Ex Parte PHAN et al

Patent Trial and Appeal BoardFeb 24, 2016

12771868 (P.T.A.B. Feb. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 121771,868 04/30/2010 The PHAN 56436 7590 02/26/2016 Hewlett Packard Enterprise 3404 E. Harmony Road Mail Stop 79 Fort Collins, CO 80528 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 82259564 2619 EXAMINER GARCIA-CHING, KARINA J ART UNIT PAPER NUMBER 2449 NOTIFICATION DATE DELIVERY MODE 02/26/2016 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): hpe.ip.mail@hpe.com mkraft@hpe.com chris.mania@hpe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THE PHAN, GREGORY D. DOLKAS, and SERGE ZELENOV Appeal2014-000261 Application 12/771,868 Technology Center 2400 Before DEBRA K. STEPHENS, JOSEPH P. LENTIVECH, and JOYCE CRAIG, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. Â§ 134(a) from a final rejection of claims 1-20. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. STATEMENT OF THE INVENTION According to Appellants, the claims are directed to a method and system for logging trace events of a network device (Abstract). Claim 1, reproduced below, is illustrative of the claimed subject matter: Appeal2014-000261 Application 12/771,868 1. A method for logging trace events of a network device in a network, the method comprising: generating, by the network device, a plurality of log events based on a source level; storing the plurality of log events to a log buffer of the network device; monitoring the plurality of log events in the log buffer for a trigger event, wherein the trigger event is a condition in the network; determining whether the trigger event is detected; determining one or more log events of the plurality of log events in an ex-ante window of the log buffer upon detecting the trigger event; providing a log event of the one or more log events to a system log; and determining whether the one or more log events of the plurality oflog events in the log buffer satisfy a log level upon determining the trigger event is not detected, wherein a severity of the source level is lower than a severity of the log level. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: James Wang Lynn Anna US 6,647,446 Bl US 2005/0198281 Al US 2006/0036660 Al US 2009/0282297 Al 2 Nov. 11, 2003 Sept. 8, 2005 Feb. 16,2006 Nov. 12, 2009 Appeal2014-000261 Application 12/771,868 REJECTIONS Claims 1-8, 10-13, and 15-19 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Anna, Lynn, and Wang (Final Act. 2-8). Claims 9, 14, and 20 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Anna, Lynn, Wang, and James (Final Act. 8-9). We have only considered those arguments that Appellants actually raised in the Briefs. Arguments Appellants could have made but chose not to make in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. Â§ 41.37(c)(l)(iv) (2012). ISSUE 1 35 U.S.C. Â§ 103(a): Claims 1-8, 10--13, and 15-19 Appellants assert their invention is not obvious over Anna, Lynn, and Wang (App. Br. 7-14). The issues presented by the arguments are: Issue 1 a: Has the Examiner erred in finding the combination of Anna, Lynn, and Wang teaches or suggests "monitoring the plurality of log events in the log buffer for a trigger event, wherein the trigger event is a condition in the network," as recited in claim 1? Issue 1 b: Has the Examiner improperly combined the teachings and suggestions of Anna, Lynn, and Wang? Issue 1 c: Has the Examiner erred in finding the combination of Anna, Lynn, and Wang teaches or suggests "an ex-post window of the log buffer," as recited in claims 3, 4, 12, 13, 17, and 18? 3 Appeal2014-000261 Application 12/771,868 ANALYSIS We disagree with Appellants' conclusions and adopt as our own: ( 1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken; and (2) the reasons set forth by the Examiner in the Answer in response to the Appeal Brief. With respect to the claims argued by Appellants, we highlight and address specific findings and arguments for emphasis as follows. Appellants argue Anna teaches an error is a device I/O failure or other error pertaining to a particular device and not to a condition in a network (App. Br. 9). Additionally, Appellants argue, none of Anna, Lynn, and Wang discloses "wherein the trigger event is a condition in the network," as recited in independent claim 1 (id.). Appellants further argue Lynn describes activity in log buffers 140 is monitored for certain events that pertain to determination of when information needs to be written to memory 120 (App. Br. 10). Additionally, Appellants contend the event in Lynn is described as pertaining to a relational database in which data is to be written to a direct access storage device or memory (id.; Reply Br. 6). However, Appellants argue Lynn does not disclose the trigger event is a condition in the network as recited (App. Br. 1 O; Reply Br. 6). Appellants next assert Wang, relied on by the Examiner, does not teach the events in the event storing module are monitored for a trigger event (App. Br. 11; Reply Br. 7). Therefore, Appellants contend Wang does not disclose "monitoring the plurality of log events in the log buffer for a trigger event, wherein the trigger event is a condition in the network," as recited in claim 1 (App. Br. 11; Reply Br. 7). 