Ex Parte Said et al

Patent Trial and Appeal Board

Apr 6, 2016

12997595 (P.T.A.B. Apr. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/997,595 06/30/2011 Laith Said
113648 7590 04/08/2016
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EXAMINER
ZHU,ZHIMEI
ART UNIT PAPER NUMBER
2495
NOTIFICATION DATE DELIVERY MODE
04/08/2016 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):
Emily@ppblaw.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LAITH SAID, DANIEL DERKSEN,
PURVI SHAH, and JOHN VOLKERING
Appeal2014-006003
Application 12/997 ,59 5
Technology Center 2400
Before JOHN P. PINKERTON, JAMES W. DEJMEK, and
JOHN D. HAMANN, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-5 and 9. Claims 6 and 7 are canceled. We have jurisdiction
under 35 U.S.C. § 6(b ).
We affirm-in-part.
1 Appellant identifies the real party in interest as Telefonaktiebolaget L M
Ericsson. App. Br. 1.
Appeal2014-006003
Application 12/997,595
STATEMENT OF THE CASE
Introduction
Appellants' invention is generally directed to providing link
aggregation control in a plurality of systems adapted for link aggregation,
including a primary system, a first secondary system, and a second
secondary system. Spec. p. 1, 11. 28-31. 2 Claim 1 is exemplary and
reproduced below:
1. A method in a primary system for providing Link
Aggregation Control between a plurality of systems adapted for
Link Aggregation and including the primary system
having a primary system identifier, a first secondary system
having a first system identifier, and a second secondary system
having a second system identifier, the primary system
comprising a first set of primary ports being linked to a first set
of ports of the first secondary system by first links, the primary
system further comprising a second set of primary ports being
linked to a second set of ports of the second secondary system
by second links, wherein the method comprises the steps of:
forming in said primary system a link aggregation group,
wherein the link aggregation group includes at least one first
link between the primary system and the first secondary system
and at least one second link between the primary system and
the second secondary system;
selecting in said primary system a preferred system
among the secondary systems having links within the link
aggregation group;
2 Our Decision refers to the Final Office Action mailed Apr. 18, 2013
("Final Act."); Appellant's Appeal Brief filed Dec. 6, 2013 ("App. Br."); the
Examiner's Answer mailed Feb. 27, 2014 ("Ans."); Appellant's Reply Brief
filed Apr. 9, 2014 ("Reply Br."); and, the original Specification filed
Dec. 11, 2010 ("Spec.").
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Application 12/997,595
setting in said primary system the status of the primary
ports according to the selection of the preferred system;
evaluating in said primary system the at least one link
between the primary system and the preferred system according
to a minimum active links requirement; and
in case the minimum active links requirement is not
fulfilled, selecting an alternative preferred system among the
other secondary systems having links within the link
aggregation group, and setting the status of the primary ports
according to the selection of the preferred system.
References
Suzuki US 2005/0265330 Al Dec. 1, 2005
Regan US 2008/0181196 Al July 31, 2008
Rejection on Appeal
Claims 1-5 and 9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Regan and Suzuki. 3
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellants'
arguments in the Appeal Brief and Reply Brief that the Examiner has erred.
We disagree with Appellants' conclusions the Examiner erred in rejecting
claims 1, 2, 4, 5, and 9. Appellants have persuaded us of error in the
Examiner's rejection of claim 3. Unless indicated otherwise, we adopt as
our own the findings, conclusions, and reasons set forth by the Examiner
3 In the Final Office Action, the Examiner rejected claim 8 on this same
ground, but the rejection has been withdrawn. See Ans. 11.
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Application 12/997,595
relating to claims 1, 2, 4, 5, and 9 in the action from which this appeal is
taken (Final Act. 4--11) and in the Examiner's Answer in response to
Appellants' Appeal Brief (Ans. 12-18). For emphasis, we consider and
highlight specific arguments as presented in the Appeal Brief and Reply
Brief.
Claims 1 and 9
Appellants contend the Examiner erred in combining Regan and
Suzuki for the obviousness rejection of claim 1 and, even if the references
were combined as proposed, the result would not resemble the method of
claim 1. App. Br. 8-11; Reply Br. 2-8. In particular, Appellants argue, it is
fundamental to Regan that link aggregation control resides in the secondary
systems, as shown in Figure 3 of Regan, and "any attempt to modify that
fundamental precept would be detrimental to the disclosed operability
thereof." App. Br. 9-10; Reply Br. 3--4.
We are not persuaded by Appellants' arguments. Citing Figure 2 and
paragraph 14, lines 11-17 of Regan, the Examiner finds, and we agree,
Regan also teaches a method of link aggregation control, as shown in Figure
2, in which the primary system 102 includes a link aggregation control
protocol (LACP) instance 204 that may facilitate establishment and control
of the link aggregation group (LAG) in the primary system 102 by
communicating with the LACP instance on the secondary system. Final
Act. 4; Ans. 12. Thus, the Examiner finds, and we agree, Regan's teaching
of the existence of LACPs on the secondary system does not negate the
possibility that the primary system can contain a LACP instance. Ans. 12.
The Examiner further finds, consistent with Figure 2 of Regan, Suzuki
teaches link aggregation control can be successfully implemented in a
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Application 12/997,595
primary system. Id. at 14. Specifically, the Examiner finds, and we agree,
Suzuki teaches link aggregation controller 112 in a primary system 100
establishes link aggregations LAI and LA2 between the switch 100 and the
switch 200 (the first secondary system) and switch 300 (the second
secondary system), respectfully. Ans. 13 (citing Suzuki Figures 1, 2; i-fi-148-
51 ). Thus, we conclude the Examiner did not err by combining Regan and
Suzuki for the obviousness rejection of claim 1 because, even though the
specific system shown in Figure 3 of Regan implements link aggregation
control in the secondary systems, Regan in Figure 2 and Suzuki both teach
link aggregation control in the primary system, as in claim 1. We also agree
with the Examiner that, based on the teachings of link aggregation control in
the primary system in both Regan (Figure 2) and Suzuki, modifying the
system of Figure 3 of Regan would not necessarily be detrimental to the
disclosed operability ofRegan. 4 See id. 14. We further find Appellants'
argument that any attempt to modify Regan's teaching of providing link
aggregation control in the secondary systems would be detrimental to its
disclosed operability is unpersuasive, as it amounts to unsupported attorney
argument, which is entitled to little probative value. See In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699,
705 (Fed. Cir. 1984).
4 Based on these teachings, we further find, contrary to Appellants' argument
(see App. Br. 10, Reply Br. 6), that the foundation upon which the
obviousness rejection is based is not fundamentally flawed and that Regan
teaches the recited "forming," "selecting," and "evaluating" steps of claim 1
for the reasons stated by the Examiner. See Final Act. 4--5.
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Regarding the steps of claim 1 of "selecting" an alternative preferred
system among the other secondary systems, in case the minimum active
links requirement is not fulfilled, and "setting" the status of the primary
ports according to the selection of the preferred system, Appellants argue the
approach of Suzuki could not be applied to the system of Regan because the
link aggregation switchover of Suzuki is complicated and cumbersome.
App. Br. 10-11; Reply Br. 6-7. Appellants also argue a person of ordinary
skill in the art would not use the complicated approach of Suzuki, in which
there are four status states, in the method of Regan that uses two states,
active and inactive. App. Br. 10-11; Reply Br. 6-7.
We are not persuaded by Appellants' arguments. Initially, we note the
"selecting" and "setting" steps of method claim 1 are conditional in that they
are only to be performed "in case the minimum active links requirement is
not fulfilled." Conditional steps in a method claim need not be found in the
prior art if, under the broadest scenario, the method need not invoke the
steps. See Ex parte Katz, 2010-006083, 2011 WL 514314, *4--5 (BPAI
2011) (non-precedential) (citing Jn re Am. Acad. of Sci. Tech. Ctr., 367 F.3d
1359, 1364 (Fed. Cir. 2004)). The broadest reasonable interpretation of the
"selecting" and "setting" steps of claim 1 is that they are not performed if
the minimum active links requirement is fulfilled. Thus, these conditional
steps need not be found in the art because they are not always required.
Nevertheless, in regard to Appellants' arguments, the Examiner finds, even
though the port statuses in Suzuki and Regan are not literally identical, the
port statuses are similar in that the active state of Regan corresponds to the
Aggregation state of Suzuki and the inactive state of Regan corresponds to
the Aggregation Ready, Aggregation Preparation Standby, and Aggregation
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Application 12/997,595
Standby statuses of Suzuki. Ans. 15. Thus, the Examiner finds the port
statuses of Suzuki have enough similarity to the Regan port statuses for a
person of ordinary skill in the art to think of using the approach of setting the
status of the primary ports taught by Suzuki in the method of Regan.
Ans. 15. Appellants have not provided persuasive evidence or reasoning to
rebut the Examiner's finding. In that regard, Appellants' rhetorical question
of "how can there be any degree of similarity" between four statuses in one
reference and two in another is not informative or convincing. See Reply
Br. 7.
Appellants further argue Suzuki is unlike claim 1 because it teaches
only switching between two mutually exclusive link aggregation groups,
LAI and LA2. App. Br. 11; Reply Br. 8. We are not persuaded by this
argument because it attacks Suzuki individually. It is well established that
one cannot show non-obviousness by attacking references individually
where the rejection is based upon the teachings of a combination of
references. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986);
see also In re Keller, 642 F.2d 413, 425 (CCPA 1981). Here, the Examiner
finds Regan teaches forming a link aggregation group in primary system 306
with first links 0 and 1 between the primary system and the first secondary
system 308 and second links 2 and 3 between the primary system and the
second secondary system 310. Final Act. 5 (citing Regan Fig.3, i-fi-12, 18).
