Anand Srinivas et al.

Patent Trials and Appeals Board

Aug 2, 2019

14520257 - (D) (P.T.A.B. Aug. 2, 2019)

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 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/520,257 10/21/2014 Anand Srinivas 700186.404 5807
136767 7590 08/02/2019
Seed IP Law Group LLP/General Firm (Email)
701 FIFTH AVE
SUITE 5400
SEATTLE, WA 98104
EXAMINER
ZHANG, SHIRLEY X
ART UNIT PAPER NUMBER
2442
NOTIFICATION DATE DELIVERY MODE
08/02/2019 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):
USPTOeAction@SeedIP.com
pairlinkdktg@seedip.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANAND SRINIVAS, RICHARD BARRY,
ABRAHAM ANKUMAH, and DANIEL KAN
____________

Appeal 2018-008815
Application 14/520,2571
Technology Center 2400
____________

Before DAVID M. KOHUT, IRVIN E. BRANCH, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.

BRANCH, Administrative Patent Judge.

DECISION ON APPEAL2
Appellants appeal under 35 U.S.C. § 134(a) from a Non-Final Action
rejecting claims 1–25. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 According to Appellants, the real party in interest is “Nyansa, Inc.”
App. Br. 2.
2 Our decision relies upon the Non-Final Action mailed October 30, 2017
(“Non-Final”), Appeal Brief filed April 30, 2018 (“App. Br.”), Answer
mailed July 12, 2018 (“Ans.”), and Reply Brief filed September 11, 2018
(“Reply”).
Appeal 2018-008815
Application 14/520,257

2

STATEMENT OF THE CASE
Appellants’ invention “relates to . . . observing and controlling a
programmable network via higher layer attributes.” Spec. ¶ 3. Claim 1,
reproduced below, is a representative claim. See 37 C.F.R. 41.37(c)(1)(iv)
(representative claims).
1. A system for simultaneously and centrally analyzing a
plurality of networks, the system comprising:
one or more collectors configured to receive network traffic
data from a plurality of network elements in the plurality of
networks, wherein a first network of the plurality of networks is
from a first company and a second network of the plurality of
networks is from a second company;
a non-transitory computer readable manager memory;
a remote network manager comprising a network interface and
configured to connect over the Internet to the one or more
collectors via the network interface, the remote network
manager further configured to simultaneously and centrally
analyze (1) the network traffic data from the plurality of
network elements in the plurality of networks and (2) network
management data from a plurality of enterprise systems in the
plurality of networks, wherein the network management data
includes L1 through L7 network topology data, network
configuration data, and simple network management protocol
data, wherein the remote network manager is stored in the
non-transitory computer readable manager memory that is
executed by a manager processor; and
wherein the remote network manager combines the network
traffic data from the plurality of networks and the network
management data from the plurality of enterprise systems in the
plurality of networks into combined cross-network data from
multiple companies, simultaneously and centrally analyzes the
combined cross-network data from the multiple companies
within the plurality of network systems, learns a network
pattern from the first network of the first company within the
Appeal 2018-008815
Application 14/520,257

3

plurality of networks, and predicts a network behavior of the
second network of the second company within the plurality of
networks;
wherein the remote network manager identifies a network
control objective for the network, identifies a programmable
parameter of the programmable network element to achieve the
network control objective, and programs the programmable
network element that is a programmable switch, router, or
wireless access point, wherein the network control objective is
security/performance remediation,
wherein the remote network manager identifies specific
applications or devices causing security/performance issues,
and wherein the programmable parameter identified by the
remote network manager is blocking the specific applications or
devices causing the security/performance issues.
App. Br. 22–23 (claims appendix).
RELATED APPEALS
The present application claims a benefit of priority (i.e., of the filing
date) to U.S. Provisional Application 61/893,789. Spec. ¶ 2. The following
three applications also claim this benefit and have appeals before the Board:
U.S. Applications 14/520,262 (Appeal 2018-008540), 14/520,245 (Appeal
2018-008813), and 14/520,238 (Appeal 2018-008538).
REFERENCES AND REJECTIONS
Claims 1–17 and 19–25 stand rejected under 35 U.S.C. § 103 as
obvious over Herold et al. (US 9,215,142 B1; Dec. 15, 2015) and Rivera et
al. (US 9,639,693 B2; May 2, 2017). Non-Final 3–14.
Claim 18 stands rejected under 35 U.S.C. § 103 as obvious over
Herold, Rivera, and Friedman et al. (US 2013/0117847 A1; May 9, 2013).
Non-Final 14–15.
Appeal 2018-008815
Application 14/520,257

