Iosif Gasparakis et al.

Patent Trials and Appeals Board

Dec 2, 2019

14931179 - (D) (P.T.A.B. Dec. 2, 2019)

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.
14/931,179 11/03/2015 Iosif Gasparakis P45798C 9344
96162 7590 12/02/2019
Law Office of R. Alan Burnett, PS
c/o CPA Global
900 Second Avenue South, Suite 600
Minneapolis, MN 55402
EXAMINER
DEWAN, SANJAY K
ART UNIT PAPER NUMBER
2463
NOTIFICATION DATE DELIVERY MODE
12/02/2019 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):
alan@patentlylegal.com
docketing@cpaglobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte IOSIF GASPARAKIS, PETER P. WASKIEWICZ, JR., and
PATRICK CONNOR
Appeal 2018-007395
Application 14/931,179
Technology Center 2400
Before MAHSHID D. SAADAT, ALLEN R. MACDONALD, AND
NABEEL U. KHAN, Administrative Patent Judges.
MacDONALD, 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 1–13. Claims 14–23 were allowed by
the Examiner. 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 Intel Corporation.
Appeal Br. 3.
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Application 14/931,179

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CLAIMED SUBJECT MATTER
Claim 1 is illustrative of the claimed subject matter (emphasis,
formatting, and bracketed material added):
1. A method implemented within a computer system having at
least one host processor and having first and second
Network Interface Controller (NIC) ports
communicatively coupled to a physical network external
to the computer system, the method comprising:
[A.] receiving a Media Access Channel (MAC) frame at
the first NIC port;
[B.] determining the MAC frame is to be forwarded to
the second NIC port; and
[C.] effecting forwarding of the MAC frame from the
first NIC port to the second NIC port by moving
or copying data corresponding to the MAC frame
from a first queue associated with the first NIC
port to a second queue associated with the second
NIC port using a hardware-based forwarding
mechanism.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
McGee US 2008/0205402 A1 Aug. 28, 2008
Foltan US 6,667,972 B1 Dec. 23, 2003
Kinsey US 2006/0209718 A1 Sept. 21, 2006
Oshins US 2010/0250868 A1 Sept. 30, 2010