The Examiner also finds Regan teaches, upon failure of the active node or
the links thereto, the minimum active link requirement is not met and the
system would switch to the standby node 310. Final Act. 5-6 (citing Regan
i-f 18). The Examiner further finds, in response to failure of a link, Suzuki
teaches selecting an alternative preferred system among the other secondary
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systems and setting the status of the primary ports according to the selection
of the preferred system. Final Act. 6 (citing Suzuki i1i170, 74, 75). Thus,
based on these findings of the Examiner, with which we agree, in the event
the minimum active links requirement is not met, the combination of Regan
and Suzuki teaches the alternative secondary system 310 of Regan, having
links with the aggregation group, would be selected and the status of the
primary ports 2 and 3 of CPE 306 would be set active as taught by Suzuki.
In other words, contrary to Appellants' argument, the failure to meet the
minimum active links requirement would not result in switching between
two mutually exclusive link aggregation groups LAI and LA2 as shown in
Suzuki. Thus, we further agree with the Examiner's finding that, even
though Suzuki and Regan teach a different number of link aggregation
groups, the step of setting the status of the primary ports according to the
selection of the preferred secondary system taught by Suzuki would have
been recognized by those of ordinary skill in the art as useful for the link
aggregation control method of Regan. Ans. 16.
Appellants further argue neither Regan nor Suzuki has an evaluation
method that operates according to a minimum links requirement. App.
Br. 11; Reply Br. 8. This argument is not persuasive because the Examiner
relies on the combination of (a) Regan as teaching "evaluating" in the
primary system a link between the primary and preferred system "according
to a minimum active links requirement" and (b) Suzuki as teaching the
"selecting" step in case the minimum active links requirement is not fulfilled
and then "setting" the status of the primary ports. Final Act. 5---6 (citing
Regan i-f 18; Suzuki i1i170, 74, 75). We agree with these findings.
Appellants improperly attack the references individually where the
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Examiner's rejection is based upon the teachings of the combination of
Regan and Suzuki. See In re Merck, 800 F.2d at 1097; see also In re Keller,
642 F.2d at 425 ("[T]he test [for obviousness] is what the combined
teachings of the references would have suggested to those of ordinary skill
in the art.").
Based upon the Examiner's findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of Regan and Suzuki to teach or suggest the disputed limitations
of claim 1, nor do we find error in the Examiner's resulting legal conclusion
of obviousness. Accordingly, we sustain the Examiner's rejection of claim
1. Appellant argues claim 9 is patentable for similar reasons presented with
respect to claim 1. See App. Br. 11-14; Reply Br. 9-12. Thus, for the same
reasons discussed supra regarding claim 1, we also affirm the Examiner's
rejection of claim 9.
Claims 2-5
Appellants argue Regan and Suzuki fail to teach or suggest (a) the
step of selecting a preferred system comprises selecting the secondary
system "by a selection criterion based on the system priority values of the
secondary systems in the link aggregation group," as recited in claim 2,
(b) the step of setting the primary ports "comprises setting the primary ports
not linked to the preferred system to standby," as recited in claim 4, and ( c)
the step of setting the primary ports "comprises setting the primary ports
linked to the preferred system to active," as recited in claim 5. Appellants
also argue the rejections of claims 2, 4, and 5 are improper for the same
reasons set forth with respect to independent claim 1. We are not persuaded
by these arguments for the reasons discussed supra regarding claim 1 and
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for the reasons and findings set forth by the Examiner regarding claims 2, 4,
and 5, which we adopt as our own. See Final Act. 7-8; Ans. 16-19.
Accordingly, we sustain the Examiner's rejection of claims 2, 4, and 5.
With respect to claim 3, Appellants argue Suzuki does not teach or
suggest the step of selecting a preferred system "by a selection criterion
based on the number of links to each of the secondary systems in the link
aggregation group." Although the Examiner finds that "'operable links'
taught by Suzuki teaches 'links' recited by claim 3" (Ans. 17), we agree with
Appellants' arguments that the number of operable links is not what is being
claimed and that Suzuki does not teach selection "between LAI and LA2
based on which has the greater (or lesser) number of links." App. Br. 15;
Reply Br. 12-13. Accordingly, we are persuaded of error in the Examiner's
rejection of claim 3 and do not sustain the rejection.
DECISION
We affirm the Examiner's decision rejecting claims 1, 2, 4, 5, and 9.
We reverse the Examiner's decision rejecting claim 3.
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).
AFFIRMED-IN-PART
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