Ex Parte Wen et al

Patent Trial and Appeal BoardDec 10, 2012

11001985 (P.T.A.B. Dec. 10, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte HAN WEN, GEORGE ZIOULAS, STEPHEN GUARINI, MASOOD AHMED, and ERIK SEILNACHT ________________ Appeal 2010-003091 Application 11/001,985 Technology Center 2400 ________________ Before JOSEPH F. RUGGIERO, JOHN A. JEFFERY, and STANLEY M. WEINBERG, Administrative Patent Judges. WEINBERG, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appellants have filed a Rehearing Request (“Request”) under 37 C.F.R. § 41.52 requesting that we reconsider our Opinion of September 20, 2012 (“Opinion”) where we affirmed the Examiner’s rejection of claims 1-6 and 9-29. We have reconsidered our Opinion in light of Appellants’ arguments in the Rehearing Request. We grant the Rehearing Request and modify our opinion, but find no error in the disposition of the rejections. Appeal 2010-003091 Application 11/001,985 2 Page 6 of the Request contends that the Board’s FF 4 does not support the following statement on page 7, lines 16-19 of the Board’s Opinion: “Appellants have expressly identified some of the anomalous conditions that their system monitors: throughput, retransmission delay, application response rate, and application response time.” We agree that FF 4 refers to monitored metrics, not anomalous conditions as stated on page 7 of the Opinion. We therefore add Finding of Fact (FF) 4A between FF 4 and FF 5: 4A. Examples of anomalous conditions that Appellants’ process seeks to identify are saturation of a network link, slow e-mail performance, and an alarming trend in network usage growth. Spec. ¶ 0044. We also modify page 7, lines 16-19 of the Opinion as follows: Appellants have identified some metrics that their system monitors: throughput, retransmission delay, application response rate, and application response. FF 4. Appellants have also identified some of the anomalous conditions that their system might monitor: saturation of a network link, slow e-mail performance, and an alarming trend in network usage growth. FF 4A. We have thoroughly reviewed the other arguments set forth by Appellants in the Request, but decline to make any other changes to our previous Opinion. Relying upon a dictionary definition of “anomalous,” Appellants contend that inherent in the definition is a comparison of a current condition and a usual, normal, or expected condition. Absent such a comparison, they contend, an identified condition cannot be termed an anomalous condition. Request 2-3, 5-8. This definition of anomalous is not in Appellants’ Specification or in either of their Briefs. Appeal 2010-003091 Application 11/001,985 3 Appellants also assert that their Summary of Claimed Subject Matter on page 3 of their Appeal Brief urges that “anomalous” behaviour is relative to “normal” behaviour and the definition of “normal” varies among users, applications, roles of a user, and their combinations or grouping. But, neither of the argument sections in Appellants’ Briefs argued the applicability of the comparison. An argument presented for the first time in a Rehearing Request but not advanced in the Appeal Brief or Reply Brief is not properly before the Board, at least in part, because the Examiner is not afforded a timely opportunity to respond and the Board is deprived of any such response that may have been supplied by the Examiner to the belatedly presented new argument. See In re Kroekel, 803 F.2d 705, 709 (Fed. Cir. 1986). “A party cannot wait until after the Board has rendered an adverse decision and then present new arguments in a request for reconsideration.” Cooper v. Goldfarb, 154 F.3d 1321, 1331 (Fed. Cir. 1988) (citing Moller v. Harding, 214 USPQ 730, 731 (BPAI 1982), aff’d, 714 F.2d 160 (Fed. Cir. 1983) (table)). In short, the Board did not misapprehend or overlook the meaning of “anomalous” because Appellants did not present the definition to the Board nor argue the purported relationship between “anomalous” and “normal.” Finally, Appellants argue that none of the Board’s Findings of Fact identify where Moran discloses determining anomalous conditions. However, Appellants’ summaries of FF 10 and FF 11 are incomplete. Appellants do not acknowledge that FF 10 includes network congestion, queries that take a long time to process, and applications that take the most time to respond; and that FF 11 includes troubleshooting information during Appeal 2010-003091 Application 11/001,985 4 fault isolation monitoring when a specific problem exists and a user is searching for an exact cause of the problem. In conclusion, based on the foregoing, Appellants’ Request is granted. We nevertheless remain unpersuaded of error in the Examiner’s rejections for the reasons noted above and in the opinion. This Opinion on the Rehearing Request incorporates our Opinion mailed September 20, 2012 and is final for the purposes of judicial review. See 37 C.F.R. § 41.52(a)(1). 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). See 37 C.F.R. § 1.136(a)(1)(iv) (2010). REHEARING GRANTED babc