Ex Parte Friskney et al

Patent Trial and Appeal Board

Jun 20, 2014

10818685 (P.T.A.B. Jun. 20, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROBERT FRISKNEY, NIGEL BRAGG, SIMON PARRY,
PETER ASHWOOD-SMITH, and DAVID I. ALLAN
____________

Appeal 2011-011385
Application 10/818,685
Technology Center 2400
____________

Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM,
Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejections of claims 6, 7, 9-11, 13, 17-21, 28, 39, 40, and 45-63. Br. 1; Ans.
2. Claims 1-5, 8, 12, 14-16, 22-27, 29-38, and 41-44 are canceled. Br. 19-
21. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

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REJECTIONS
The Examiner rejected claims 6, 7, 11, 13, 17, 18, 20, 21, 28, 45-50,
53-59, and 63 under 35 U.S.C. § 103(a) as unpatentable over U.S. Patent No.
7,492,768 B2 to Yoon and U.S. Patent No. 7,079,544 B2 to Wakayama.
Ans. 3-10.1
The Examiner rejected claims 9, 10, 19, 51, 60, and 61 under § 103(a)
as unpatentable over Yoon, Wakayama, and U.S. Pub. No. 2002/0191250
A1 to Graves. Id. at 10-11.2
The Examiner rejected claims 39, 40, 52, and 62 under § 103(a) as
unpatentable over Yoon, Wakayama, and U.S. Pub. No. 2003/0037163 A1
to Kitada. Id. at 11-12.

ANALYSIS
The contentions on appeal, as set forth by the Appeal Brief and
Examiner’s Answer, present an issue of whether Yoon teaches claimed data
frame identifiers each associated with a network connection to the same
destination address. See e.g., claim 11 (first and second identifiers).
Appellants explain the rejection’s application of Yoon – including the
asserted teachings of the claimed data frame identifiers – as follows:

1 The Appeal Brief and Answer do not list claims 53-59 within any of their
statements of rejections. Br. 11; Ans. 3, 10-11. However, claims 53-59 are
addressed by the first rejection. Ans. 5, 7-9.
2 The Appeal Brief and Answer list claims 10, 19, 51, and 61within their
statements of both the first and second rejections. Br. 11; Ans. 3, 10.
However, claims 10, 19, 51, and 61 are addressed only by the second
rejection. Ans. 11.
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[I]n the Examiner’s rejections of independent claims 11, 13, 45,
and 56, the examiner relates the elements of Yoon et al to the
structural elements of the present invention by asserting that
“column 5, lines 30-45, an ONU is a signal generator, an OLT
is an intermediate node, and PVIDs are identifiers”. The
Examiner then relates Yoon et al to the first and second
mappings of the present invention by asserting that “column 6,
lines 50-55; a PVID is a first VLAN group identifier” and
“column 6, lines 50-55; a PVID is a second VLAN group
identifier”[.]
Br. 14.3 Appellants argue that Yoon’s above-noted application does not
teach the claimed data frame identifiers because:
[T]he Examiner has asserted that [Yoon’s] “PVIDs are
identifiers”. In the abstract, this assertion is true. However, the
present claims do not merely require “an identifier”, but rather a
respective identifier associated with each connection. More
particularly, the claims require that the first and second
connections are associated with respective identifiers, and that
frames having these identifiers are forwarded based on the
identifier and the destination MAC address, in combination.
Yoon plainly does not teach or suggest any such scenario.
Yoon explicitly states that the PVIDs are associated with ports
of the OLT [col 5, lines 37-41], not connections established
through the network, as required by the claims. … Still
further, Yoon does not appear to contemplate a scenario in
which received Ethernet frames contain an identifier (of any
sort, much less the PVID) associated with a given connection,
and does not suggest an arrangement in which such an identifier
is used in combination with the destination MAC address for
forwarding the frame, all as required by the claims. As such,
while it may be true that a PVID is an identifier, as stated by the

