UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES

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2 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES Ex parte DWIGHT D. RILEY Appeal Technology Center 2400 Before GREGORY J. GONSALVES, JASON V. MORGAN, and MICHAEL R. ZECHER, Administrative Patent Judges. ZECHER, Administrative Patent Judge. DECISION ON APPEAL 1 Filed on March 11, This application is a continuation in part of application 10/209,846, filed on July 31, This application also claims priority from provisional application 60/552,344, filed on March 11, The real party in interest is Hewlett-Packard Development Co., L.P. App. Br. 3.

3 I. STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. 134(a) (2002) from the Examiner s rejection of claims App. Br. 5. We have jurisdiction under 35 U.S.C. 6(b) (2008). We affirm-in-part. Appellant s Invention Appellant invented an apparatus and method for a hierarchical interconnect network. According to Appellant, the claimed invention is directed to a network switch that comprises a plurality of ports each adapted to couple to other devices external to the network switch, a controller coupled to the plurality of ports, and a memory coupled to the controller. The controller uses the routing information stored in the memory to identify an alternative path through the network switch, wherein at least part of the alternative path does not follow the inverted tree structure of the hierarchical interconnect network. Abstract. Illustrative Claim 1. A network switch, comprising: a plurality of ports each adapted to couple to other devices external to the network switch as part of a rooted hierarchical interconnect network, the rooted hierarchical interconnect network comprises an inverted tree structure that originates with a root bus; a controller coupled to the plurality of ports, the controller defines an active path through the network switch, the active path follows the inverted tree structure; and a memory coupled to the controller, the memory comprising routing information; 2

4 wherein the controller uses the routing information to identify an alternate path through the network switch that is an alternative to the active path; and wherein at least part of the alternate path does not follow the inverted tree structure. Prior Art Relied Upon Bare US 6,473,403 B1 Oct. 29, 2002 (filed Jan. 11, 1999) Akber Kazmi, Non-Transparent Bridging Makes PCI-Express HA Friendly, 1-6 (Aug. 2003) available at showarticle.jhtml?articleid= (last visited Jan. 27, 2012) ( Kazmi ). Rejections on Appeal Claims 1, 3-9, and stand rejected under 35 U.S.C. 102(b) as being anticipated by Bare. Ans Claims 1, 2, 9, 10, and stand rejected under 35 U.S.C. 102(a) as being anticipated by Kazmi. Id. at Appellant s Contentions 1. Appellant contends that Bare discloses a meshed networked, which has been pruned through the use of a spanning tree algorithm. Consequently, Appellant argues that an ordinarily skilled artisan would have recognized that Bare s network architecture is a meshed network architecture over which network traffic is limited to one or more hierarchical paths within the meshed network, whereas the claimed invention requires a rooted hierarchical network architecture over which network traffic is extended to one or more alternate paths at least partially outside the hierarchy. Further, Appellant alleges that Bare s packet switch is not part of 3

5 the rooted hierarchical interconnect network recited in independent claim 1 and, therefore, neither are the two busses located within the packet switch (i.e., processor bus and data bus). App. Br In response to the Answer, Appellant contends that the claim term rooted hierarchical interconnect is old and well-known. In particular, Appellant argues that the claimed [a] rooted hierarchical interconnect comprises an inverted structure in which only one path exists from any pair of nodes, and all packets pass through a root node. Appellant also alleges that a rooted hierarchical interconnect has no redundant paths between nodes. In light of this claim construction, Appellant reiterates that the Examiner s reliance on Bare to describe the claimed rooted hierarchical interconnect is misplaced because Bare is directed to load balancing, or choosing a particular path among multiple possible paths. Reply Br Appellant contends that Kazmi discloses a control module external to the switch fabric and, therefore, external to the switch within the switch fabric. Consequently, Appellant argues that Kazmi does not describe a controller internal to the switch and, therefore, internal to the claimed rooted hierarchical interconnect network corresponding to the switch, as required by independent claim 1. App. Br Examiner s Findings and Conclusions 1. The Examiner finds that Bare discloses a network made up of switches that use the spanning tree protocol to limit the network by disabling paths that are not part of the determined rooted tree hierarchy that originates from a root switch. Consequently, the Examiner finds that Bare describes [a] network switch as part of a rooted hierarchical interconnect network, as recited in independent claim 1. Ans

6 2. The Examiner finds that figure 4 of Kazmi illustrates a fully redundant switch or router system that has a module design made up of controller modules, switch modules, and port adapter modules. Therefore, since the controller modules are internal to the switch or router system, Kazmi describes [a] network switch, comprising: a controller, as recited in independent claim 1. Ans II. ISSUES 1. Did the Examiner err in finding that Bare describes [a] network switch as part of a rooted hierarchical interconnect network, as recited in independent claim 1? 2. Did the Examiner err in finding that Kazmi describes [a] network switch, comprising: a controller that identifies both the active and alternative paths, as recited in independent claim 1? III. FINDINGS OF FACT ( FF ) Bare FF 1. Bare discloses a spanning tree protocol that disables redundant paths in order to avoid broadcast storms. Only when a path fails does Bare disclose enabling a redundant path and using it for exchanging data. Therefore, Bare discloses that the spanning tree protocol precludes aggregation of available bandwidth to improve communication bandwidth by using multiple redundant paths in parallel. Col. 4, ll FF 2. Bare s figure 2 illustrates a switch network wherein the spanning tree protocol has disabled redundant links. Col. 8, ll. 1-3; figure 2. 5

