Ex Parte Septon

Patent Trial and Appeal Board

Oct 4, 2012

10899975 (P.T.A.B. Oct. 4, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte DAVEN WALT SEPTON
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Appeal 2011-003145
Application 10/899,975
Technology Center 3600
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Before: JOSEPH A. FISCHETTI, MEREDITH C. PETRAVICK, and
MICHAEL W. KIM, Administrative Patent Judges.

KIM, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-003145
Application 10/899,975

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STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
7 and 9-20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
The claims are directed to monitoring a license proxy (Title). Claim
1, reproduced below, is illustrative of the claimed subject matter:
1. A system comprising:
a device tester;
an application configured to control the
device tester, the device tester sending tests to, and
receiving test results from, a device;
a license proxy process, communicatively
coupled to the application, to periodically transmit
a heartbeat to a license server, the heartbeat
indicating to the license server that an availability
of at least one license used by the application to
enable one or more capabilities of the device tester
needs to be maintained; and
a monitoring agent to monitor the license
proxy process, and upon detecting a failure of the
license proxy process while at least one license is
being used by the application, to change a status to
indicate at least one license needs to be reacquired
by the license proxy process.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Rabin US 6,697,948 B1 Feb. 24, 2004
Freeman
Sauvage
Sabharwal
US 2002/0002613 A1
US 2002/0026588 A1
US 2005/0289072 A1
Jan. 3, 2002
Feb. 28, 2002
Dec. 29, 2005

Appeal 2011-003145
Application 10/899,975

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Claims 1-2, 4-7, 9, 11-15, and 19 are rejected under 35 U.S.C. 103(a)
as being unpatentable over Rabin in view of Sabharwal and Freeman; and
claims 3, 10-15,16-18 and 20, are rejected under 35 U.S.C. 103(a) as being
unpatentable over Rabin in view of Sabharwal, Freeman, and Sauvage.

OPINION
Independent Claim 1
We are persuaded the Examiner erred in asserting that the guardian
center of Rabin corresponds to both the device tester and the license server
recited in independent claim 1 (Reply Br. 4-5). The Examiner asserts that
the guardian center of Rabin corresponds to the recited device tester (Ans.
13-14). The Examiner also asserts that the guardian center of Rabin
corresponds to the recited license server (Ans. 4). To have the guardian
center correspond to both aspects would effectively read one aspect out of
the claim. See Texas Instr. Inc. v. United States Int'l Trade Comm'n, 988
F.2d 1165, 1171 (Fed. Cir. 1993) (claim language cannot be mere
surplusage. An express limitation cannot be read out of the claim); Unique
Concepts, Inc. v. Brown, 939 F.2d 1558, 1563 (Fed. Cir. 1991) (two distinct
claim elements should each be given full effect).
Moreover, independent claim 1 further recites “a license proxy
process, communicatively coupled to the application, to periodically
transmit a heartbeat to a license server, the heartbeat indicating to the license
server that an availability of at least one license used by the application to
enable one or more capabilities of the device tester needs to be maintained.”
To have the guardian center correspond to both the device tester and the
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Application 10/899,975

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license server would result in the license server illogically maintaining the
availability of a license for itself.

Independent Claim 9
We are not persuaded the Examiner erred in asserting that a
combination of Rabin, Sabharwal, and Freeman render obvious independent
claim 9 (App. Br. 9-14; Reply Br. 2-5). Unlike independent claim 1,
independent claim 9 does not recite a device tester. Accordingly, for the
balance of Appellant’s arguments that do not reference a device tester, we
agree with and adopt the Examiner’s findings and rationales, as set forth on
pages 15-20 of the Examiner’s Answer. In particular, we agree with the
Examiner that a broadest reasonable construction of the recited “license
proxy process” includes the call-up procedure of Rabin, and thus the
supervising program of Rabin performs the recited monitoring step.
Alternatively, it would have been obvious to replace the call-up procedure of
Rabin with the license proxy program of Sabharwal for the reasons set forth
on page 19 of the Examiner’s Answer.

Independent Claim 20
We are not persuaded the Examiner erred in asserting that a
combination of Rabin, Sabharwal, Freeman, and Sauvage render obvious
independent claim 20 (App. Br. 9-14; Reply Br. 2-5). Unlike independent
claim 1, independent claim 20 does not recite a device tester. Accordingly,
for the balance of Appellant’s arguments that do not reference a device
tester, we agree with and adopt the Examiner’s findings and rationales, as set
forth on pages 15-20 of the Examiner’s Answer. In particular, we agree with
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the Examiner that a broadest reasonable construction of the recited “license
proxy process” includes the call-up procedure of Rabin, and thus the
supervising program of Rabin corresponds to the recited agent.
Alternatively, it would have been obvious to replace the call-up procedure of
Rabin with the license proxy program of Sabharwal for the reasons set forth
on page 19 of the Examiner’s Answer.

Dependent Claim 17
We are not persuaded the Examiner erred in asserting that a
combination of Rabin, Sabharwal, Freeman, and Sauvage render obvious “at
predetermined time intervals, sending a heartbeat to the license proxy
process,” as recited in dependent claim 17 (App. Br. 13-14; Reply Br. 5).
By periodically initiating the call-up procedure, the supervising program of
Rabin is periodically “sending a heartbeat” to the call-up procedure itself
(column 5, lines 35-50; column 8, lines 48-53; column 22, lines 20-30; Ans.
6, 20-21).

DECISION
The Examiner’s rejection of claims 1-7 is REVERSED.
The Examiner’s rejection of claims 9-20 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED-IN-PART

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