3 “OLT,” “ONU,” “VLAN,” and “PVID” are respective acronyms for
“Optical Link Terminal,” “Optical Network Unit,” “Virtual LAN,” and “Port
VLAN ID.”
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examiner, it is also plainly obvious that such an identifier bears
no relationship (either in its nature or its use) to the identifiers
of the present invention as claimed.
Id. at 15-16.
The argument does not address the Examiner’s alternative findings
that Yoon’s logical link identifiers (LLID’s) and Wakayama’s VLAN ID’s
also teach the claimed data frame identifiers. Ans. 13. According to the
Examiner:
Yoon teaches frames having these identifiers (column 5, lines
36-41, “a node acquires PVID (Port VLAN ID) information
allocated to its port by using the 10 of its port that receives the
Ethernet frame from the ONU, and the LLID in the Ethernet
frame; determines VLAN groups; and provides a corresponding
VLAN service” where the Ethernet frame is treated as “having”
the identifier because the PVID-frame association is considered
to be within a broadest reasonable interpretation of “having”,
alternatively or in addition the “LLID in the Ethernet frame”
may be treated as the frame “having” the identifier). Further,
the Wakayama reference teaches the frame having the identifier
(column 1, lines 15-25), as explicitly stated in the rejection.
Ans. 13 (emphasis added).4

