Anand Srinivas et al.

Patent Trials and Appeals Board

Aug 2, 2019

14520262 - (D) (P.T.A.B. Aug. 2, 2019)

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.
14/520,262 10/21/2014 Anand Srinivas 700186.405 7536
136767 7590 08/02/2019
Seed IP Law Group LLP/General Firm (Email)
701 FIFTH AVE
SUITE 5400
SEATTLE, WA 98104
EXAMINER
ZHANG, SHIRLEY X
ART UNIT PAPER NUMBER
2442
NOTIFICATION DATE DELIVERY MODE
08/02/2019 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):
USPTOeAction@SeedIP.com
pairlinkdktg@seedip.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANAND SRINIVAS, RICHARD BARRY,
ABRAHAM ANKUMAH, and DANIEL KAN
____________

Appeal 2018-008540
Application 14/520,2621
Technology Center 2400
____________

Before DAVID M. KOHUT, IRVIN E. BRANCH, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.

BRANCH, Administrative Patent Judge.

DECISION ON APPEAL2
Appellants appeal under 35 U.S.C. § 134(a) from a Non-Final Action
rejecting claims 1–17. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 According to Appellants, the real party in interest is “Nyansa, Inc.”
App. Br. 2.
2 Our decision relies upon the Non-Final Action mailed October 12, 2017
(“Non-Final”), Appeal Brief filed April 11, 2018 (“App. Br.”), Answer
mailed June 29, 2018 (“Ans.”), and Reply Brief filed August 29, 2018
(“Reply”).
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STATEMENT OF THE CASE
Appellants’ invention “relates to . . . observing and controlling a
programmable network via higher layer attributes.” Spec. ¶ 3. Claim 1,
reproduced below, is a representative claim. See 37 C.F.R. 41.37(c)(1)(iv)
(representative claims).
1. A system for simultaneously and centrally analyzing a
plurality of networks, the system comprising:
a non-transitory computer readable collector memory;
one or more collectors configured to receive network traffic
data from a plurality of network elements in the plurality of
networks, wherein a first network of the plurality of networks is
from a first company and a second network of the plurality of
networks is from a second company, wherein the one or more
collectors are stored in the non-transitory computer readable
collector memory that is executed by a collector processor;
a non-transitory computer readable manager memory;
a remote network manager configured to receive metadata from
the one or more collectors, and further configured to
simultaneously and centrally analyze (1) the network traffic
data from the plurality of network elements in the plurality of
networks and (2) network management data from a plurality of
enterprise systems in the plurality of networks, wherein the
network management data includes L1 through L7 network
topology data, network configuration data, and simple network
management protocol data, wherein the remote network
manager is stored in the non-transitory computer readable
manager memory that is executed by a manager processor; and
a programmable network element,
wherein the remote network manager combines the network
traffic data from the plurality of networks and the network
management data from the plurality of enterprise systems in the
plurality of networks into combined cross-network data from
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multiple companies for simultaneous and central analysis of the
combined cross-network data from the multiple companies;
wherein the remote network manager identifies a network
control objective for the network, identifies a programmable
parameter of the programmable network element to achieve the
network control objective, and programs the programmable
network element, wherein the network control objective is
security/performance remediation, wherein the remote network
manager identifies a specific user, application, and device
causing security/performance issues, and wherein the
programmable parameter identified by the network manager is
blocking the specific user, application, and device causing the
security/performance issues, and
wherein the remote network manager further determines
whether the network control objective is met after programming
the programmable network element and applies an automatic
closed control loop based on the network control objective to
program the programmable network element.
App. Br. 23–24 (claims appendix).
RELATED APPEALS
The present application claims a benefit of priority (i.e., of the filing
date) to U.S. Provisional Application 61/893,789. Spec. ¶ 2. The following
three applications also claim this benefit and have appeals before the Board:
U.S. Applications 14/520,257 (Appeal 2018-008815), 14/520,245 (Appeal
2018-008813), and 14/520,238 (Appeal 2018-008538).
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REFERENCES AND REJECTIONS3
Claims 1, 2, 4–13, and 15–17 stand rejected under 35 U.S.C. § 103 as
obvious over Herold et al. (US 9,215,142 B1; Dec. 15, 2015). Non-Final 6–
12.
Claim 3 stands rejected under 35 U.S.C. § 103 as obvious over Herold
and Agarwal et al. (US 2015/0085694 A1; Mar. 26, 2015). Non-Final 13.
Claim 14 stands rejected under 35 U.S.C. § 103 as obvious over
Herold and Friedman et al. (US 2013/0117847 A1; May 9, 2013).
Non-Final 13–14.
ANALYSIS
Claim 1 is representative of claims 2, 4–13, and 15–17. See
37 C.F.R. 41.37(c)(1)(iv). Appellants do not assert separate bases of
patentability for remaining claims 3 and 14. App. Br. 19–20. We
accordingly limit our analysis to claim 1.
1. Arguments directed to the claimed “analyze (1) the network
traffic data from the plurality of network elements in the
plurality of networks and (2) network management data
from a plurality of enterprise systems in the plurality of
networks, wherein the network management data includes
L1 through L7 network topology data, network
configuration data, and simple network management
protocol data”
A first issue is whether the Examiner errs in addressing the claim
requirement to analyze data for “network” traffic, management, topologies,

