Ex Parte Pierce

Patent Trial and Appeal BoardMar 27, 2014

11914269 (P.T.A.B. Mar. 27, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MICHAEL PIERCE ____________ Appeal 2011-004165 Application 11/914,269 Technology Center 2400 ____________ Before CARL W. WHITEHEAD JR., ERIC S. FRAHM, and ANDREW J. DILLON, Administrative Patent Judges. DILLON, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-19. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellant’s invention is directed to an ultrasound diagnostic imaging system with its own onboard network analyzer. See Title; Abstract. Appeal 2011-004165 Application 11/914,269 2 Claims 1, 11, and 16, the independent claims, are illustrative, with key disputed limitations emphasized: 1. An ultrasound diagnostic imaging system which may be connected to a network for the exchange of ultrasound information with another device on the network comprising: an operating system resident on the ultrasound system; a network adapter by which the ultrasound system is connected to the network; and a network analysis application resident on the ultrasound system and operable by the operating system to capture raw network packet data or display a network capture file. 11. A method for diagnosing a network connection to an ultrasound diagnostic imaging system from the ultrasound system comprising: starting a network monitor and analysis program from the ultrasound system; transmitting a data file from the ultrasound system to a host device on a network; monitoring network traffic associated with the data file; and producing a capture file from at least a subset of the monitored network traffic. 16. A method of diagnosing a network problem comprising: connecting a network adapter of an ultrasound system to a network; determining that a communication problem exists between the ultrasound system and at least one device on the network; acquiring a capture file of network traffic with the ultrasound system while the ultrasound system is connected to the network; and analyzing the capture file to resolve the communication problem. The Examiner relies on the following as evidence of unpatentability: Kurrasch US 2002/0184568 A1 Dec. 5, 2002 Sumanaweera US 2005/0049495 A1 Mar. 3, 2005 J. Postel, Internet Control Message Protocol RFC 792, 1 (Sept. 1981). Appeal 2011-004165 Application 11/914,269 3 THE REJECTIONS 1. The Examiner rejected claims 1-8 and 11-19 under 35 U.S.C. § 103(a) as unpatentable over Sumanaweera and Kurrasch. Ans. 4- 9.1 2. The Examiner rejected claims 9 and 10 under 35 U.S.C. § 103(a) as unpatentable over Sumanaweera, Kurrasch, and Postel. Ans. 10. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s contentions in the Appeal Brief (App. Br. 9-15) and the Reply Brief (Reply Br. 3-4) that the Examiner has erred. We disagree with Appellant’s contentions. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Ans. 4-10), and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief (Ans. 11-13). We highlight and amplify certain teachings and suggestions of the references as follows. Appellant argues that the Examiner erred in rejecting claims 1-8 and 11-19 under 35 U.S.C. § 103(a) as unpatentable over Sumanaweera and Kurrasch, arguing that the cited combination fails to show or suggest an ultrasound system with a resident network analyzer which is operable from the ultrasound system to capture raw network packet data or display a network capture file. App. Br. 12. 1 Throughout this opinion, we refer to the Appeal Brief filed July 26, 2010; the Examiner’s Answer mailed October 14, 2010; and the Reply Brief filed December 9, 2010. Appeal 2011-004165 Application 11/914,269 4 Appellant argues that the Kurrasch does not capture or display network data. Further, Appellant argues that Kurrasch only utilizes the word “packet” once, describing that bad data packets are monitored and detected, arguing that detection of a bad data packet “is not the capture of raw network packet data.” Id. The Examiner finds, with respect to claim 1, that the claim terms are expressed in the alternative. Ans. 12. That is, the claimed invention requires that “raw network packet data” be captured or that a “network capture file” be displayed. Id. Further, the Examiner points out, correctly, that the terms “raw data” and “packet” do not distinguish the claims from the prior art. Id. We find that claim 1 does not place any restriction on what “raw network packet data” and “network capture file” mean, include, or represent. Further, these terms do not change the functionality of or provide an additional function to the “ultrasound system,” the “network adapter,” or the “network analysis