4 The above-emphasized alternative findings do not explicitly specify
Wakayama’s cited “identifiers” as being Wakayama’s VLAN ID’s.
However, viewed in the context of Wakayama’s cited disclosure (col. 1, ll.
15-25) and the Answer’s grounds of rejection addressing Wakayama (Ans.
4), the alternative findings are clearly referring to the VLAN ID’s. See also
Ans. 15 (“Wakayama teaches differential forwarding based on a VLAN ID
that is associated with a connection to a given destination node in
combination with the MAC address of the destination node (column 7, lines
20-25).”).
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Appellant’s present no reply brief or other response to the Examiner’s
above-emphasized alternative findings. As to Yoon’s LLID, the Appeal
Brief only states:
[T]he Examiner has found Yoon’s ONU, which generates a
Logical Link identifier (LLID) and sends it to the OLT, which
uses the received LLID to install a mapping that enables
received data frames to be properly forwarded through the E-
PON to the appropriate subscriber terminals, and has asserted
that these elements are equivalent to certain features of the
claimed invention.
Br. 15. As to Wakayama’s VLAN ID’s, the Appeal Brief only states:
Wakayama does appear to teach the possibility of
forwarding packets to a destination node through different
output ports of a node, based on different VLAN IDs.
However, Wakayama implements this functionality in an
interworking device connecting an MPLS network to a VLAN
network. Wakayama does not appear to fairly suggest an
arrangement in which differential forwarding of packets is
implemented in an intermediate node within a VLAN network,
based on a VLAN ID that is associated with a connection to a
given destination node in combination with the MAC address of
the destination node, as required by the present claims.
Id. at 17. Even assuming Appellants’ above-quoted statements address the
Examiner’s alternative findings, the statements are nothing more than mere
allegations that Yoon’s LLID’s and Wakayama’s VLAN ID’s do not
comprise the quoted features of the claimed data frame identifiers. Without
meaningfully addressing the Examiner’s alternative findings, as is the case
here, Appellants cannot establish that the Examiner committed a reversible
error. See In re Jung, 637 F.3d 1356, 1362-65 (Fed. Cir. 2011) (affirming in
part because appellant “merely argued that the claims differed from [the
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prior art], and chose not to proffer a serious explanation of this difference”);
In re Baxter Travenol Labs, 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not
the function of this court to examine the claims in greater detail than argued
by an appellant[.]”).
Note also that even as to Yoon’s PVID’s, which Appellants identify as
the claimed data frame identifiers as being read on (see supra at 2 (block-
quoting Br. 14)), the arguments are principally just allegations that the
PVID’s do not comprise quoted features of the claimed data frame
identifiers (see id. at 3 (block-quoting Br. 15-16)). At best, the arguments
merely state that the claimed data frame identifiers and PVID’s differ in two
respects.
First, the arguments state that Yoon’s PVID’s are each associated with
an OLT port and not a “network connection.” Br. 15-16 (block quoted at
supra 3). But Appellants present no explanation, much less evidence,
establishing that each of Yoon’s OLT ports do not constitute respective
“network connections” as claimed. For example, Appellants do not discuss
what “network connection” would mean or represent to an ordinarily skilled
artisan in light of the claimed invention’s disclosure. Appellants cannot
merely allege a distinction, but rather must establish how the allegedly
distinguishing claim feature differs from the proposed combination of
applied prior art. The arguments accordingly fail to meaningfully address –
and it is not self-evident – whether Yoon’s OLT ports constitute respective
“network connections” as claimed.
Second, the arguments state that Yoon’s PVID’s are not shown to be
“used in combination” with a MAC address to identify an output port. Id.
But, Appellants never rebut the Examiner’s convincing response:
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Yoon teaches frames are forwarded based on the identifier and
the destination MAC address in combination (column 6, lines
28-33 and 50-55, “OLT determines a logical OLT port from the
LLID value in the preamble of the received Ethernet frame, and
selects a VLAN group to which the Ethernet frame belongs,
with reference to the VLAN membership table constructed in
the step 11 using the PVID value ... [i]f the destination MAC
address is registered in the forwarding table of the
corresponding VLAN group, then the OLT transfers the
Ethernet frame” where the frame is forwarded using PVIO,
LLID, and MAC in combination). Further, Wakayama teaches
frames are forwarded based on the identifier and the destination
MAC address in combination (column 7, lines 20-25).
Ans. 13-14. We need not address uncontested findings. See Ex Parte Frye,
94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (explaining the Board’s
standard of review). However, we note the above findings seem to be
correct. Yoon’s system selectively forwards or broadcasts an Ethernet frame
based on whether the included destination MAC address is registered with a
VLAN group determined from the frame’s included LLID. Yoon, Fig. 6
(steps S15-16 and S22-24). Thus, the Examiner reasonably found that Yoon
maps a data frame to an OLT output port (i.e., selectively forwarding or
broadcasting) based upon the combination of an identifier (i.e., LLID) and
destination address (i.e., MAC address).
In addition to the above contentions, Appellants argue that Yoon’s
ONU is not a “signal generator” as claimed. Br. 16. The argument merely
rehashes the above-addressed contentions. Having the same above-noted
deficiencies, the argument fails to meaningfully explain how the allegedly
distinguishing claim features differ from the applied prior art.
Finally, we note that Appellants’ arguments repeatedly neglect the
rejection’s application of Yoon and Wakayama. In the proposed
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combination, Yoon’s OLT is cited as an “intermediate node” and, in view of
Wakayama, a destination address is registered to at least two VLAN’s each
associated with a respective OLT port. Ans. 4. Appellants never explain,
much less present evidence, why this modification is incompatible with
Yoon’s or Wakayama’s teachings, fails to achieve the claimed invention, or
is otherwise deficient. See Frye, 94 USPQ2d at 1075 (explaining how
appellants may traverse an obviousness rejection). Rather, Appellants argue
that Yoon and Wakayama fail to individually teach respective identifiers and
connections that direct frames to the same destination address. See e.g., Br.
15 (“Yoon does not teach … two connections established through the
network to the same destination node[.]”); id. at 17 (“Wakayama does not …
suggest an arrangement in which differential forwarding of packets is
implemented in an intermediate node within a VLAN network[.]”).
Appellants must, but have not, address the proposed combination of Yoon’s
and Wakayama’s teachings. See In re Keller, 642 F.2d 413, 426 (CCPA
1981) (“[O]ne cannot show non-obviousness by attacking references
individually where, as here, the rejections are based on combinations of
references.”).

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DECISION
For the foregoing reasons, the Examiner’s decision rejecting claims 6,
7, 9-11, 13, 17-21, 28, 39, 40, and 45-63 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)(v).

AFFIRMED

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