Ex Parte Duggan et al

Patent Trial and Appeal Board

Nov 28, 2016

14059675 (P.T.A.B. Nov. 28, 2016)

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.
14/059,675 10/22/2013 Matthew Duggan GB920120175US2
(789CON)
2004
46320 7590
CRGO LAW
STEVEN M. GREENBERG
7900 Glades Road
SUITE 520
BOCA RATON, EL 33434
EXAMINER
BRYAN, JASON B
ART UNIT PAPER NUMBER
2114
NOTIFICATION DATE DELIVERY MODE
03/01/2017 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):
docketing@crgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW DUGGAN, KRISTIAN STEWART, and
ZHENNI YAN
Appeal 2016-002894
Application 14/059,675
Technology Center 2100
Before JOSEPH L. DIXON, LINZY T. McCARTNEY, and
MATTHEW J. McNEILL, Administrative Patent Judges.
McCARTNEY, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Appellants request rehearing of our November 30, 2016 decision
(“Decision”) affirming the Examiner’s rejections of claims 1—6. We deny
Appellants’ request.
Appeal 2016-002894
Application 14/059,675
Appellants request we reconsider the following alleged “statement of
law” in the Decision concerning “two different words in a specification
being afforded the identical meaning despite being different words”:
Appellants point out that the CAE Screenplates court stated that
“[i]n the absence of any evidence to the contrary, we must
presume that the use of these different terms in the claims
connotes different meanings.” Based on this quotation,
Appellants argue . . . “Winteregg discloses both ‘equipment’ and
‘resource’ as separate terms—therefore it is not permissible
under the law to equate equipment to a resource.” This argument
ignores that the CAE Screenplates court was referring to claim[]
terms in this quotation; the quoted portion of CAE Screenplates
does not stand for the proposition that different terms in the
written description of a prior art patent cannot have the same
meaning.
Decision 5—6 (citations omitted); Req. for Reh’g 4—5. Appellants argue that
in making this statement we “assigned an arbitrary distinction between the
words of the claims and the words of the specification.” Req. for Reh’g 4.
Moreover, according to Appellants, mapping Winteregg’s equipment to the
claimed “resources” leads to a “nonsensical result” because “the teachings of
Winteregg refer the logging of information for ‘files’ and not ‘equipments.’”
Id. at 5 (citing Winteregg 13).
We find Appellants’ arguments unpersuasive. As an initial matter, we
did not conclude as a matter of law that different words in a written
description have the same meaning, nor did we find the terms “resources”
and “equipments” have the same meaning in Winteregg’s disclosure. We
simply noted that the quoted portion of CAE Screenplates concerns the
claims, not the written description. See Decision 5—6; see also CAE
Screenplates Inc. v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308,
1317 (Fed. Cir. 2000) (“In the absence of any evidence to the contrary, we
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Appeal 2016-002894
Application 14/059,675
must presume that the use of these different terms in the claims connotes
different meanings.” (emphasis added)).
In any event, the relevant issue is whether the term “resources” as
used in the claims at issue encompasses Winteregg’s “equipments.” As we
explained in the Decision, given the broad description of the term in the
written description, we agree with the Examiner that it does:
Appellants’ written description does not explicitly define
“resources,” but the written description explains “resources can
include not only the computers, but also the applications
executing therein, the switches, the application servers, and the
database” found in a computer data processing system. Spec. 8
(reference numbers omitted). Thus, one of ordinary skill in the
art would understand the term “resources” to include computers,
switches, application servers, databases and the like that are
included in computer data processing systems. As noted above,
Winteregg explicitly discloses that selection criteria may include
equipment such as the switches disclosed in Appellants’ written
description. Winteregg 1 69 (“Other selection criteria include
... a type of equipment (for example, only events related to
switches). . . .”).
Decision 5. Appellants’ contention that mapping Winteregg’s equipment to
the recited “resources” leads to a nonsensical result does not persuade us
otherwise for at least three reasons. First, Appellants waived this argument
by failing to raise it in their appeal and reply briefs, despite having the
opportunity to do so. See 37 C.F.R. §§ 41.37(c)(l)(iv), 41.41(b)(2),
41.52(a)(1). Second, the portion of Winteregg cited by Appellants simply
discloses that “[ujsually, each log file is stored in the equipment that
generates it, making access to log files . . . very tedious. Therefore, specific
equipments have been suggested for collecting in a single place and for
processing log files generated by different equipments.” See Winteregg 13;
Req. for Reh’g 5 (discussing Winteregg 13). This does not establish that
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Appeal 2016-002894
Application 14/059,675
Winteregg teaches “logging of information for ‘files’ and not ‘equipments’”
as asserted by Appellants. Req. for Reh’g 5. Third, even assuming
Winteregg teaches “logging of information for ‘files’ and not ‘equipments’”
as asserted by Appellants, that does not change the fact that Winteregg
teaches selecting log files based on “equipments” such as switches. See
Winteregg 1 69.
For the above reasons, we find Appellants’ arguments unpersuasive to
identify any points misapprehended or overlooked by the Board and decline
Appellants’ request to modify the Decision.
REHEARING DENIED
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