”
Ans. 65.
In view of this analysis, we sustain the 35 U.S.C. § 103 rejection of
independent claim 1.
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Obviousness Rejection of Claims 3 and 4
The Examiner relies on the combined teachings of Mmmadi, Shimizu,
Lu, Padmanabha, Curtis, and Brown to teach or suggest “if the first packet
includes a new source MAC address, inserting by the switch into the
forwarding database a new entry which includes the new source MAC
address and a flag which is set to indicate that the network control software
has been notified,” as recited in dependent claim 3. Id. at 14–18.
Appellant argues “the Examiner points to paragraph 0035’s disclosure
that ‘[t]he forwarding logic may also suspend routing any traffic over the
secure port for a brief period while awaiting a response from the virtual
supervisor agent’” but “the suspension of traffic over a port that is taught by
Mmmadi has nothing to do with an indication ‘that network control software
has been notified,’ let alone [the limitation at issue.]” Appeal Br. 27
(emphasis omitted).
The Examiner finds that
Mmmadi discloses that when the virtual switch receives a
frame (or packet) with an address that does not match any of the
addresses in the forwarding table of the virtual switch, the virtual
switch forwards the first frame (or packet) to the virtual
supervisor agent (or network control software) for validation.
The forwarding logic within the virtual switch does not route the
first received frame and suspends the routing of the any
subsequent frame including the address that was in the first frame
for a brief period while awaiting a response from the virtual
supervisor agent (or network control software).
This clearly suggests that the forwarding logic of the
virtual switch has set some sort of indication within itself as [a]
reminder that the supervisor agent (or network control software)
has been notified by the switch to validate the unrecognized
received frame, because the indication enables the forwarding
logic to remember to not route the unrecognized received frame
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(or packet) until the forwarding logic of the virtual switch
receives the response from the virtual supervisor agent.
Ans. 87 (emphasis omitted).
Appellant responds that “the Examiner’s rejection is based merely on
(1) speculation that the ‘forwarding logic of the virtual switch’ in Mmmadi
‘has set some sort of indication within itself as reminder that the supervisor
agent (or network control software) has been notified by the switch to
validate the unrecognized received frame.’” Reply Br. 19–20.
Appellant’s arguments are unpersuasive. We adopt the Examiner’s
findings in the Final Office Action and the Answer as our own. First,
Appellant’s arguments in the Appeal Brief focus on Mmmadi’s paragraph
35, which was not cited by the Examiner to teach the limitation at issue, but
the arguments do not address the Examiner’s actual findings. See Final
Act. 11 (citing Mmmadi ¶¶ 11, 18, 19, 21, 31, and 38). Second, Appellant’s
argument that “the Examiner’s rejection is based merely on (1) speculation”
also fails to specifically address the Examiner’s findings. In the absence of
sufficient rebuttal evidence or argument, the Examiner has set forth
sufficient reasoning and logic to persuade us that one skilled in the art at the
time of the invention would have understood that to suspend routing based
on a request to validate an unrecognized frame, the forwarding logic must
enter a response wait-state indicated by state data reasonably interpreted as a
flag.
Appellant next argues that none of the cited references alone or in
combination teaches a flag as claimed because “[w]hile these references do
disclose various flags (e.g., Brown teaches an ‘age flag,’ a ‘remote cache
refresh flag,’ ‘a type flag,’ and ‘a valid entry indicator flag’), none of those
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flags are described as ‘indicat[ing] that the network control software has
been notified,’ as claimed.” Appeal Br. 28.
This argument is unpersuasive because the Examiner relies on the
combined teachings of the above-identified references including Brown,
rather than Brown alone, to teach “a flag which is set to indicate that the
network control software has been notified,” as claimed. Ans. 86–88. For
example, the Examiner explains “[i]t would have been obvious for one of
ordinary skill in the art, before the effective filing date of the claimed
invention, to modify Mmmadi, Shimizu, Lu, Padmanabha, and Curtis with
Brown to include a flag is for indication, as taught by Padmanabha.”
Ans. 88. Therefore, this argument is not responsive to the Examiner’s
rejection. Nat’l Steel Car, Ltd., 357 F.3d at 1336–37. We sustain the 35
U.S.C. § 103 rejection of dependent claims 3 and 4.
Obviousness Rejections of Claims 5–8
Appellant either separately argues or nominally argues separately
claims 5–8. Appeal Br. 28–31. Appellant’s arguments are unpersuasive.
The Examiner has provided a comprehensive response to Appellant’s
arguments supported by evidence and reasoning. Final Act. 19–21;
Ans. 90–99. As such, we adopt the Examiner’s findings and explanations
and sustain the obviousness rejection of claims 5–8.
In view of all of the above, we sustain the 35 U.S.C. § 103 rejection of
independent claim 1 and of dependent claims 3–8.

Double Patenting Rejection
The Examiner provisionally rejects claims 1 and 3–8 for obviousness-
type double patenting based on claims 9, 11–17, 19, and 20 of U.S. Patent
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Application No. 14/177,409. Final Act. 2–8. Appellant does not address the
merits of this rejection. Appeal Br. 8. Therefore, we summarily sustain the
rejection.

CONCLUSION
We reverse the Examiner’s patent eligibility rejection of claims 1 and
3–8 under 35 U.S.C. § 101.
We reverse the Examiner’s written description rejection of claims 1
and 3–8 under 35 U.S.C. § 112(a).
We affirm the Examiner’s obviousness rejections of claims 1 and 3–8
under 35 U.S.C. § 103.
We affirm the Examiner’s provisional rejection of claims 1 and 3–8
for obviousness-type double patenting.
Because we affirm at least one ground of rejection with respect to
each claim on appeal, we affirm the Examiner’s decision to reject all of the
pending claims.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
1, 3–8 101 Eligibility 1, 3–8
1, 3–8 112(a) Written Description 1, 3–8
1 103 Mmmadi, Shimizu, Lu,
Padmanabha
1
3–5 103 Mmmadi, Shimizu, Lu,
Padmanabha, Curtis,
Brown
3–5
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6 103 Mmmadi, Shimizu, Lu,
Padmanabha, Curtis,
Brown,
Basso ’873
6
7, 8 103 Mmmadi, Shimizu, Lu,
Padmanabha, Curtis,
Brown,
Basso ’663
7, 8
1, 3–8 Obviousness-type
double patenting
1, 3–8
Overall
Outcome
1, 3–8

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED