Ex Parte Hawkins et al

Patent Trial and Appeal BoardOct 23, 2012

11377755 (P.T.A.B. Oct. 23, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte JOSHUA HAWKINS, WILLIAM BROTHERS, PHIL A. FLOCKEN, JAY SHAUGHNESSY, and TRAVIS SCOTT TRIPP ________________ Appeal 2010-004040 Application 11/377,755 Technology Center 2400 ________________ Before DENISE M. POTHIER, JEFFREY S. SMITH, and JEREMY J. CURCURI, Administrative Patent Judges. CURCURI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-004040 Application 11/377,755 2 SUMMARY Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-4, 6-10, 12-20, and 22-24. Claims 5, 11, and 21 are canceled. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). Claims 1-4, 6-10, 12-20, and 22-241 stand rejected under 35 U.S.C. § 103(a) as obvious over Sampath (US 6,892,317 B1; issued May 10, 2005; filed Dec. 16, 1999). Ans. 3-5. We affirm-in-part. STATEMENT OF CASE Appellants’ invention relates to receiving messages including error information from client computers through a computer network. Recommendations for resolving errors associated with the error information are made available to the client computers through the network. Abstract. Claim 1 is illustrative and reproduced below with the key disputed limitation emphasized: 1. A computer product comprising: first logic instructions on a computer readable storage device operable in a first node to: receive first messages including error information from a plurality of client computers via a computer network; transmit second messages to the client computers via the computer network, wherein the second messages indicate availability of 1The rejection’s heading mistakenly includes canceled claims 5, 11, and 21. See Ans. 3. Appeal 2010-004040 Application 11/377,755 3 recommendations for resolving errors reported with the error information; and discontinue accepting the first messages when the number of the first messages received from one of the client computers exceeds a limit within a specified time period. CONTENTIONS2 The Examiner finds that Sampath teaches all recited limitations of claim 1 except the key disputed limitation. The Examiner takes Official Notice that it [was] well known in the art at the time the invention was made to discontinue accepting messages when the number of the messages received from at least one of a plurality of client computers exceeds a threshold within a specific time period and that Sampath would have been motivated to do so for the purpose of [] providing a preventative security measure for denial-of-service attacks. Ans. 4; see also Ans. 3, 5-8. Appellants argue: Neither of [the examples provided by the Examiner when taking Official Notice] take[s] into account that the number of message[s] received exceeds a threshold within a specific time period. Even if a network includes a switch or router with rate limiting, the cited reference does not teach or suggest that the rate limiting discriminates 2 Rather than repeat the Examiner’s positions and Appellants’ arguments in their entirety, we refer to the following documents for their respective details: the Final Rejection (Fin. Rej.) mailed March 23, 2009; the Appeal Brief (App. Br.) filed June 15, 2009; the Examiner’s Answer (Ans.) mailed September 18, 2009; and the Reply Brief (Reply Br.) filed November 18, 2009. Appeal 2010-004040 Application 11/377,755 4 based on whether the messages are from one particular client computer. App. Br. 5; see also App. Br. 6-9; Reply Br. 5-9. In response, the Examiner states, “[t]he instant claim makes no requirement as to what constitutes ‘specified,’ such that the time period would have to be ‘specified’ before or after the messages were received, stored, or anything else.” Ans. 5. ISSUE Under 35 U.S.C. § 103(a), has the Examiner erred in rejecting claim 1 as obvious over Sampath, when the recited term “specified time period” is broadly, but reasonably construed? ANALYSIS The issue turns on one question: what is the meaning of “specified time period”? Appellants’ Specification does not define the term “specified time period,” (App. Br. 6; Reply Br. 6) but does indicate, “[g]ateway nodes 122 can maintain a threshold counter that will cause the gateway node 122 to stop accepting fault data when an event storm is detected. The term ‘event storm’ as used herein refers to a predetermined number of fault events being detected within a specified time period.” Spec. [0008]. Appellants’ Specification further explains the “[g]ateway node 122 can resume transferring fault data when the number of faults detected with[in] a specified time period is within the predetermined limit.” Spec. [0024]. Consistent with the Specification, a broad, but reasonable construction of “specified time