Ex Parte Kodialam et al

Patent Trial and Appeal Board

Sep 19, 2014

10951169 (P.T.A.B. Sep. 19, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/951,169 09/27/2004 Muralidharan Sampath Kodialam Kodialam 34-34
(LCNT/1265
6061
46363 7590 09/22/2014
WALL & TONG, LLP/
ALCATEL-LUCENT USA INC.
25 James Way
Eatontown, NJ 07724
EXAMINER
FOUD, HICHAM B
ART UNIT PAPER NUMBER
2467
MAIL DATE DELIVERY MODE
09/22/2014 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MURALIDHARAN SAMPATH KODIALAM and
TIRUNELL V. LAKSHMAN
____________

Appeal 2012-005082
Application 10/951,169
Technology Center 2400
____________

Before ELENI MANTIS MERCADER, MICHAEL J. STRAUSS, and
CHARLES J. BOUDREAU, Administrative Patent Judges.

BOUDREAU, Administrative Patent Judge.

DECISION ON APPEAL
Appellants
1
appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–9 and 13–22.
2
We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.

1
Appellants identify Alcatel-Lucent as the real party in interest.
(App. Br. 3.)
2
Claims 10–12 have been canceled. (App. Br. 22.)
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2
THE CLAIMED INVENTION
Appellants’ claimed invention relates to the routing of traffic through
a communication network. (Spec. 1:4–5.)
Claim 1, which is illustrative of the subject matter on appeal, reads as
follows:
1. A method for routing traffic received at a first node in
a network toward a plurality of intermediate nodes in the
network, said traffic including packets belonging to at least one
connection, said method comprising:
receiving at said first node said traffic including packets
belonging to at least one connection said traffic comprising a
plurality of packets of the at least one connection;
determining at a packet level those packets associated
with each connection;
routing those packets associated with each connection
toward said intermediate nodes according to respective
intermediate node traffic weighting factors,
determining, by said intermediate nodes, to route traffic
toward a next plurality of intermediate nodes; and
routing traffic toward one or more destination nodes from
a final plurality of intermediate nodes according to respective
intermediate node traffic weighting factors associated with each
of the final plurality of intermediate nodes.

REJECTIONS
Claims 1–9, 13–17, and 22 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Dani (US 2004/0064583 A1; published Apr. 1,
2004) and Bremer (US 6,032,190; issued Feb. 29, 2000). (Ans. 4.)
Claims 18–21 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dani and Kennedy (US 2004/0219909 A1; published
Nov. 4, 2004). (Id.)
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ISSUES
The dispositive issues before us are whether the Examiner erred in
finding that the combination of Dani and Bremer teaches or suggests the
limitations of “determining, by said intermediate nodes, to route traffic
toward a next plurality of intermediate nodes” and “determining at a packet
level those packets associated with each connection,” as recited in claim 1,
and whether the Examiner erred in combining Dani and Bremer.

ANALYSIS
The Examiner finds Dani discloses all elements recited in all claims
on appeal, with the exception of any explicit disclosure of “determining at a
packet level those packets associated with each connection,” as recited in
independent claims 1, 14, and 22, or “routing of said traffic in said first
phase of routing [being] performed via round-robin packet routing,” as
recited in independent claim 18. (Ans. 4–13.) The Examiner finds,
moreover, that Bremer and Kennedy respectively disclose those packet-
determining and round-robin packet-routing elements not disclosed by Dani,
and that it would have been obvious to one of skill in the art at the time of
the claimed invention to incorporate Bremer’s and Kennedy’s routing
methods into Dani’s method “for the purpose of routing and relaying packets
to the final destination in order to have a reliable system” (Ans. 6, 10) or for
“better load balancing” (Ans. 12).
Claim 1
Appellants argue that “Dani fails to disclose or suggest the claim
limitation: ‘determining by said intermediate nodes to route traffic toward a
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next plurality of intermediate nodes,’” as recited in claim 1. (Reply Br. 3;
see also App. Br. 8–10.) We disagree.
Figure 5 of Dani is reproduced below:

