Ex Parte Brahim

Patent Trial and Appeal BoardSep 26, 2012

10326121 (P.T.A.B. Sep. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte HAMID OULD BRAHIM ________________ Appeal 2010-005788 Application 10/326,121 Technology Center 2400 ________________ Before DEBRA K. STEPHENS, DAVID M. KOHUT, and JOHN G. NEW, Administrative Patent Judges. NEW, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005788 Application 10/326,121 2 SUMMARY Appellant files this appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-20 as unpatentable under 35 U.S.C. § 102(e) as being anticipated by Chang et al. (US 2002/0141408 A1, October 3, 2002) (“Chang”). Appellant also appeals the Examiner’s final rejection of claims 21-23 as unpatentable under 35 U.S.C. § 103(a) as being obvious over Chang and Kirk et al. (US 2003/0115361 A1, June 19, 2003) (“Kirk”). We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellant’s invention is directed to a technique for implementing an optical virtual private network. Abstract. Because the Examiner rejects independent claims 1, 10, and 18 for substantially the same reasons, we select claim 1 as representative. Claim 1 recites: 1. A method for implementing an optical virtual private network, the method comprising the steps of: providing at least one client edge-optical virtual private network at a client edge; supporting a set of at least one client edge-users at the at least one client edge-optical virtual private network at the client edge, wherein the client edge provides at least one optical virtual private network service to each client edge-user and determines connectivity between each client edge-user; and establishing the connectivity determined by the client edge. App. Br. 32. Appeal 2010-005788 Application 10/326,121 3 Dependent claims 21-23 are rejected by the Examiner as unpatentable under 3 U.S.C. §103(a) as being obvious over Chang and Kirk. Because the Examiner rejects these claims for substantially the same reason, we select claim 21 as representative of this group. Claim 21 recites: 21. The method of claim 1, wherein establishing the connectivity determined by the client edge comprises a service provider establishes the connectivity determined by the client edge. App. Br. 38. ISSUES Claim 1 Issue 1: Whether Chang teaches the limitation of claim 1 reciting “providing at least one client edge-optical virtual private network at a client edge.” Appellant argues that the Examiner erred in rejecting claim 1 as unpatentable under 35 U.S.C. § 102(e) as being anticipated by Chang. App. Br. 6. Specifically, Appellant contends that the Examiner erred because Chang discloses only a location of network 132 on “a national-scale, transparent WDM-based backbone network with full interoperability and reconfigurability.” App. Br. 8 (citing Figure 1). Moreover, contends Appellant, Chang also teaches a network 500 for communicating packets among end-users in certain large cities in the United States. App. Br. 8 (citing Figure 5). Therefore, Appellant argues, Chang fails to teach the limitation of claim 1 reciting “providing at least one client edge-optical virtual private network at a client edge.” We are thus presented with the issue of whether the Examiner erred in finding that Chang discloses the Appeal 2010-005788 Application 10/326,121 4 limitation of claim 1 reciting “providing at least one client edge-optical virtual private network at a client edge.” Issue 2: Whether Chang teaches the limitation of claim 1 reciting “determines connectivity between each client edge-user.” Appellant also argues that the Examiner erred because Chang teaches only a centralized network control and management (“NC&M”) 220 to determine connections for establishing links within a network, and establish input and output ports for each network element. App. Br. 9. Appellant contends that Chang further discloses a Wavelength Division Multiplexing (“WDM”) network that employs WDM label-switching and thus enables highly efficient routing and throughput, and reduces the number of IP-level hops required by keeping the packets routing at the optical level to one hop as managed by the centralized NC&M which creates and maintains routing information. Id. Consequently, argues the Appellant, Chang does not disclose the limitation of claim 1 reciting “determines connectivity between each client edge-user.” Id. We are thus presented with the issue of whether Chang teaches or discloses the limitation of claim 1 reciting “determines connectivity between each client edge-user.” ANALYSIS Claim 1 Issue 1 The Examiner answers that Appellant defines an optical virtual private network as “a client private network with a set of sites connected through a service provider.” Ans. 8 (quoting Specification, p.7, ll. 24-26). Appeal 2010-005788 Application 10/326,121 5 The Examiner finds that Chang discloses a virtual private network connected through a service provider with edge clients. Ans. 8. (citing Fig. 39; nodes 4, 7, 8 & 6). We are not persuaded by Appellant’s argument. Fig. 39 of Chang explicitly teaches the realization of an optical virtual private network (VPN) with a concomitant method of carrying out communications over the VPN. (Chang, ¶ [0240]). We find that this reads directly on the language of the claim 1 reciting “a client private network with a set of sites connected through a service provider.” We therefore find that the Examiner did not err in finding that the limitation reciting “providing at least one client edge- optical virtual private network at a client edge” is anticipated by Chang. Issue 2 The Examiner answers that the language of claim 1 does not preclude that the determining of connectivity between client edge-users is done exclusively through the client edge. Ans. 8. The Examiner finds that Chang does read on the limitation, because Chang discloses the use of a NC&M along with other internal data (i.e. preferred path with minimized cost, based on total propagation distance, number of hops and the traffic load) to establish input and output ports for each network element Ans. 8-9 (citing Chang, ¶¶ [0105]-[0106]). The Examiner finds that, for Chang’s invention to do this it would have to be able to determine the connectivity between each of the edge clients. Ans. 9. Furthermore, the Examiner notes that the Appellant states that an exemplary client edge device may be a router. Ans. 9. The Examiner finds that Chang discloses routers and dynamic routing algorithms based on Appeal 2010-005788 Application 10/326,121 6 minimized costs, total propagation distance, number of hops and the traffic load. Ans. 9. The Examiner finds that for the invention disclosed by Chang to be functional, the routers (as disclosed in Chang) would have to be able to determine connectivity between each edge client (citing Chang, ¶¶ [0105]-[0122]). We are persuaded by the Examiner’s reasoning and adopt it as our own. We agree with the Examiner’s finding that the language of claim 1 does not preclude that the determining of connectivity between client edge- users is done exclusively through the client edge, and that Chang discloses means by which connectivity between each client edge-user is determined. Ans. 8-9. We therefore conclude that the Examiner did not err in finding that Chang teaches the limitation of claim 1 reciting “determines connectivity between each client edge-user.” Claims 2, 11, and 19 Claims 2, 11, and 19 depend from claims 1, 10, and 18, respectively. Appellant contends that these claims are each separately patentable because Chang does not disclose or suggest the limitation of all three claims reciting “implementing a discovery mechanism for determining a client edge set having at least one client edge-user associated with a client edge-optical virtual private network.” App. Br. 10-11. As such, Appellantis merely restating what the claim requires and arguing that the reference fails to teach or suggest these requirements. App. Br. 10-11. See 37 C.F.R. § 41.37(c)(1)(vii) (“A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.”); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold Appeal 2010-005788 Application 10/326,121 7 that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Even so, the Examiner answers that Chang discloses the use of “plug- and-play modules” with certain network elements to efficiently handle bursty traffic. Ans. 9. The Examiner finds that plug-and-play modules inherently have a discovery mechanism so that once the device/element is plugged into the network it is announced to all other devices/elements within the network. Consequently, the Examiner finds that Chang does not disclose the limitation of claims 2, 11, and 19 reciting “implementing a discovery mechanism for determining a client edge set having at least one client edge-user associated with a client edge-optical virtual private network.” We agree with the Examiner’s reasoning and adopt it as our own (cite). Chang teaches the use of plug and play elements and such modules have a discovery mechanism so that once the device/element is plugged into the network it is announced to all other devices/elements within the network. See Chang, ¶¶ [0008], [0107]. We therefore conclude that the Examiner did not err in finding that Chang teaches the limitation of claim 2, 11, and 19 reciting “implementing a discovery mechanism for determining a client edge set having at least one client edge-user associated with a client edge-optical virtual private network.” Appeal 2010-005788 Application 10/326,121 8 Claims 3, 12, and 20 Claims 3, 12, and 20 depend from claims 2, 11, and 19, respectively. Appellant contends that these claims are each separately patentable because Chang does not disclose or suggest the limitation of all three claims reciting “enabling a first client edge-user to request a connection with a second client edge-user wherein the first client edge-user and the second client edge-user are associated with the same client edge-optical virtual private network.” Ans. 11, 18, and 24-25. Again, Appellant is merely restating the claim and arguing that the references do not teach the claimed limitations and as such will not be treated as an argument for separate patentability. Even so, the Examiner answers (referring to the points made in the answers supra) that Chang's disclosure of a minimizing the time wasted in requesting connection times and actually achieving the connections, along (citing ¶ [0007]) with setting up and maintaining of connections over the network (citing Chang, in fig. 5, 500) in order to communicate packets among end-users, reads on the disputed limitations of the claims. Ans. 9. Furthermore, the Examiner finds that the very field of Chang’s invention is to configure a virtual optical private network. Id. (citing Chang, ¶ [0002]). We agree with the Examiner’s reasoning and adopt it as our own. We therefore conclude that the Examiner did not err