3 The Examiner has withdrawn the nonstatutory double patenting rejections
against copending applications 14/520,245, 14/520,250, 14/529,257, and
14/520,238. Ans. 2.
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and configurations. App. Br. 15–16; Reply 4–5. The Examiner finds
Herold’s invention analyzes network data by analyzing usages of “network”
switches, hardware, and bandwidth. Ans. 3–4 (citing Herold col. 3, ll. 47–
60; col. 5, ll. 3–7; Figs. 1, 4). The Examiner further finds Appellants’
Specification does not describe the claimed “network management data” and
thereby conveys this data as being well known. Ans. 4.
Appellants contend Herold “focus[es] . . . on ‘system-centric’
information, while in contrast, [claim 1] recites a ‘network-centric’
invention.” App. Br. 15–16. Appellants further contend their Specification
describes the claimed network management data as “data from a network
management system” (internal quotations omitted) and, therefore, the
Examiner cannot “dismiss” this data as being well known. Reply 3–4.
We are unpersuaded of error. The Examiner finds Herold’s system
analyzes network data by analyzing usages of “network” resources. Ans. 3–
4. Appellants cannot rebut this finding by, as here, summarily
characterizing the claimed invention and Herold’s invention as respectively
“network-centric” and “system-centric.” Appellants must, but do not,
articulate a distinction. See In re Jung, 637 F.3d 1356, 1363
(Fed. Cir. 2011) (applicants must “articulate what gaps, in fact, exist”).
Further, the Examiner does not dismiss the claimed network
management data. The Examiner finds, and we agree, “network
management data” is not described by the Specification, consequently
applies the broadest ordinary meanings of these terms, and accordingly reads
the claimed network management data on Herold’s data collected and
analyzed to manage networks. Ans. 3–4 (“hardware or software
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configuration settings are examples”); Final Act. 7 (interpreted as merely
“configuration data”).
A second issue is whether the Examiner errs in addressing the claimed
analysis of “L1 through L7 network topology data” (herein “L1–L7 topology
data”). App. Br. 16; Reply 5. The Examiner finds Herold teaches “the data
collection module may store data models such as topology models.”
Non-Final 7 (citing Herold col. 5, ll. 62–67; col. 11, ll. 19–40). The
Examiner further finds Appellants’ Specification does not describe L1–L7
topology data, thereby conveys L1–L7 topology data as well known, and
accordingly evidences it would have been obvious to include L1–L7
topology data within Herold’s topology models. Id.; Ans. 4–5.
Appellants acknowledge Herold teaches topology models, but contend
Herold cannot suggest the claimed L1–L7 topology data because “nowhere
in Herold is L1 through L7 network data even mentioned.” App. Br. 16.
Appellants further contend their Specification describes L1–L7 topology
data and, therefore, the Examiner cannot “dismiss” this data as well known.
Reply 5 (citing Spec. ¶ 84).
We are unpersuaded of error. The Examiner finds, and we agree, L1–
L7 topology data was a well-known type of network topology data and,
therefore, would have been obvious to include within Herold’s topology
models. Non-Final 7; Ans. 4–5. Appellants cannot rebut these findings by,
as here, merely contending their Specification discloses L1–L7 topology
data. Assuming an adequate disclosure under 35 U.S.C. § 112(a), the scant
description evidences the L1–L7 topology data was well known inasmuch
the Specification would otherwise not “enable [an artisan] . . . to make and
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use” the data. 35 U.S.C. § 112(a).4 Because Appellants fail to sufficiently
address this issue and do not expressly dispute L1–L7 topology data was a
well-known type of network topology data, we agree with the Examiner’s
official notice and consequent determination of obviousness. See In re
Boon, 439 F.2d 724, 728 (CCPA 1971) (An adequate challenge to official
notice “creates a reasonable doubt regarding the circumstances justifying the
. . . notice.”); see also In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984)
(“After a prima facie case . . . , the burden of . . . [r]ebuttal is . . . a showing
of facts supporting the opposite conclusion.”); Manual of Patent Examining
Procedure (MPEP) § 2144.03.C (“To adequately traverse [official notice], an
applicant must . . . stat[e] why the noticed fact is not . . . well-known.”).
A third issue is whether the Examiner errs in addressing the claimed
analysis of “simple network management protocol data.” App. Br. 17;
Reply 5–6. The Examiner finds the simple network management protocol
(herein “SNMP”) was a well-known protocol for monitoring networks and,
therefore, it would have been obvious for Herold’s analysis of networks to
include an analysis of SNMP data, e.g., if used to communicate L1–L7

