Ex Parte Chen et alDownload PDFPatent Trial and Appeal BoardMar 17, 201611963717 (P.T.A.B. Mar. 17, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111963,717 12/21/2007 74365 7590 03/21/2016 Slater & Matsil, LLP, 17950 Preston Road, Suite 1000 Dallas, TX 75252 FIRST NAMED INVENTOR HuaimoChen 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 ATTORNEY DOCKET NO. CONFIRMATION NO. HW 0748189US 1543 EXAMINER SISON, TIJNE Y ART UNIT PAPER NUMBER 2443 NOTIFICATION DATE DELIVERY MODE 03/21/2016 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): docketing@slater-matsil.com uspatent@huawei.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HUAIMO CHEN and STEVEY AO Appeal2014-003912 Application 11/963,717 Technology Center 2400 Before ALLEN R. MacDONALD, JOHN P. PINKERTON, and GARTH D. BAER, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1-24. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Exemplary Claim Exemplary claim 1 under appeal reads as follows (emphasis added): 1. A transmission control protocol (TCP) high availability (HA) communication system, the system comprising: a first main board acting as an active main board, the first main board comprising a first processor, the first processor including a first application component and a first transmission control protocol (TCP) component, the first application Appeal2014-003912 Application 11/963,717 component being coupled to the first TCP component for receiving and sending data; and a second main board acting as a standby main board, the second main board comprising a second processor, the second processor including a second application component and a second transmission control protocol (TCP) component, the second application component being coupled to the second protocol component for receiving data, the first TCP component being coupled to the second TCP component for receiving and sending data and messages; the first main board and the second main board being configured to concurrently receive incoming data from a line card; and the first main board being configured to send outgoing data concurrently to the line card and to the second main board. Re} ections on Appeal1 1. The Examiner rejected claims 1--4, 6, and 21-24 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ho (US 6,910,148 Bl; June 21, 2005), Mimms (US 2002/0176355 Al; Nov. 28, 2002), and Belair (US 7,562,363 Bl; July 14, 2009).2 1 The Examiner provisionally rejected claims 1-22 on the ground of obviousness-type double patenting, but withdrew the provisional double- patenting rejection in the Examiner's Answer. Final Act. 6; Ans. 2. Therefore, the provisional double-patenting rejection is not before us. 2 Claims 2--4, 6, and 24 depend upon claim 1. Separate patentability is not argued for these claims. Appeal Br. 8. Except for our ultimate decision, claims 2--4, 6, and 24 are not discussed further herein. Further, claims 21-22 depend upon claim 18. Separate patentability is also not argued for these claims. Appeal Br. 10. Thus, the rejection of these claims turns on our decision as to claim 18. Except for our ultimate decision, claims 21-22 are also not discussed further herein. 2 Appeal2014-003912 Application 11/963,717 2. The Examiner rejected claims 5 and 7 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ho, Mimms, Belair, and Ward (US 2007/0086461 Al; Apr. 19, 2007). 3. The Examiner rejected claims 8-20 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ho, Mimms, Belair, Ward, and Sally Floyd et al., A Reliable Multicast Framework for Light-weight Sessions and Application Level Framing, IEEE/ ACM Transactions on Networking (Dec. 1997) (hereinafter "Floyd"). 3 Appellants' Contentions 1. Appellants contend that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a) because: Claim 1 specifically recites the first TCP component [of the first main board] being coupled to the second TCP component [of the second main board] for receiving and sending data and messages" and "the first main board and the second main board being configured to concurrently receive incoming data from a line card. Mimms discloses the recited features in two separate embodiments (FIG. 7 and FIG. 8), but fails to combine these two features in a single embodiment. In addition, a person of ordinary skill in the art at the time of the invention would not be motivated to combine these two features because FIG. 8 ... illustrates it is not necessary to have a data exchange between the primary router 110 and the secondary router 116 when they 3 Claims 8-17 depend upon claim 1. Separate patentability is not argued for these claims. Appeal Br. 8. Thus, the rejection of these claims turns on our decision as to claim 1. Except for our ultimate decision, claims 8-1 7 are not discussed further herein. Further, claims 19-20 depend upon claim 18. Separate patentability is also not argued for these claims. Appeal Br. 10. Except for our ultimate decision, claims 19-20 are also not discussed further herein. 3 Appeal2014-003912 Application 11/963,717 receive the incoming data from a same source at a same time. Likewise, a person of ordinary skill in the art at the time of the invention would not be motivated to combine these two features because FIG. 7 ... illustrates it is not necessary to concurrently receive data when the data is forwarded from the primary router 110 to the secondary router 116. While Ho discloses there may be a data exchange between an active card and a standby card, Ho also fails to disclose any reason why in such an embodiment the active card and the standby card should also concurrently receive the incoming data from a line card. Appeal Br. 4--5, 7, emphasis added. 2. Appellants also contend that the Examiner erred in rejecting claim 18 under 35 U.S.C. § 103(a) because: Claim 18 specifically recites 'the first protocol component being coupled to the second protocol component for sending and receiving data and messages" and "the first protocol component and the second protocol component being configured to concurrently receive incoming data from a line card.' Mimms discloses the recited features in two separate embodiments (FIG. 7 and FIG. 8), but fails to combine these two features in a single embodiment. In addition, a person of ordinary skill in the art at the time of the invention would not be motivated to combine these two features because FIG. 8 above illustrates it is not necessary to have a data exchange between the primary router 110 and the secondary router 116 when they receive the incoming data from a same source at a same time. Likewise, a person of ordinary skill in the art at the time of the invention would not be motivated to combine these two features because FIG. 7 above illustrates it is not necessary to concurrently receive data when the data is forwarded from the primary router 110 to the secondary router 116. Appeal Br. 8-9, emphasis added. 