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REJECTION
A.
The Examiner rejects claims 1–10, 12, and 13 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of McGee, Foltan, and
Kinsey. Final Act. 4–9.
Appellant separately argues claim 1. Appellant does not present
separate arguments for claims 2–10, 12, and 13. Thus, the rejections of
these claims turn on our decisions as to claim 1. Except for our ultimate
decision, we do not discuss the § 103(a) rejection of claims 2–10, 12, and 13
further herein.
B.
The Examiner rejects claim 11 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of McGee, Foltan, Kinsey, and Oshins.
Final Act. 9–11.
Appellant does not present arguments for claim 11. Thus, the
rejection of this claim turns on our decision as to claim 1. Except for our
ultimate decision, we do not discuss the § 103(a) rejections of claim 11
further herein.
OPINION
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred.
A.
Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a).
[Claim 1 recites],
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receiving a Media Access Channel (MAC) frame
at the first NIC port;
determining the MAC frame is to be forwarded to
the second NIC port;
This situation would never occur under McGee. MAC
frames are received from Clients A, B, C, and D, which are
connected to switch 302. If a MAC frame is to be sent to
VLAN1, the MAC Destination Address will be E. Switch 302,
which is a Layer 2 switch (MAC Layer switch), will look at the
DA = E and forward the MAC frame to port 282 of NIC NI
(260). If a MAC frame is to be sent to VLAN2, the MAC
Destination Address will be F, and switch 302 will look at the
DA = F and forward the MAC frame to port 284 of NIC N2
(262). [There] will never be an instance where a MAC frame
will be received at a first NIC port, followed by a
determination that it is to be forwarded to a second NIC port.
Rather, the destination VLAN (VLAN1 or VLAN2) will be
accessed via the NIC port that is associated with that VLAN, by
means of the DA for that VLAN.
The MAC frame can also originate from VLAN1 and be
destined for VLAN2, or originate from VLAN2 and be destined
for VLAN1. In the first case, the MAC DA will be F (VLAN2),
and the forwarding . . .will be from VLAN1 to NIC Driver D1,
to NIC 1 port 282, to switch 302, to NIC 2 port 284, to NIC
Driver D2, to VLAN2. The reverse of this forwarding path
would be used for a MAC frame originating from VLAN2 and
destined for VLAN1. In both cases, the forwarding path will be
via switch 302.
There is absolutely no disclosure in McGee concerning,
receiving a Media Access Channel (MAC) frame
at the first NIC port;
determining the MAC frame is to be forwarded to
the second NIC port;
[Further,] the architecture disclosed in McGee has no means
for facilitating the second operation.
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Appeal Br. 21–22 (Appellant’s emphasis omitted; panel’s emphasis added);
see also Reply Br. 14–15.
We are not persuaded the Examiner erred. McGee discloses a
computer system 100 that teams its network resource ports on a per virtual
network basis. See McGee at Abstract. The computer system 100 is
configured with four Network Interface Controllers (NICs), NIC N1 260,
NIC N2 262, NIC N3 264, and NIC N4 266, where the four NICs
respectively provide NIC ports 282, 284, 286, and 288. Id. ¶ 58. A virtual
network VLAN1 308a is configured to use NIC N1 260 as its primary port
282, with NICs N2 262, N3 264 and N4 266 respectively providing
secondary ports 284, 286 and 288 in the event that port 282 of NIC N1 260
fails. Id. ¶ 67. Likewise, virtual network VLAN2 308b is configured to use
NIC N2 262 as its primary port 284, with NICs N1 260, N3 264 and N4 266
respectively acting as secondary ports 282, 286 and 288 for fault tolerance.
Id. Figure 3 of McGee is reproduced below.
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The traffic flow for the two virtual networks is illustrated in Figure 3
of McGee.
The Examiner found that McGee’s disclosure of ports 282 and 284
(i.e., NIC N1 260 and NIC N2 262), as well as the corresponding traffic
flow, teaches or suggests “receiving a Media Access Channel (MAC) frame
at the first NIC port,” and “determining the MAC frame is to be forwarded
to the second NIC port.” See Final Act. 4; see also Ans. 4. We are not
persuaded of error in the Examiner’s finding. As conceded by Appellant,
McGee discloses a traffic flow of a MAC frame where VLAN1 308a
transmits a frame to switch 302 via port 282 (i.e., NIC N1 260), where the
frame is subsequently forwarded to port 284 (i.e., NIC N2 262), and where
the frame is subsequently sent to VLAN2 308b. See McGee ¶ 67, Fig. 3C;
see also Appeal Br. 22. Appellant’s argument that the forwarding path is via
switch 302 (see Appeal Br. 22) does not persuade us that McGee fails to
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teach or suggest the aforementioned limitations of claim 1. This is because
the claims do not require the determination that the MAC frame is to be
forwarded to a second NIC port to immediately occur after the reception of
the MAC frame at a first NIC port. Instead, the claim only requires that the
aforementioned reception and determination operations occur. Because
McGee discloses the reception of a MAC frame from VLAN1 308a at port
282 and a determination the MAC frame is to be forwarded to port 284 that
is associated with VLAN2 308b, McGee discloses the occurrences of both
the aforementioned reception and determination operations. Thus, McGee
teaches or suggests the aforementioned limitations, notwithstanding the fact
McGee also discloses an additional operation of forwarding the MAC frame
via switch 302.
B.
Appellant also raises the following arguments in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a).
Kinsey clearly does not disclose a hardware-based
forwarding mechanism. Rather, Kinsey discloses quite the
opposite - a software-based forwarding mechanism. Under
Kinsey, a MAC frame would be received by the physical NIC
1, deframed, and the packet itself (not the MAC frame) would
be buffered on the NIC. A copy of the packet would then be
written to a software buffer implemented for switch 92. If the
packet was to be forwarded out of physical NIC 2, the packet
would be added to a MAC frame by switch 92 (which is
configured to implement OSI Layer 2 (the MAC layer)
operations, such as MAC framing), and then the MAC frame
