Ex Parte Hofer

Patent Trial and Appeal BoardNov 29, 2012

11350567 (P.T.A.B. Nov. 29, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE _____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD _____________ Ex parte SCOTT B. HOFER _____________ Appeal 2010-007599 Application 11/350,567 Technology Center 2400 ______________ Before DAVID M. KOHUT, BRYAN F. MOORE, and LARRY J. HUME, Administrative Patent Judges. MOORE, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-007599 Application 11/350,567 2 This is a decision on appeal under 35 U.S.C. § 134(a) of the Final Rejection of claims 1, 3-5 and 21-24. App. Br. 1. Claims 2 and 6-20 are cancelled. Id. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. INVENTION The invention is directed to re-routing of network packets to an alternate (or recovery) site. See Spec., 1:3-4. Claim 1 is representative of the invention and reproduced below: 1. A method for routing to a first site, packets addressed to a second site after a failure at said second site, said first site comprising a first server, a first edge router for a first network comprising said first server, and a first Internet Service Provider (ISP) coupling said first edge router to an Internet, said second site comprising a second server, a second edge router for a second, different network comprising said second server, and a second ISP coupling said second edge router to said Internet, said method comprising the steps of: responsive to a determination that said first server has an Autonomous System Number (ASN) and is a backup to said second server, said first edge router automatically generating and announcing to said first ISP a first route to a common IP address for both said first and second servers such that said first route to said IP address via said first edge router is less preferred than a second route to said IP address via said second edge router, and in response, said first ISP updating a first routing table in said first ISP to route packets from said Internet which are received by said first ISP and addressed to said IP address to said first edge router en route to said first server, and announcing said first route to said Internet; Appeal 2010-007599 Application 11/350,567 3 said second router automatically generating and announcing to said second ISP said second route, and in response, said second ISP updating a second routing table in said second ISP to route packets from said Internet which are received by said second ISP and addressed to said IP address to said second edge router en route to said second server, and announcing said second route to said Internet, such that packets from said Internet which are addressed to said IP address are more likely to be routed to said second ISP than said first ISP while said first edge router and said first ISP announce said first route and said second edge router and said second ISP announce said second route; and subsequently, said second router and said second ISP ceasing to broadcast said announcement of said second route due to a nonoperational state of said second site and said first router and said first ISP continuing to announce said first route due to said operational state of said first site, such that subsequent packets from said Internet addressed to said IP address are routed to said first ISP bypassing said second ISP. REFERENCES Lakshmi Narayanan US 2004/0109458 A1 Jun. 10, 2004 Naseh US 2006/0195607 A1 Aug. 31, 2006 Munirajan US 2006/0235997 A1 Oct. 19, 2006 REJECTIONS AT ISSUE Claims 1 and 3 stand rejected under 35 U.S.C. § 102(e) as being anticipated by Naseh. Ans. 3-6. Claims 21 and 22 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Naseh. Ans. 7-12. Claims 4 and 23 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Naseh and Munirajan. Ans. 12-13. Appeal 2010-007599 Application 11/350,567 4 Claims 5 and 24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Naseh and Lakshmi. Ans. 14-15. ISSUE 1. Did the Examiner err finding that Naseh discloses the following limitations in claim 1: a. first edge router automatically generating and announcing to said first ISP a first route to a common IP address for both said first and second servers such that said first route to said IP address via said first edge router is less preferred than a second route to said IP address via said second edge router [and]. . . said second router and said second ISP ceasing to broadcast said announcement of said second route due to a nonoperational state of said second site and said first router and said first ISP continuing to announce said first route due to said operational state of said first site, such that subsequent packets from said Internet addressed to said IP address are routed to said first ISP bypassing said second ISP. [;] and b. responsive to a determination that said first server has an Autonomous System Number (ASN) and is a backup to said second server, said first edge router automatically generating and announcing to said first ISP a first route to a common IP address for both said first and second servers such that said first route to said IP address via said first edge router is less Appeal 2010-007599 Application 11/350,567 5 preferred than a second route to said IP address via said second edge router, and in response, said first ISP updating a first routing table in said first ISP to route packets from said Internet which are received by said first ISP and addressed to said IP address to said first edge router en route to said first server and announcing said first route to said Internet [?] ANALYSIS Appellant presents arguments with respect to claim 1. Appellant argues that Naseh does not disclose: the first router broadcasts a less preferential path than is broadcast by the second router, and upon a failure at the second site, the second router ceases to broadcast announcements of the IP address, such that the first router and its ISP become the preferential path to the IP address (because the first router is no longer "competing" with the second router or the shortest path). App. Br. 12. We are not persuaded by this argument. We note that, as listed in limitation “a” of the Issues section, claim 1 recites a “non-operational state” of the second site not a “failure” of the second site. While the Specification discusses a failure of the second site (Spec. 10:3-9), claim 1 uses the broader term “non-operational state.” The importation of a narrow embodiment into the broader independent claim 1 is improper. See SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) (“For example, a particular embodiment appearing in the written description may not be read into a claim when the claim language is broader than the embodiment.”). Id. (citation omitted). Thus, Appellant’s argument is not commensurate with the scope of the claims. Appeal 2010-007599 Application 11/350,567 6 Given the above construction, we find that Naseh discloses that when a preferred data center is taken out of service, the system switches to the secondary data center. Naseh [0026]. Therefore, we agree with the Examiner that the term “non-operational state” encompasses a data center that has been taken out of service. Ans. 15. Appellant also focuses on the limitation that the second router ceases to broadcast announcements of the IP address. We agree with the Examiner’s finding that one of ordinary skill in the art at the time of the invention would recognize that “[i]f a data center is taken out of service (i.e., power down or due to a disaster), then it will no longer broadcast announcements of an IP address.” Ans. 15-16. Therefore, we find ample support for the Examiner’s finding that Naseh discloses limitation “a” from the Issues section above. Id. Appellant argues that Naseh does not disclose limitation “b” from the Issues section above. Br. 8-9. We disagree. Appellant fails to meet the burden of demonstrating error in the Examiner’s prima facie case of obviousness as to this limitation. Merely repeating claim limitations and stating that the references fail to teach the limitations, or that motivation is lacking, as Appellant does (Id.), does not rebut the Examiner's prima facie case. We find ample support for the Examiner’s finding that Naseh discloses the limitation at issue. See Ans. 16-19. For the reasons above, we sustain the Examiner’s decision to reject claim 1. Claims 3-5 and 21-24 are not argued separately and thus fall with claim 1. Appeal 2010-007599 Application 11/350,567 7 DECISION The Examiner’s decision to reject claims 1, 3-5 and 21-24 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)(iv). AFFIRMED ELD