Ex Parte Chen et al

Patent Trial and Appeal Board

Mar 17, 2016

11963717 (P.T.A.B. Mar. 17, 2016)

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.
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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.
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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.
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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?
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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).
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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.
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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
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