Figure 5 “depicts a load balancing scheme” in accordance Dani’s preferred
embodiment (see Dani ¶ 21).
The Examiner finds Figure 5 discloses that “[t]raffic can be directed
to one destination (elements 48 or 50) through a plurality of intermediate
nodes (switches 22–28) . . . .” (Ans. 5.) Appellants do not dispute that
finding, but instead argue:
As the Examiner indicates, traffic can be directed to one
destination through a plurality of intermediate nodes.
However, the claimed element recites a different feature.
Specifically, the claimed element recites: “determining by said
intermediate nodes to route traffic toward a next plurality of
intermediate nodes,” which is different from Dani’s disclosure.
In contradistinction to the Examiner’s allegation, the claimed
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intermediate nodes determine to route traffic to a next plurality
of intermediate nodes as opposed to “one destination” as the
Examiner seems to suggest.
(App. Br. 9.) Appellants further argue that “unlike Dani’s arrangement, the
claimed communication network provides for unlimited number of
respective traffic weighting factors associated with those stages of
intermediate nodes.” (Id. at 10, 11–12.) According to Appellants:
[T]he specification . . . provides a clear context for persons
skilled in the art to understand that there is no limit to the
number of stages of intermediate nodes between the start nodes
112 and destination nodes 116; therefore, there is no limit to the
number of respective traffic weighting factors associated with
those stages of intermediate nodes.
(Id. at 12.)
In response to Appellants’ arguments, the Examiner finds, more
particularly, that Figure 5 illustrates intermediate nodes (switches 22 and 28)
determining to route traffic to a next plurality of intermediate nodes
(switches 24 and 26). (Ans. 15.) The Examiner also finds that “the features
upon which applicant relies (i.e., there is no limit to the number of stages of
intermediate nodes and there is no limit to the number of respective traffic
weighting factors associated with those stages . . . ) are not recited in the
rejected claim(s).” (Ans. 14.) With respect to the latter point, Appellants
argue:
Claims are not interpreted in vacuum. In order to
properly interpret the phrase “next plurality of intermediate
nodes,” reference was made to the specification, i.e., Fig. 1 and
page 9, beginning at line 25. The MPEP makes clear that the
intrinsic record (e.g., the specification) must be consulted to
identify which of the different possible definitions is most
consistent with the invention’s use of the terms. See MPEP
§2111.01 (III) quoting Brookhill-Wilk 1, 334 F.3d at 1300 . . . .
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The cited passage of the specification provides a clear
context for persons skilled in the art to understand the term
“security policies” as comprising information regarding
security measures required for communication with the network
branch.
(Reply Br. 3.)
We are not persuaded of error.
First, the phrase “security policies” does not appear in the claims, and
Appellants’ argument that “[t]he cited passage of the specification provides
a clear context for persons skilled in the art to understand the term ‘security
policies’” (Reply Br. 3) has no apparent relevance in this case.
Second, we see no error in the Examiner’s finding that switches 22
and 28 in Figure 5 of Dani represent a first plurality of intermediate nodes,
while switches 24 and 26 represent a “next” plurality of intermediate nodes.
Third, Appellants’ citations to MPEP § 2111.01 (III) and to the
Brookhill-Wilk 1 and Phillips cases are inapposite. As the MPEP explains,
“[d]uring patent examination, the pending claims must be ‘given their
broadest reasonable interpretation consistent with the specification.’ The
Federal Circuit’s en banc decision in Phillips v. AWH Corp., 415 F.3d 1303,
1316, 75 USPQ2d 1321, 1329 (Fed. Cir. 2005) expressly recognized that the
USPTO employs the ‘broadest reasonable interpretation’ standard.” (MPEP
§ 2111.) Further:
Under a broadest reasonable interpretation, words of the
claim must be given their plain meaning, unless such meaning
is inconsistent with the specification. . . . The presumption that
a term is given its ordinary and customary meaning may be
rebutted by the applicant by clearly setting forth a different
definition of the term in the specification. In re Morris, 127
F.3d 1048, 1054, 44 USPQ2d 1023, 1028 (Fed. Cir. 1997) . . . ;
But c.f. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1369,
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70 USPQ2d 1827, 1834 (Fed. Cir. 2004) (“We have cautioned
against reading limitations into a claim from the preferred
embodiment described in the specification, even if it is the only
embodiment described, absent clear disclaimer in the
specification.”). . . .
Although claims of issued patents are interpreted in light
of the specification, prosecution history, prior art and other
claims, this is not the mode of claim interpretation to be applied
during examination. During examination, the claims must be
interpreted as broadly as their terms reasonably allow. In re
American Academy of Science Tech Center, 367 F.3d 1359,
1369, 70 USPQ2d 1827, 1834 (Fed. Cir. 2004) (The USPTO
uses a different standard for construing claims than that used by
district courts; during examination the USPTO must give
claims their broadest reasonable interpretation in light of the
specification.). This means that the words of the claim must be
given their plain meaning unless the plain meaning is
inconsistent with the specification. In re Zletz, 893 F.2d 319,
321 . . . (Fed. Cir. 1989).
(MPEP § 2111.01 (I).) Moreover, as explained in MPEP § 2111.01 (III),
cited by Appellants, “‘[i]n the absence of an express intent to impart a novel
meaning to the claim terms, the words are presumed to take on the ordinary
and customary meanings attributed to them by those of ordinary skill in the
art.’” (MPEP § 2111.01 (III) (citing Brookhill-Wilk 1, LLC v. Intuitive
Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003))).
3

3
MPEP § 2111.01 (II), entitled “IT IS IMPROPER TO IMPORT CLAIM
LIMITATIONS FROM THE SPECIFICATION,” further explains that
“‘[t]hough understanding the claim language may be aided by explanations
contained in the written description, it is important not to import into a claim
limitations that are not part of the claim. 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.’
Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 . . . (Fed.
Cir. 2004).”
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In this case, we do not find evidence of any “clear disclaimer” of
claim scope in the Specification, any inconsistency between the plain
meaning of the claim terms and the specification, or any “express intent to
impart a novel meaning to the claim terms.” Therefore, we find reasonable
the Examiner’s finding that “the features upon which applicant relies (i.e.,
there is no limit to the number of stages of intermediate nodes and there is
no limit to the number of respective traffic weighting factors associated with
those stages . . . ) are not recited in the rejected claim(s).” (Ans. 14.)
Appellants additionally argue:
As claimed, it is the final plurality of intermediate nodes
that will route traffic directly to the plurality of destination
nodes. . . .
As can be seen Dani’s Figure 5 cited by the Examiner
does not disclose this aspect of the claimed feature. It is
incomprehensible how the Examiner manages to have this one
passage, i.e., Fig. 5, disclose two features that are so
significantly different.
(App. Br. 11.) We are again not persuaded of error. First, the claims do not
recite routing to a “plurality” of destination nodes, but instead to “one or
more” destination nodes. (See claims 1, 14, 18, and 22.) Second, we discern
no error in the Examiner’s finding that Dani’s Figure 5 illustrates traffic
routed to one or more destination nodes (i.e., end nodes 48 or 50) from a
“final plurality of intermediate nodes” (i.e., switches 24 and 26) according to
respective intermediate node traffic weighting factors associated with each
of the final plurality of intermediate nodes. (See Ans. 15–16.) In view of
the plain language of the claims, we agree with the Examiner’s finding that
“the next plurality of intermediate nodes can be also the final plurality of
intermediate nodes.” (Ans. 16.)
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Appellants further contend “Bremer Fails To Cure Dani’s
Deficiencies.” (App. Br. 14.) Appellants do not provide any substantive
argument in support of that contention, but merely quote from Bremer and
the Specification and then conclusorily assert, “[a]s can be seen, Bremer
does not disclose ‘determining at a packet level those packets associated
with each connection’ within the context of the instant application as
described above. Thus, Bremer fails to bridge the gap between Dani and
Appellants claimed embodiments.” (Id. at 14–15.)
We are again not persuaded of error. Merely reciting the language of
the claims and asserting that the cited prior art reference does not disclose a
claim limitation is insufficient to show error. See 37 C.F.R.
§ 41.37(c)(vii)(2010) (“A statement which merely points out what a claim
recites will not be considered an argument for separate patentability of the
claim.”); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e
hold that the 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.”); cf. 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, looking for [patentable]
distinctions over the prior art.”). Moreover, having reviewed Bremer, we
concur with the Examiner’s findings.
Appellants next assert that “the Examiner failed to properly establish
‘any differences between the claimed subject matter and the prior art.’”
(App. Br. 15.) As Appellants themselves recognize (see, e.g., App. Br. 14),
however, the Examiner found that “Dani discloses all of the subject matter
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[of claim 1] with the exception of explicitly disclosing the determining at a
packet level those packets associated with each connection,” and
accordingly cited Bremer (see Ans. 5–6). Thus, we are not persuaded of
error.
Appellants further contend “The Examiner's Assertion That The
References Can Be Combined Or Modified Does Not Render The Resultant
Combination Obvious Unless The Results Would Have Been Predictable To
One Of Ordinary Skill In The Art: Examiner's Burden Not Met” (App. Br.
15). According to Appellants:
Dani was conceived (filed) in 2002 designed to operate with a
specific underlying technology, e.g., 2002 processor capability
whereas Bremer was conceived (filed) five years earlier, i.e.,
1997. With capabilities of electronic devices doubling
approximately every two years, it is doubtful that a piece of
software designed in 2002 could be executed on a processor
built in 1997 with the exact same results as if the same piece of
software were executed on a processor built in 2002. Issues
such as binary compatibility and all sorts of other compatibility
issues arise. It may be argued that most software is binary
compatible. However, binary compatibility does not apply in
the case where software codes developed in 2002 are executed
in a 1997 processor.
(App. Br. 16.)
We are again not persuaded of error. Simply put, Appellants’
speculative attorney argument provides insufficient evidence to persuade us
that the proposed combination would have led to anything other than
predictable results or that the references are otherwise not properly
combinable.
4
Moreover, the Examiner has not suggested incorporating Dani

