UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD

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2 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CHRISTOPHER N. DEL REGNO, HOWARD H. CHIU, DONALD PITCHFORTH, JR., TERRY W. MCGINNIS, and RONALD DENNIS DAY Appeal Technology Center 2400 Before ANTON W. FETTING, JOSEPH A. FISCHETTI, and BIBHU R. MOHANTY, Administrative Patent Judges. MOHANTY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants seek our review under 35 U.S.C. 134 of the rejection of claims 9, 10, 14, 16, 22, and 23 which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. 6(b). We REVERSE. SUMMARY OF THE DECISION

3 THE INVENTION The Appellants claimed invention is directed to routing customer traffic using packet switching (Spec., para. 9). Claim 9, reproduced below, is representative of the subject matter on appeal. 9. A method, comprising: establishing a first pseudowire between a first switching device and a second switching device; receiving customer traffic, the customer traffic including time division multiplexed data; formatting the time division multiplexed data as packets; identifying a destination for the customer traffic; identifying the first pseudowire for forwarding the customer traffic; forwarding the customer traffic as packets via the first pseudowire to the second switching device; provisioning changes associated with a customer by changing an origination or a destination associated with the first pseudowire and without having to make changes associated with circuit-switched components associated with the customer; aggregating data associated with emulated circuits, the data being received at a first bandwidth and forwarded at a second bandwidth higher than the first bandwidth, wherein the first bandwidth corresponds to one or more of optical carrier level 3, optical carrier level 12, optical carrier level 48 or gigabit Ethernet and the second bandwidth corresponds to one of optical carrier level 192 or 10 gigabit Ethernet; and forwarding the aggregated data via the first pseudowire. THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: Zelig US 7,113,415 B2 Nov. 7, 2006 White US 2007/ A1 Mar. 29,

4 Lange US 2008/ A1 Oct. 30, 2008 Sotobayashi, et al., Ultrafast Hierarchical OTDM/WDM Network, Systemics, Cybernetics, and Informatics, vol. 1, number 6, (2003) (hereinafter Sotobayashi ). The following rejection is before us for review: Claims 9, 10, 14, 16, 22, and 23 are rejected under 35 U.S.C. 103(a) as unpatentable over White, Zelig, Sotobayashi, and Lange. FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence 1. ANALYSIS The Appellants argue that the rejection of claim 9 is improper because the rejection fails to provide motivation for the four references to be combined and meet the claimed limitation for wherein the first bandwidth corresponds to one or more of optical carrier level 3, optical carrier level 12, optical carrier level 48 or gigabit Ethernet and the second bandwidth corresponds to one of optical carrier level 192 or 10 gigabit Ethernet as required by the claim (Br ). In contrast, the Examiner has determined that in the cited combination that the particular claimed optical carrier levels for the first and second bandwidths are not given weight by the examiner unless a specific reason why said values are essential is provided (Ans. 7 8). The Examiner has 1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). 3

5 also asserted that such a change in range is an obvious matter of design choice (Ans. 8) and that the rejection is proper. We agree with the Appellants. Here, the cited rejection requires not only the combination of the four cited references, White, Zelig, Sotobayashi, and Lange, but also to have both the particular claimed ranges for a first bandwidth that corresponds to one or more of optical carrier level 3, optical carrier level 12, optical carrier level 48 or gigabit Ethernet, and the second bandwidth corresponds to one of optical carrier level 192 or 10 gigabit Ethernet. These features, according to the claim, further need to be tied to aggregating data associated with emulated circuits, the data being received at a first bandwidth and forwarded at a second bandwidth higher than the first bandwidth, which is not contemplated by the Examiner in his proposed design choice finding. Also, there in the rejection of record there is no articulated reasoning with rational underpinnings for the cited combination of four references of White, Zelig, Sotobayashi, and Lange to further have the cited claimed specific ranges for both the first and second bandwidths without impermissible hindsight. A review of the rejection of record fails to establish an articulated reasoning with rational underpinnings for the combination of the four cited references further modified to have specific ranges for both the first and second bandwidths and instead uses improper hindsight. For these reasons the rejection of claim 9 and its dependent claims is not sustained. Claim 16 contains a similar limitation to that addressed above and the rejection of this claim and its dependent claims is not sustained for the same reasons given above. 4

6 CONCLUSIONS OF LAW We conclude that Appellants have shown that the Examiner erred in rejecting the claims as listed in the Rejection section above. reversed. DECISION The Examiner s rejection of claims 9, 10, 14, 16, 22, and 23 is REVERSED mls 5