period” includes a time period that is expressed in relation Appeal 2010-004040 Application 11/377,755 5 to a number of events or items (for example, an expression of the form “items/time period” specifies a time period). Rate limiting by a buffer, in terms of items per time, specifies a time period. This construction also comports with the plain meaning of the term “specify” which is defined in pertinent sense as “1 : to name or state explicitly or in detail.”3 Using this construction, we see no error in the Examiner’s reliance on Official Notice,4 and in particular the Examiner’s buffer example, for teaching the argued limitation. As the Examiner explains, For instance, if you send ten messages in one second, and the buffer can only handle 5 messages, then 5 messages will be dropped when the computer exceeds that limit. The specified time period would be the one second. Examiner submits that the claim does not require how the time period is specified (i.e. is it stored?) and furthermore, when it is specified? While in the above example, the time period is specified after the messages are dropped, it clearly reads upon the limitation as recited in the claim. Ans. 5-6. This buffer example all but suggests that the buffer has a maximum capacity or threshold of messages that it can handle within a set or given time period, after which messages will be dropped. Further, claim 1 does not recite discriminating based on whether the messages are from one particular client computer as Appellants argue (App. 3 Merriam Webster’s Collegiate Dictionary (10th ed. 1997). 4 Notably, except for the “specified time period” recitation, Appellants did not and have not challenged the Examiner’s taking of Official Notice that it is well known in the art at the time the invention was made to discontinue accepting messages when the number of messages received from computers exceeds a limit, such as during buffer overflow. See Amendment filed December 8, 2008 in response to the § 103 rejection taking Official Notice; see also App. Br. 5-6. Since this well-known finding has not been traversed, it is taken to be admitted prior art. See MPEP § 2144.03(C). Appeal 2010-004040 Application 11/377,755 6 Br. 5-6; Reply Br. 5-6). Such discriminating is irrelevant to the language of the claim at issue; rather, the claim recites discontinuing accepting the first messages when the number of the first messages received from one of the client computers exceeds a limit within a specified time period. Skilled artisans would recognize that a buffer that drops messages after a threshold would drop the messages whether the messages are from multiple computers or from one computer. Appellants have not provided persuasive rebuttal or persuasive explanation as to why the Examiner’s explanation is insufficient. Weighing Appellants’ arguments against the Examiner’s findings, we conclude Appellants have not sufficiently shown error in the Examiner’s obviousness rejection based on Sampath regarding claim 1. We therefore sustain the Examiner’s rejection of claim 1, as well as claims 2 and 9, which are not argued separately. We also agree with the Examiner’s position, with regard to claims 3 and 4, that Sampath and Official Notice collectively teach all claim limitations. Ans. 3-6. Appellants argue (App. Br. 6; Reply Br. 6-7) that the cited art does not teach the recited claim limitations. The Examiner explains (Ans. 6) that the findings regarding claim 1 also apply to claims 3 and 4, and cites Sampath (col. 10, ll. 1-6) as teaching forwarding analysis results to a diagnostic server. The cited portion of Sampath teaches transmitting messages to a diagnostic computer as recited in claim 3. Claim 4 recites discontinuing transmitting messages to the diagnostic computer; however, skilled artisans would recognize that discontinuing transmitting messages to the diagnostic computer would occur upon discontinuing accepting messages (as recited in claim 1). Accordingly, we are not persuaded that the Appeal 2010-004040 Application 11/377,755 7 Examiner has erred in rejecting claims 3 and 4, and we therefore sustain the Examiner’s rejection of claims 3 and 4. With regard to claims 6-8, the Examiner cites Sampath (col. 6, ll. 17- 38 and col. 12, ll. 30-34) as teaching the recited limitations in claims 6 and 7, and cites Sampath (col. 10, ll. 16-37) as teaching the recited limitations in claim 8. Fin. Rej. 5. Beyond these cites, the Examiner has not made a specific detailed mapping of each recited limitation in claims 6-8 to Sampath or offered any further explanation as to why the recited limitations would have been obvious to one of ordinary skill in the art – particularly those regarding communicating to a node or other computers that the first