Ex Parte Brabson et al

Patent Trial and Appeal Board

Nov 26, 2012

10045556 (P.T.A.B. Nov. 26, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/045,556 01/11/2002 Roy Frank Brabson RSW920010159US1 1822
75949 7590 11/27/2012
IBM CORPORATION
C/O: VanCott Bagley, Cornwall & McCarthy
36 South State Street
Suite 1900
Salt Lake City, UT 84111
EXAMINER
NGUYEN, THU V
ART UNIT PAPER NUMBER
2452
MAIL DATE DELIVERY MODE
11/27/2012 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)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_____________

Ex parte ROY FRANK BRABSON, EDWARD GLEN BRITTON,
WESLEY MCMILLAN DEVINE, LAP THIET HUYNH, DAVID B.
LINDQUIST, BALA RAJARAMAN, and ARTHUR JAMES STAGG
_____________

Appeal 2012-010362
Application 10/045,556
Technology Center 2400
______________

Before ALLEN R MACDONALD, ROBERT E. NAPPI, and
DAVID M. KOHUT, Administrative Patent Judges.

Per Curiam

DECISION ON APPEAL
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Application 10/045,556

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This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection
of claims 2 through 21 and 25 through 30.

We affirm.
INVENTION
The invention is directed to a method for detecting a changing
environmental condition of a network and modifying an executing
application based upon an analysis of the condition. See pages 8 and 9 of
Appellants’ Specification. Claim 2 is representative of the invention and
reproduced below:
2. A method of improving traffic management in a computing
network, comprising steps of:
detecting a changed environmental condition comprising a
reduced capacity to transmit data over the network due to congestion
or component malfunction on that network;
generating a notification of the detected condition;
analyzing the generated notification by consulting one or more
criteria;
determining at a currently-executing application, based on the
analysis, whether the currently-executing application should modify a
behavior of the currently-executing application; and
modifying, by the currently-executing application, the behavior
of the currently- executing application.
REFERENCES
Buhrke US 5,280,470 Jan. 18, 1994
Yamato US 5,835,484 Nov. 10, 1998
Nahidipour US 5,938,743 Aug. 17, 1999
Davis US 6,105,064 Aug. 15, 2000
Lee US 6,859,435 B1 Feb. 22, 2005
Patel US 6,889,257 B1 May. 3, 2005
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Moore US 2002/0032780 A1 Mar. 14, 2002
Cao US 2003/0161265 A1 Aug. 28, 2003

REJECTIONS AT ISSUE
The Examiner has rejected claim 30 under 35 U.S.C. § 101 as directed
to non-statutory subject matter. Answer 51.
The Examiner has rejected claims 2, 4, 9 through 12, 17 through 21,
and 27 through 30 under 35 U.S.C. § 103(a) as being unpatentable over
Moore in view of Cao. Answer 6-11.
The Examiner has rejected claims 3, 6, and 7 under 35 U.S.C.
§ 103(a) as being unpatentable over Moore in view of Cao and Patel.
Answer 11-12.
The Examiner has rejected claim 5 under 35 U.S.C. § 103(a) as being
unpatentable over Moore in view of Cao and Buhrke. Answer 13.
The Examiner has rejected claim 8 under 35 U.S.C. § 103(a) as being
unpatentable over Moore in view of Cao and Nahidipour. Answer 13-14.
The Examiner has rejected claims 13 through 16 under 35 U.S.C.
§ 103(a) as being unpatentable over Moore in view of Cao and Yamato.
Answer 14-15.
The Examiner has rejected claim 25 under 35 U.S.C. § 103(a) as
being unpatentable over Moore in view of Cao and Lee. Answer 15-16.
The Examiner has rejected claims 26 under 35 U.S.C. § 103(a) as
being unpatentable over Moore in view of Cao and Davis. Answer 16.

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Application 10/045,556

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ISSUES
Rejection under 35 U.S.C. § 101
Appellants argue on pages 9 and 10 of the Appeal Brief and pages 4
and 5 of the Reply Brief that the Examiner’s rejection of claim 30 under 35
U.S.C. § 101 is in error.2 These arguments present us with the issue: did
the Examiner error in finding the claimed server is merely software?

Rejections under 35 U.S.C. § 103(a)
Claims 2, 10 through 12, 17-21, and 27-29
Appellants argue on page 11 through 14 of the Brief and pages 5
through 8 of the Reply Brief that the Examiner’s rejection of independent
claim 2 and the claims dependent thereupon are in error. These arguments
present us with the issue: did the Examiner error in finding the combination
of Moore and Cao teaches a currently executing application which modifies
its behavior based upon an analysis of the current criteria changing due to
congestion on the network as recited in claim 2?