4 Appeal2014-003912 Application 11/963,717 3. Appellants also contend that the Examiner erred in rejecting claim 5 under 35 U.S.C. § 103(a) because: Claim 5 specifically recites 'the second application component in the second processor listens to the incoming data or the outgoing data to update its states and data structures.' Ward merely discloses TCP HA process 140A's TCP segment is sent to BGP application 130B. The TCP segment may function as data structures. Ward, however, fails to disclose the states of the second application component have been updated after listening to the incoming data or the outgoing data. Appeal Br. 11-12, emphasis added. 4. Appellants also contend that the Examiner erred in rejecting claim 7 under 35 U.S.C. § 103(a) because: Claim 7 specifically recites 'concurrently receiving incoming data at the first TCP component in the first processor and the second TCP component in the second processor'" Ward fails to disclose this feature. This issue was addressed in a Pre-Appeal Brief filed on January 30, 2013, which was acknowledged as being persuasive by the Examiner. [citation omitted] Appeal Br. 12, emphasis added. Issues on Appeal 1. Did the Examiner err in rejecting claim 1 as being unpatentable? 2. Did the Examiner err m rejecting claim 18 as being unpatentable? 3. Did the Examiner err m rejecting claim 5 as being unpatentable? 5 Appeal2014-003912 Application 11/963,717 4. Did the Examiner err m rejecting claim 7 as being unpatentable? ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' arguments (Appeal Brief and Reply Brief) that the Examiner has erred. We disagree with Appellants' conclusions. Except as noted herein, we adopt as our own: ( 1) the findings and reasons set forth by the Examiner in the action from which the appeal is taken; and (2) the reasons set forth by the Examiner in the Examiner's Answer (Ans. 2-9) in response to the Appellants' Appeal Brief. We concur with the conclusions reached by the Examiner. We highlight the following. As to Appellants' above contention 1, we are not persuaded the Examiner erred for the reasons provided by the Examiner in the Examiner's Answer. Ans. 4--5. The Examiner cited Ho for teaching the claimed feature "the first TCP component [of the first main board] being coupled to the second TCP component [of the second main board] for receiving and sending data and messages." Final Act. 9. The Examiner further cited Mimms for teaching the claimed feature "the first main board and the second main board being configured to concurrently receive incoming data from a line card." Id. Appellants failed to challenge either of these findings, but instead, argued that Mimms fails to teach combining the aforementioned features. See Appeal Br. 4--8; see also Reply Br. 2---6. However, the Supreme Court has rejected the rigid requirement of demonstrating a teaching, suggestion, or motivation to combine references in order to show obviousness. KSR Int'! Co., v. Teleflex Co., 550 U.S. 398, 419 (2007). 6 Appeal2014-003912 Application 11/963,717 Instead, a rejection based on obviousness only needs to be supported by "some articulated reasoning with some rational underpinning" to combine known elements in the manner required by the claim. Id. at 418. Further, a combination of known elements according to known methods that does no more than yield predictable results is likely obvious to one of ordinary skill in the art. Id. at 416. The Examiner provided a rationale for combining the features of Ho and Mimms (Final Act. 10), and Appellants failed to either rebut this rationale or establish that the combination would yield more than predictable results. See Appeal Br. 4--8; see also Reply Br. 2---6. Thus, we sustain the rejection of claim 1. As to Appellants' above contention 2, we are also not persuaded the Examiner erred. Although the Examiner separately rejected claim 18 based on a combination of Ho, Mimms, Belair, Ward, and Floyd, in the Examiner's Answer, the Examiner indicated that this was an error and that the rejection of claim 18 was substantively based on the rejection of claim 1. Ans. 6. In other words, the Examiner did not rely on Ward or Floyd to cure any alleged deficiencies in Ho, Mimms, or Belair. Thus, we sustain the rejection of claim 18 for the same reasons we sustain the rejection of claim 1. As to Appellants' above contention 3, we are also not persuaded the Examiner erred. We agree with the Examiner that, contrary to Appellants' arguments, Ward teaches updating states of BGP applications 130A and 130B as Ward teaches BGP applications 130A and 130B update RIBs 160A and 160B, and further teaches that RIBs 160A and 160B are states of routing information. Ans. 7 (citing Ward i-fi-153 and 67, emphasis added). Thus, we sustain the rejection of claim 5. 7 Appeal2014-003912 Application 11/963,717 As to Appellants' above contention 4, we are also not persuaded the Examiner erred. As a threshold matter, Appellants' Appeal Brief merely refers to an argument contained within a previous response, which is inappropriate. See Manual of Patent Examining Procedure (MPEP) § 1205.02 ("[T]he brief should not incorporate or reference previous responses."). Regarding the substance of Appellants' argument (i.e., that Ward does not teach TCP HAs 104A and 104B receiving TCP segments concurrently), we agree with the Examiner that Ward's teaching of BGP applications 130A and 130B receiving TCP segments and simultaneously updating RIBs 160A and 160B renders the claimed feature, "concurrently receiving incoming data," obvious to one of ordinary skill in the art. Thus, we sustain the rejection of claim 7. CONCLUSIONS (1) The Examiner has not erred in rejecting claims 1-24 as being unpatentable under 35 U.S.C. § 103(a). (2) Claims 1-24 are not patentable. DECISION The Examiner's rejections of claims 1-24 as being unpatentable under 35 U.S.C. § 103(a) are 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)(l )(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation