Ex Parte EnnsDownload PDFPatent Trial and Appeal BoardMay 28, 201411581305 (P.T.A.B. May. 28, 2014) Copy Citation 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. 11/581,305 10/16/2006 Robert P. Enns Juniper-8CON 8334 109043 7590 05/29/2014 Straub & Pokotylo 788 Shrewsbury Ave. Tinton Falls, NJ 07724 EXAMINER HU, JENSEN ART UNIT PAPER NUMBER 2169 MAIL DATE DELIVERY MODE 05/29/2014 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 ROBERT P. ENNS __________ Appeal 2011-011645 Application 11/581,305 Technology Center 2100 ____________ Before Before HUBERT C. LORIN, ANTON W. FETTING, and NINA L. MEDLOCK, Administrative Patent Judges. LORIN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-011645 Application 11/581,305 2 STATEMENT OF THE CASE Robert P. Enns (Appellant) seeks our review under 35 U.S.C. § 134 of the final rejection of claims 1-24, 26, 32 and 33. We have jurisdiction under 35 U.S.C. § 6(b) (2002). SUMMARY OF DECISION We AFFIRM.1 THE INVENTION Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A method for inputting a control instruction for a data forwarding device, the method comprising: a) accepting from a user input device of the data forwarding device, user input; b) determining, with the data forwarding device, whether a reverse-search is requested based on the user input accepted; and c) responsive to a determination that a reverse-search is requested, then i) accepting from the user input device of the data forwarding device, further user input as a search string; ii) searching, with the data forwarding device, back through previously entered and stored data forwarding device control 1 Our decision will make reference to the Appellant’s Appeal Brief (“App. Br.,” filed Dec. 20, 2011) and Reply Brief (“Reply Br.,” filed May 16, 2011), and the Examiner’s Answer (“Answer,” mailed Mar. 16, 2011). Appeal 2011-011645 Application 11/581,305 3 instructions for a data forwarding device control instruction, at least a part of which matches the search string input by the user, iii) retrieving, with the data forwarding device, the first matching data forwarding device control instruction, and iv) rendering the first matching data forwarding device control instruction, wherein the data forwarding device is one of (A) a network switch and (B) a network router. THE REJECTIONS The Examiner relies upon the following as evidence of unpatentability: Ahearn US 5,926,463 Jul. 20, 1999 “man Pages(1): User Commands”, Sun Microsystems, Oct. 1998. (Sun). “Routers & Wireless,” MikroTik, May 2000. (MikroTik). “UNIX System Administrator’s Edition,” Burk et al., 1997. (Burk). The following rejections are before us for review: 1. Claims 1-6, 8-18, and 32 are rejected under 35 U.S.C. §103(a) as being unpatentable over Sun and MikroTik. 2. Claims 7, 19-24, and 26 are rejected under 35 U.S.C. §103(a) as being unpatentable over Sun, MikroTik, and Burk. 3. Claim 33 is rejected under 35 U.S.C. §103(a) as being unpatentable over Sun, MikroTik, and Ahearn. Appeal 2011-011645 Application 11/581,305 4 ISSUES Did the Examiner err in rejecting the claims under 35 U.S.C. §103(a) as being unpatentable over the cited prior art combinations. FINDINGS OF FACT We rely on the Examiner’s factual findings stated in the Answer. Additional findings of fact may appear in the Analysis below. ANALYSIS The rejection of claims 1-6, 8-18, and 32 under 35 U.S.C. §103(a) as being unpatentable over Sun and MikroTik. Claims 1-6 and 8-18 The Appellant argued claims 1-6 and 8-18 as a group (App. Br. 12). We select claim 1 as the representative claim for this group, and the remaining claims 2-6 and 8-18 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii) (2011). The Examiner takes the position that Sun discloses all the claim limitations but for “‘inputting control instructions for a data forwarding device,’ ‘accepting from a user input device of the data forwarding device,’ and ‘wherein the data forwarding device is one of (A) a network switch and (8) a network router,’” (Ans. 4-5) for which MikroTik is relied upon. The Examiner concludes that It would have been obvious to one skilled in the art at the time of the invention to modify the teachings of Sun, disclosing a method of retrieving and executing previously entered control instructions, with the teachings of MikroTik, disclosing a Appeal 2011-011645 Application 11/581,305 5 method of turning a computer system into a network router, because this allows the OS system of a computer to control the functions of a router (see MikroTik, MikroTik v2.0 PC Router Software). Furthermore, one skilled in the art at the time of the invention would realize that a PC computer may be running Linux. Thus, when the computer is turned into a router, UNIX based commands may be utilized to run router functions of the data forwarding device. Ans. 6. The Appellant disagrees, first arguing that the Examiner’s statement in the quoted passage above that “a PC computer may be running Linux” (App. Br. 13) is not a proper test for reaching a conclusion of obviousness, then listing the findings that the Appellant believes the Examiner should have made but allegedly did not make (App. Br. 13), and finally making the statements: However, based on the Examiner’s reasoning, it seems that the base system, upon which the technique for reverse searching using UNIX commands is applied, is the standard computer, running Java software, discussed in the MicroTik Website. The appellant respectfully submits that it is inappropriate to consider the standard computer as the base device since the claimed subject matter is directed towards embedded systems such as a router and/or a network switch, which have far more operating constraints than a standard computer. Accordingly, the rejection fails to demonstrate the above findings. Since the