Ex Parte Ionescu et alDownload PDFPatent Trial and Appeal BoardJan 18, 201713711970 (P.T.A.B. Jan. 18, 2017) 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. 13/711,970 12/12/2012 PAUL IONESCU CA920110094USl_8150-0309 4755 73109 7590 01/20/2017 Cuenot, Forsythe & Kim, LLC 20283 State Road 7 Ste. 300 Boca Raton, EL 33498 EXAMINER KU, SHIUH-HUEI P ART UNIT PAPER NUMBER 2128 NOTIFICATION DATE DELIVERY MODE 01/20/2017 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): ibmptomail@iplawpro.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PAUL IONESCU, IOSIF VIOREL ONUT, ORI SEGAL, and WAYNE DUNCAN SMITH Appeal 2015-007371 Application 13/711,970 Technology Center 2100 Before CAROLYN D. THOMAS, JEFFREY S. SMITH, and TERRENCE W. McMILLIN, Administrative Patent Judges. THOMAS, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING INTRODUCTION Appellants request rehearing of the Patent Trial and Appeal Board’s (“Board”) Decision mailed October 3, 2016 (“Decision”) in which we affirmed the rejections of claims 1—20 under § 103 as being unpatentable over various combinations of Ragusa et al. (US 2012/0226813 Al, Sept. 6, 2012), Conley et al. (US 2006/0069671 Al, Mar. 30, 2006), and Pennington et al. (US 7,467,402 B2, Dec. 16, 2008). Appeal 2015-007371 Application 13/711,970 ANALYSIS In the Request for Rehearing (“Request”), Appellants allege that the Board misapprehended and/or overlooked certain arguments presented by Appellants in the Appeal Brief of January 20, 2015, and in the Reply Brief of August 4, 2015 (Req. 1). Specifically, Appellants allege that (A) the Board “misapprehended and/or overlooked Appellants’ arguments in the Appeal Brief that ‘session tokens are not logout requests’ and ‘Ragusa does not necessarily (i.e., necessarily) require a logout request in order for the session to expire’” (Req. 5); (B) “the Board overlooked Appellants’ arguments in the Appeal Brief that Keller and Merck are not applicable in the present circumstances” (Req. 7) and “Ragusa is silent as to crawling or a state of a crawl” (Req. 8); (C) “the Board has either misapprehended and/or overlooked . . . Appellants’ arguments in the Appeal Brief that ‘the Examiner’s analysis appears to be relying upon the same teaching for both . . . [the claimed “determining whether, in a next instance, the state of the crawl is out of session” and the claimed “responsive to a determination, in the next instance, that the state of the crawl is out of session, determining whether the selected request meets logout request criteria”] which is not permissible given these basic claim constructions principles’” (Req. 9); (D) “the Board has either misapprehended and/or overlooked Appellants’ arguments in the Appeal Brief that ‘[n]o marking is involved with the expiration of a session’” (Req. 10); (E) the “Board misapprehended and/or overlooked” Appellants’ arguments that “Ragusa is nonanalogous prior art that cannot be properly applied against the claimed invention” (Req. 11); (F) the Board “overlooked . . . arguments that Conley does not teach processing all requests, which is the underlying basis of the Examiner’s analysis” (Req. 2 Appeal 2015-007371 Application 13/711,970 12); and (G) the “Board overlooked . . . arguments” addressing the Examiner’s alleged “failure to provide apparent reasons to combine the alleged known elements in the fashion claimed” (Req. 12—13). Regarding (A), Appellants argue the claims recite a “logout request,” requiring “the logout is in response to a request,” whereas in Ragusa, “the log-out is responsive to a session token . . . being expired,” and thereby “the claim language specifically contemplates a specific manner of logout that is not comparable to the logout of Ragusa” (Req. 2). As indicated in our Decision, the claim does not provide a limiting definition for a logout request (see Decision 5—6). As a result, we found that the claimed logout requests merely require requests that lead to or are associated with logging out or ending of a session, and we agree with the Examiner’s finding that Ragusa’s expired session requiring re-login at least teaches or suggests the claimed logout requests (Id.). Claim 1 does not recite logout requests from a Web application, nor logout requests to a Web application, as proffered by Appellants. Claim 1 broadly recites logout requests of a Web application (see claiml). We find that the aforementioned claim language reads on Ragusa’s expired session. To the extent that Appellants simply reiterate the same arguments (see Req. 2-4) made in the Appeal Brief regarding the claimed “logout request” (see App. Br. 15—17), which the Board found unpersuasive (see Decision 5— 6), we emphasize that a request for rehearing “must state with particularity the points believed to have been misapprehended or overlooked by the Board” and “must specifically recite ‘the points of law or fact which appellant feels were overlooked or misapprehended by the Board.’” Ex 3 Appeal 2015-007371 Application 13/711,970 parte Quist, 95 USPQ2d 1140, 1141 (BPAI 2010) (precedential) (quoting MPEP § 1214.03). Here, Appellants have not specifically identified points of law or fact overlooked or misapprehended by the Board in its Decision. Therefore, for at least the aforementioned reasons, we find Appellants’ contention (A) unavailing. Regarding (B), Appellants argue that “the Examiner explicitly and solely relied upon Ragusa to teach ‘determining, in one instance, whether a state of a crawl is out of session,’” and that the Examiner did not present analysis “why it would have been obvious to substitute the ‘crawl’ into the claimed ‘determining’. . . since the Examiner relied solely upon Ragusa” (Req. 7). We disagree. As indicated in our Decision, the Examiner relies on Ragusa to teach logged out states of sessions and on Conley to teach the crawling/parsing of web pages (see Decision 7, citing Ans. 5). In contrast to Appellants’ contentions that the Examiner relied solely upon Ragusa, the Examiner’s rejection actually relies on Ragusa to teach “determining, in one instance, whether a state of a crawl is out of session,” and on Conley to teach the preceding step of “crawling the identified next portion of the Web application” (see Final Act. 9, 12). Asa result, our Decision highlighted that we agreed with the Examiner’s interpretation that Conley teaches crawling in a web application and Ragusa teaches the claimed out of session state (see Decision 7—8). Therefore, for at least the aforementioned reasons, we find Appellants’ contention (B) unavailing. 