Claim 30
Appellants’ arguments on page 14 and 15 of the Appeal Brief and
pages 8 and 9 of the Reply Brief directed to claim 30 present us with the
issue: did the Examiner error in finding the combination of Moore and Cao
teaches a currently executing application which modifies its behavior based

1 Throughout this opinion we refer to the Examiner’s Answer mailed on
May 9, 2012.
2 Throughout this opinion we refer to Appellants’ Appeal Brief February 27,
2012 and Reply Brief dated July 3, 2012.
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upon an analysis and notification from a policy manager of the current
criteria changing due to congestion on the network as recited in claim 30?

Claim 4
Appellants’ arguments on page 16 of the Brief and 10 of the Reply
Brief, directed to claim 4 presents us with the issue: did the Examiner error
in finding the combination of Moore and Cao teaches that the modification,
of the application’s behavior, comprises reducing the data retrieval by the
application as recited in claim 4?

Claim 9
Appellants’ arguments on pages 16 and 17 of the Brief directed to the
claim 9 present us with the issue: did the Examiner error in finding the
combination of Moore and Cao teaches that the modification, of the
application’s behavior, comprises changing the use of another application as
recited in claim 9?

Claims 3, 5 through 7, 13 through 16
Appellants’ arguments directed to the rejections of these claims
present us with the same issue as discussed above with respect to claim 2.

Claim 8
Appellants’ arguments on pages 18 and 19 of the Brief and pages 11
and 12 of the Reply Brief directed to claim 8 present us with the issue: did
the Examiner error in finding the combination of Moore and Cao and
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Nahidipour teaches that the modification, of the application’s behavior,
comprises changing thread assignments as recited in claim 8?

Claim 14
Appellants’ arguments on page 19 of the Brief and page 12 of the
Reply Brief directed to the claim 14 present us with the issue: did the
Examiner error in finding the combination of Moore and Cao and Yamato
teaches that the change in environmental condition within the system
pertains to the condition of the protocol stack as recited in claim 14?

Claim 25
Appellants’ arguments on page 20 of the Brief and page 13 of the
Reply Brief directed to claim 25 present us with the issue: did the Examiner
error in finding the combination of Moore and Cao and Lee teaches that the
change in environmental condition comprises a buffer shortage as recited in
claim 25?

Claim 26
Appellants’ arguments on page 21 of the Brief and pages 14 and 15 of
the Reply Brief directed to claim 26 present us with the issue: did the
Examiner error in finding the combination of Moore and Cao and Davis
teaches that the change in environmental condition comprises a thread
scheduling problem as recited in claim 26?

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ANALYSIS
Rejection under 35 U.S.C. § 101
We have reviewed Appellants’ arguments in the Briefs, the
Examiner’s rejection and the Examiner’s response to the Appellants’
arguments. For the reasons provided in the Appeal Brief and Reply Brief,
we agree with Appellants’ conclusion that the Examiner erred in finding the
claimed server is merely software. Accordingly, we will not sustain the
Examiner’s rejection of claim 30 under 35 U.S.C. § 101.

Rejections under 35 U.S.C. § 103(a)
Claims 2, 10 through 12, 17-21, and 27-29
We have reviewed Appellants’ arguments in the Briefs, the
Examiner’s rejection and the Examiner’s response to the Appellants’
arguments. We disagree with Appellants’ conclusion that the Examiner
erred in finding the combination of Moore and Cao teaches a currently
executing application which modifies its behavior based upon an analysis of
the current criteria changing due to congestion on the network. The
Examiner provides a comprehensive response to Appellants’ arguments on
pages 18 and 19 of the Answer, finding that Moore teaches an application
which adjusts its behavior based upon conditions of the network and that
Cao teaches that network congestion is one condition of a network that can
be monitored. We concur with these findings. Further, we are not
persuaded by Appellants’ arguments that Moore’s teaching of discovering
the “nature” of the network is not directed to environmental conditions, as
Moore does not draw such a distinction, see e.g., Para 0086 which discusses
a receiving application requiting another (sending application) to reduce its
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transmission (throttle transmission) based upon bandwidth changes.
Accordingly we sustain the Examiner’s rejection of independent claim 2 and
dependent claims 10 through 12, 17-21, and 27-29.