4 Appeal2014-000261 Application 12/771,868 We are not persuaded by Appellants' arguments. We agree with the Examiner's findings and further emphasize the Examiner is relying on the combination of Anna, Lynn, and Wang as teaching or suggesting the invention as recited in claim 1. "It is well-established that a determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements." In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (citing In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en bane) (noting that the criterion for obviousness is not whether the references can be combined physically, but whether the claimed invention is rendered obvious by the teachings of the prior art as a whole)). More specifically, Appellants' arguments attack the references separately; however, the Examiner's obviousness rejection is based upon the combination of Anna, Lynn, and Wang. As such, we agree with the Examiner's findings as to the teachings of Anna, Lynn, and Wang (Final Act. 3--4; Ans. 4---6) and the Examiner's conclusion of obviousness (id.). Appellants' arguments regarding Anna not teaching "monitoring a condition" and alleged inconsistency of the Examiner's arguments set forth in the Reply Brief are not persuasive (Reply Br. 5). Specifically, we are not persuaded Anna does not teach or at least suggest "monitoring a condition." We emphasize, the test for obviousness is what the combined teachings of the references would have suggested to one of ordinary skill in the art. See In re Kahn, 441 F.3d 977, 987-88 (Fed. Cir. 2006). Moreover, in evaluating such references it is proper to take into account not only the specific teachings of the references but also the inferences which one skilled in the art would reasonably be expected to draw therefrom. In re Preda, 401 F .2d 825, 826 (CCP A 1968). 5 Appeal2014-000261 Application 12/771,868 Additionally, we are not persuaded the Examiner's statement that Anna teaches "monitoring a condition in a system" is inconsistent with not relying on Anna for teaching "monitoring a condition in a network." Accordingly, we are unpersuaded by Appellants' arguments that the combination of Anna, Lynn, and Wang does not teach or suggest "monitoring the plurality of log events in the log buffer for a trigger event, wherein the trigger event is a condition in the network," as recited in claim 1. Appellants additionally argue the proposed combination improperly changes the principle of operation of Anna because "the procedure in Anna with respect to the 'triggering moment' directly contradicts the procedure in Lynn" asserting Anna's logging server receives the trigger whereas Lynn's activity in the log buffers is monitored and Anna pertains to determination of which data to log, but does not pertain to any network condition (App. Br. 12; Reply Br. 8). We are not persuaded. To justify combining reference teachings in support of a rejection it is not necessary that a device shown in one reference can be physically inserted into the device shown in the other. ... The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Here, we are not persuaded by Appellants' arguments that the combination relied upon by the Examiner would impermissibly destroy its principle of operation. 6 Appeal2014-000261 Application 12/771,868 Appellants do not separately argue claims 10 and 15, relying instead on the arguments set forth for claim 1 (App. Br. 13). Therefore, for the reasons set forth above, we are not persuaded the Examiner erred in finding the combination of Anna, Lynn, and Wang teaches or at least suggests the invention as recited in claims 10 and 15. With respect to claims 2-8, 11-13, and 16-19, Appellants first specifically address claims 3, 12, and 17, contending the teachings of Anna relied upon by the Examiner, Figures 5 and 6, do not disclose an "ex-post window of the log buffer," or that log events are determine in the ex-post window (App. Br. 13). We are not persuaded by Appellants' general assertions that Figures 5 and 6 do not disclose the recited limitation (id.). The Examiner has set forth with specificity where the limitations are taught (Final Act. 5---6) and Appellants have not sufficiently explained or proffered sufficient evidence to persuade us the limitation is not taught by the relied upon references. Similarly, with respect to claims 4, 13, and 18, Appellants merely state "[n]either of these cited paragraphs in Anna and Wang actually discloses 'an ex-post window of the log buffer"' (App. Br. 14). Appellants have not proffered sufficient evidence or argument to persuade us of error in the Examiner's findings. The remaining claims, claims 2, 5-8, 11, 16, and 19 were not separately argued but relied upon as being patentable based on their dependency from claims 1, 10, and 15, respectively (App. Br. 13-14). Accordingly, we are not persuaded the Examiner erred in finding the combination of Anna, Lynn, and Wang teaches or suggests the limitations as recited in claims 1-8, 10-13, and 15-19. Therefore, we sustain the rejection 7 Appeal2014-000261 Application 12/771,868 of claims 1-8, 10-13, and 15-19 under 35 U.S.C. Â§ 103(a) for obviousness over Anna, Lynn, and Wang. ISSUE 2 35 U.S.C. Â§ 103(a): Claims 9, 14, and 20 Appellants assert their invention is not obvious over Anna, Lynn, Wang, and James (App. Br. 14--15). The issue presented by the arguments 1s: Issue 2: Has the Examiner erred in concluding the combination of Anna, Lynn, Wang, and James teaches or suggests "transmitting a broadcast message across the network, wherein the broadcast message triggers a receiving network device to provide to a system log[,] one or more log events in a log buffer of the receiving device," as recited in claims 9, 14, and 20? ANALYSIS Appellants are again attacking the references individually while the Examiner is relying on a combination of the references. Specifically, the Examiner determines an ordinarily skilled artisan would have found it obvious to combine James' teaching of "transmitting a broadcast message across the network, wherein the broadcast message triggers a receiving network device to provide information," with the teachings of Anna, Lynn, and Wang, to provide a specific type of information, i.e., "to provide to a system log[,] one or more log events in a log buffer of the receiving device." Appellants have not proffered sufficient evidence or argument to persuade us of error in the Examiner's findings and conclusion. 8 Appeal2014-000261 Application 12/771,868 Therefore, we sustain the rejection of claims 9, 14, and 20 under 35 U.S.C. Â§ 103(a) for obviousness over Anna, Lynn, Wang, and James. DECISION The Examiner's rejection of claims 1-8, 10-13, and 15-19 under 35 U.S.C. Â§ 103(a) as being unpatentable over Anna, Lynn, and Wang is affirmed. The Examiner's rejection of claims 9, 14, and 20 under 35 U.S.C. Â§ 103(a) as being unpatentable over Anna, Lynn, Wang, and James is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 9