Ex Parte Damm et alDownload PDFPatent Trial and Appeal BoardSep 28, 201210303882 (P.T.A.B. Sep. 28, 2012) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GERARD DAMM, MILAN ZORANOVIC, and QUNWEI CHEN1 ____________ Appeal 2010-006368 Application 10/303,882 Technology Center 2400 ____________ Before DENISE M. POTHIER, ERIC B. CHEN, and TRENTON A. WARD, Administrative Patent Judges. WARD, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-20, all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. 1 Alcatel is the real party in interest. Appeal 2010-006368 Application 10/303,882 2 STATEMENT OF THE CASE Appellants’ claims relate to topology management in a dual ring network. See generally Abstract; Spec. 4-6; Figs. 2-3. Claim 1 is representative, with disputed limitations emphasized: 1. In a packet ring network comprising a plurality of nodes and links, each node holding a topology image of the network on a database, a method of communicating network topology information among the nodes, said network topology information being included in topology discovery messages, the method comprising steps of: monitoring said topology discovery messages on the ring; upon receipt of one of said topology discovery messages at a respective node, determining whether the received topology discovery message is from the respective node, from a neighboring node, or is a broadcast topology discovery message from any other node: updating a plurality of timer settings in response to receiving the topology discovery message if it is from the respective node; and updating the database in response to the received topology discovery message if the message is either from the neighboring node or from any other node, wherein all said topology discovery messages contain a description of only one node and an incoming link status for each clockwise and counterclockwise incoming link of the node. The Rejections The Examiner rejected claims 1-20 under 35 U.S.C. § 103(a) as unpatentable over Cottreau (US 6,952,396 B1; Oct. 4, 2005, filed Sept. 27, 1999) in view of Zhang (US 6,810,259 B1; Oct. 26, 2004, filed Dec. 14, Appeal 2010-006368 Application 10/303,882 3 2000) and further in view of Mor (US 6,952,397 B2; Oct. 4, 2005, filed June 7, 2001). Ans. 3-16.2 THE OBVIOUSNESS REJECTION OVER COTTREAU, ZHANG, AND MOR Claims 1-6, 8, and 10-20 Based on the arguments for claims 1-6, 8, and 10-20, we select independent claim 1 as representative. The Examiner finds that Cottreau discloses every recited feature of representative claim 1, except for (1) topology discovery messages containing a description of only one node and an incoming link status for each clockwise and counterclockwise incoming link of the node, and (2) updating the database in response to the received topology discovery message being from the neighboring node or from any other node. Ans. 3-5. The Examiner relies upon the combination of Cottreau with the teachings of Zhang and Mor in concluding that the claim would have been obvious. Ans. 4-5. Appellants argue that “that the topology discovery packets of Mor do not contain a description of only one node and an incoming link status for each clockwise and counter clockwise incoming link.” App. Br. 9 (emphases omitted). Additionally, Appellants argue that while Zhang “does mention a database [Fig. 3B: 133], it fails to describe updating in this database as recited in the subject matter of the independent claims.” App. Br. 6 (brackets in original). 2 Throughout this opinion, we refer to (1) the Appeal Brief filed Nov. 19, 2009; (2) the Examiner’s Answer mailed Feb. 24, 2010; and (3) the Reply Brief filed Mar. 23, 2010. Appeal 2010-006368 Application 10/303,882 4 ISSUES (1) Has the Examiner erred by finding that the combination of Cottreau, Zhang, and Mor would have taught or suggested “topology discovery messages” that “contain a description of only one node and an incoming link status for each clockwise and counterclockwise incoming link of the node” as recited in claim 1? (2) Has the Examiner erred by finding that the combination of Cottreau and Zhang would have taught or suggested “updating the database in response to the received topology discovery message if the message is either from the neighboring node or from any other node” as recited in claim 1? ANALYSIS Issue (1) Appellants’ claim 1 requires that “topology discovery messages contain a description of only one node and an incoming link status for each clockwise and counterclockwise incoming link of the node.” We note at the outset that the type of information contained in the topology discovery message (e.g., description of one node and incoming link status for each clockwise and counterclockwise incoming link of the node as recited in claim 1) is non-functional descriptive matter that