node has discontinued accepting messages from the client computer recited in claims 6 and 7. Fin. Rej. 5; Ans. 3-5. The Examiner also did not squarely address Appellants’ specific arguments concerning Sampath’s deficiencies (App. Br. 6-7; Reply Br. 7-8) in the Response to Arguments section of the Answer (see Ans. 5-8). On this record, we are persuaded that the Examiner has erred in rejecting claims 6-8, and we therefore do not sustain the Examiner’s rejection of claims 6-8. Concerning independent claim 10, the Examiner cites Sampath (col. 10, ll. 32-37) as teaching the recited steps of transmitting an event storm message to a second node, and broadcasting the event storm message from the second node. Fin. Rej. 6. Appellants argue (App. Br. 8; Reply Br. 8) that the cited art does not teach or suggest broadcasting the event storm message as recited in claim 10. The Examiner explains (Ans. 6-7) that the findings regarding claim 1 also apply to claim 10. Even if we assume, but do not decide, that Sampath (col. 10, ll. 32-37) teaches transmitting an event storm message to a second node, the Examiner does not clearly explain how Appeal 2010-004040 Application 11/377,755 8 the cited art teaches or suggests the additional recited limitation of broadcasting the event storm message from the second node to other computer systems. On this record, we are persuaded that the Examiner has erred in rejecting claim 10. We therefore do not sustain the Examiner’s rejection of claim 10, as well as claims 12-145, which depend therefrom. Regarding to independent claim 15, the Examiner states that claims 15-16 are substantially the same as claims 4-56 and are similarly rejected. Fin. Rej. 6. Appellants argue (App. Br. 8) that the cited art does not teach or suggest notifying a second node of the event storm, and notifying other computer systems of the event storm from the second node as recited in claim 15. We note that these argued limitations in claim 15 do not appear in claim 4 cited by the Examiner. Also, the Examiner did not squarely address Appellants’ specific arguments in this regard (App. Br. 8) in the Response to Arguments section of the Answer (see Ans. 5-8). On this record, we are persuaded that the Examiner has erred in rejecting claim 15, and we therefore do not sustain the Examiner’s rejection of claim 15, as well as claims 16-19, which depend therefrom. With regard to claim 20, the Examiner states that claims 20-21 are substantially the same as claims 15-16 and are similarly rejected. Fin. Rej. 7. Appellants argue (App. Br. 9; Reply Br. 9) that the cited art does not teach or suggest means for communicating an event storm message to a second node as recited in claim 20. The Examiner explains (Ans. 8) that the 5 Claim 14 depends from claim 11 which is canceled. This appears to be a mistake, and our analysis assumes that claim 14 depends from claim 10. 6 Claim 5 is canceled. Appeal 2010-004040 Application 11/377,755 9 Examiner’s findings regarding claim 1 also apply to claim 20, and cites Sampath. See Abstract, col. 10, l. 54 – col. 11, l. 6. We interpret the recited elements in claim 20 as having invoked the provisions of 35 U.S.C. § 112, sixth paragraph. Appellants identify network 106 in Figure 1 as the corresponding structure in the Specification for the recited means for communicating an event storm message to a second node. Appellants identify process 220 (on deployment node 134) in Figure 2 as the corresponding structure in the Specification for the recited means for broadcasting the event storm message from the second node. Even if we assume, but do not decide, that cited portions of Sampath teach a means for communicating an event storm message to a second node, the Examiner does not clearly explain how the cited art teaches or suggests the additional recited limitation of means for broadcasting the event storm message from the second node to other computer systems executing application programs. On this record, we are persuaded that the Examiner has erred in rejecting claim 20, and we therefore do not sustain the Examiner’s rejection of claim 20, as well as claims 22-24, which depend therefrom. DECISION7 The Examiner’s decision rejecting claims 1-4 and 9 is affirmed. The Examiner’s decision rejecting claims 6-8, 10, 12-20, and 22-24 is reversed. 7 The Examiner’s attention is directed to Evaluating Subject Matter Eligibility Under 35 U.S.C. § 101: August 2012 Update, Office of Patent Legal Administration, United States Patent and Trademark Office, available at http://www.uspto.gov/patents/law/exam/101_training_aug2012.pdf Appeal 2010-004040 Application 11/377,755 10 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). See 37 C.F.R. § 1.136(a)(1)(iv) (2010). AFFIRMED-IN-PART rwk