Ex Parte Gnanasekaran et al

Patent Trial and Appeal Board

Feb 29, 2016

12575603 (P.T.A.B. Feb. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/575,603 10/08/2009
85197 7590 03/02/2016
Brocade
c/o Blank Rome LLP
717 Texas Avenue, Suite 1400
Houston, TX 77002
FIRST NAMED INVENTOR
Sathish Kumar Gnanasekaran
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.
112-0429US 1330
EXAMINER
LINDENBAUM, ALAN LOUIS
ART UNIT PAPER NUMBER
2466
NOTIFICATION DATE DELIVERY MODE
03/02/2016 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):
klutsch@counselip.com
acollins@blankrome.com
houstonpatents@blankrome.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SATHISH KUMAR GNANASEKARAN, BADRINATH KOLLU,
RICHARD L. HAMMONS, RAMKUMAR V ADIVELU,
DAN NORBERT RETTER, JIANQIANG ZHOU,
PONPANDIARAJ RAJARATHINAM, and
DANIEL JI YONG PARK CHUNG
Appeal2014-002547
Application 12/575,603
Technology Center 2400
Before CARLA M. KRIVAK, CARL W. WHITEHEAD JR, and
JEFFREYS. SMITH, Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants are appealing the final rejection of claims 1-23 under
35 U.S.C. § 134(a). Appeal Brief9-23. We have jurisdiction under
35 U.S.C. § 6(b) (2012).
We affirm.
Appeal2014-002547
Application 12/575,603
Introduction
The invention is directed to "the field of network fabric virtualization
and in particular to virtualization of network fabrics through virtualization of
switches." Specification i-f 1.
Representative Claim (disputed limitations emphasized)
1. A method of managing a network switch, comprising:
partitioning a first network switch into a first plurality of
logical switches, comprising:
dedicating a physical port of the first network switch to a
first logical switch of the first plurality of logical switches; and
mapping the physical port to a logical port of the first
logical switch; and
managing ports of each of the plurality of logical
switches independent of ports of each other of the plurality of
the first plurality of logical switches.
Rejections on Appeal
Claims 1, 7, 10, 15, and 21 stand rejected under 35 U.S.C. § 112(a) or
35 U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply with the
written description requirement. Answer 4.
Claims 1, 7, 10, 15, and 21 stand rejected under 35 U.S.C. § 112(b) or
35 U.S.C. § 112 (pre-AIA), second paragraph, as being indefinite for failing
to particularly point out and distinctly claim the subject matter which the
inventor or a joint inventor, or for pre-AIA the applicant regards as the
invention. Answer 5.
2
Appeal2014-002547
Application 12/575,603
Claims 1-10 and 13-23 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Dropps (US Patent Application Publication Number
2005/0018673 Al; published January 27, 2005). Answer 6-17.
Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dropps in view of Riddle et al. (US Patent Application
Publication Number 2009/0161547 Al; published June 25, 2009). Answer
18-19.
ANALYSIS
Rather than reiterate the arguments of Appellants and the Examiner,
we refer to the Appeal Brief (filed August 19, 2013), the Reply Brief (filed
December 10, 2013), the Answer (mailed October 10, 2013) and the Final
Rejection (mailed March 1, 2013) for the respective details. We have
considered in this decision only those arguments Appellants actually raised
in the Briefs.
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner has erred. We disagree with Appellants'
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken and (2) the
reasons set forth by the Examiner in the Examiner's Answer in response to
Appellants' Appeal Brief, and concur with the conclusions reached by the
Examiner. We highlight the following for emphasis.
35 U.S.C. § l 12(a) Rejection
Appellants argue that the Examiner's 35 U.S.C. § l 12(a) rejection is
erroneous because "[ o ]ne of ordinary skill in the art would understand that
3
Appeal2014-002547
Application 12/575,603
an assignment of a port to a logical switch dedicates that port to the logical
switch." Appeal Brief 10. Appellants cite several paragraphs from the
Specification and recite from paragraph 52, "[p ]hysical ports on the chassis
are assigned to logical switches. Chassis management functions allow
moving ports between logical switches in one embodiment, forcing a port
offline when moved from one logical switch to another." Appellants
surmise that an artisan:
would read that as saying that the physical port is dedicated to
the use of the logical switch to which it is assigned, because
reassignment involves "moving ports between logical switches,"
which may force the port offline as part of the move. Physical
ports are described as "belonging to" a logical switch. (See, e.g.,
Para. [0096].)
Appeal Brief 10. Appellants conclude that:
