Ex Parte Ionescu et al

Patent Trial and Appeal Board

Jan 18, 2017

13711970 (P.T.A.B. Jan. 18, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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Alexandria, Virginia 22313-1450
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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.
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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.
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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
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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.
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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
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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.
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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
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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
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