Ex Parte Wang

Patent Trial and Appeal BoardAug 21, 2014

11616931 (P.T.A.B. Aug. 21, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte XUAN WANG ____________________ Appeal 2012-001607 Application 11/616,931 Technology Center 2400 ____________________ Before JOHNNY A. KUMAR, MICHAEL J. STRAUSS, and DANIEL N. FISHMAN, Administrative Patent Judges. KUMAR, Administrative Patent Judge. DECISION ON APPEAL Appellant seeks review under 35 U.S.C. § 134(a) of a final rejection of claims 1–8. We have jurisdiction over the appeal of these claims pursuant to 35 U.S.C. § 6(b). We AFFIRM. Appeal 2012-001607 Application 11/616,931 2 STATEMENT OF CASE1 An understanding of the invention can be derived from a reading of exemplary claim 1, which is reproduced below: 1. A method of implementing load allocation in a home agent apparatus of a communication network, the method comprising: routing, by at least one ingress processor, data packets from an external network to a mobile user using an IP tunnel protocol; routing, by a first user router, the data packets received by the first user router from the mobile user via the external network to the ingress processor; maintaining, by a controller, a tunnel IP address of the mobile user and a dynamic route list associating the tunnel IP address with the ingress processor; notifying, by the controller, the ingress processor of the tunnel IP address of the mobile user; and notifying, by the controller, the first user router of the dynamic route list, the first user router configured to allocate the data packets based on the dynamic route list. REJECTION The Examiner rejected claims 1–8 under 35 U.S.C. § 103(a) as being unpatentable over Haverinen (US 2001/0021175 A1, Sept. 13, 2001) in view of the background of Haverinen. Ans. 5–8. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s contentions that the Examiner has erred. Further, we have reviewed the 1 Our Decision will make reference to Appellant’s Appeal Brief (“Br.,” filed June 6, 2011), and the Examiner’s Answer (“Ans.,” mailed July 26, 2011). Appeal 2012-001607 Application 11/616,931 3 Examiner’s response to claims 1–8 that has been argued by the Appellant. Br. 11–19. We disagree with Appellant’s 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 Appellant’s Appeal Brief. Ans. 5–12. We concur with the conclusions reached by the Examiner. We highlight and address specific findings and arguments for emphasis as follows. Based on Appellant’s arguments in the Appeal Brief (Br. 12–19), the principal and dispositive issue of whether the Examiner erred in rejecting claims 1–8 turns on whether Haverinen teaches and/or suggests “routing, by a first user router, the data packets received by the first user router from the mobile user via the external network to the ingress processor,” as set forth in claim 1, and similarly recited in independent claim 5 (hereinafter “the disputed limitation”).2, 3 Appellant admits that “the cited reference [Haverinen] does in fact disclose the routing of data packets” but argues that “Haverinen discloses routing via a tunneling protocol to a mobile node via a foreign agent FA.” Br. 14 (emphasis omitted). In particular, Appellant contends, According to paragraph [0026] of Haverinen, the primary home agent PHA processes all Mobile IP messages (from the 2 Separate patentability is not argued for dependent claims 2, 4, 6, and 8. Except for our ultimate decision, these claims are not discussed further herein. 3 Appellant contends that independent claim 5 should be patentable for similar reasons as claim 1. Br. 15. Appeal 2012-001607 Application 11/616,931 4 foreign agent FA or the mobile node MN), and when needed, the primary home agent PHA transmits messages to a secondary home agent SHA. In other words, Haverinen discloses a home agent that routes messages from a mobile node to another (secondary) home agent not an “ingress processor” where the ingress processor routes “data packets from an external network to a mobile user using an IP tunnel protocol,” as required by claim 1. Br. 13. The Examiner finds: “[T]he primary home agent (PHA) is arranged to process all mobile IP messages (from the foreign agent or the mobile node)” coupled with the fact that a PHA is a routing device which possesses a routing entity, as admitted by Appellant on page 4 of this brief, characterized in that while away from its home network, a mobile node is associated with a care-of- address (COA) that identifies its current location and its home address is associated with the local endpoint of a tunnel to its PHA, which in turn processes all mobile IP messages, therefore the PHA possesses an ingress processor. Mobile IP specifies how a mobile node registers with its PHA and how the PHA routes datagrams to the mobile node through the tunnel. Ans. 9 (emphasis ours). In other words, the Examiner finds that Haverinen’s PHA meets the disputed limitation. We are not persuaded the Examiner has erred because Appellant provides no persuasive evidence of the alleged error. Specifically, Appellant provides no persuasive evidence or argument regarding why the PHA as taught by Haverinen does not meet the claimed disputed limitation. Rather, Appellant merely provides conclusory remarks that Haverinen’s PHA is different from what is claimed. Br. 12–15. It is well settled that mere attorney’s arguments and conclusory statements, which are unsupported by Appeal 2012-001607 Application 11/616,931 5 factual evidence, are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Attorney argument is not evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such argument take the place of evidence lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977). Regarding dependent claims 3 and 7, while Appellant raised additional arguments for patentability (Br. 16–19), we find that the Examiner has rebutted in the Answer each and every one of those arguments supported by sufficient evidence. Ans. 7–8, 10–12. We observe that no Reply Brief is of record to rebut such findings including the Examiner’s responses to Appellant’s arguments. Therefore, we adopt the Examiner’s findings and underlying reasoning, which are incorporated herein by reference. Consequently, we conclude there is no reversible error in the Examiner’s rejections of claims 1–8. CONCLUSION The Examiner did not err in rejecting claims 1–8 under 35 U.S.C. § 103(a) as being unpatentable over Haverinen, in view of the background of Haverinen. Appeal 2012-001607 Application 11/616,931 6 DECISION The Examiner’s decision rejecting claims 1–8 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 msc