4

ANALYSIS
Claim 1 is representative of claims 2–17 and 19–25. See
37 C.F.R. 41.37(c)(1)(iv). Appellants do not assert separate bases of
patentability for remaining claim 18. App. Br. 20. We accordingly limit our
analysis to claim 1.
1. Arguments directed to the claimed “analyze (1) the network
traffic data from the plurality of network elements in the
plurality of networks and (2) network management data
from a plurality of enterprise systems in the plurality of
networks, wherein the network management data includes
L1 through L7 network topology data, network
configuration data, and simple network management
protocol data”
A first issue is whether the Examiner errs in addressing the claim
requirement to analyze data for “network” traffic, management, topologies,
and configurations. App. Br. 17; Reply 4–5. The Examiner finds Herold’s
invention analyzes network data by analyzing usages of “network” switches,
hardware, and bandwidth. Ans. 2–3 (citing Herold col. 3, ll. 47–60; col. 5,
ll. 3–7; Figs. 1, 4). The Examiner further finds Appellants’ Specification
does not describe the claimed “network management data” and thereby
conveys this data as being well known. Id. at 3.
Appellants contend Herold “focus[es] . . . on ‘system-centric’
information, while in contrast, [claim 1] recites a ‘network-centric’
invention.” App. Br. 17. Appellants further contend their Specification
describes the claimed network management data as “data from a network
management system” (internal quotations omitted) and, therefore, the
Examiner cannot “dismiss” this data as being well known. Reply 4–5.
Appeal 2018-008815
Application 14/520,257

5

We are unpersuaded of error. The Examiner finds Herold’s system
analyzes network data by analyzing usages of “network” resources. Ans. 2–
3. Appellants cannot rebut this finding by, as here, summarily
characterizing the claimed invention and Herold’s invention as respectively
“network-centric” and “system-centric.” Appellants must, but do not,
articulate a distinction. See In re Jung, 637 F.3d 1356, 1363
(Fed. Cir. 2011) (applicants must “articulate what gaps, in fact, exist”).
Further, the Examiner does not dismiss the claimed network
management data. The Examiner finds “network management data” is not
described by the Specification, consequently applies the broadest ordinary
meanings of these terms, and accordingly reads the claimed network
management data on Herold’s data collected and analyzed to manage
networks. Ans. 3.
A second issue is whether the Examiner errs in addressing the claimed
analysis of “L1 through L7 network topology data” (herein “L1–L7 topology
data”). App. Br. 16; Reply 5. The Examiner finds Herold teaches “the data
collection module may store data models such as topology models.”
Non-Final 4 (citing Herold col. 5, ll. 62–67; col. 11, ll. 19–40). The
Examiner further finds Appellants’ Specification does not describe L1–L7
topology data, thereby conveys L1–L7 topology data as well known, and
accordingly evidences it would have been obvious to include L1–L7
topology data within Herold’s topology models. Id.; Ans. 4.
Appellants acknowledge Herold teaches topology models, but contend
Herold cannot suggest the claimed L1–L7 topology data because “nowhere
in Herold is L1 through L7 network data even mentioned.” App. Br. 18.
Appellants further contend their Specification describes L1–L7 topology
Appeal 2018-008815
Application 14/520,257

6

data and, therefore, the Examiner cannot “dismiss” this data as well known.
Reply 5 (citing Spec. ¶ 84).
We are unpersuaded of error. The Examiner finds L1–L7 topology
data was a well-known type of network topology data and, therefore, would
have been obvious to include within Herold’s topology models. Ans. 4.
Appellants cannot rebut these findings by, as here (Reply 5–6), merely
contending their Specification discloses L1–L7 topology data. Assuming an
adequate disclosure under 35 U.S.C. § 112(a), the scant description
evidences the L1–L7 topology data was well known inasmuch the
Specification would otherwise not “enable [an artisan] . . . to make and use”
the data. 35 U.S.C. § 112(a).3 Because Appellants fail to sufficiently
address this issue and do not expressly dispute L1–L7 topology data was a
well-known type of network topology data, we have no reason to doubt the
Examiner’s official notice and consequent determination of obviousness.
See In re Boon, 439 F.2d 724, 728 (CCPA 1971) (An adequate challenge to
official notice “creates a reasonable doubt regarding the circumstances
justifying the . . . notice.”); see also In re Piasecki, 745 F.2d 1468, 1472

3 The Office has expressly endorsed this reasoning for rejections under
35 U.S.C. §§ 101 and 112(a), stating “the analysis [under § 101] as to
whether an element . . . [was] widely prevalent or in common use is the
same as the analysis under . . . § 112(a) as to whether an element is so well
known that it need not be described in detail in the patent specification.”
USPTO Memorandum of April 19, 2018, “Changes in Examination
Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter
Eligibility Decision (Berkheimer v. HP, Inc.)” (Apr. 19, 2018) at 3
(available at https://www.uspto.gov/sites/default/files/documents/
memo-berkheimer-20180419.PDF).