merely describes the data in the topology discovery messages. See In re Ngai, 367 F.3d 1336, 1338 (Fed. Cir. 2004); In re Lowry, 32 F.3d 1579, 1583-84 (Fed. Cir. 1994); Ex parte Curry, 84 USPQ2d 1272 (BPAI 2005) (informative), aff’d, No. 06- 1003 (Fed. Cir. June 12, 2006) (Rule 36). Furthermore, there is no claimed functional relationship in claim 1 between the data and how the data is used Appeal 2010-006368 Application 10/303,882 5 in the method of claim 1. Since we find no functional relationship in claim 1 between the recited data contained in the message and how the data is used, no patentable weight will be afforded to the type of data found within the topology discovery message. Furthermore, claim 1 requires that merely that the “topology discovery message contain” the recited data (emphasis added). In this context, the term “contain” is construed as an open ended term. See TAP Pharm. Prods., Inc. v. Owl Pharms., L.L.C., 419 F.3d 1346, 1354 (Fed. Cir. 2005). Thus, the “topology discovery message” must have at least the recited data but can have additional data. As such, Cottreau’s discussion of messages that contain at least three types of data (see Ans. 5) adequately teaches the recited topology discovery message. Even if we, arguendo, were to ascribe some weight to the disputed claim limitation of claim 1 concerning the topology discovery message, Appellants do not persuade us of error in the Examiner’s obvious rejection. Specifically, the Examiner found that Cottreau teaches that Link Path Integrity Messages (“LPIMs”) “are used to maintain the state of a bi- directional link between two adjacent” access points (e.g., incoming link status for clockwise and counterclockwise links). Ans. 5, 19-20. Furthermore, the Examiner found that Mor teaches sending “topology discovery packets” around the ring, including a link status for clockwise and counterclockwise links. Ans. 5, 21-24. The Examiner concluded that it would have been obvious “to implement Mor’s teaching in Zhang’s and Cottreau’s teaching to come up with having topology monitoring messages contain a description of only one [node] and incoming link status for each clockwise and counterclockwise.” Ans. 25; see also Ans. 5. Appeal 2010-006368 Application 10/303,882 6 Appellants argue that the Examiner’s rejection is improper because the “Examiner relies on different messages for the recited subject matter, while the claims clearly require that a single message contains both a node description and incoming link status for both clockwise and counterclockwise incoming links.” Reply Br. 5-6. Thus, Appellants do not rebut that the recited subject matter is contained in different messages taught in the cited prior art, but instead, argue that no singular piece of prior art teaches that the recited subject matter is provided in a single message. See Reply Br. 6. Appellants fail to present any arguments, however, why the combination of the references, Cottreau, Zhang, and Mor, found by the Examiner fails to teach or suggest the single “message” as recited in claim 1. See App. Br. 8-9. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 426 (CCPA 1981). Appellants are silent with the respect to Examiner’s findings regarding the Examiner’s proposed combination of Cottreau, Zhang, and Mor. See App. Br. 8-9. Appellants argue simply that “Cottreau would actually teach away from this subject matter by having information spread across multiple types of messages.” Reply Br. 6. Appellants cite no statement from Cottreau, however, that teaches against using a single message having the recited description and statuses. See id. Additionally, the other two cited prior art references, relied upon in combination by the Examiner, teach the use of a single message. Zhang, col. 15, l. 53 (“[n]eighborhood hello message[]”); Mor, col. 6, l. 40 (“topology discovery Appeal 2010-006368 Application 10/303,882 7 packet”). Appellants’ argument also fails to rebut the Examiner’s prima facie case of obviousness – a position we find reasonable. Issue (2) As to the second issue for claim 1, Appellants separately argue that Zhang fails to teach “updating the database in response to the received topology discovery message if the message is either from the neighboring node or from any other node.” App. Br. 6. In support of their position, Appellants argue that Zhang “fails to describe updating in this database as recited in the subject matter of the independent claims.” Id. Appellants’ argument merely points out what the claim recites, without any supporting argument as to the requirements of the allegedly undisclosed database updating method. This assertion does not constitute an argument on the merits, because “[a] statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.” 