Ex Parte Pulito et al

Patent Trials and Appeals BoardSep 19, 2014

11191333 - (D) (P.T.A.B. Sep. 19, 2014)

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. 11/191,333 07/28/2005 Brian Pulito LOT920040052US4_088 5146 51835 7590 09/19/2014 IBM Lotus & Rational SW c/o Schmeiser, Olsen & Watts LLP 5 Mount Royal Avenue Mount Royal Office Park Marlborough, MA 01752 EXAMINER JOSHI, SURAJ M ART UNIT PAPER NUMBER 2447 MAIL DATE DELIVERY MODE 09/19/2014 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BRIAN PULITO, MALISSA SULLIVAN, YAFIT SAMI, ODED HIRSCHFIELD, and MARK WALLACE ____________ Appeal 2012-002662 Application 11/191,3331 Technology Center 2400 ____________ Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and NINA L. MEDLOCK, Administrative Patent Judges. CRAWFORD, Administrative Patent Judge. DECISION ON APPEAL 1 The real party in interest, identified by Appellants, is International Business Machines Corporation. Appeal Brief 2. Appeal 2012-002662 Application 11/191,333 2 STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s final decision rejecting claims 11–25. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. Claim 11 is illustrative: 11. A method of handling requests in a communication infrastructure, the method comprising: receiving a plurality of application protocols; multiplexing the received plurality of application protocols; generating a persistent HTTP connection providing for repeated engagements to and from the plurality of application protocols, the persistent HTTP connection maintaining its persistent connection during communication inactivity absent a communication response from a server to the plurality of application protocols, the communication response delayed to maintain the persistent HTTP connection; and sending asynchronous data associated with the multiplexed plurality of application protocols over the generated persistent HTTP connection, wherein additional asynchronous data is capable of being transmitted to the server on the persistent HTTP connection maintained during the delayed communication response from the server. Appellants appeal the following rejections: 1. Claims 11–20, 24 and 25 under 35 U.S.C. § 103(a) as unpatentable over Erickson (US 6,412,009 B1, iss. Jun. 25, 2002), Chen (US 2003/0206192 A1, pub. Nov. 6, 2003), and Miller (US 7,305,546 B1, iss. Dec. 4, 2007). 2. Claims 21–23 under 35 U.S.C. § 103(a) as unpatentable over Erickson, Chen, Miller, and Halliday (US 2002/0083345 A1, pub. Jun. 27, 2002). Appeal 2012-002662 Application 11/191,333 3 ISSUE Did the Examiner err in rejecting claim 11 because Miller does not disclose multiplexing the received plurality of application protocols? ANALYSIS The Appellants argue that Miller discloses multiplexing data, not multiplexing application protocols. We agree. With reference to Figure 2, we find that the Specification discloses that, for example, an application protocol for eMeeting and an application protocol for Instant Messaging are multiplexed at protocol multiplexing/demultiplexing layer 204 and sent from client 102 to server 108 and demultiplexed at protocol multiplexing/demultiplexing layer 214 in the server. The Examiner relies on Miller at column 5, line 63 to column 6, line 2 and column 7, lines 13–15 for teaching this subject matter. However, the relied on portions of Miller relate to the multiplexing of data rather than the multiplexing of application protocols. The Examiner has not explained how the disclosure in Miller of multiplexing application data is a teaching of multiplexing application protocols. Therefore, on the record before us, the Examiner has not shown that each and every limitation of the claim is either described or suggested by the prior art or would have been obvious based on the knowledge of the ordinary artisan. See In re Fine, 837 F.2d at 1074; see also In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“A rejection based on section 103 clearly must rest on a factual basis, and these facts must be interpreted without hindsight reconstruction of the invention from the prior art”). The fact finder must be aware “of the distortion caused by hindsight Appeal 2012-002662 Application 11/191,333 4 bias and must be cautious of arguments reliant upon ex post reasoning.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (citing Graham v. John Deere Co., 383 U.S. 1, 36 (1966) (warning against a “temptation to read into the prior art the teachings of the invention in issue”)). In view of the foregoing, we will not sustain the Examiner’s rejection of claim 11 and claims 12 and 13 dependent therefrom. Independent claim 14 requires the step of encapsulating within a HTTP message a plurality of multiplexed application protocols. The Examiner relies on Miller for teaching this subject matter. As we have found above that Miller does not disclose multiplexing application protocols, we will likewise not sustain the rejection of claim 14 and claims 15–25 dependent therefrom. DECISION The decision of the Examiner is reversed. ORDER REVERSED mls