Nicira, Inc.

Patent Trials and Appeals Board

Aug 27, 2021

2019005596 (P.T.A.B. Aug. 27, 2021)

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.
14/320,581 06/30/2014 Kiran Kumar Thota N162.05 (B839.05) (P0285) 1061
109858 7590 08/27/2021
ADELI LLP
P.O. Box 516
Pacific Palisades, CA 90272
EXAMINER
ALMAMUN, ABDULLAH
ART UNIT PAPER NUMBER
2431
NOTIFICATION DATE DELIVERY MODE
08/27/2021 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):
ipadmin@vmware.com
mail@adelillp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KIRAN KUMAR THOTA, AZEEM FEROZ, and
JAMES C. WIESE
Appeal 2019-005596
Application 14/320,5811
Technology Center 2400
Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and
NABEEL U. KHAN, Administrative Patent Judges.
SAADAT, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
STATEMENT OF THE CASE
Appellant requests rehearing of the June 11, 2021 Decision on Appeal
(“Decision”), wherein we affirmed the rejection of claims 1–11 and 13–20
under 35 U.S.C. § 103. We have reconsidered the Decision in light of
Appellant’s arguments but, for the reasons given below, we are not
persuaded any changes to the Decision are required.

1 Appeal No. 2020-001137 (Application No. 14/815,950) appears to be
related to this appeal , because both applications share the same inventors
and real parties in interest, and are directed to substantially similar
inventions.
Appeal 2019-005596
Application 14/320,581

2
ANALYSIS
A request for rehearing “must state with particularity the points
believed to have been misapprehended or overlooked by the Board.”
37 C.F.R. § 41.52(a)(1). “Arguments not raised, and Evidence not
previously relied upon . . . are not permitted in the request for rehearing
except as permitted by paragraphs (a)(2) through (a)(4).” Id. Permitted new
arguments are limited to: (a) new arguments based upon a recent relevant
decision of either the Board or a Federal Court; (b) new arguments
responding to a new ground of rejection designated pursuant to § 41.50(b);
or (c) new arguments that the Board’s decision contains an undesignated
new ground of rejection. See 37 C.F.R. § 41.52(a)(2)–(4).
Appellant contends the Board erred in affirming the Examiner’s
rejection of claims 1–11 and 13–20 based on Chopra’s encryption key
serving as the claimed “encryption rule,” as recited in independent claim 1,
because the claimed encryption rule specifies a set of header values
identifying a data message flow requiring encryption, whereas Chopra’s
encryption key does not specify any header values. Req. Reh’g. 2, 4.
Appellant further contends the Board erred in affirming the Examiner’s
interpretation of the claimed “encryption rule” and “generating an
encryption rule” in light of the claimed “encryption rule” requiring “a set of
header values identifying a data message flow requiring encryption,” as
recited in claim 1. Id. at 2, 5–6. Appellant additionally contends the Board
ignored the limitation “providing the generated encryption rule to an
encryptor,” as recited in claim 1, in affirming the Examiner’s rejection. Id.
at 2, 6–9.
Appeal 2019-005596
Application 14/320,581

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As a threshold matter, none of Appellant’s arguments state with
particularity points believed to have been misapprehended or overlooked by
the Board. Instead, Appellant’s arguments are either reiterations of
Appellant’s previous arguments on appeal or arguments not previously
raised on appeal. Nevertheless, to the extent Appellant’s arguments can be
considered to meet the standard of 37 C.F.R. § 41.52(a), they do not
persuade us that the Board erred for the reasons provided below.
Regarding Appellant’s argument that Chopra’s encryption key does
not teach or suggest the claimed “encryption rule” because Chopra’s
encryption key does not specify “a set of header values identifying a data
message flow requiring encryption,” as recited in claim 1, this argument is
not persuasive because this argument addresses the references individually
rather than the combination of references. In other words, the Examiner
found Chopra teaches the claimed “dynamically generating an encryption
rule for encrypting data messages” and further found that Dube teaches the
claimed “encryption rule specifying a set of header values identifying a data
message flow requiring encryption.” See Final Act. 6–7 (citing Chopra
¶¶ 36–37; Dube ¶ 12); see also Ans. 4 (citing Chopra ¶¶ 34–36, 40, Fig. 1;
Dube ¶ 12). Appellant does not address Dube in its arguments, and thus,
does not address the Examiner’s findings and the proposed combination of
cited references. One cannot show non-obviousness by attacking references
individually when the rejection is based on a combination of references. See
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re
Keller, 642 F.2d 413, 425 (CCPA 1981).
With respect to Appellant’s argument that the Board erred in its
interpretation of “generating an encryption rule,” this argument is not
Appeal 2019-005596
Application 14/320,581

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persuasive either. Rather than explicitly construing the “generating an
encryption rule” limitation, we indicated that the limitation was broad
enough to encompass Chopra’s disclosure of selecting an encryption policy
rule and applying the selected encryption policy rule to encrypt a payload of
a frame, in light of the absence of a definition for the claimed “generating an
encryption rule” that distinguished the claimed “generating an encryption
rule” from the disclosure of Chopra. Dec. 6. As to Appellant’s argument
that claim 1 itself defines an encryption rule as “specifying a set of header
values identifying a data message flow requiring encryption,” the Examiner
found that Dube teaches the claimed “encryption rule specifying a set of
header values identifying a data message flow requiring encryption,” as
described above. Thus, this argument does not persuasively distinguish the
claims from the combination of cited references.
Further, regarding Appellant’s argument that the Board ignored the
“providing the generated encryption rule to an encryptor” limitation, we are
not persuaded by this argument either. As found by the Examiner, Chopra
teaches this limitation by disclosing that the encryption module invokes an
application programming interface (“API”) exposed by a key management
module to encrypt a frame’s payload using a key associated with a secure
wire. See Final Act. 6 (citing Chopra ¶¶ 40–42). Appellant did not dispute
this finding in the Appeal Brief. See generally Appeal Br. Thus, we did not
expressly address this limitation in our Decision. Rather, we indicated that
we had reviewed the Examiner’s rejection in light of Appellant’s contentions
and the evidence of record, and indicated we agreed with the Examiner’s
findings. Dec. 3.

Appeal 2019-005596
Application 14/320,581

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DECISION
Based on the foregoing, we have granted Appellant’s request to the
extent that we have reconsidered our Decision, but we deny Appellant’s
request to make any changes therein.

Outcome of Decision on Rehearing:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Denied Granted
1–11, 13–
20
103 Chopra, Yung,
Dube
1–11, 13–
20

Final Outcome of Appeal after Rehearing:
Claim(s)
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–11,
13–20
103 Chopra, Yung,
Dube
1–11, 13–20

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).

DENIED