Ex Parte Stern et al

Patent Trial and Appeal Board

Aug 12, 2016

13041513 (P.T.A.B. Aug. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/041,513 03/07/2011 Yoram Stern
121419 7590 08/16/2016
Oblon/Broadcom Corporation
1940 Duke Street
Alexandria, VA 22314
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.
431635US8 5271
EXAMINER
RAHGOZAR, OMEED DANIEL
ART UNIT PAPER NUMBER
2467
NOTIFICATION DATE DELIVERY MODE
08/16/2016 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):
patentdocket@oblon.com
oblonpat@oblon.com
ahudgens@oblon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YORAM STERN and ISRAEL MEILIK
Appeal2014-009627 1
Application 13/041,513
Technology Center 2400
Before JEAN R. HOMERE, JASON V. MORGAN, and
SHARON PENICK, Administrative Patent Judges.
HOMERE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 1-22. App. Br. 9. We have
jurisdiction under 35 U.S.C. § 6(b ).
We affirm in part.
1 Appellants identify the real party in interest as Broadcom Corp. App.
Br. 2.
Appeal2014-009627
Application 13/041,513
Appellants' Invention
Appellants' invention is directed to a method and system for
maintaining communications between maintenance endpoints in a network
by periodically exchanging continuity check messages (CCM) to detect and
repair connectivity failures in the network. In particular, upon failing to
receive from a peer node a response to a CCM within a predetermined length
of time, a maintenance endpoint transmits a signal to a network operator to
determine an alternate pathway to communicate with the peer endpoint.
Spec. iTiT 16-20.
Illustrative Claim
Independent claim 1 is illustrative, and reads as follows:
1. A network comprising a maintenance association, said
maintenance association comprising a plurality of maintenance
endpoints;
wherein each maintenance endpoint is configured to
periodically transmit a continuity check message ("CCM") to at
least a portion of the plurality of the maintenance endpoints in
order to detect connectivity failures between the maintenance
endpoints,
said connectivity failures being characterized at least by a
failure of a maintenance endpoint to receive the CCM from a
peer maintenance endpoint for a standards-determined length of
time, and
wherein each maintenance endpoint is configured to
transmit a signal to a network operator to determine an alternate
pathway for communication with the maintenance association in
response to failing to receive the CCM for an amount of time that
is less than the standards-determined length of time.
2
Appeal2014-009627
Application 13/041,513
Rejection on Appeal
Claims 1-22 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Ghodrat (US 2009/0073988 Al; pub. Mar. 19, 2009)
ANALYSIS
We consider Appellants' arguments seriatim, as they are presented in
the Appeal Brief, pages 9-21, and the Reply Brief, pages 1-3. 2
Appellants argue that Ghodrat does not describe "each maintenance
endpoint is configured to transmit a signal to a network operator to
determine an alternate pathway for communication with the maintenance
association in response to failing to receive the CCM for an amount of time
that is less than the standards-determined length of time" as recited in
independent claim 1. App. Br. 10-15, Reply Br. 1-3. In particular,
Appellants argue Ghodrat's disclosure of a predefined secondary pathway
that becomes a primary pathway if a CCM is not received after 1 Oms does
not describe determining an alternate (new) pathway if the CCM is not
received in less than a standards-determined length of time. App. Br. 12-14
(citing Ghodrat i-fi-137, 38, 50). According to Appellants, even though
Ghodrat's total response time (9.9ms) for three consecutive CCMs (each
having a transmission rate of 3 .3ms) before switching to a secondary
2 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed January 28, 2014), the Reply Brief (filed
September 9, 2014) and the Answer (mailed July 9, 2014) for their
respective details. We have considered in this Decision only those
arguments Appellants actually raised in the Briefs. Any other arguments
Appellants could have made but chose not to make in the Briefs are deemed
to be waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2013).
3
Appeal2014-009627
Application 13/041,513
pathway is less than the total 1 Oms, Ghodrat only describes switching over
to the secondary pathway if no response is received after the lOms. (i.e., a
response time greater than a predetermined threshold). Id, Reply Br.1-3.
This argument is not persuasive.
At the outset, we note the recitation "in response to failing to receive
the CCM for amount of time that is less than the standards-determined
length of time" encompasses any length of time between 0 and a
predetermined threshold. That is, the transmitting endpoint needs not wait at
all for a response to the CCM to initiate determining the alternate pathway.
Nonetheless, we agree with the Examiner that because the switchover to the
secondary path takes place after 9.9ms (or, 3.3ms after the 6.6ms in which
the previous two CCMs were not received), which is less than the
predetermined length of time (lOms), Ghodrat discloses switching over to
the secondary pathway after the CCM is transmitted for an amount of time
that is less than the standards-determined length of time. Ans. 2 (citing
Ghodrat i-fi-137-38).
Further, we note although Appellants have argued in passing that
Ghodrat's disclosure of switching over to an existing communication
pathway does not describe the claimed determining of a pathway, Appellants
have not substantially outlined the differences between the cited language
and the teaching disclosed in Ghodrat. 3 App. Br. 12-13. In any event, we
3 Appellants are reminded that merely reciting the claim limitations and
findings relied upon by the Examiner in the rejection is not a responsive
argument. Such a response to the Examiner's findings is insufficient to
persuade us of Examiner error, as mere attorney arguments and conclusory
statements that are unsupported by factual evidence are entitled to little
probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see
4
Appeal2014-009627
Application 13/041,513
note that the claim does not require determining a new pathway. Instead, it
merely requires determining an alternative communication pathway, which
is described by Ghodrat's disclosure of selecting a secondary/alternative
communication pathway determined to be in existence.
Because we agree with the Examiner that the cited disclosures of
Ghodrat describes the disputed limitations, Appellants have not shown the
Examiner erred in finding Ghodrat anticipates claim 1.
Regarding the rejection of claims 4 and 10, Appellants argue
Ghodrat's disclosure of endpoint changing the direction of a CCM upon
receipt does not describe the endpoint terminating the CCM upon receipt.
App. Br. 16. This argument is persuasive.
We do not agree with the Examiner that modifying the destination or
direction of a received CCM constitutes ending an original CCM in favor of
a new CCM being redirected because such redirection of the CCM does not
affect the content thereof. Instead, it merely affects the routing instruction
thereof, which is not necessarily part of the CCM. Accordingly, we agree
with Appellants the Examiner erred in finding the cited disclosure of
Ghodrat anticipates claims 4 and 10.
also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); Ex parte Belinne,
No. 2009-004693, slip op. at 7-8 (BPAI Aug. 10, 2009) (informative); 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.")
5
Appeal2014-009627
Application 13/041,513
Regarding claims 2-3, 5-9, and 11-22, because Appellants reiterate
substantially the same arguments as those previously discussed for
patentability of claim 1 above, claims 2, 3, 5-9, and 11-22 fall therewith.
See 37 C.F.R. § 41.37(c)(l)(iv) (2013).
We affirm the Examiner's rejection of claims 1-3, 5-9, and 11-22.
However, we reverse the Examiner's rejection of claims 4 and 10.
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
6