application” of claim 1, i.e., do not limit how the respective “data” is extracted other than it is “captured” or “displayed.” Consequently, we construe claim 1’s limitations “raw network packet data” and “network capture file” as merely descriptive terms, which will not distinguish the invention from the prior art in terms of patentability. Turning to Kurrasch, we find, as noted by the Examiner, the disclosure of data is both captured and displayed. Ans. 4. Specifically, as cited by the Examiner, Kurrasch teaches the parsing of network packets, which the Examiner concludes necessarily requires capture of data. Id. The Examiner also cites Kurrasch, at paragraph 20, which teaches information display. Id. at 12. Appeal 2011-004165 Application 11/914,269 5 We concur with the Examiner and find the Examiner did not err in rejecting claim 1 under 35 U.S.C. § 103(a) as unpatentable over Sumanaweera and Kurrasch. With respect to claim 11, Appellant argues that Neither Sumanaweera et al. nor Kurrasch show or suggest starting a network monitor and analysis program from an ultrasound system. Sumanaweera et al. would have the program located at the manufacturer’s remote central location and Kurrasch makes no mention of ultrasound systems. Neither reference suggests transmitting a data file from an ultrasound system, then monitoring network traffic associated with the data file. Sumanaweera et al. sends an ultrasound image to a manufacturer’s central location, then waits for something to be sent back. Kurrasch’s event monitors would monitor traffic continuously, but does not monitor traffic in response to a data file it sends. And neither reference shows or suggests producing a capture file from the monitored network traffic. App. Br. 13. “Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). In determining obviousness, furthermore, a reference “must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole.” Id. Here, the Examiner relies on the combined teachings of Sumanaweera and Kurrasch (in combination with the prior art as a whole) to reject the limitations at issue. Ans. 6-7. Consequently, Appellant’s individual attacks on alleged shortfalls of either Sumanaweera or Kurrasch cannot establish Appeal 2011-004165 Application 11/914,269 6 non-obviousness. Appellant’s arguments also fail to address the Examiner’s aforementioned findings and conclusions. We therefore find that the Examiner did not err in rejecting claim 11 under 35 U.S.C. § 103(a) as unpatentable over Sumanaweera and Kurrasch. Addressing claim 16, Appellant argues that the cited combination of references cannot be relied upon to suggest the step of “determining that a communication problem exists between the ultrasound system and at least one device on the network” despite Appellant’s admission that the “event monitor of Kurrasch could be used to monitor for communication problems between an ultrasound system and a network device.” App. Br. 14. The basis for Appellant’s argument is that this “would be wholly impractical as doctors do not look at or use event monitors.” Id. Practicality aside, we find that Appellant’s admission that the event monitor of Kurrasch could be used to monitor for communication problems between an ultrasound system and a network device to be completely dispositive of this issue. We therefore find that the Examiner did not err in rejecting claim 16 as unpatentable over Sumanaweera and Kurrasch. Appellant argues the patentability of claims 9 and 10 by virtue of their dependency from independent claim 1. App. Br. 14-15. For the reasons we set forth above with respect to claim 1, we find the Examiner did not err in the rejection of claims 9 and 10 under 35 U.S.C. § 103(a) as unpatentable over Sumanaweera, Kurrasch, and Postel. Finally, with respect to claims 8-10 and 17, Appellant urges error on the part of the Examiner for an alleged failure of the cited references to show or suggest “packet filter[s]” or the “display of a capture file.” App. Br. 15. Appeal 2011-004165 Application 11/914,269 7 As noted by the Examiner, Kurrasch clearly describes monitoring various events, including “bad data packets” (see ¶ [0015]), which necessarily implies the presence of some type of packet filtering. Further, as noted above, the Examiner cites paragraph 20 of Kurrasch, which expressly describes information display. Consequently, we find the Examiner did not err in rejecting claims 8- 10 and 17 under 35 U.S.C. § 103(a). CONCLUSION The Examiner did not err in rejecting claims 1-19 under § 103. ORDER The Examiner’s decision rejecting claims 1-19 is affirmed. 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)(iv). AFFIRMED bab