Ex Parte Becker et al

Patent Trial and Appeal BoardJul 6, 2016

12676416 (P.T.A.B. Jul. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/676,416 03/04/2010 27799 7590 07/08/2016 Cozen O'Connor 277 Park A venue, 20th floor NEW YORK, NY 10172 FIRST NAMED INVENTOR Manfred Becker 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 5029-600PUS - 307290 2501 EXAMINER LA YELLE, GARY E ART UNIT PAPER NUMBER 2493 NOTIFICATION DATE DELIVERY MODE 07/08/2016 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): patentsecretary@cozen.com patentdocket@cozen.com patentsorter@cozen.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MANFRED BECKER, UDO DOEBRICH, and ROLAND HEIDEL Appeal2015-001944 Application 12/676,416 Technology Center 2400 Before ROBERT E. NAPPI, JOHNNY A. KUMAR, and CARLL. SILVERMAN, Administrative Patent Judges. KUMAR, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. Â§ 134(a) from a Final Rejection of claims 13-24, 1 which are all the claims pending in this application. We have jurisdiction over the pending claims under 35 U.S.C. Â§ 6(b ). We affirm. 1 Claims 1-12 have been previously cancelled. Appeal2015-001944 Application 12/676,416 STATEMENT OF THE CASE Introduction Appellants' invention relates to a method of detection of a denial of service attack on a first communication terminal by a second communication terminal within a communication network, and how to avoid a breakdown in network communications. Spec. 2. Claim 13 is illustrative of the invention and reads as follows (the disputed limitations are italicized). 13. A method for detecting a denial of service attack on a first communication terminal by the first communication terminal, compnsmg: setting up a communication connection between the first and at least one second communication terminal, the first and the at least one second communication terminal comprising communication subscribers in a communication network and a communication connection is set up between the first and second communication terminals; awaiting receipt at the first communication terminal of a status inquiry message directly from the at least one second communication terminal at a specified time; and monitoring, at a timer assigned to the first communication terminal, for the receipt of the status inquiry message directly from the at least one second communication terminal to determine whether the status message is received in a timely manner; wherein when the first communication terminal does not receive the status inquiry message directly from the second communication terminal in the timely manner, if the first communication terminal still receives at least one further message, a message content of which, after checking said message content, indicates that the at least one second communication terminal is the sender, the first communication terminal interprets the receipt of the at least one further message as a denial of service attack on the first communication terminal and takes action; and wherein the action taken by the first communication terminal causes removal of the at least one further message buffered in a storage unit of the first communication terminal from the storage unit. 2 Appeal2015-001944 Application 12/676,416 Goodwill Letca Riddle Singh References US 2006/0277600 Al US 2007 /0180077 Al US 2008/0285445 Al US 2008/0295171 Al The Examiner's Rejections Dec. 7, 2006 Aug.2,2007 Nov. 20, 2008 Nov. 27, 2008 Claims 13 and 15-24 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Letca, Singh, and Riddle. Final Act. 5-16. Claim 14 stands rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Letca, Singh, and Riddle, and further in view of Goodwill. Final Act. 16-18. Appellants' Contentions Appellants contend the following: ( 1) The heartbeat server of Letca is simply not a communication subscriber within the meaning of Appellants' claimed invention, and Letca does not teach that the first and the at least one second communication terminal comprise communication subscribers. App. Br. 5---6. In addition, the communication subscribers of Letca must correspond to personal computers. Reply Br. 2. (2) The heartbeat agent operates on a device other than a heartbeat server, such as a PC, laptop, or the like. App. Br. 6. If the device (i.e., PC) of Letca were a heartbeat server, then it can no longer be a communication subscriber. App. Br. 7. (3) Singh, Riddle, and Goodwill fail to provide what Letca lacks. App. Br. 7-8; Reply Br. 4--5. 3 Appeal2015-001944 Application 12/676,416 ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' arguments under contentions (1 }-(3) that the Examiner has erred. App. Br. 4--8; Reply Br. 2-5. We disagree with Appellants' conclusions. We adopt as our own (i.) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (ii.) the reasons set forth by the Examiner in the Examiner's Answer (Ans. 3---6) in response to Appellants' Appeal Brief. We concur with the conclusions reached by the Examiner. Rejection of Claims 13 and 15-24 underÂ§ 103 We select claim 13 as representative of the group of claims comprising claims 13 and 15-24 as Appellants have not argued any of the other claims in this group with particularity. 37 C.F.R. Â§ 41.37(c)(l)(iv). Issue: UnderÂ§ 103, did the Examiner err by finding that Letca, Singh, and Riddle collectively would have taught or suggested "setting up a communication connection between the first and at least one second communication terminal, the first and the at least one second communication terminal comprising communication subscribers in a communication network and a communication connection is set up between the first and second communication terminals" (emphasis added), within the meaning of representative claim 13? As to contention (1), we are not persuaded of Examiner error by Appellants' argument that the heartbeat server of Letca is not a communication subscriber within the meaning of Appellants' claimed invention. See App. Br. 6; Reply Br. 3. The Examiner finds, and we agree, 4 Appeal2015-001944 Application 12/676,416 that "communication subscriber" is not defined in Appellants' Specification in a manner that would preclude the Examiner's broader interpretation as a "server." Ans. 4; see In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Claim 13 requires the first and second communication subscribers to communicate with each other in a network, and we agree with the Examiner's finding that Letca's heartbeat servers meet this limitation because they ignore unregistered devices and communicate between themselves as well as the other devices. Ans. 4 (citing Letca Fig. 1 and i-fi-1 22 and 33). Regarding contention (2), Appellants' argument that the heartbeat agent operates on a device other than a heartbeat server, such as a PC or laptop, is not persuasive. We agree with the Examiner's finding that the heartbeat agent may be implemented as a software application in any of the devices, including the heartbeat servers. Ans. 3--4 (see Letca i-fi-f 19 and 33). Further, we are not persuaded by Appellants' argument that Letca does not teach a first communication terminal that may receive a status inquiry message in a timely manner directly from a second communication terminal (see App. Br. 7), because we agree with the Examiner's finding that the heartbeat agent software enables any of the devices of Letca to communicate these messages directly between each other (see Ans. 4). Finally, because we agree with the Examiner that Letca teaches the contested limitation of first and second communication terminals comprising communication subscribers, Appellants' contention (3) that Singh, Riddle and Goodwill fail to teach this limitation is not persuasive of error. 5 Appeal2015-001944 Application 12/676,416 CONCLUSION As discussed herein, we sustain the Examiner's rejection of claim 13 under 35 U.S.C. Â§ 103(a) as being unpatentable over Letca, Singh, and Riddle, as well as the rejections of remaining claims 14--24 which are not argued separately (see App. Br. 9). DECISION The Examiner's decision rejecting claims 13-24 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 6