Examiner’s combination is based, at least in part, on a misunderstanding of the platforms on which UNIX was used, and embedded systems such as routers, at the time of the invention, such platforms and embedded systems are introduced below. (App. Br. 14). Appeal 2011-011645 Application 11/581,305 6 Appellant proceeds to state that “communications network equipment, such as routers and switches, were examples of embedded systems” (App. Br. 15) to make the point that “[t]here was no suggestion at the time of the invention to take features from high-end Unix workstations on which complex software development and system administration was [sic] often performed, and apply such features of Unix to other devices that often had less demanding configuration tasks, and which were not platforms for software development” (App. Br. 15). Accordingly, the Sun article and the MicroTik Website would not suggest a combination of complex UNIX commands into an embedded system, such as a router or a switch for example, at the time of the invention because one skilled in the art would not conclude that doing so would result in an improved system. That is, one skilled in the art would not have replaced the “easy and fast, “user-friendly” graphical interface of the MikroTik Router software on a standard computer with UNIX-based commands on embedded systems such as a router and/or a network switch. ... [J]ust because a standard computer can act as a router, it does not provide any evidence for supporting that the functionalities of the standard computer is [sic] supported by a router or network switch. App. Br. 16. As we understand the Appellant’s argument, there appears to be no dispute that the cited prior art discloses all the claim limitations. Rather, the Appellant does not agree that Sun and MikroTik can be combined to reach the claimed subject matter because “it is inappropriate to consider the standard computer [in MikroTik] as the base device since the claimed subject matter is directed towards embedded systems such as a router and/or a network switch, which have far more operating constraints than a standard computer.” (App. Br. 14). Appeal 2011-011645 Application 11/581,305 7 The Examiner’s response is: While the applicant argues that that the instant application is directed to embedded systems (see p. 15, Appeal Brief), it is also true that at the time of the invention it was obvious to allow various computing devices to interface with a data forwarding device to carry out the inputted control instructions within a conventional network communication system. Specifically, administrators or other users may access data forwarding device controls and settings through a computer that includes a control instruction interface for communicating with the networked data forwarding device. Furthermore, the prior art, MikroTik, shows that at the time of the invention communication network equipment, such as routers, were not solely bound to embedded systems but were also implemented and controlled by personal computing devices. Ans. 25. Unix was not solely used for just high-end workstations, but was developed to allow versions of the operating system, including Linux, to operate on a variety of computer systems. Accordingly, the MikroTik software that allows standard PC computers to be utilized as network routers would also allow any PC computer with a Linux operating system to be utilized as a network router. Ans. 26. We have reviewed the record and find on balance that the preponderance of the evidence weighs in favor of the Examiner’s position. At the outset, we observe that the Appellant’s discussion of the differences between embedded systems and standard computers, in an effort to make what appears to be an argument that the references are nonanalogous, is not supported by the Specification or any independent and objective evidence. To the extent the Appellant contends that this Appeal 2011-011645 Application 11/581,305 8 distinction is known to those of ordinary skill in the art, that too is not supported by evidence on the record. The discussion amounts to attorney argument. Arguments of counsel cannot take the place of evidence in the record. The Examiner has established a prima facie case of obviousness. The Examiner found that MikroTik discloses a computer containing software, which turns the standard PC computer into a router (MikroTikv2.0), i.e., a data forwarding device. The Appellant’s claim language does not limit data forwarding devices to routers, which are not computers. Notwithstanding that Examiner has explained that computers can have interfaces to control routers, MikroTik also teaches an input console to control the computer router, thus satisfying the claim limitation of a “user input device of the data forwarding device” (claim 1). Given MikroTik, the Examiner has provided evidence in support of the finding that a computer can be used as a router and that some PC computers run on the Linux operating systems. The Linux operating system runs Unix. The Examiner uses these facts in combination with Sun’s Unix based commands to find that “one skilled in the art at the time of the invention would realize that a PC computer may be running Linux. Thus, when the computer is turned into a router, UNIX based commands may be utilized to run router functions of the data forwarding device.” Ans. 6. The Examiner’s reasoning is logically underpinned, and not simply a matter of arguing that “general PC Computers ‘allow’ various things to be done” (Reply Br. 4). Appeal 2011-011645 Application 11/581,305 9 We see no evidence on the record that undermines the view taken by the Examiner that “the MikroTik software that allows standard PC computers to be utilized as network routers would also allow any PC computer with a Linux operating system