in finding that Chang teaches the limitation of claim 3, 12, and 20 reciting “enabling a first client edge-user to request a connection with a second client edge-user wherein the first client edge-user and the second client edge-user are associated with the same client edge-optical virtual private network.” Appeal 2010-005788 Application 10/326,121 9 Claims 4 and 13 Claims 4 and 13 depend from claims 3 and 12, respectively. Appellant asserts that these claims are each separately patentable because Chang does not disclose or suggest the limitation of the claims reciting “wherein the connection between the first client edge-user and the second client edge-user is established without intervention from a third party.” Ans. 10-11. Again, Appellant is merely restating the claim and arguing that the references do not teach the claimed limitations and as such will not be treated as an argument for separate patentability. Even so, the Examiner answers that the Appellant claims broadly and as such the Examiner may therefore interpret the claims broadly. Ans. 10. The Examiner finds that the constituent parts that make up a connection between end points/users (i.e. routers, gateways etc.) are in fact a part of the same connection, therefore the Examiner asserts that the two end-users making a connection (i.e. via network in fig. 5) are doing so between themselves and not a third party. Ans. 10-11. We are persuaded by the Examiner’s reasoning and adopt it as our own (cite). We therefore conclude that the Examiner did not err in finding that Chang teaches the limitation of claim 4 and 13 reciting “wherein the connection between the first client edge-user and the second client edge- user is established without intervention from a third party.” Claims 5 and 14 Claims 5 and 14 depend from claims 1 and 10, respectively. Appellant asserts that these claims are each separately patentable because Chang does not disclose or suggest the limitation of the claims reciting Appeal 2010-005788 Application 10/326,121 10 “wherein membership information associated with one or more client edge- users is provided a third party, wherein the membership information comprises one of a virtual private network identifier and a global unique identifier.” App. Br. 12. Again, Appellant is merely restating the claim and arguing that the references do not teach the claimed limitations and as such will not be treated as an argument for separate patentability. Even so, the Examiner answers that Chang's disclosure of a local routing table and local addressing schema (citing Chang, ¶¶ [0009] and [0047]) does in fact correlate to the membership information of a virtual private network identifier and that the global information and global routing tables (citing Chang, ¶ [0120]) correlate to the global unique identifier. Ans. 10. We are persuaded by the Examiner’s reasoning and adopt it as our own (cite). We therefore conclude that the Examiner did not err in finding that Chang teaches the limitation of claim 5 and 14 reciting “wherein membership information associated with one or more client edge-users is provided a third party, wherein the membership information comprises one of a virtual private network identifier and a global unique identifier.” Claims 6 and 15 Claims 6 and 15 depend from claims 1 and 10, respectively. Appellant asserts that these claims are each separately patentable because Chang does not disclose or suggest the limitation of the claims reciting “wherein the client edge uses a private address to request connectivity to a destination client edge.” App. Br. 12-13 and 19-20. Again, Appellant is merely restating the claim and arguing that the references do not teach the Appeal 2010-005788 Application 10/326,121 11 claimed limitations and as such will not be treated as an argument for separate patentability. Even so, the Examiner answers (referring to his Answer with respect to claims 6 and 15) that Chang’s disclosure of a local routing table and local addressing schema does in fact read on this limitation. Ans. 10. We are persuaded by the Examiner’s reasoning and adopt it as our own (cite). We therefore conclude that the Examiner did not err in finding that Chang teaches the limitation of claim 6 and 15 reciting “wherein the client edge uses a private address to request connectivity to a destination client edge.” Claims 7 and 16 Claims 7 and 16 depend from claims 1 and 10, respectively. Appellant contends that these claims are each separately patentable because Chang does not disclose or suggest the limitation of the claims reciting “wherein a connection with the client edge from a network associated with a third party is established via a transport network assigned address.” App. Br. 13 and 20. Again, Appellant is merely restating the claim and arguing that the references do not teach the claimed limitations and as such will not be treated as an argument for separate patentability. Even so, the Examiner answers (referring to his Answer with respect to claims 6 and 15) that Chang’s disclosure of local and global routing tables (i.e. an addressing schema) does in fact read on the network assigned address limitation. Ans. 10. We are persuaded by the Examiner’s reasoning and adopt it as our own (cite). We therefore conclude that the Examiner did not err in finding Appeal 2010-005788 Application 10/326,121 12 that Chang teaches the limitation of claim 7 and 16 reciting “wherein a connection with the client