Appeal 2018-008815
Application 14/520,257

7

(Fed. Cir. 1984) (“After a prima facie case . . . , the burden of . . . [r]ebuttal
is . . . a showing of facts supporting the opposite conclusion.”); Manual of
Patent Examining Procedure (MPEP) § 2144.03.C (“To adequately traverse
[official notice], an applicant must . . . stat[e] why the noticed fact is not
. . . well-known.”).
A third issue is whether the Examiner errs in addressing the claimed
analysis of “simple network management protocol data.” App. Br. 19;
Reply 5–6. The Examiner finds the simple network management protocol
(herein “SNMP”) was a well-known protocol for monitoring networks and,
therefore, it would have been obvious for Herold’s analysis of networks to
include an analysis of SNMP data, e.g., if used to communicate L1–L7
topology data. Non-Final 4; Ans. 4–6. In support, the Examiner cites
U.S. Patent Pub. No. 2003/0033402 A1 to Battat (published Feb. 13, 2003)
as showing SNMP was used to manage monitoring agents of networks.
Id. at 5–6 (citing Battat ¶ 164).
Appellants contend: “The Examiner [does not show] that SNMP is an
industry-standard protocol . . . designed to collect L1–L7 topology data.”
Reply 6 (orig. ellipses and internal quotation marks omitted). Appellants
further contend “it would be impossible . . . because . . . SNMP is an
application layer (layer 7) protocol suite.” Id.
We are unpersuaded of error. The Examiner finds SNMP was a
well-known protocol for collecting data from monitoring agents of networks
and, therefore, would have been an obvious protocol for Herold’s collecting
of topology data such as L1–L7 topology data (discussed supra, second
issue). Ans. 4. Appellants cannot rebut these findings by, as here (Reply 5–
6), summarily alleging SNMP is a layer-specific protocol that consequently
Appeal 2018-008815
Application 14/520,257

8

cannot communicate L1–L7 topology data. Appellants’ contention fails to
address Battat’s cited disclosure, present sufficient evidence showing SNMP
was a layer-specific protocol, and present sufficient evidence showing a
layer-specific protocol (assuming SNMP is layer-specific) cannot
communicate L1–L7 topology data.
A fourth issue is whether the Examiner errs in addressing the claimed
analysis of “network configuration data.” App. Br. 18; Reply 6–7. The
Examiner finds Herold’s system recommends “network configuration
changes.” Ans. 5 (citing Herold col. 15, ll. 39–55; quoting ll. 52–53). The
Examiner further finds Herold’s system could not recommend the “network
configuration changes” without first analyzing network configuration data.
Id.
Appellants contend Herold teaches “system configuration data” and
thus “fail[s] to disclose network configuration data, or any equivalent
thereof” (italicizing removed). App. Br. 18(citing Herold col. 3, ll. 26–29).
Appellants further contend the Examiner’s above inference is incorrect
inasmuch a system need not analyze network configuration data to generate
Herold’s cited recommendations for “network configuration changes” to
memory and processing. Reply 7 (addressing Herold col. 15, ll. 39–55).
We are unpersuaded of error. As the Examiner finds, Herold teaches
recommendations for “network configuration changes.” Ans. 5. Even
assuming Herold’s invention could theoretically recommend such changes
without first analyzing network configuration data, we find those
recommendations are sometimes based on monitored allocations of network
resources. See Herold col. 1, l. 35–col. 2, l. 34 (“summary”); col. 3, ll. 7–32
(“introduction” and “system overview”) col. 14, ll. 51–53 (“[T]he source of
Appeal 2018-008815
Application 14/520,257

9

the recommendation [may] be . . . from community analysis.”); Fig. 2 (steps
202, 210, 212).
2. Argument directed to the claimed “remote network manager
. . . programs the programmable network element”
A fifth issue is whether the Examiner errs in addressing the claimed
programming of a network element. App. Br. 19–20; Reply 7–8. The
Examiner finds “making configuration changes . . . inevitably involves
programming the servers and/or network switches and routers, which are
programmable network elements.” Ans. 7. Appellants contend “Herold
only discloses recommending changes[, which] . . . is not the same as
actually executing changes.” Reply 8. We are unpersuaded of error
because, contrary to Appellants’ argument, Herold expressly teaches:
[T]he recommended configuration changes 1122 in the user
interface 1100 are selectable by a user (e.g., via hyperlink) to
cause the community analysis system 140 to send a web service
call or other call to the monitored system in question. In
response to receiving the web service call or other call, the
monitored system can implement the change automatically.
Herold col. 15, ll. 2–8.
3. Conclusion
For the foregoing reasons, Appellants do not establish an error in the
rejection of claim 1. We therefore sustain all rejections.

Appeal 2018-008815
Application 14/520,257

10

DECISION
We affirm the Examiner’s rejections of claims 1–25.
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