APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 10/425,695 04/28/2003 Rajesh John RSTN

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1 UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 10/425,695 04/28/2003 Rajesh John RSTN /12/2010 WILSON & HAM 1811 Santa Rita Road Suite 130 Pleasanton, CA EXAMINER MESFIN, YEMANE ART UNIT PAPER NUMBER 2444 MAIL DATE DELIVERY MODE 08/12/2010 PAPER 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. PTOL-90A (Rev. 04/07)

2 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES Ex parte RAJESH JOHN and MIKE MORRISON Appeal Technology Center 2400 Before JOSEPH L. DIXON, JAY P. LUCAS, and THU A. DANG, Administrative Patent Judges. DANG, Administrative Patent Judge. DECISION ON APPEAL 1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R , or for filing a request for rehearing, as recited in 37 C.F.R , begins to run from the MAIL DATE (paper delivery mode) or the NOTIFICATION DATE (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision.

3 I. STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. 134 (2002) from a final rejection of claims We have jurisdiction under 35 U.S.C. 6(b) (2008). We AFFIRM. A. INVENTION According to Appellants, the invention generally relates to computer networking and more specifically to a network processor for use within a network node (Spec. 1, [0002]). B. ILLUSTRATIVE CLAIM Claim 1 is exemplary and are reproduced below: 1. A network processor, comprising: a plurality of processing engines; and packet assignment logic operable to ascertain packet size of received packets and to selectively assign the received packets to the processing engines, wherein the packet assignment logic distributes the received packets according to at least in part packet size of previously distributed packets. C. REJECTIONS The prior art relied upon by the Examiner in rejecting the claims on appeal is: Bunce 6,836,808 B2 Dec. 28,

4 Eakins, Per-packet Load Balancing UPS IPSec Processor Performance, CommsDesign (April 22, 2002), 1. Claims 1-20 stand rejected under 35 U.S.C. 103(a) over the teachings of Bunce in view of Eakins. II. ISSUE Did the Examiner err in finding that the combination of Bunce in view of Eakins would have taught or suggested packet assignment logic operable to ascertain packet size of received packets wherein the packet assignment logic distributes the received packets according to at least in part packet size of previously distributed packets (claim 1)? In particular, the issue turns on whether combining Bunce s load-balancing with Eakin s detection of packet size would have suggested the features of distributing according to packet size of previously distributed packets as required by claim 1. III. FINDINGS OF FACT The following Findings of Fact (FF) are shown by a preponderance of the evidence. Bunce 1. Bunce discloses performing packet processing tasks on multiple processors or threads concurrently and in a pipelined fashion, wherein availability is determined based on the capacity of the input work queue associated with each processor or thread (col. 1, ll ). 3

5 2. Before a processor assigns a protocol processing task to a subsequent processor, the current available capacity of its input work queue is checked, wherein if the input work queue is overloaded, the task is assigned to another processor having a lower input processing load (col. 4, ll ). Eakins 3. Eakins discloses load-balancing on a per-packet basis, wherein a core works sequentially to finish working on each packet before moving to the next (pg. 2). 4. The system assigns packets from the same session to different cores by allowing one core to work on a large packet while smaller packets are processed by different cores (id.). 5. Eakins discloses assigning packets to specific processing cores based on packet size, thus processing small 64-byte packets or large byte packets, by measuring the size of the packet and then assigning it to the core that is ready for that project (id.). 6. Thus, Eakins loading-balancing on a per-packet basis eliminates waste occurring when processing small packets using power that was allocated to process a large packet (pg. 3). IV. ANALYSIS Claims 1-17 Though Appellants admit that Eakins describes load-balancing on a per-packet basis (App. Br. 5), Appellants contend that Eakins is merely 4

6 concerned with measuring the size of a current packet (id.). According to Appellants, he[sic] availability of the cores is not necessarily dependent on the size of the packet(s) processed by each core (App. Br. 6). Therefore, Appellants contend that Eakins does not teach determining the availability of a core based [on] the size of a packet that is being processed by a core, but rather teaches determining the availability of a core (App. Br. 7). However, the Examiner finds that Bunce disclosed assigning the received packet to an optimal thread that is determined to be optimal (not overloaded) (Ans. 11), and Eakins determines which core is ready to process a packet of a determined size (i.e., the predetermined size threshold) which implies prior determination of the workload of the core with respect to it s[sic] status with previously assigned queued packets in the parallel processing (Ans. 12). Thus, the Examiner concludes that Bunce and Eakins both assigned packets based on the previously assigned packets queued in the work queue of each processing core (Ans ). Thus, the issue we address on appeal is whether the combination of the combination of Bunce in view of Eakins would have taught or suggested packet assignment logic operable to ascertain packet size of received packets wherein the packet assignment logic distributes the received packets according to at least in part packet size of previously distributed packets (claim 1), as Appellants contend. In particular, we address whether combining Bunce s load-balancing with Eakin s detection of packet size would have suggested the features of distributing according to packet size of previously distributed packets as required by claim 1. 5