to be utilized as a network router.” Ans. 26. For the foregoing reasons, we find that a prima facie case of obviousness has been made out in the first instance. There being no objective evidence of nonobviousness on the record before us, we find that preponderance of the evidence on the record supports the Examiner’s findings and legal conclusion of obviousness. We have considered all of the Appellant’s arguments but do not find them persuasive as to error in the rejection. For example, the Appellant assumes that the Examiner refers to the GUI version of MikroTik. See Reply Br. 5. However, the Examiner did not state in his rebuttal that he was only referring to the GUI version. Although MikroTik discloses a java console GUI, MikroTik also discloses a command line interface in the form of Telnet Console to control the computer turned router. The Telnet Console is a “user friendly command interface,” where users enter commands by typing them (see MikroTik, page 2, paras. 11 and 12). The rejection of claims 1-6 and 8-18 is affirmed. Claim 32 The Appellant challenges the rejection of claim 32 at page 17 of the Appeal Brief. But the arguments in support thereof go to limitations not present in the claim. The Appellant argues that the claim “recite[s] that Appeal 2011-011645 Application 11/581,305 10 when reverse-expand is requested, a search back . . . [is] performed.” App. Br. 17. We see no mention of a “reverse expand” in claim 32. Appellants’ arguments are not commensurate in scope with what is claimed; as such, the arguments are unpersuasive as to error in the rejection and the rejection is sustained. The rejection of claims 7, 19-24, and 26 under 35 U.S.C. §103(a) as being unpatentable over Sun, MikroTik, and Burk. Claims 19-24 and 26 The Appellant argues claims 19-24 and 26 as Group III (App. Br. 18). We select claim 19 as the representative claim for this group, and the remaining claims 20-24 and 26 stand or fall with claim 19. 37 C.F.R. § 31.37(c)(vii) (2011). The Appellant argues that Sun does not disclose the subject matter of claim 19: In the history-substitution commands of the Sun reference referred to by the Examiner, the entire command line, not just the first matching word or parameter, is retrieved. This neither teaches, nor suggests, rendering (or generating) a command line including the first part of the user input and the first matching word or parameter as claimed. App. Br. 19. The Examiner’s position is that The retrieval of the entire command line and not just the first matching word or parameter includes the first part of the user input as well as the first matching word or parameter. . . . The claim limitations do not expressly preclude retrieval of other Appeal 2011-011645 Application 11/581,305 11 portions of the command line in addition the first part of the user input and the first matching word or parameter value. Ans. 29. We agree with the Examiner. The claim does not preclude other portions of the command line. Sun, as the Appellant has argued, retrieves the entire command line, not just the first matching word or parameter, and, thus, meets the claim limitation “a command line including the first part of the user input and the first matching word or parameter value” (claim 19, emphasis added). For the foregoing reasons, we are unpersuaded as to error in the rejection. The rejection of claims 19-24 and 26 is sustained. Claim 7 The Appellant states that [s]ince the purported teachings of the Burke article do not provide a reason for one skilled in the art to combine the Sun article and the MicroTik Website, and since claim 7 depends from claim 1, it is not rendered obvious for at least the reasons discussed above with respect to claim 1 (in Group I). App. Br. 19. However, the Appellant does not present any arguments to explain why the Examiner’s explicit fact finding is in error. “It is not the function of this court to examine the claims in greater detail than argued by an appellant, looking for nonobvious distinctions over the prior art.” In re Baxter Travenol Labs, 952 F.2d 388, 391 (Fed. Cir. 1991). The Appellant has not persuaded us as to error in the rejection of claim 7. Accordingly, its rejection is sustained. Appeal 2011-011645 Application 11/581,305 12 The rejection of claim 33 under 35 U.S.C. §103(a) as being unpatentable over Sun, MikroTik, and Ahearn. We understand the Appellant’s position to be that Ahearn cannot be combined with Sun because Ahearn “suggests operations that occur on a device external to switches and routers of the computer network . . . [and] provides no reason to apply the purported teachings of the Sun article to operate on a data forwarding device.” App. Br. 20. But this is not responsive to the Examiner’s position, which very clearly looks to Ahearn for its disclosure of router data interfaces that are connected over a network to forward data from one router to another (Ans. 24, citing col. 5, ll. 24-35 of Ahearn). Ahearn was not applied to make the case that, given Sun and in light of Ahearn, one would be led to operate on a data forwarding device. The Appellant has not persuaded us as to error in the rejection of claim 33. Accordingly, its rejection is sustained. CONCLUSIONS The rejection of claims 1-6, 8-18, and 32 under 35 U.S.C. §103(a) as being unpatentable over Sun and MikroTik is affirmed. The rejection of claims 7, 19-24, and 26 under 35 U.S.C. §103(a) as being unpatentable over Sun, MikroTik, and Burk is affirmed. The rejection of claim 33 under 35 U.S.C. §103(a) as being unpatentable over Sun, MikroTik, and Ahearn is affirmed. Appeal 2011-011645 Application 11/581,305 13 DECISION The decision of the Examiner to reject claims 1-24, 26, 32, and 33 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 tkl Copy with citationCopy as parenthetical citation