Ex Parte Dagan

Patent Trial and Appeal Board

Apr 6, 2016

12870428 (P.T.A.B. Apr. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/870,428 08/27/2010 Assaf Dagan
56436 7590 04/08/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82263065 9794
EXAMINER
BILGRAMI, ASGHAR H
ART UNIT PAPER NUMBER
2645
NOTIFICATION DATE DELIVERY MODE
04/08/2016 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):
hpe.ip.mail@hpe.com
mkraft@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 ASSAF DAGAN
Appeal2014-003779
Application 12/870,428
Technology Center 2600
Before CARL W. WHITEHEAD JR., BRUCE R. WINSOR, and
AMBER L. HAGY, Administrative Patent Judges.
WINSOR, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claims 1-8 and 10-15. We have jurisdiction under
35 U.S.C. § 6(b ). Claim 9 is indicated to be directed to allowable subject
matter. (Final Act. 2; Ans. 2; App. Br. 8.)
We reverse.
1 The real party in interest identified by Appellant is Hewlett-Packard
Development Company, LP, a wholly-owned affiliate of Hewlett-Packard
Company. (App. Br. 2.)
Appeal2014-003779
Application 12/870,428
STATEMENT OF THE CASE
Appellant's disclosed invention relates to "[ c ]orrelation of metrics
monitored from a virtual environment." (Abstract.) Claim 1, which is
illustrative, reads as follows:
1. A method for detecting correlations between
metrics monitored from a virtual environment, comprising:
monitoring a plurality of network operation metrics of
network devices in the virtual environment;
detecting a plurality of network operation metric
irregularities for the network devices exceeding a threshold;
selecting a first network operation metric irregularity
from the plurality of network operation metric irregularities;
identifying a time frame of the first network operation
metric irregularity for analysis;
selecting a second network operation metric irregularity
from the plurality of network operation metric irregularities;
and
companng the first network operation metric
irregularity and the second network operation metric
irregularity to determine a correspondence between the first
network operation metric irregularity and the second network
operation metric irregularity using a comparison engine and
based on a predetermined analysis method.
Claims 1-8 and 10-15 stand rejected under 35 U.S.C. § 102(e) as
being anticipated by Lewis (US 7,725,570 Bl; issued May 25, 2010, filed
May 23, 2000). (See Final Act. 2---6.)
Rather than repeat the arguments here, we refer to the Briefs ("App.
Br." filed Sept. 12, 2013; "Reply Br." filed Jan. 17, 2014) and the
Specification ("Spec." filed Aug. 27, 2010) for the positions of Appellant
and the Final Office Action ("Final Act." mailed May 13, 2013) and Answer
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Application 12/870,428
("Ans." mailed Nov. 27, 2013) for the reasoning, findings, and conclusions
of the Examiner.
ISSUE
The dispositive issue raised by Appellant's contentions is as follows: 2
Does Lewis disclose
selecting a first network operation metric irregularity
from the plurality of network operation metric irregularities;
selecting a second network operation metric irregularity
from the plurality of network operation metric irregularities;
and
comparing the first network operation metric irregularity
and the second network operation metric irregularity to
determine a correspondence between the first network operation
metric irregularity and the second network operation metric
irregularity
(herein the "selecting and comparing limitations"), as recited in claim l?
ANALYSIS
The Examiner finds that Lewis discloses the selecting and comparing
limitations. (Final Act. 3 (citing Lewis col. 9, 11. 20-29, col. 38, 11. 42-65;
see also Ans. 5---6 (citing Lewis col. 1 7, 11. 10-24 ), 8-9 (additionally citing
Lewis col. 15, 11. 5-14).) The Examiner explains that Lewis discloses
"[ c ]omparing the captured/monitored data associated with various devices in
the network with [a] Service Level Agreement [SLA] for analysis." (Final
Act. 3 (referring to Lewis col. 38, 11. 42---65).)
2 Appellant's contentions raise additional issues. Because the identified
issue is dispositive of the appeal, we do not reach the additional issues.
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Appeal2014-003779
Application 12/870,428
Appellant contends that "Lewis discloses nothing about 'comparing
the first network operation metric irregularity and the second network
operation metric irregularity to determine a correspondence,' as recited by
claim 1. . . . [C]omparing captured data to a SLA for analysis does not
disclose comparing a first irregularity to a second irregularity." (App. Br.
14.) We agree with Appellant.
A pertinent dictionary definition of "irregularity" is "2. something
irregular. 3. a breach of rules ... etc.," RANDOM HOUSE DICTIONARY OF
THE ENGLISH LANGUAGE 1010 (2nd ed. unabridged 1987). "Irregular" is
pertinently defined as "3. not conforming to established rules ... etc. 4.
not according to rule, or to the accepted principle, method, course, order,
etc." Id. at 1009. We conclude that the broadest reasonable interpretation of
a "network operation metric irregularity" is an event in which a "network
operation metric" deviates from a rule or some other accepted standard of
normal or usual performance. This is consistent with Appellant's
Specification, which describes an operation tracking module and operation
monitoring device that establish a baseline of normal or usual operations
(Spec. 6:6-22.) Operation metrics that breach the baseline, or a baseline
sleeve, are detected by a breach detection module. (Spec. 6:23-7:2.)
The selecting and comparing limitations of claim 1 recite that a first
detected and selected irregularity is compared to a second detected and
selected irregularity. The passages of Lewis relied on by the Examiner all
relate to comparing captured data, i.e., operation metrics, to the standards set
forth in an SLA (see, e.g., Lewis col. 15, 11. 5-14) or a set of rules (see, e.g.,
id. col. 38, 11. 42---65). Thus, although the cited passages may fairly be said
to disclose "monitoring a plurality of network operation metrics of network
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Appeal2014-003779
Application 12/870,428
devices ... ; [and] detecting a plurality of network operation metric
irregularities for the network devices exceeding a threshold," as recited in
claim 1, they do not disclose comparing a first irregularity to a second
irregularity.
"A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference." Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987). "These elements must be arranged as in the claim
under review, but this is not an 'ipsissimis verbis' test". In re Bond, 910
F.2d 831, 832 (Fed. Cir. 1990) (citation omitted). "The identical invention
must be shown in as complete detail as is contained in the ... claim."
Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1236 (Fed. Cir. 1989).
The Examiner has not established that Lewis discloses each and every
element of the selecting and comparing limitations of claim 1, arranged as in
the claim, and in as complete detail as in the claim. Accordingly,
constrained by the record before us, we do not sustain the rejection of claim
1 and claims 2--4, which depend, directly or indirectly, from claim 1.
Similarly, independent claim 5 recites a comparison of a plurality of
operation metrics exceeding a threshold, and independent claim 10 recites
comparison of a plurality of operation metrics breaching a baseline sleeve.
Claim 5 and 10 are rejected together with claim 1, with no findings directed
to differences between the recitations of claim 1 and those of claims 5 and
10 (see Final Act. 2-3). Therefore, constrained by this record, we do not
sustain the rejection of claims 5 and 10 and claims 6-8, and 11-15, which
depend, directly or indirectly, from claims 5 and 10, respectively, for the
same reasons as for claim 1.
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Appeal2014-003779
Application 12/870,428
DECISION
The decision of the Examiner to reject claims 1-8 and 10-15 is
reversed.
REVERSED
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