7 By contending that Eakins is merely concerned with measuring the size of a current packet (App. Br. 5), Appellants appear to be arguing that individually, Eakins does not disclose the features of claim 1. However, the Examiner rejects claim 1 over the combined teachings of Bunce and Eakins, and what the combined teachings would have suggested to one of ordinary skill in the art. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Bunce discloses determining processor or thread availability based on the capacity of the associated input work queue (FF 1), wherein the current available capacity of its input work queue is checked, and if the input work queue is overloaded, the task is assigned to another processor having a lower input processing load (FF 2). A skilled artisan would have understood Bunce to disclose assigning a task to a processor or thread based on its load, i.e., the load of the previous tasks. Eakins discloses load-balancing on a per-packet basis (FF 3), wherein packets from the same session are assigned to different cores with one core processing a large packet such as a 1536-byte packet, while different cores processing smaller packets such as 64-byte packets (FF 4-5). Thus, in Eakins, if one packet that is determined to be large is assigned to a core, the smaller packets will be assigned to different cores. In Eakins, each packet s processing must finish before moving to the next (FF 3). That is, if the previously distributed large 1536-byte packet is 6

8 determined as being processed by the core, the core will not be assigned subsequent packets. Further, in Eakins, the packets are distributed by size to ensure that there is no waste (FF 6). We find Eakins to teach detecting the packet size of a currently received packet and then, using load-balancing, distributing the current packet to a core based on the packet size of the previously distributed packets. That is, contrary to Appellants contention that he[sic] availability of the cores is not necessarily dependent on the size of the packet(s) processed by each core (App. Br. 6), Eakins teaches that availability is in fact dependent on the size of packets to ensure that there is no waste. Accordingly, we conclude that combining Bunce s load-balancing with Eakins detection of packet size would have suggested the features of distributing according to packet size of previously distributed packets as required by claim 1. Appellants do not provide separate arguments for independent claims 6 and 15, but merely contend that the remarks provided above in regard to the rejection of claim 1 also apply to the rejections of claims 6 and 15 (App. Br. 7). 2 Accordingly, claims 6 and 15 fall with claim 1. 2 Though Appellants provide new arguments concerning claims 6 and 15 in the Reply Brief, it is inappropriate for Appellants to discuss for the first time in the Reply Brief matters that could have been raised in the Appeal Brief. That is, [t]he failure to raise all issues and arguments 7

9 Accordingly, we find that the Examiner did not err in rejecting independent claims 1, 6 and 15, and claims 2-5, 7-14, 16 and 17 depending respectively therefrom and falling therewith under 35 U.S.C. 103(a). Claims As to claim 18-20, though Appellants admit that Eakins uses the example of processing a large packet and smaller packets by different cores (App. Br. 8), Appellants contend that Eakins does not describe a category for the large packet and a separate category for smaller packets since there is no indication in the language of Eakins how those categories might be delineated (App. Br. 9). However, the Examiner finds that Eakins discloses measuring the size of the packet and assign[ing] the packet to a packet-processing core that is ready for that project and that the packet sizes being categorized in sizes ranging from small to large packet sizes (Ans. 14.) We agree with the Examiner. diligently, in a timely fashion, has consequences, and thus, such newlyraised arguments are technically waived. Ex parte Borden, 93 USPQ2d 1473, (BPAI 2010) (informative decision) ( [T]he reply brief [is not] an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner's rejections, but were not. ). Cf. Kaufman Company v. Lantech, Inc., 807 F.2d 970, 973 n.* (Fed. Cir. 1986) and McBride v. Merrell Dow and Pharms., Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986). 8

10 Eakins discloses assigning packets to specific processing cores based on packet size, such as small 64-byte packets or large 1536-byte packets (FF 4-5). We agree with the Examiner that Eakins does categorize the packets as in at least two size categories of small (64-byte) or large (1536-byte). In Eakins, the packets are compared to a threshold to ensure that the packets are assigned without waste (FF 6). Thus, we agree with the Examiner that Bunce in view of Eakins would have suggested this feature of claim 18. Accordingly, we find that the Examiner did not err in rejecting claims under 35 U.S.C. 103(a). V. CONCLUSIONS OF LAW (1) The Examiner did not err in concluding that claims 1-20 are unpatentable under 35 U.S.C. 103(a) over the teachings of Bunce in view of Eakins. (2) Claims 1-20 are not patentable. VI. DECISION We affirm the Examiner s rejection of claims 1-20 under 35 U.S.C. 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R (a). AFFIRMED 9

11 peb WILSON & HAM 1811 SANTA RITA ROAD SUITE 130 PLEASANTON, CA