37 C.F.R. § 41.37(c)(1)(vii) (2006); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he 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.”). Appellants also argue that Zhang’s columns fifteen and twenty fail “to describe updating in this database as recited . . . .” App. Br. 6. Appellants do not persuade us of error, as the Examiner’s findings (Ans. 4-5, 16-18) are supported by the express disclosure in Zhang. In fact, Appellants concede that Zhang “does mention a database [Fig. 3B: 133].” App. Br. 6 (brackets in original). The Examiner finds that this database “contains local nodal Appeal 2010-006368 Application 10/303,882 8 hierarchy list (column 15 lines 24-28),” (Ans. 16) which is “updated upon receiving a neighborhood hello message” (Ans. 17 (citing to column 20)). The Examiner equated Zhang’s “neighborhood hello message” with Appellants’ “topology discovery message which are the same kind of message as known in the art.” Ans. 17. Furthermore, when combining Zhang with Cottreau’s teachings, the combination predictably yields no more than an ordinary skilled artisan would expect – updating in response to the received topology discovery message as recited. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). For the foregoing reasons, Appellants have not persuaded us of error in the rejection of independent claim 1 and claims 2-6, 8, and 10-20 not separately argued with particularity (App. Br. 11-12). Claim 7 ISSUE Has the Examiner erred by finding that the combination of Cottreau, Zhang, and Mor would have taught or suggested calculating the number of nodes on the ring and round trip time as recited in claim 7? ANALYSIS Appellants argue that Cottreau fails to teach the required elements of claim 7 regarding “calculating the number of nodes on the ring and round trip time.” App. Br. 10. Appellants do not persuade us of error, as the required elements of claim 7 are plainly disclosed in the cited portions of Cottreau. As cited by Examiner (Ans. 7, 25-26), Cottreau explicitly describes the following formula: “Tactivation ring=(Nlpim+1)*Tlpim+ Appeal 2010-006368 Application 10/303,882 9 Trtd+(N–1)*Tmax frame. Where: Trtd is the round-trip delay of the ring; N is the number of [access points] APs attached to the ring.” Cottreau, col. 29, ll. 11-13. Applying this disclosure to the instant case, the Examiner finds that “N is the number of APs (i.e. calculating the nodes), and the Trtd is the round-trip time on the ring (i.e. calculating round trip time).” Ans. 25. For the foregoing reasons, Appellants have not persuaded us of error in the rejection of dependent claim 7. Claim 9 ISSUE Has the Examiner erred by finding that the combination of Cottreau, Zhang, and Mor would have taught or suggested the limitations of updating the topology information of any of the other nodes upon reception of two consecutive identical topology discovery messages from such other nodes as recited in claim 9? ANALYSIS Appellants argue that neither Cottreau nor Zhang teaches the required elements of claim 9 regarding “updating the topology information of any of the other nodes upon reception of two consecutive identical topology discovery messages from such other nodes.” App. Br. 10-11 (emphasis altered). The Examiner “agrees with the Appellant that Cottreau does not teach the above limitation,” but finds that “Zhang teaches updating the topology information of any of the other nodes upon reception of two consecutive identical topology discovery messages from such other nodes.” Ans. 26. The Examiner cites to the disclosure in Zhang of broadcasting or Appeal 2010-006368 Application 10/303,882 10 flooding methods for sending the neighborhood hello messages among the nodes of the ring. Ans. 26. Zhang discloses that with flooding, “the node duplicates the message and sends the message via other interfaces of the node.” Zhang, col. 15, ll. 57-59. Although Zhang discloses sending a duplicate message, the portions of Zhang relied upon by the Examiner fail to describe updating the topology information upon receiving two consecutive identical topology discovery messages, as required by Appellants’ claim 9. Also, the cited portions in columns 16, 19, and 21 do not teach the recited feature. See Ans. 8, 26. Accordingly, we find that the Zhang disclosure cited by the Examiner does not support the proposition. For the foregoing reasons, Appellants have persuaded us of error in the rejection of dependent claim 9 and we therefore reverse this rejection. CONCLUSION The Examiner did not err in rejecting claims 1-8 and 10-20 under § 103. The Examiner erred in rejecting claim 9 under § 103. DECISION The Examiner’s decision rejecting claims is affirmed-in-part. AFFIRMED-IN-PART Appeal 2010-006368 Application 10/303,882 11 babc Copy with citationCopy as parenthetical citation