4
See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (attorney argument
not the kind of factual evidence required to rebut a prima facie case of
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wholesale into Bremer, but has instead cited Bremer to show that it was
known to those of skill in the art (in 1997, and a fortiori in 2002) to
determine at a packet level those packets associated with a connection. As
stated in In re Keller, 642 F.2d 413 (CCPA 1981):
To justify combining reference teachings in support of a
rejection it is not necessary that a device shown in one
reference can be physically inserted into the device shown in
the other. The test for obviousness is not whether the features
of a secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill
in the art.
642 F.2d at 425 (citations omitted).
Appellants further argue, without additional substantive explanation,
that “[f]or the reasons discussed above, the combination of Dani with
Bremer would require some added feature or modification in order to
perform the intended purpose. In fact, a combination of Dani with Bremer
would likely destroy either arrangement.” (App. Br. 16.) Again, we are
unpersuaded of error. It is well-settled law that “[a] person of ordinary skill
is also a person of ordinary creativity, not an automaton.” KSR International
v. Teleflex, Inc., 550 U.S. 398, 417 (2007).
Lastly, Appellants contend “the Examiner has failed to provide a
motivation for combining Dani with Bremer.” (App. Br. 17.) We are
unpersuaded of error, because we conclude the Examiner has articulated
reasoning for the combination, with rational underpinning drawn from the

obviousness) and In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
(“Attorney’s argument in a brief cannot take the place of evidence”).
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cited references to support the legal conclusion of obviousness. See KSR,
550 U.S. at 418. In particular, the Examiner finds “it would have been
obvious to the one skill [sic] in the art at the time of the invention to use the
routing method as taught by Bremer into the method of Dani for operating
the switches (20-28) for the purpose of routing and relaying packets to the
final destination in order to have a reliable system.” (Ans. 6, 20.)
5

Accordingly, we sustain the Examiner’s rejection of claim 1 under
35 U.S.C. § 103(a) as being unpatentable over Dani and Bremer.
Claims 2–9 and 13–21
Appellants do not raise any additional substantive arguments with
respect to claims 2–9 or 13–22, but instead contend that “independent claims
14, 18 and 22 recite relevant limitations similar to those recited in
independent claim 1 and, as such, . . . are also patentable under 35 U.S.C.
§ 103(a) over Dani in combination with Bremer or Kennedy” and that the
rejection of dependent claims 2–9, 13, 15–17, and 19–21 “is predicated on
the validity of the rejection under 35 U.S.C. § 103 given Dani in view of
Bremer or Kennedy as applied to claims 1, 14, 18.” (App. Br. 19.) For the
reasons stated above with respect to the rejection of claim 1, we are not
persuaded of error in the rejection of claims 2–9 and 13–22.
Accordingly, we sustain the Examiner’s rejection of claims 2–9, 13–
17, and 22 as being unpatentable over Dani and Bremer and the rejection of
claims 18–21 as being unpatentable over Dani and Kennedy.

5
Notably, the Examiner additionally finds “Dani implicitly discloses that the
packets are reliably transferred from source to destination through
intermediate node using destination header in the packet (claimed
‘determining at a packet level those packet’)” and “uses [the] Bremer
reference to clearly show the above limitation.” (Ans. 19.)
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CONCLUSIONS
The Examiner did not err in finding that the combination of Dani and
Bremer teaches or suggests the limitations of “determining, by said
intermediate nodes, to route traffic toward a next plurality of intermediate
nodes” and “determining at a packet level those packets associated with each
connection,” as recited in claim 1, and the Examiner did not err in
combining Dani and Bremer.

DECISION
The rejections of claims 1–9 and 13–22 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).

AFFIRMED

ELD