Ex Parte Woods et al

Patent Trial and Appeal BoardSep 21, 2012

11545057 (P.T.A.B. Sep. 21, 2012)

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. 11/545,057 10/06/2006 Steven Woods 046185-0102 8952 7590 09/21/2012 DOUBLE FUSION INC. 2434 MAIN STREET SUITE 202 SANTA MONICA, CA 90405 EXAMINER RECEK, JASON D ART UNIT PAPER NUMBER 2442 MAIL DATE DELIVERY MODE 09/21/2012 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 STEVEN WOODS, DAVID SIMONS, KELLY SLOUGH, MICHAEL ILES, PATRICK McMORRIS, and STEVEN JEROMY CARRIERE ____________ Appeal 2010-004053 Application 11/545,057 Technology Center 2400 ____________ Before CAROLYN D. THOMAS, CARL W. WHITEHEAD, JR., and GREGORY J. GONSALVES, Administrative Patent Judges. GONSALVES, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-004053 Application 11/545,057 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of claims 1-16 (App. Br. 2). We have jurisdiction under 35 U.S.C. § 6(b). We affirm. The Invention Exemplary Claim 1 follows: 1. A memory having computer-readable instructions stored thereon that, upon execution by a processor, cause the processor to send a request for performing a service to a device in a network, the instructions comprising: receiving a request to perform a service from an application executing at a first device; establishing communication between the first device and a plurality of devises in a network; selecting a second device to perform the service from the plurality of devices in the network; determining the availability of the selected second device; if the selected second device is not available, storing the request at a third device, the third device selected from the plurality of devices in the network and from the first device; and if the selected second device is available, sending the request to the selected second device. The Examiner rejected claims 1-16 under 35 U.S.C. § 103(a) as being unpatentable over McCleskey (U.S. Patent App. Pub. No.: 2005/0021398 Appeal 2010-004053 Application 11/545,057 3 A1) in view of White (U.S. Patent App. Pub. No.: 2005/0021758) (Ans. 3-7). FACTUAL FINDINGS We adopt the Examiner’s factual findings as set forth in the Answer (Ans. 3, et seq.). ISSUE Appellants’ responses to the Examiner’s positions present the following issue: Did the Examiner err in finding that the combination of McCleskey and White teaches or suggests “selecting a second device to perform the service from the plurality of devices in the network; determining the available of the selected second device; [and] if the selected second device is not available, storing the request at a third device,” as recited in independent claim 1, and as similarly recited in independent claims 15 and 16? ANALYSIS We disagree with Appellants’ assertions regarding the Examiner’s obviousness rejections of claims 1-16. We 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 (Ans. 3- 20) in response to arguments made in Appellants’ Appeal Brief and Reply Brief. We concur with the conclusion reached by the Examiner. We highlight and address certain findings and arguments below. Appellants contend that the Examiner erred in rejecting independent claim 1 as obvious because the combination of McCleskey and White does not teach or suggest that “a second device is selected and then the Appeal 2010-004053 Application 11/545,057 4 availability of the second device is determined” (App. Br. 7 (emphasis omitted)). Appellants also contend that the combination of McCleskey and White does not teach or suggest “‘selecting a second device to perform the service’ or ‘determining the availability of the selected second device’” (id. at 9 (emphasis omitted)). In support of their contentions, Appellants argue that: at best, White describes identifying (selecting) a peer to provide a resource. The device is selected because it can provide the resource requested. The availability of the selected device is not then determined. The availability determination was of the resource requested, and it was performed in selecting the device to provide the device (id. at 15-16 (emphasis omitted)). The Examiner found, however, that “White teaches selecting a resource which is represented by a peer” (Ans. 10). The Examiner also found that White teaches “determining availability for this selected peer/resource” (id.). In addition, the Examiner found that “White further teaches sending the request to a third device if the selected device (i.e. peer/resource) is not available” (id.). We agree with the Examiner. White teaches that peers representing devices are arranged in a tree structure (White, ¶¶ [0039]-[0040]; FIGs. 2E and 2F). Each device maintains indications of its resource availability as well as the resource availability of its child devices in the tree structure (id. at ¶ [0049]). White teaches selecting and determining the availability of a device to satisfy a resource request by comparing a request “to the aggregate of each parent in order to determine if the request may be fulfilled by the parent or the children” (id.). If the resource is not available at a device, the resource request “propagate[s] up the hierarchical tree structure until they locate a peer that can satisfy the Appeal 2010-004053 Application 11/545,057 5 requests for the resource” (id. at ¶ [0050]). Thus, we find no error in the Examiner’s rejection of claim 1. We also find no error in the Examiner’s rejection of the other claims on appeal (i.e., claims 2-16) because Appellants did not set forth any separate and different patentability arguments for those claims (See App. Br. 16). DECISION We affirm the Examiner’s decision rejecting claims 1-16 as obvious. 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 Vsh