Ex Parte KaminskyDownload PDFPatent Trial and Appeal BoardJan 31, 201711534824 (P.T.A.B. Jan. 31, 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. 11/534,824 09/25/2006 David L. Kaminsky RSW920060105US1 (251) 6605 46320 7590 CRGO LAW STEVEN M. GREENBERG 7900 Glades Road SUITE 520 BOCA RATON, EL 33434 EXAMINER GEBRESENBET, DINKU W ART UNIT PAPER NUMBER 2164 NOTIFICATION DATE DELIVERY MODE 02/02/2017 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 DAVID L. KAMINSKY Appeal 2015-007291 Application 11/534,824 Technology Center 2100 Before JOHN A. JEFFERY, DAVID C. McKONE, and DANIEL N. FISHMAN, Administrative Patent Judges. JEFFERY, Administrative Patent Judge. DECISION ON APPEAL This application returns to us after we affirmed the Examiner’s decision to reject then-pending claims 1—16. Ex parte Kaminsky, No. 2010- 010925 (PTAB June 8, 2013) (“Bd. Dec.”). Prosecution reopened after that decision, and Appellant now appeals under 35 U.S.C. § 134(a) from the Examiner’s subsequent decision to reject claims 1—16. We have jurisdiction under 35 U.S.C. § 6(b). We affirm, but designate our affirmance as a new ground of rejection. STATEMENT OF THE CASE Appellant’s invention verifies configuration changes in network architecture by (1) receiving a proposed change to apply to a configuration management database (CMDB); (2) applying the proposed change to a Appeal 2015-007291 Application 11/534,824 CMDB clone; and (3) evaluating the modified clone. See generally Abstract. Claim 1 is illustrative: 1. A computer-implemented change verification method comprising: receiving a proposed configuration change for application to a configuration management database (CMDB); cloning at least a portion of the CMDB to produce a clone; applying the proposed configuration change to the clone; evaluating the clone as modified by the proposed configuration change; and, applying the proposed configuration change to the CMDB based upon the evaluation. THE REJECTIONS The Examiner rejected claims 1,2, 4—13, 15, and 16 under 35 U.S.C. § 102(e) as anticipated by Kilpatrick (US 2007/0100712 Al; published May 3,2007). Final Act. 3-12.1 The Examiner rejected claims 3 and 14 under 35 U.S.C. § 103(a) as unpatentable over Kilpatrick and Lubrecht (US 2006/0161444 Al; published July 20, 2006). Final Act. 12—13. THE ANTICIPATION REJECTION The Examiner finds that Kilpatrick discloses every recited element of claim 1 including applying a proposed configuration change to a clone of at least part of a CMDB, namely via the process associated with adding configuration items (CIs) in Figure 7. Final Act. 3^4. According to the 1 Throughout this opinion, we refer to (1) the Final Rejection mailed March 21, 2014 (“Final Act.”); (2) the Appeal Brief filed December 8, 2014 (“App. Br.”); (3) the Examiner’s Answer mailed May 29, 2015 (“Ans.”); and (4) the Reply Brief filed July 29, 2015 (“Reply Br.”). 2 Appeal 2015-007291 Application 11/534,824 Examiner, Kilpatrick evaluates this clone before deploying the proposed change, and applies the proposed configuration change to the CMDB based upon the evaluation. Final Act. 4; Ans. 3—6. Appellant argues that Kilpatrick does not apply the proposed configuration change to the CMDB based upon the clone’s evaluation, as claimed. App. Br. 4—8; Reply Br. 2—13. Among other things, Appellant contends that Kilpatrick’s distributing a change plan to individuals does not disclose applying a proposed configuration change to a CMDB. App. Br. 6— 7; Reply Br. 5. Appellant adds that Kilpatrick’s change database is not a CMDB nor a clone of the configuration database. Reply Br. 10—12. ISSUE Under § 102, has the Examiner erred in rejecting claim 1 by finding that Kilpatrick applies a proposed configuration change to a CMDB based on evaluating a clone of at least a portion of the CMDB, where the clone is modified by a received proposed configuration change? ANALYSIS We begin by noting that the only difference between claim 1 at issue in this appeal from claim 1 in the earlier appeal is the last clause, namely applying the proposed configuration change to the CMDB based upon the evaluation, which was added to the claim after our earlier decision. See Bd. Dec. 2 (reproducing claim 1). Moreover, as in the earlier appeal (in which we affirmed the Examiner), the Examiner rejects claim 1 as anticipated over the same prior art reference, namely Kilpatrick. 