Ex Parte Akers

Patent Trial and Appeal Board

Mar 15, 2017

13027288 (P.T.A.B. Mar. 15, 2017)

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.
13/027,288 02/15/2011 David R. Akers 82580985 6561
56436 7590
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
EXAMINER
RAHMAN, SM AZIZUR
ART UNIT PAPER NUMBER
2458
NOTIFICATION DATE DELIVERY MODE
03/17/2017 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):
hpe.ip.mail@hpe.com
chris. mania @ hpe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID R. AKERS
Appeal 2015-008089
Application 13/027,2881
Technology Center 2400
Before, JEFFREY S. SMITH, IRVIN E. BRANCH, and
NABEEL U. KHAN, Administrative Patent Judges.
KHAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1, 2, and 4—15. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 Appellant identifies Hewlett-Packard Company and Hewlett-Packard
Development Company as the real party in interest. App. Br. 3.
Appeal 2015-008089
Application 13/027,288
STATEMENT OF THE CASE
The Invention
Appellant’s invention relates to network application availability
monitoring (NAAM) used to confirm the availability of network applications
and to identify periods in which a network application is unavailable. Spec.
12. NAAM may involve probing of a host site by a test site where the test
site may repeatedly issue a probe sequence corresponding to a series of
actions a client, e.g., customer, might take. NAAM result data can include
datapoints, each of which identifies the network application under test
(NAUT), the time the probe was issued, and the outcome (success versus
failure) of the probe. Spec. 13. NAAM result data can be collected at
multiple test sites to help distinguish test-site failures from network-
application service failures. Spec. 14.
Exemplary independent claim 1 is reproduced below.
1. A computer-implemented process comprising:
transmitting, by test sites, probes to a network application
under test (NAUT);
generating, by said test sites, raw network-application
availability monitoring (NAAM) data, said NAAM data
including NAAM datapoints representing probe results of
respective ones of said probes, each of said NAAM datapoints
specifying a network application under test (NAUT), a respective
test site that transmitted the respective probe, a time
corresponding to a respective probe, and an indication whether
the respective probe resulted in a success or a failure;
transferring said NAAM datapoints from said test sites to
a NAAM analyzer;
filtering, by said NAAM analyzer, said NAAM data to
remove false-indication NAAM datapoints to yield filtered
NAAM data including some of said NAAM datapoints but not
including said false-indication NAAM datapoints, said false-
2
Appeal 2015-008089
Application 13/027,288
indication NAAM datapoints including a NAAM datapoint
determined to represent a test-site failure of one of said test sites
rather than a failure of said NAUT; and
detecting at least one service failure of said NAUT using
said filtered NAAM data.
References and Rejection
Claims 1,2, and 4—15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Friedman (US 6,865,692 B2, iss. Mar. 8, 2005) and Gorin
(US 2004/0006447 Al, publ. Jan. 8, 2004). Final Act. 3.
ANALYSIS
Claim 1 recites “filtering . . . said NAAM data to remove false-
indication NAAM datapoints . . . said false-indication NAAM datapoints
including a NAAM datapoint determined to represent a test-site failure of
one of said test sites rather than a failure of said NAUT.” The Examiner
relies on Gorin’s filter engine as teaching or suggesting this disputed
limitation. Specifically, the Examiner finds Gorin “teaches the filter engine
filters the raw test data set and may remove data corresponding to failures,
missing data or other data.” Ans. 10 (citing Gorin 138). The Examiner
further finds “[t]he filter engine may also analyze the data and generate a
filtered set of test data without anomalies.” Ans. 10 (citing Gorin | 31).
Appellant argues2 that although “Gorin indicates that failures of the
device-under-test can be filtered from the data analyzed for the purpose of
enhancing the test process” these failures of the device-under-test are not
2 Appellant presents additional arguments in their Appeal Brief. However,
because the identified argument is dispositive of the appeal, we do not reach
the merits of these additional arguments.
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Appeal 2015-008089
Application 13/027,288
due to test site failures. App. Br. 14. “In other words, Gorin discloses that
true positives are removed and does not teach that false positives are
removed, as required by the Claim 1 filtering limitation.” Id.
We are persuaded of Examiner error. While it is true that Gorin filters
the test data by removing anomalies, outliers, and failures (see Gorin H 31,
38) the Examiner does not establish that any of these categories of data are
“false-indication NAAM datapoints” as recited by claim 1. In particular, we
agree with the Appellant that the data filtered by Gorin’s filter engine relates
to actual failures of the device under test, rather than false indications caused
by test site failures.
Accordingly, we do not sustain the Examiner’s rejection of claim 1.
We also do not sustain the Examiner’s rejection of independent claims 6 and
11 which include limitations of commensurate scope. Finally, for the same
reasons, we do not sustain the Examiner’s rejection of the pending
dependent claims.
DECISION
The Examiner’s rejection of claims 1, 2, and 4—15 is reversed.
REVERSED
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