7 FF 3. Bare discloses that since the spanning tree protocol adds path costs from a root switch, it may be possible for a load balance path to appear as a higher cost path in some configurations depending on which switch becomes the root. Col. 79, ll Kazmi FF 3. Kazmi s figure 4 illustrates an example of a fully redundant switch or router system. In particular, Kazmi discloses that the switch and router system interconnects two control modules and two switch fabric modules using Peripheral Component Interconnect ( PCI ) Express switches. Kazmi also discloses connecting port adapters to both switch fabrics. Pgs. 4-5; figure 4. IV. ANALYSIS 35 U.S.C. 102(b) Rejection Bare Claims 1, 9, and 16 We do not find error in the Examiner s anticipation rejection of independent claim 1. Independent claim 1 recites, inter alia, [a] network switch as part of a rooted hierarchical interconnect network. At the outset, we accept Appellant s claim construction with respect to the disputed claim term a rooted hierarchical interconnect network. See Reply Br. 1. That is, after reviewing Appellant s Specification for context (see Abstract and [0003]), we agree with Appellant that a rooted hierarchical interconnect network can be broadly, but reasonable construed as a network that includes an inverted tree structure in which only one path exists from any pair of nodes (i.e., there are no redundant paths between nodes), and packets originating from a node at the end of one branch may 6

8 not be able to reach a node at the end of another branch without passing through a root node. See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). With this claim construction in mind, we turn to the merits of the Examiner s anticipation rejection. We find that Bare s disclosure of a root switch (FF 3), in conjunction with using a spanning tree algorithm to prune the switch network (FFs 1 and 2), describes a network architecture that includes a tree structure expanding out from a root switch. Moreover, since Bare s network precludes the use of redundant paths and calculates the cost of a path from the root switch (FFs 1 and 3), we find that there are no redundant paths between switches (i.e., only one path exists from any pair of switches), and packets originating from a switch at the end of one branch may not be able to reach a switch at the end of another branch without passing through the root switch. Therefore, consistent with our claim construction supra, we find that Bare describes [a] network switch as part of a rooted hierarchical interconnect network, as recited in independent claim 1. It follows that the Examiner has not erred in finding that Bare anticipates independent claim 1. Appellant offers the same arguments set forth in response to the anticipation rejection of independent claim 1 to rebut the anticipation rejection of independent claims 9 and 16. See App. Br We have already addressed this argument in our discussion of independent claim 1, and we found it unpersuasive. Therefore, the Examiner has not erred in finding that Bare anticipates independent claim 9 and 16. Claims 3-8, 11-15, and Appellant does not provide separate and distinct arguments for patentability with respect to dependent claims 3-8, 11-15, and See 7

9 App. Br ; Reply Br Therefore, we select independent claim 1 as representative of these aforementioned claims. See 37 C.F.R (c)(1)(vii). Consequently, the Examiner has not erred in rejecting dependent claims 3-8, 11-15, and for the same reasons set forth in our discussion of independent claim U.S.C. 102(a) Rejection Kazmi Claim 1 We find error in the Examiner s anticipation rejection of independent claim 1. Independent claim 1 recites, inter alia, [a] network switch, comprising: a controller that identifies both the active and alternative paths. At best, we find that Kazmi s switch and router system includes two control modules, two switch fabrics, and numerous port adapters connected to both switch fabrics. FF 4. However, since the control modules are external to the switch fabrics and, therefore, external to the PCI Express switches within each switch fabric, we agree with Appellant that Kazmi does not describe a network switch comprising a controller that identifies both the active and alternative paths, as required by independent claim 1. See App. Br While the Examiner relies upon Kazmi s switch or router system that includes two internal controller modules to describe the disputed limitation, we are at a loss to understand how the switch and router system, which also includes two switch fabrics, can somehow describe a network switch comprising a controller. That is, the Examiner s stated position that Kazmi s switch or router system that includes two internal controller modules describes a network switch comprising a controller (see Ans. 17) is unreasonable in light of the fact that the switch and router system also 8

10 includes two internal switch fabrics. FF 4. We note that while multiple switches may constitute a single switch fabric, multiple switch fabrics do not amount to a single switch. Moreover, in light of our claim construction supra, we fail to see how Kazmi s switch and router system describes a rooted hierarchical interconnect network, as claimed. Consequently, we find that the Examiner improperly relied upon Kazmi to describe the disputed claim limitation. Since Appellant has shown at least one error in the rejection of independent claim 1, we need not reach the merits of Appellant s other arguments. It follows that the Examiner has erred in finding that Kazmi anticipates independent claim 1. Claims 2, 9, 10, and Since independent claims 9 and 21, and dependent claims 2, 10, 22, and 23, either recite the same or similar claim limitations as independent claim 1, or incorporate such limitations by reference, we find that the Examiner has erred in rejecting these claims for the same reasons set forth in our discussion of independent claim 1. V. CONCLUSIONS OF LAW 1. The Examiner has not erred in rejecting claims 1, 3-9, and as being anticipated under 35 U.S.C. 102(b). 2. The Examiner has erred in rejecting claims 1, 2, 9, 10, and as being anticipated under 35 U.S.C. 102(a). 9

11 VI. DECISION 1. We affirm the Examiner s decision to reject claims 1, 3-9, and as being anticipated under 35 U.S.C. 102(b). 2. We reverse the Examiner s decision to reject claims 1, 2, 9, 10, and as being anticipated under 35 U.S.C. 102(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R (a)(1)(iv). AFFIRMED-IN-PART ELD 10