3 Appeal 2015-007291 Application 11/534,824 That is, we affirmed the Examiner’s anticipation rejection of then- pending claim 1, which recited every element of claim 1 that is now before us in this appeal except for the last clause. See Bd. Dec. 3—5. Our findings and conclusions in our earlier decision, then, are applicable here, and indeed binding in this appeal. See Manual of Patent Examining Procedure (MPEP) § 706.07(h)(XI)(A) (9th ed. Rev. 07.2015, Nov. 2015) (noting that the Board’s decision becomes the “law of the case” in that it is controlling on the application under appeal and later related applications). Therefore, this appeal turns solely on whether the Examiner erred in finding that Kilpatrick also anticipates the last clause of claim 1. In our earlier decision, we found, among other things, that Kilpatrick (1) clones a configuration item (Cl) in steps 708 and 712 of Kilpatrick’s Figure 7 as part of the configuration change definition step 108 of Figure 1 A, and (2) applies a proposed configuration change to the clone by populating additional information and completing the cloned Cl in steps 714 and 716. Bd. Dec. 4. We also found that Kilpatrick evaluates this modified clone before deployment by (1) validating all Cl changes via error checking and as a batch in steps 110 and 112 of Figure 1A, and (2) determining the impact of these changes at step 118 before they are implemented at step 126 in Figure IB. Bd. Dec. 5 (citing Kilpatrick || 28—29, 32). Notably, Kilpatrick also applies the proposed configuration change to the CMDB based on this evaluation. On page 5 of the Answer, the Examiner cites Kilpatrick’s paragraph 54, which discusses defining changes to Cis, which can be stored in configuration and change databases—the former of which is a CMDB (Kilpatrick 120). The Examiner also cites Kilpatrick’s paragraph 70, which discusses, among other things, 4 Appeal 2015-007291 Application 11/534,824 (1) presenting CIs to a user for registration in the configuration database; (2) applying changes to CIs; (3) implementing those changes in the database; and (4) updating pending state records in the database in Figure 11 A. Ans. 5—6. These findings are consistent with the process detailed in Kilpatrick’s Figures 1A and IB, which, as noted in our earlier decision, defines configuration changes in terms of proposed changes to CIs in a configuration database, namely a CMDB. See Bd. Dec. 3^4 (citing Kilpatrick || 27—28). Notably, after such a change is implemented and deemed successful in step 128 of Figure IB, it is registered in the configuration database (i.e., CMDB) in step 132. Kilpatrick 133. Therefore, the proposed configuration change that was (1) applied to the clone by populating additional information and completing the cloned Cl in steps 714 and 716 of Figure 7, and (2) evaluated in steps 110, 112, and 118 in Figure 1A as noted above and in our earlier decision, is also applied to the CMDB based on the clone’s evaluation, at least with respect to its registration in that database in step 132. Because the Examiner did not rely on the registration step 132 in connection with the rejection, we designate our affirmance as a new ground of rejection in light of our emphasis on these additional facts. Appellant’s arguments regarding Kilpatrick’s alleged shortcomings regarding the change database and change plan distribution (App. Br. 4—8; Reply Br. 2—13) are not germane to Kilpatrick’s above-noted functionality that applies proposed configuration changes to cloned CIs and, after evaluating those changes, applies those changes to a CMDB via registration. 5 Appeal 2015-007291 Application 11/534,824 Therefore, we are not persuaded that the Examiner erred in rejecting claim 1, and claims 2, 4—13, 15, and 16 not argued separately with particularity. THE OBVIOUSNESS REJECTION We also sustain the Examiner’s obviousness rejection of claims 3 and 14. Final Act. 12—13. Appellant reiterates similar arguments made in connection with the independent claims (App. Br. 9), which we find unpersuasive for the reasons previously discussed. CONCLUSION The Examiner did not err in rejecting (1) claims 1,2, 4—13, 15, and 16 under § 102, and (2) claims 3 and 14 under § 103. We designate our affirmance as a new ground of rejection under § 41.50(b). DECISION The Examiner’s decision rejecting claims 1—16 is affirmed. This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” Section 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: 6 Appeal 2015-007291 Application 11/534,824 (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under §41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the MPEP § 1214.01. 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). AFFIRMED; 37 C.F.R, § 41.50(b) 7 Copy with citationCopy as parenthetical citation