Ex Parte 7,716,370 B1 et alDownload PDFPatent Trial and Appeal BoardSep 4, 201490011773 (P.T.A.B. Sep. 4, 2014) Copy Citation 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. 90/011,773 06/27/2011 7,716,370 B1 11517.0021-00000 3204 87916 7590 09/05/2014 2nd Reexam Group - Novak Druce + Quigg LLP 1000 Louisiana Street Fifty-Third Floor Houston, TX 77002 EXAMINER CAMPBELL, JOSHUA D ART UNIT PAPER NUMBER 3992 MAIL DATE DELIVERY MODE 09/05/2014 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 BROCADE COMMUNICATIONS SYSTEMS, INC. ______________ Appeal 2013-010933 1 Reexamination Control No. 90/011,773 Patent 7,716,370 B1 2 Technology Center 3900 ______________ Before JOHN C. MARTIN, JAMES T. MOORE, and STANLEY M. WEINBERG, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(b) from the Examiner’s rejection of original claims 1, 10, 18, 27, and 32. Final Office Action (hereinafter “Final Action”), mailed June 27, 2012, at 3, paras. 7-8. 1 This is a Decision on Appeal in four related reexamination appeals, in which all of the Decisions on Appeal are being mailed concurrently. The other three appeals are 2014-001671, 2014-002493, and 2014-006002. The decision in Appeal 2014-001671 is the principal decision. 2 This patent (hereinafter “’370 patent”) issued on May 11, 2010, based on Application 11/657,981, filed January 24, 2007, as a divisional of Application 10/273,657, filed October 18, 2002 (now Patent 7,647,427; hereinafter “’427 patent”). Appeal 2013-010933 Reexamination Control 90/001,773 Patent 7,716,370 B1 2 Claims 1, 10, 18, and 27 constitute all of the independent claims of the ’370 patent. We have jurisdiction under 35 U.S.C. §§ 6(b) and 306. We AFFIRM. I. STATEMENT OF THE CASE A. The Related Reexamination Proceedings and Litigation This ex parte reexamination proceeding is one of four related reexamination proceedings that are the subjects of the pending PTAB appeals identified in the following table and referred to hereinafter as the ’671 Ex Parte Appeal, ’493 Inter Partes Appeal, ’933 Ex Parte Appeal, and ’002 Inter Partes Appeal: Patent No. 7,647,427 B1 (parent) 7,716,370 B1 (divisional) Ex parte reexamination No. Appeal No. 90/011,775 2014-001671 90/011,773 2013-010933 Inter partes reexamination No. Appeal No. 95/001,803 2014-002493 95/001,805 2014-006002 The related litigation and Appellant’s unsuccessful petitions to terminate the inter partes reexamination proceedings based on a final decision in the litigation are described in section I.A (at pages 2-5) of the Decision on Appeal in the ’671 Ex Parte Appeal (hereinafter “’671 Ex Parte Appeal Decision”). As also explained therein, we are addressing the Appeal 2013-010933 Reexamination Control 90/001,773 Patent 7,716,370 B1 3 principal issues in the four appeals as follows in only the two decisions that involve the parent ’427 patent: 1. The ’671 Ex Parte Appeal Decision: (a) Whether Biswas 3 and Zwieback 4 have been antedated by the evidence submitted under 37 C.F.R. § 1.131. (b) The rejection of independent claims 1 and 8 for anticipation by Biswas. 2. The ’493 Inter Partes Appeal Decision: (a) The rejection of dependent claims 9 and 10 for obviousness over Biswas in view of Nair. 5 (b) The rejection of independent claims 1 and 8 for anticipation by Hunt. 6 (c) The rejection of dependent claims 4-6, 9, and 10 for obviousness over Hunt as in view of Nair. 3 Biswas, et al., US 7,227,872 B1, issued on June 5, 2007, based on Application 10/235,523, filed on September 4, 2002, as a divisional of Application 10/187,168, filed on June 28, 2002. 4 Dave Zwieback, high availability firewall/VPN with VRRP, 8 ;login: The Magazine of Usenix & Sage 41-46 (Dec. 2001). 5 Nair, et al., US 6,337,863 B1, issued on January 8, 2002. 6 Guerney D.H. Hunt, et al., Network Dispatcher: a connection router for scalable Internet services, 30 Computer Networks and ISDN Systems 347- 57 (1998). Appeal 2013-010933 Reexamination Control 90/001,773 Patent 7,716,370 B1 4 The ’671 Ex Parte Appeal Decision is hereby are incorporated by reference in this Decision on Appeal. B. The Claims on Appeal Claim 1, which is representative of the independent claims of the ’370 patent, reads as follows: 1. A method in a first network device, the method comprising: associating to said first network device a base address corresponding to a first pool of first addresses that are not owned by said first network device; while said first network device does not said own said first pool of first addresses, performing network address translation (NAT), by said first network device, for a second pool of second addresses; detecting, by said first network device, a failure of a second network device; and asserting ownership, by said first network device, of a plurality of said first addresses of said first pool corresponding to said base address, in response to detection by said first network device of said failure. ’370 patent col. 9. 