edge from a network associated with a third party is established via a transport network assigned address.” Claims 8 and 17 Claims 8 and 17 depend from claims 1 and 10, respectively. Appellant asserts that these claims are each separately patentable because Chang does not disclose or suggest the limitation of the claims reciting “wherein the client edge comprises one or more of a router, cross connect device and a switch.” App. Br. 13-14 and 20. Again, Appellant is merely restating the claim and arguing that the references do not teach the claimed limitations and as such will not be treated as an argument for separate patentability. Even so, the Examiner answers by calling attention the elements of Figure 1 (e.g., IP Routers, ATM/SONET system [131] with optical cross connects). The Examiner finds that Chang therefore discloses the limitations of claims 8 and 17. Ans. 10-11. We are persuaded by the Examiner’s reasoning and adopt it as our own (cite). We therefore conclude that the Examiner did not err in finding that Chang teaches the limitation of claim 8 and 17 reciting “wherein the client edge comprises one or more of a router, cross connect device and a switch.” Claim 9 Claims 9 depends from claims 1. Appellant contends that claim 9 is separately patentable because Chang does not disclose or suggest the Appeal 2010-005788 Application 10/326,121 13 limitation of the claim reciting “a processor readable storage medium for storing a computer program of instructions for executing a computer process performing the method recited in claim 1.” App. Br. 14. The Examiner rejects claim 9, finding that “[c]laim 9 is substantially the same as claim 1 and is thus rejected for reasons similar to those in rejecting claim 1.” Final Rejection 6 (boldface omitted). We are not persuaded by Appellant’s reasoning. Appellant has not provided any argument in opposition to the Examiner’s rejection of claim 9 as being substantially similar to claim 1, other than the bare assertion that it is not. Appellant has therefore not persuaded us that the limitation of claim 9 reciting “a processor readable storage medium for storing a computer program of instructions for executing a computer process performing the method recited in claim 1” adds any element that is not either disclosed or inherent in the language of claim. We therefore conclude that the Examiner did not err in in rejecting claim 9. Claims 21-23 Claims 21-23 are depend from claims 1, 10, and 18, respectively. Appellant asserts that the obviousness rejection of claims 21-23 is moot in view of the alleged deficiencies of the primary reference (i. e., Chang) as with respect to independent claim 1. App. Br. 26. Moreover, Appellant argues that Kirk fails to disclose, or even suggest, the alleged deficiencies of the Chang. App. Br. 26-27. Appellant contends that claims 21-23 recite additional features which are not disclosed, or even suggested, by the cited references taken either alone or in combination. App. Br. 26-29. For example, claims 21-23 recite “establishing the connectivity determined by Appeal 2010-005788 Application 10/326,121 14 the client edge comprises a service provider establishes the connectivity determined by the client edge.” App. Br. 27. The Examiner responds that, for the reasons cited above, Chang discloses the limitations of claims 1, 10, and 18 discussed above. Ans. 11. Although the Examiner finds that Chang remains silent on the specific teachings of establishing the connectivity determined by the client edge comprising a service provider establishes the connectivity determined by the client edge, the Examiner finds Kirk discloses a service provider [412] and “establish[ing] connectivity between a service provider (412) router and service user router (422).” Final Rejection 7; Ans. 11 (citing Kirk, Fig. 4; ¶ [0057]). The Examiner further finds that a person of ordinary skill in the contemporaneous art would be motivated to combine Chang and Kirk for the purpose of providing for a more manageable and efficient system (i.e., by providing for a minimum level/standard on quality of service). Final Rejection 7. Accordingly, the Examiner finds that it would have been obvious for one of ordinary skill in the art to modify or incorporate Kirk's teachings of using a service provider to establish connectivity between two nodes within a network with the teachings of Chang. Id. We are persuaded by the Examiner’s reasoning and adopt it as our own (cite). As the Examiner finds, Kirk explicitly teaches peer IP links used to establish connectivity between a router 130 within data transport network 100 to a bridge 104, a service provider (412) router or a service user (422) router; access IP links used to establish connectivity between a service provider (412) router and a service user (422) router; and network IP links between managed routers 130. Kirk, ¶ [0057]. We therefore conclude that the Examiner did not err in concluding that claims 21-23 are Appeal 2010-005788 Application 10/326,121 15 unpatentable under 35 U.S.C. § 103(a) as being obvious over Chang and Kirk. DECISION The Examiner’s rejection of claims 1-20 as unpatentable under 35 U.S.C. § 102(e) as being anticipated by Chang is affirmed. The Examiner’s rejection of claims 21-23 as unpatentable under 35 U.S.C. § 103(a) as being obvious over Chang and Kirk is affirmed. 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). See 37 C.F.R. § 1.136(a)(1)(iv) (2010). AFFIRMED msc