4 Appeal 2015-007371 Application 13/711,970 Regarding (C), Appellants newly argue that the claimed ‘“determining whether the selected request meets logout request criteria’ is responsive to ‘determining, in one instance, whether a state of a crawl is out of session,’” and “the claim language explicitly recites a distinction between the two elements such that one precedes and is responsive to the other” (Req. 8—9). To the extent Appellants present this new argument in the Request for Rehearing, such arguments at this stage of prosecution are inappropriate and will not be considered. See 37 C.F.R. § 41.52(a)(1). Belated arguments are technically waived. See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) (“[T]he reply brief [is not] an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner’s rejections, but were not.”) This is equally applicable to belated arguments in the Request for Rehearing. Therefore, for at least the aforementioned reasons, we find Appellants’ contention (C) unavailing. Regarding (D), Appellants argue that “neither the Board nor the Examiner has construed the term ‘marking’ consistent with Appellants’ specification or explained how this term, when properly construed, is disclosed by Ragusa” (Req. 10). We disagree. As indicated in our Decision, Appellants’ claim language does not provide a limiting definition for “marking,” or how a request is marked, and instead merely requires indicating a request as a logout request (see Decision 9). Again, to the extent that Appellants simply reiterate the same arguments (see Req. 9—10) made in the Appeal Brief regarding the claimed 5 Appeal 2015-007371 Application 13/711,970 “marking the selected request as a logout request” (see App. Br. 24—25), which the Board found unpersuasive of error in the Examiner’s rejection (see Decision 9—10), we emphasize that a request for rehearing “must state with particularity the points believed to have been misapprehended or overlooked by the Board” and “must specifically recite ‘the points of law or fact which appellant feels were overlooked or misapprehended by the Board.” See Ex parte Quist at 1141. Here, again, Appellants have not specifically identified points of law or fact overlooked or misapprehended by the Board in its Decision. Therefore, for at least the aforementioned reasons, we find Appellants’ contention (D) unavailing. Regarding (E), Appellants argue that “the Examiner has not presented any evidence that ‘determining whether a session has expired’ is a field of endeavor, and even if it was, Appellants’ invention is not directed to this field,” and “[a] common feature does not establish a common field of endeavor” (Req. 11). We disagree. As indicated in our Decision, the Examiner finds that “Ragusa’s disclosure are related to client application/web service/session token management” and this is “similar to Appellants’ disclosure of Web application/session check” (Decision 9; see also Ans. 14). As a result, our Decision highlighted that we agreed with the Examiner’s finding that Ragusa is in the same field of endeavor (web application or service, and session management or check) as Appellants’ invention (see Decision 9—10). Therefore, for at least the aforementioned reasons, we find Appellants’ contention (E) unavailing. 6 Appeal 2015-007371 Application 13/711,970 Regarding (F), Appellants argue that “Appellants directly addressed the Examiner’s assertion, within the Examiner’s Answer, that ‘Conley’s disclosure in 141 disclose ‘selecting all crawl requests’ recited in claim 1” and the “Board overlooked these certain arguments” (Req. 12). We disagree. As indicated in our Decision, the Examiner finds Conley processes everything (Decision 10). As a result, our Decision highlighted that we agreed with the Examiner’s findings that Conley teaches parsing through all traffic (Id.). Again, to the extent that Appellants simply reiterate the same arguments (see Req. 12) made in the Appeal Brief regarding the claimed “selecting all crawl requests sent since a last time the crawl was in-session” (see App. Br. 27—28), which the Board found unpersuasive of error in the Examiner’s rejection (see Decision 10—11), we emphasize that a request for rehearing “must state with particularity the points believed to have been misapprehended or overlooked by the Board” and “must specifically recite ‘the points of law or fact which appellant feels were overlooked or misapprehended by the Board.” See Ex parte Quist at 1141. Here, again, Appellants have not specifically identified points of law or fact overlooked or misapprehended by the Board in its Decision. Therefore, for at least the aforementioned reasons, we find Appellants’ contention (F) unavailing. Regarding (G). Appellants argue they “have been unable to identify where the Board addressed . . . specific arguments” with regards to the 7 Appeal 2015-007371 Application 13/711,970 combination of “the alleged known elements in the fashion claimed” (Req. 12—13). We disagree. As indicated in our Decision, we conclude that the Examiner “has found actual teachings in the prior art and has provided rationales for the combinations (see Final Act. 9-13; see also Ans. 10, 14—15)” (Decision 8— 9). Furthermore, the Examiner noted that such a combination provides security “for security reasons,” and would “identify vulnerabilities in web- based application which could render the application insecure” (Ans. 16; Final Act. 13). Therefore, for at least the aforementioned reasons, we find Appellants’ contention (G) unavailing. DECISION Accordingly, we have granted Appellants’ Request to the extent that we have reconsidered the original Decision but have DENIED it with respect to making any changes to the Decision. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). REHEARING DENIED 8 Copy with citationCopy as parenthetical citation