Trend Micro Incorporated

Patent Trials and Appeals BoardMar 5, 2021

2019006889 (P.T.A.B. Mar. 5, 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. 15/782,607 10/12/2017 Leslie ZSOHAR 10033.028500 4267 168299 7590 03/05/2021 Okamoto & Benedicto LLP (Trend Micro) P.O. BOX 641330 SAN JOSE, CA 95164-1330 EXAMINER ISLAM, ROWNAK ART UNIT PAPER NUMBER 2474 MAIL DATE DELIVERY MODE 03/05/2021 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 LESLIE ZSOHAR, WEI LU, CRAIG BOTKIN, RANDAL MULLIN, and EDWARD A. WARTHA ____________________ Appeal 2019-006889 Application 15/782,607 Technology Center 2400 ____________________ Before JOSEPH L. DIXON, JOHNNY A. KUMAR, and JAMES W. DEJMEK, Administrative Patent Judges. DEJMEK, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of claims 1–15. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We reverse. 1 Throughout this Decision, we use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2018). Appellant identifies Trend Micro, Incorporated as the real party in interest. Appeal Br. 1. Appeal 2019-006889 Application 15/782,607 2 STATEMENT OF THE CASE Introduction Appellant’s disclosed and claimed invention generally relates to “extracting data from network communications.” Abstract. In particular, Appellant describes capturing, storing, and analyzing network traffic and data packets. Spec. ¶ 7. In a disclosed embodiment, all packets associated with a network flow are stored in a first data storage device. Spec. ¶ 8. Based on defined criteria, data of interest may be identified and extracted from the stored packets and the extracted data further stored, along with identifier information, in a second data storage device. Spec. ¶¶ 9–10. Claim 1 is illustrative of the subject matter on appeal and is reproduced below with the disputed limitations emphasized in italics: 1. A computing device for extracting data from network communications, the computing device comprising a programmable hardware processor configured to: receive a first set of network packets; store each network packet included in the first set in a first storage device; identify, from each network packet included in a subset of the first set of network packets, data included in the network packet, the data meeting at least one condition defined by first programmable logic of the programmable hardware processor; and for each network packet included in the subset: extract, from the network packet, data of interest; and store, in a second storage device, i) the extracted data of interest, and ii) an identifier associated with the network packet. Appeal 2019-006889 Application 15/782,607 3 The Examiner’s Rejections 1. Claims 1, 2, 5–10, and 12–15 stand rejected under 35 U.S.C. § 103 as being unpatentable over Pepper et al. (US 2011/0211593 A1; Sept. 1, 2011) (“Pepper”) and DeCusatis et al. (US 2014/0307555 A1; Oct. 16, 2014) (“DeCusatis”). Final Act. 6–21. 2. Claims 3, 4, and 11 stand rejected under 35 U.S.C. § 103 as being unpatentable over Pepper, DeCusatis, and Yang et al. (US 2012/0197847 A1; Aug. 2, 2012) (“Yang”). Final Act. 21–24. ANALYSIS2 Appellant disputes the Examiner’s findings that Pepper teaches storing each network packet in a first set of received network packets in a first storage device and storing from a subset of the first set of network packets extracted data of interest and an identifier associated with the network packet in a second storage device. Appeal Br. 3–7; Reply Br. 2–6. In particular, Appellant argues Pepper does not teach a first storage device and a second storage device. Appeal Br. 3–5; Reply Br. 2–4. Instead, Appellant asserts Pepper teaches a single capture memory that is partitioned into a packet memory portion and a packet information portion. Appeal Br. 4–5; Reply Br. 2–4. Appellant assert that the packet memory and packet information memory portions are not two separate devices, as required by 2 Throughout this Decision, we have considered the Appeal Brief, filed May 8, 2019 (“Appeal Br.”); the Reply Brief, filed September 24, 2019 (“Reply Br.”); the Examiner’s Answer, mailed August 15, 2019 (“Ans.”); and the Final Office Action, mailed April 24, 2019 (“Final Act.”), from which this Appeal is taken. Appeal 2019-006889 Application 15/782,607 4 the claims, but rather are part of a single storage device—i.e., the capture memory. Appeal Br. 4–5. Figure 5 of Pepper, as relied on by the Examiner (see Final Act. 7–8), is illustrative and is reproduced below. Figure 5 is a graphical representation of memory space within a capture engine. Pepper ¶ 16. Pepper describes capture memory (570A) “may be divided into a packet memory 572A which stores packets and a packet information memory 574A which stores information relating to the packets.” Pepper ¶ 68. The Examiner finds packet memory (572A) teaches the claimed first storage device and packet information memory (574A) teaches the claimed second storage device. Final Act. 7–8; Ans. 4. The Examiner further reasons that the claim language does not preclude a construction of the first Appeal 2019-006889 Application 15/782,607 5 and second storage devices “as separate parts/blocks of a storage device” because a “device” is not a definite structural term. Ans. 6. When construing claim terminology during prosecution before the Office, claims are to be given their broadest reasonable interpretation consistent with the Specification, reading claim language in light of the Specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). However, the broadest reasonable interpretation differs from the broadest possible interpretation. In re Smith Int’l, Inc., 871 F.3d 1375, 1383 (Fed. Cir. 2017). The correct inquiry in giving a claim term its broadest reasonable interpretation in light of the specification is “an interpretation that corresponds with what and how the inventor describes his invention in the specification, i.e., an interpretation that is ‘consistent with the specification.’” Smith, 871 F.3d at 1382–83 (quoting In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997)). Additionally, we are mindful that limitations are not to be read into the claims from the Specification. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). In the Specification, Appellant describes the first and second storage devices as separate devices, each having different characteristics (such as how quickly it stores data, or for how long the data is to be maintained). See, e.g., Spec. ¶¶ 17, 20, 25. In addition, when illustrating an embodiment of the disclosed approach, Figure 1 of the Specification shows two separate storage devices. See Spec., Fig. 1. Appellant also describes that “[i]n some implementations, each data storage device, e.g., 140 and 150 [(as shown in Figure 1)], may be one or more storage devices.” Spec. ¶ 37 (emphasis Appeal 2019-006889 Application 15/782,607 6 added). We note that Appellant does not describe that both the first and second storage devices may be partitions of a single storage device. We conclude that the first storage device and second storage device as recited in the claims refer to two distinct storage devices. See Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1333 n.3 (Fed. Cir. 2006) (“[T]he use of two terms in a claim requires that they connote different meanings . . . .”); CAE Screenplates Inc. v. Heinrich Fiedler GmbH, 224 F.3d 1308, 1317 (Fed. Cir. 2000) (“In the absence of evidence to the contrary, we must presume that the use of these different terms in the claims connotes different meanings.”). We agree with Appellant that Pepper teaches a single data storage device (i.e., capture memory (570A)) that has been divided into two partitions (packet memory (572A) and packet information memory (574A)) rather than two separate storage devices, as recited in the claims. Further, the Examiner does not set forth any evidence or technical reasoning that it would have been an obvious modification of Pepper to use separate storage devices for each of the packet memory (572A) and packet information memory (574A). In the absence of such an explanation, we decline to speculate as to whether an ordinarily skilled artisan would have been motivated to modify Pepper in such a way. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (declining to resort to impermissible speculation or unfounded assumptions to cure the deficiencies in the factual bases of the rejection). Because we find it dispositive that the Examiner has not shown by a preponderance of evidence that Pepper teaches or reasonably suggests a first and second storage device, we do not address other issues raised by Appeal 2019-006889 Application 15/782,607 7 Appellant’s arguments related to these claims. See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984) (finding an administrative agency is at liberty to reach a decision based on “a single dispositive issue”). For the reasons discussed supra, and constrained by the record before us, we do not sustain the Examiner’s rejection of independent claim 1. For similar reasons, we also do not sustain the Examiner’s rejection of independent claim 9, which recites similar limitations. Additionally, we do not sustain the Examiner’s rejections of claims 2–8 and 10–15, which depend directly or indirectly therefrom. CONCLUSION We reverse the Examiner’s decision rejecting claims 1–15 under 35 U.S.C. § 103. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 5–10, 12–15 103 Pepper, DeCusatis 1, 2, 5– 10, 12–15 3, 4, 11 103 Pepper, DeCusatis, Yang 3, 4, 11 Overall Outcome 1–15 REVERSED