ScienceLogic, Inc.

Patent Trials and Appeals BoardNov 4, 2021

2020002649 (P.T.A.B. Nov. 4, 2021)

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. 15/368,390 12/02/2016 David F. LINK 4572-13 3643 23117 7590 11/04/2021 NIXON & VANDERHYE, PC 901 NORTH GLEBE ROAD, 11TH FLOOR ARLINGTON, VA 22203 EXAMINER FAN, HUA ART UNIT PAPER NUMBER 2449 NOTIFICATION DATE DELIVERY MODE 11/04/2021 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): PTOMAIL@nixonvan.com pair_nixon@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID F. LINK, CHRISTOPHER G. CORDRAY, RICHARD M. CHART, and KARL GINTER Appeal 2020-002649 Application 15/368,390 Technology Center 2400 Before BRADLEY W. BAUMEISTER, JASON V. MORGAN, and DAVID J. CUTITTA II, Administrative Patent Judges. CUTITTA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–20, all of the pending claims under consideration.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies ScienceLogic, Inc. as the real party in interest. Appeal Brief filed September 30, 2019 (“Appeal Br.”) at 1. 2 Claims 21–40 are withdrawn. Appeal Br. 17–21. Appeal 2020-002649 Application 15/368,390 2 CLAIMED SUBJECT MATTER Summary The subject matter of Appellant’s application relates to managing “hybrid networks of connected electronic devices.” Spec., Abstract.3 According to Appellant, “information related to at least one aspect of the network is obtained by a network management device . . . by way of a gateway device or application, at least one applicable management policy is identified, and the identified policy is used to manage at least one aspect of the network’s operation.” Id. Of particular relevance, the claimed subject matter relates to using multiple database discovery applications to identify different operating characteristics of enterprise databases operating on a database server. Appeal Br. 12. Illustrative Claim Claim 1, reproduced below with certain dispositive limitation(s) at issue italicized, illustrates the claimed subject matter: 1. A network management system comprising: a network management device processor operably connected to a network infrastructure, the network management device processor executing a first discovery application to interrogate a network connected device, the network management processor executing a plurality of database discovery applications each configured to discover a different operating characteristic of enterprise databases operating on at least one network connected database server; 3 In addition to the above-noted Appeal Brief, throughout this Decision we refer to: (1) Appellant’s Specification (“Spec.”) filed December 2, 2016; (2) the Final Office Action (“Final Act.”) mailed January 15, 2019; (3) the Examiner’s Answer (“Ans.”) mailed December 19, 2019; and (4) the Reply Brief (“Reply Br.”) filed February 14, 2020. Appeal 2020-002649 Application 15/368,390 3 the network management device processor being further configured to: identify information indicating an enterprise database may be on a network-connected database server for each network connected device that responds to an initial interrogation by the network management processor; select and execute a first of the plurality of database discovery applications for gathering first information about an enterprise database operating on each network connected device that responds to the interrogation; use the first information to select and execute a second of the plurality of database discovery applications for gathering second information about each enterprise database identified by the first information; and iterate the selection and execution of additional of the plurality of database discovery applications wherein selection of each additional database discovery application is based on information gathered by a previously executed one of the plurality of database discovery applications. Appeal Br. 12 (Claims Appendix). REFERENCES The Examiner relies on the following prior art references as evidence:4 Name Reference Date Lakis US 6,532,491 B1 Mar. 11, 2003 Thompson US 6,668,253 B1 Dec. 23, 2003 Datla US 2005/0195738 A1 Sept. 8, 2005 4 All citations to the references use the first-named inventor or author only. Appeal 2020-002649 Application 15/368,390 4 REJECTIONS The Examiner rejects the claims as follows: Claim(s) Rejected 35 U.S.C. § References/Basis Final Act. 1–20 Non-Statutory Double Patenting 4 1–4, 6–9, 11–14, 16–18 103(a) Datla, Lakis 5 15, 19, 20 103(a) Datla, Lakis, Official Notice 10 OPINION We review the appealed rejections for error based upon the issues identified by Appellant and in light of Appellant’s arguments and evidence. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). Obviousness Rejection of Claim 1 over Datla and Lakis Claim 1 recites in part, “executing a plurality of database discovery applications each configured to discover a different operating characteristic of enterprise databases operating on at least one network connected database server.” Appeal Br. 12. The Examiner finds that Datla’s discussion of a technique for interacting with a device to learn device commands teaches this limitation, but also finds that “Datla does not expressly disclose that the database is an enterprise database,” as recited in claim 1. Final Act. 6 (citing Datla ¶¶ 37, 40, Figs. 3A, 3B). The Examiner relies on Lakis to teach an enterprise database, finding “Lakis discloses a concept of a database being an enterprise database.” Id. (citing Lakis col. 16, Figs. 1, 12, 13). Appeal 2020-002649 Application 15/368,390 5 The Examiner concludes that sufficient reason existed to combine the teachings of Datla and Lakis because one of ordinary skilled in the art would have found it obvious “to utilize known protocols such as [Simple Network Management Protocol (“SNMP”)] to manage enterprise databases” and the “result of the combination would have been to utilize the enterprise (Management Information Base-II (“MIB”)] database[,] as disclosed by Lakis[,] to store and traverse device information for a specific network device that is disclosed by Datla.” Id. (citing Lakis col. 16). Appellant argues that Datla “discloses a method of automatically determining a set of commands a network device supports” but “[t]his process does not discover any network databases.” Appeal Br. 6 (citing Datla Fig. 3B). Rather, according to Appellant, Datla discusses a process “in which the discovering device sends a seed command to the network device to be discovered in order to obtain, from the network device, a listing of commands that device supports. The discovering device then proceeds to send additional inquiry commands to discover the various commands that device supports.” Id. We find persuasive Appellant’s argument that the Examiner has not sufficiently shown that Datla teaches or suggests discovering different operating characteristics of databases. Id. As discussed, Datla relates to automatically determining a command set for a network device. See Datla ¶ 37 (discussing “techniques [that] use active interaction with a device to learn device commands.”). Datla’s Figure 3A, reproduced below, illustrates an Auto-Learner that learns device commands and related syntax information from a device and stores the learned information in a knowledge base. Appeal 2020-002649 Application 15/368,390 6 Figure 3A of Datla depicts an auto-learning process in which the Autolearner sends “a command [302] expressing a request” to the device. Datla ¶ 37. “At arrow 304, a response is received from the device, the response is analyzed, and information defining a learned command is stored based on the response.” Id. Datla further explains the “process is repeated until all the supported commands are learned” and then “[c]ommand syntax information is stored in a device command knowledge base is built, as shown by arrow 306.” Id. Accordingly, Datla relates to device capability discovery using software to interact with a network connected device and in particular by sending commands to the device and receiving responses including command information from the device. Datla ¶ 37. Based on the Appeal 2020-002649 Application 15/368,390 7 responses, the command information and related syntax information is stored in a knowledge base, i.e., a database. Datla Fig. 3A. According to the Examiner, Datla’s requests 302 teach database discovery applications and each of the responses 304 sent from the device to the Auto-Learner teaches a database. See Final Act. 5 (“[E]ach executable code that is used to send request for parameters of such a command can be considered a database discovery application” and “parameters corresponding to a specific command can be considered a database.”). We agree with Appellant that the Examiner has not sufficiently shown how each of Datla’s responses 304 received from the device teach or suggest a database. Appeal Br. 6. Rather, Datla describes the responses as including “supported commands for the device.” Datla ¶¶ 37, 39. The Examiner, in turn, fails to provide further clarification of this portion of the rejection in response to Appellant’s arguments. Ans. 4. For these reasons, the Examiner has not demonstrated that Datla teaches or suggests “executing a plurality of database discovery applications each configured to discover a different operating characteristic of enterprise databases operating on at least one network connected database server,” as recited in claim 1. Nor does the Examiner show that Lakis compensates for the noted deficiencies of Datla. Final Act. 5–6; Ans. 4–5. Therefore, we do not sustain the Examiner’s rejection of claim 1. Because we agree with at least one of the dispositive arguments advanced by Appellant, we need not reach the merits of Appellant’s other arguments seeking to distinguish claim 1. For similar reasons, we do not sustain the Examiner’s rejection of claims 2–4, 6–9, and 11–20, which depend directly or indirectly from claim 1. Appeal 2020-002649 Application 15/368,390 8 Obviousness-Type Double Patenting Rejection The Examiner rejects claims 1–20 on the ground of non-statutory obviousness-type double patenting as being unpatentable over claims 1–25 of Cordray et al. (US 9,077,611 B2, issued July 7, 2015) (“Cordray”) in view of Official