There is nothing in the Specification that would even remotely
suggest that a physical port assigned to one logical switch would
be shared with another logical switch, and every description of
assigning ports to logical switches would be read by one of skill
in the art as dedicating those ports as claimed.
Appeal Brief 10.
We do not find Appellants' arguments persuasive. Appellants are
interpreting the "dedicated" limitation recited in claim 1 in such a manner
that the physical port assigned to a logical switch would be mutually
exclusive to that logical switch only. In paragraph 53 of the Specification, it
discloses "[b ]ecause physical ports are assigned to logical switches, the
concept of a user port is introduced. A user port is a port assigned to a
logical switch and bound to a physical port." There is no mention of a
logical switch being dedicated or bound to a physical port. As stated in
paragraph 53 of the Specification physical ports are "assigned" to logical
4
Appeal2014-002547
Application 12/575,603
switches not dedicated to them. Also the language Appellants refer to in
paragraph 52 of the Specification is ambiguous and is subject to many
interpretations because the chassis management allow moving the ports
between logical switches in one embodiment. This is contradicted by
"forcing a port offline when moved from one logical switch to another" in
the very same sentence. Specification i-f 52. Further, forcing a port offline
does not indicate that the physical port is dedicated to a logical switch as
claimed. Therefore, we sustain the Examiner's 35 U.S.C. § 112(a) rejection
of claims 1, 7, 10, 15, and 21 because the Specification does not contain a
clear and concise written description of the invention.
35 U.S.C. § 112(b) Rejection
Appellants argue that the Examiner erred in rejecting the claims under
35 U.S.C. § 112(a). Appeal Brief 11-15. The Examiner finds that it is
unclear as to the permanency of the dedicated physical ports, as well as, the
allocation of managing the ports. Answer 5. We find Appellants'
arguments persuasive because 35 U.S.C. § 112(b) requires "distinctly
claiming the subject matter," merely because the claims are broad does not
mean that the claims are indefinite. Therefore, we reverse the Examiner's
35 U.S.C. § 112 (b) rejection of claims 1, 7, 10, 15, and 21.
35 U.S.C. § 102(b) Rejection
Appellants argue that "[n]othing in the Dropps reference teaches or
suggests that the physical switch is partitioned into logical switches.
Instead, multiple virtual fabrics are defined on top of the switch of Dropps,
effectively overlaying multiple virtual fabrics on top of shared ports and
5
Appeal2014-002547
Application 12/575,603
shared switch hardware." Appeal Brief 16. However, Appellants rely upon
conclusory statements to substantiate their assertions as opposed to
providing evidence. 1 It is well known within virtual fabrics that a physical
switch can be partitioned into multiple logical switches. Both Appellants'
Specification, as well as, Dropps acknowledge this basic concept.
(Specification i-f 2; Dropps i-fi-131, 34). Appellants further argue that"[ n Jo
one skilled in the art would consider such an arrangement as a partitioning of
the physical switch." Appeal Brief 16-1 7. However this is again, a
conclusory statement and is, therefore, not persuasive of Examiner error.
We do not find Appellants' arguments as a whole to be persuasive and
we adopt the Examiner's findings and rationale as our own. Answer 27-33.
We sustain the Examiner's anticipation rejection of claims 1-10 and 13-23.
35 U.S.C. § 103(a) Rejection
Appellants argue because the Examiner mischaracterizes both the
prior art, as well as Appellants' claims, the rejections are improper including
the obviousness rejection of claims 11 and 12. Appeal Brief 23. We are not
convinced of Examiner error based upon Appellants' conclusory arguments,
as well as Appellants' proposed unsubstantiated claim interpretation. We
sustain the Examiner's obviousness rejection of claims 11 and 12.
1 Attorney "argument ... cannot take the place of evidence." In re Pearson,
494 F.2d 1399, 1405 (CCPA 1974). See, e.g., In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997) (Attorney arguments or conclusory statements are
insufficient to rebut a prima facie case).
6
Appeal2014-002547
Application 12/575,603
DECISION
The Examiner's written description rejection of claims 1, 7, 10, 15,
and 21 is affirmed.
The Examiner's indefinite rejection of claims 1, 7, 10, 15, and 21 is
reversed.
The Examiner's anticipation rejection of claims 1, 7, 10, 15, and 21 is
affirmed.
The Examiner's obviousness rejection of claims 11 and 12 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)(l )(iv). See
37 C.F.R. § 41.50(f).
AFFIRMED
7