Claim 30
We similarly disagree with Appellants’ conclusion that the Examiner
erred in finding the combination of Moore and Cao teaches a currently
executing application which modifies its behavior based upon an analysis
and notification from a policy manager of the current criteria changing due
to congestion on the network as recited in claim 30. The Examiner provides
a comprehensive response to this argument on page 19 through 20 of the
answer. We concur with the Examiner’s findings. We are not persuaded by
Appellants’ arguments that claim 30 is separately patentable because it
recites a policy manager. Brief 15. The Examiner has shown the
combination of the references teaches performing the function of detecting
changed environments and modifying a currently executing application and
that the references do not use the term “policy manager” in conjunction with
the performance of these functions is of no consequence. Accordingly, we
sustain the Examiner’s rejection of claim 30.

Claim 4
We also disagree with Appellants’ conclusion that the Examiner erred
in finding the combination of Moore and Cao teaches that the modification,
of the application’s behavior, comprises reducing the data retrieval by the
application as recited in claim 4. The Examiner responds to Appellants’
argument by finding that this limitation taught by Moore in paragraph 86.
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Answer 20. We concur, as discussed supra with respect to claim 2,
paragraph 86 discusses the current executing application, requesting the
sending application to reduce (throttle) the transmission, thus the request to
throttle the transmission is in effect modifying another application, to reduce
the data retrieved. Accordingly, we sustain the Examiner’s rejection of
claim 4.

Claim 9
We also disagree with Appellants’ conclusion that the Examiner erred
in finding the combination of Moore and Cao teaches that the modification,
of the application’s behavior, comprises changing the use of another
application as recited in claim 9. The Examiner finds that Moore teaches
this feature in paragraph 50 where it discusses changing the protocol stack.
Answer 21. We concur, and further note the above discussion of claim 4
provides another example of the current running application changing the
use of another application. Accordingly, we sustain the Examiner’s rejection
of claim 9.

Claim 8
We also disagree with Appellants’ conclusion that the Examiner erred
in finding the combination of Moore and Cao and Nahidipour teaches that
the modification, of the application’s behavior, comprises changing thread
assignments as recited in claim 8. Appellants’ arguments assert that
Nahidipour does not teach in response to a detection of network congestion
or network failure, an application change thread assignment. Brief 19. We
are not persuaded of error as it is only addressing only one of the references
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and not the combination. The Examiner relies upon the combination of
Moore and Cao to teach in response to a detection of network congestion or
network failure, an application changing its behavior and Nahidipour as
teaching that it is known to change thread assignments. Answer 21. We
concur. Accordingly, we sustain the Examiner’s rejection of claim 8.

Claim 14
We also disagree with Appellants’ conclusion that the Examiner erred
in finding the combination of Moore and Cao and Yamato teaches that the
change in environmental condition within the system pertains to the
condition of the protocol stack recited in claim 14. The Examiner finds the
skilled artisan would recognize that from Yamato’s teaching that congestion
is an example of a condition of the protocol stack. Answer 22. We concur.
While the evidence cited by the Examiner does not use the word “stack,” the
Appellants’ arguments have nonetheless not convinced us of error in the
Examiner’s finding that the skilled artisan would consider it obvious.
Accordingly, we sustain the Examiner’s rejection of claim 14.

Claim 25
We also disagree with Appellants’ conclusion that Examiner erred in
finding the combination of Moore and Cao and Lee teaches that the change
in environmental condition comprises a buffer shortage recited in claim 25.
Appellants’ arguments assert that Lee merely discusses buffer shortage and
does not teach in response to a detected buffer shortage, determining
whether an application should modify its behavior. Brief 20. We are not
persuaded of error by this argument as it is addressing only the teachings of
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references individually and not the combination. The Examiner relies upon
the combination of Moore and Cao to teach in response to a detection of
network congestion or network failure, an application changing its behavior
and Lee as teaching that a buffer shortage is a known network condition.
Answer 22. We concur. Accordingly, we sustain the Examiner’s rejection
of claim 25.

Claim 26
Finally, we disagree with Appellants’ conclusion that the Examiner
erred in finding the combination of Moore and Cao and Davis teaches that
the change in environmental condition comprises a thread scheduling
problem as recited in claim 26. Appellants’ arguments assert that Davis
merely mentions an error in attempting to schedule a thread and does not
teach in response to a detected thread scheduling problem, determining
whether an application modify its behavior. Brief 21. We are not persuaded
of error by this argument as it is addressing only the teachings of references
individually and not the combination. As discussed above, the Examiner
relies upon the combination of Moore and Cao to teach in response to a
detection of network congestion or network failure, an application changing
its behavior and Davis as teaching that a thread scheduling problem is a
known network condition. Answer 23. We concur. Accordingly, we
sustain the Examiner’s rejection of claim 26.

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Application 10/045,556

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ORDER
The decision of the Examiner to reject claims 2 through 21 and 25
through 30 is affirmed.
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

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