Notice. Final Act. 4. According to the Examiner, claim 1 of Cordray “discloses the claimed invention substantially, but does not expressly disclose that the dynamic application is database discovery application.” Id. The Examiner takes official notice “that it [was] a known practice at the time of the invention for a dynamic application to be a database discovery application, in order to dynamically discover all database applications.” Id. The Examiner provides Lakis in support of the Official Notice. Id. (citing Lakis col. 16 and Fig. 1). Appellant argues that “Lakis discloses nothing about a way to ‘dynamically discover all database applications.’” Rather, the ‘MIB’ database Lakis refers to is an already-known (not to-be-discovered) database that contains information about the managed printer devices. Appeal Br. 4 (citing Lakis 1:63–65); Reply Br. 1–2. The Examiner responds by pointing out that “the scope of the official notice taken is different from the scope of the limitation that Appellant is arguing” because “Lakis is merely relied upon to support the official notice, i.e., a known practice at the time of the invention for a dynamic application to be a database discovery application.” Ans. 4. Appellant’s argument is unpersuasive because it is not responsive to the Examiner’s factual findings. Appellant argues “the ‘MIB’ database Lakis refers to is an already-known (not to-be-discovered) database.” Appeal Br. 4 (citing Lakis 1:63–65). This argument refers to the ‘MIB’ database Appeal 2020-002649 Application 15/368,390 9 illustrated in Lakis’s Figure 1. Lakis 1:47–65. This figure, part of the background discussion of Lakis, illustrates a prior-art or conventional “hierarchial structure or tree 20 for standardizing the information associated network resources which can be accessed using SNMP-type protocols.” Lakis 1:48–50. Lakis further discloses that each “network resource [in tree 20] has a unique OBJECT IDENTIFIER[,] which is a series of dotted decimal notations specifying an item’s location in the tree.” Lakis 1:52–54. Referring to the MIB database of Figure 1, Lakis’s background explains that the “Internet community has also defined, using Abstract Syntax Notation one (ASN.l), a Management Information Base-II (MIB) item 26 which has an OBJECT IDENTIFIER of 1.3.6.1.2.1. The MIB-2 item 26 defines a database comprising specific information about managed devices.” Lakis 1:60–65. Thus, the portion of Lakis argued by Appellant refers to a conventional MIB-2 database 26 that contains information about managed devices. Appellant’s argument, based on Lakis’s Figure 1, is unpersuasive because Appellant provides no evidence that the MIB-2 database 26 illustrated in Figure 1 and discussed in the background section of Lakis is the same as database 146, relied upon by the Examiner to demonstrate the Official Notice. Appeal Br. 4. Next, Appellant argues column “16 of Lakis discloses how attributes the MIB-2 database stores are used to generate SNMP requests to the managed printer devices,” but column “16 says nothing about use of a dynamic application to discover database applications.” Appeal Br. 4 (citing Lakis col. 16). Appeal 2020-002649 Application 15/368,390 10 This argument lacks persuasive evidence or reasoned explanation in support of the asserted conclusion. Attorney argument alone is afforded little weight in the absence of persuasive evidence in support of the conclusion. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (It is well settled that mere attorney arguments and conclusory statements, which are unsupported by factual evidence, are entitled to little probative value.). Here, Appellant offers no further evidence or reasoning to explain why the Examiner’s findings are erroneous. For example, a portion of Lakis cited by the Examiner discusses a “database access routine 150 [that] retrieves the MIB item values from the database 146. Once the proper call to the database access routine 150 is located using the switch statement, the database access routine 150 retrieves the MIB item value from the database 146. ” Lakis 16:37–42. Appellant offers insufficient evidence or reasoning to explain why Lakis’s database access routine 150 shows use of a dynamic application to discover database applications. Accordingly, Appellant has not shown error in the Examiner’s reliance on Lakis to support the Official Notice. For these reasons, we sustain the Examiner’s non-statutory obviousness-type double patenting rejection over claims 1–25 of Cordray in view of Official Notice. Because we affirm at least one ground of rejection with respect to each claim on appeal, we affirm the Examiner’s decision to reject all of the pending claims. Appeal 2020-002649 Application 15/368,390 11 DECISION SUMMARY In summary: TIME PERIOD FOR RESPONSE 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) (2019). AFFIRMED Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed 1–20 Non-Statutory Double Patenting, Cordray 1–20 1–4, 6–9, 11–14, 16–18 103(a) Datla, Lakis 1–4, 6–9, 11–14, 16–18 15, 19, 20 103(a) Datla, Lakis, Official Notice 15, 19, 20 Overall Outcome 1–20