7 7 The claims as reproduced in the Claim Appendix (Appeal Br. 25-26) lack the paragraph structure employed in the patent. Appeal 2013-010933 Reexamination Control 90/001,773 Patent 7,716,370 B1 5 As explained below, Appellant’s arguments against the rejection for anticipation of claim 1 by Biswas are based on the second paragraph of claim 1, which is similar to third paragraph of claim 1 of the ’427 patent. That paragraph in claim 1 of the ’427 patent reads as follows: perform network address translation (NAT) and routing, by said back-up device, for a second pool of second addresses while said master device is active; ’427 patent col. 9. C. The Rejections Claims 1, 10, 18, 27, and 32 stand rejected under 35 U.S.C. § 102(e) for anticipation by Biswas. 8 Final Action 3, paras. 7-8. Claims 27 and 32 stand rejected under 35 U.S.C. § 103(a) for obviousness over Biswas in view of Zwieback. Id. at 3, para. 8. II. DISCUSSION A. Neither of Biswas And Zwieback Has Been Antedated (Appeal Br. 9-18 secs. IV.C-F) For the reasons given in section II.A (at pages 19-46) of the ’671 Ex Parte Appeal Decision, the evidence submitted under 37 C.F.R. § 1.131 is insufficient to antedate either of Biswas and Zwieback. 8 Biswas, et al., US 7,227,872 B1, issued on June 5, 200, based on Application 10/235,523, filed September 4, 2002, as a divisional of (Continued on next page.) Appeal 2013-010933 Reexamination Control 90/001,773 Patent 7,716,370 B1 6 B. Anticipation by Biswas (Claims 1, 10, 18, 27, and 32) (Appeal Br. 18-21 sec. IV.G) Appellant in discussing this ground of rejection argues independent claims 1, 10, 18, and 27 as a group. Appeal Br. 19-22. We elect to limit our analysis of the independent claims to claim 1. 37 C.F.R. § 41.37(c)(1)(iv). Furthermore, Appellant treats dependent claim 32 as standing or falling with parent claim 27. Appeal Br. 22. Biswas is described in section II.B (at pages 46-58) of the ’671 Ex Parte Appeal Decision. Figure 5 of Biswas, on which the anticipation rejection specifically is based, is reproduced below. Application 10/187,168, filed June 28, 2002. Appeal 2013-010933 Reexamination Control 90/001,773 Patent 7,716,370 B1 7 Figure 5 shows an embodiment of a private network 500 that can be configured to provide asymmetric traffic flow for both egress-to-ingress packets and ingress-to-egress packets. Biswas 10:48-51. As shown in this figure, the private network 500 includes a plurality of peer NAT routing devices 504a-c, each of which is configured to take over the functionality of one or more of the other peer NAT routers in case of failovers or for other reasons. Id. at 10:51-55. Appellant contends that Biswas fails to satisfy claim 1’s second paragraph because “Biswas does not disclose performing network address translation (NAT) and routing, by said back-up device, for a second pool of second addresses while said master device is active” (Appeal Br. 23) (bolding and underlining omitted), which is the same contention that Appellant has directed at the third paragraph of claim 1 of the ’427 patent in the ’671 Ex Parte Appeal (at Appeal Br. 20). Appellant (Appeal Br. 19-22; Reply Br. 7-9) relies on the same arguments that were made regarding a similar limitation in the ’671 Ex Parte Appeal (Appeal Brief 20-23; Reply Br. 7-9). These arguments are unpersuasive for the reasons given in the ’671 Ex Parte Appeal Decision at section II.B, pages 55-57. The rejection of claims 1, 10, 18, 27, and 32 for anticipation therefore is sustained. Appeal 2013-010933 Reexamination Control 90/001,773 Patent 7,716,370 B1 8 C. Obviousness over Biswas and Zwieback (Claims 27 and 32) (Appeal Br. 22-23 sec. IV.H) Because we have sustained the rejection of claims 27 and 32 for anticipation by Biswas, we also sustain the rejection of these claims for obviousness over Biswas in view of Zwieback. Anticipation is the epitome of obviousness. In re McDaniel, 293 F.3d 1379, 1385 (Fed. Cir. 2002). Thus, Zwieback is cumulative to Biswas in this ground of rejection. III. SUMMARY 1. The rejection of claims 1, 10, 18, 27, and 32 under 35 U.S.C. § 102(e) for anticipation by Biswas is sustained. 2. The rejection of claims 27 and 32 under 35 U.S.C. § 103(a) for obviousness over Biswas in view of Zwieback is sustained. IV. DECISION The Examiner’s decision that claims 1, 10, 18, 27, and 32 are unpatentable over the prior art is affirmed. AFFIRMED Appeal 2013-010933 Reexamination Control 90/001,773 Patent 7,716,370 B1 9 Ack For Appellant/Patent Owner: 2nd Reexam Group - Novak Druce + Quigg LLP 1000 Louisiana Street Fifty-Third Floor Houston TX 77002 For Third Party Requester: Finnegan Henderson Farabow Garrett & Dunner LLP 901 New York Avenue, N.W. Washington, DC 20001-4413 Copy with citationCopy as parenthetical citation