would be copied to physical NIC 2. This is clearly a software-
based forwarding mechanism, as would be recognized by a
PHOSITA.
Appeal Br. 27 (Appellant’s emphasis omitted; panel’s emphasis added); see
also Reply Br. 25–26.
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Applicant reasserts the Kinsey does not disclose a
hardware-based forwarding mechanism, as the terminology
would be recognized by a person having ordinary skill in the art
(PHOSITA). Under the Examiner’s overly broad interpretation
of “hardware-based,” a software-based forwarding mechanism
that is executed on hardware constitutes a hardware-based
forwarding mechanism. Applicant respectfully asserts it does
not, and that a PHOSITA would not consider Kinsey to teach a
hardware-based forwarding mechanism.
Reply Br. 17 (emphasis added).
These arguments are also not persuasive of Examiner error. Kinsey
describes a host computer system that includes a virtualizer program that
allows the host computer system to emulate the instructions of an unrelated
computer system, identified as a guest computer system. See Kinsey ¶ 46,
48. The guest computer system is identified as a virtual machine as the
guest computer system only exists in the host computer system as a pure
software representation of the operation of the specific hardware
architecture. Id. ¶ 48. Such emulation is identified as processor emulation,
and processor emulation enables a guest operating system to execute on a
virtual machine created by a virtualizer running on a host computer system
comprising both physical hardware and a host operating system. Id. ¶ 52.
Thus, in a computer system 50, an emulation program 54 runs directly or
indirectly on a physical hardware architecture 52. Id. ¶ 55. Figure 2A of
Kinsey is reproduced below.
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The logical layering of hardware and software architecture for an
emulated operating environment in a computer system is shown in Figure
2A of Kinsey.
The Examiner found the combination of McGee and Foltan teaches or
suggests “effecting forwarding of the MAC frame from the first NIC port to
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the second NIC port by moving or copying data corresponding to the MAC
frame from a first queue associated with the first NIC port to a second queue
associated with the second NIC port,” and further found Kinsey teaches or
suggests “using a hardware-based forwarding mechanism.” See Final Act.
4–6; see also Ans. 4–6. Despite Appellant’s contention that the Examiner’s
interpretation of “hardware-based forwarding mechanism” is unreasonably
broad (see Reply Br. 17), we are not persuaded of error in the Examiner’s
finding.
A claim under examination is given its broadest reasonable
interpretation consistent with the underlying specification. See In re Am.
Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Though
understanding the claim language may be aided by the explanations
contained in the written description, it is important not to import into a claim
limitations that are not a part of the claim. See SuperGuide Corp. v.
DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). We conclude the
Examiner’s interpretation of “hardware-based forwarding mechanism” as a
computer system including a software application that is executed on a
physical hardware architecture is reasonable in light of Appellant’s claims
and Specification. More specifically, although Appellant’s Specification
discloses that in embodiments of the invention, “hardware-based forwarding
of data . . . is facilitated in a manner that does not involve external network
switching or CPU processing resources” (Spec. ¶ 24), such a limitation is not
recited in the claims. As Kinsey discloses computer system 50 including a
software application 60 executed on a physical hardware architecture 52 (see
Kinsey ¶ 55, Fig. 2), we agree with the Examiner that Kinsey teaches or
suggests “a hardware-based forwarding mechanism,” as recited in claim 1.
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C.
Appellant further raises the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a).
The Examiner provides insufficient evidence to how McGee,
Foltan, and Kinsey would be combined to obtain the claimed
invention of claim 1.
Rather, the Examiner simply states,
It would have been obvious to a person having
ordinary skill in the art to be motivated to combine
the teachings of McGee and Foltan with that of
Kinsey so that effecting forwarding would be
achieved through hardware-based forwarding
mechanism. The motivation to combine the
teachings of Kinsey would achieve effecting
forwarding through hardware-based forwarding
mechanism. (Kinsey, Figs. 2A-2C)
In the rejection of claim 1, what the Examiner has done is to
identify references that allegedly teach (through the
combination) all of the claim elements, and then assert that a
PHOSITA would have been able to combine the teachings
without identifying sufficient evidence to how the teachings
would be combined, why the PHOSITA would be motivated to
do so, nor why the PHOSITA would have a reasonable
expectation of success in doing so.
Appeal Br. 32–33 (emphasis added); see also Reply Br. 28–29.
We are not persuaded the Examiner erred. The Examiner found that
the motivation to combine the teachings of Kinsey with the teachings of
McGee and Foltan would be to achieve the benefits of the hardware-based
forwarding mechanism disclosed in Kinsey. See Final Act. 5–6; see also
Ans. 5–6, 8–9. Kinsey discloses that the benefits to Kinsey’s computer
system is to minimize packet framing overhead by offloading the framing of
a packet to hardware so as to avoid unnecessary processor costs. See e.g.,
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Kinsey ¶¶ 1, 5, 9, 13, 17, 39, 62, Abstract. Thus, we conclude the
motivation to combine the references is found within the disclosure of
Kinsey, and we are not persuaded of error with respect to the Examiner’s
finding regarding the motivation to combine Kinsey with McGee and Foltan.
CONCLUSION
The Examiner has not erred in rejecting claims 1–13 as being
unpatentable under 35 U.S.C. § 103(a).
The Examiner’s rejections of claims 1–13 as being unpatentable under
35 U.S.C. § 103(a) is affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1–10, 12, 13 103(a) McGee, Foltan,
Kinsey
1–10, 12, 13
11 103(a) McGee, Foltan,
Kinsey, Oshins
11
Overall
Outcome
1–13

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