4 The Office has expressly endorsed this reasoning for rejections under
35 U.S.C. §§ 101 and 112(a), stating “the analysis [under § 101] as to
whether an element . . . [was] widely prevalent or in common use is the
same as the analysis under . . . § 112(a) as to whether an element is so well
known that it need not be described in detail in the patent specification.”
USPTO Memorandum of April 19, 2018, “Changes in Examination
Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter
Eligibility Decision (Berkheimer v. HP, Inc.)” (Apr. 19, 2018) at 3
(available at https://www.uspto.gov/sites/default/files/documents/
memo-berkheimer-20180419.PDF).

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topology data. Ans. 6. In support, the Examiner cites U.S. Patent
Pub. No. 2003/0033402 A1 to Battat (published Feb. 13, 2003) as showing
SNMP was used to manage monitoring agents of networks. Id. (citing
Battat ¶ 164).
Appellants contend: “The Examiner [does not show] that SNMP is an
industry-standard protocol . . . designed to collect L1–L7 topology data.”
Reply 6 (orig. ellipses and internal quotation marks omitted). Appellants
further contend “it would be impossible . . . because . . . SNMP is an
application layer (layer 7) protocol suite.” Id.
We are unpersuaded of error. The Examiner finds, and we agree,
SNMP was a well-known protocol for collecting data from monitoring
agents of networks and, therefore, would have been an obvious protocol for
Herold’s collecting of topology data such as L1–L7 topology data (discussed
supra, second issue). Non-Final Act. 7; Ans. 4–6. Appellants cannot rebut
these determinations by, as here, summarily alleging SNMP is a
layer-specific protocol that consequently cannot communicate L1–L7
topology data. Reply 6. Appellants’ contention fails to address Battat’s
cited disclosure, present sufficient evidence showing SNMP was a
layer-specific protocol, and present sufficient evidence showing a
layer-specific protocol (assuming SNMP is layer-specific) cannot
communicate L1–L7 topology data.
A fourth issue is whether the Examiner errs in addressing the claimed
analysis of “network configuration data.” App. Br. 16–17; Reply 6–7. The
Examiner finds Herold’s system recommends “network configuration
changes.” Ans. 5 (citing Herold col. 15, ll. 39–55; quoting ll. 52–53). The
Examiner further finds Herold’s system could not recommend the “network
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configuration changes” without first analyzing network configuration data.
Id.
Appellants contend Herold teaches “system configuration data” and
thus “fail[s] to disclose network configuration data, or any equivalent
thereof” (italicizing removed). App. Br. 17 (citing Herold col. 3, ll. 26–29).
Appellants further contend the Examiner’s above inference is incorrect
inasmuch a system need not analyze network configuration data to generate
Herold’s cited recommendations for “network configuration changes” to
memory and processing. Reply 7 (addressing Herold col. 15, ll. 39–55).
We are unpersuaded of error. As the Examiner finds, and we agree,
Herold teaches recommendations for “network configuration changes” that
would entail first analyzing network configuration data (e.g., performance
data for a configuration). Ans. 5. We add that, even assuming (arguendo)
Herold’s invention could theoretically recommend such changes without
first analyzing network configuration data, those recommendations are
plainly sometimes based on monitored allocations (i.e., configurations) of
network resources. See Herold col. 1, l. 35–col. 2, l. 34 (“summary”); col. 3,
ll. 7–32 (“introduction” and “system overview”) col. 14, ll. 51–53 (“[T]he
source of the recommendation [may] be . . . from community analysis.”);
Fig. 2 (steps 202, 210, 212).
2. Arguments directed to the claimed “remote network
manager . . . programs the programmable network element
[to achieve] the network control objective [of]
security/performance remediation, . . . wherein the
programmable parameter . . . is blocking the specific user,
application, and device causing the security/performance
issues, and wherein the remote network manager further
determines whether the network control objective is met
after [the] programming . . . and applies an automatic
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closed control loop based on the network control objective
to program the programmable network element”
A fifth issue is whether the Examiner errs in addressing the claimed
programming of a network element. App. Br. 18; Reply 8. The Examiner
finds “making configuration changes . . . inevitably involves programming
the servers and/or network switches and routers, which are programmable
network elements.” Ans. 7. Appellants contend “Herold only discloses
recommending changes[, which] . . . is not the same as actually executing
changes.” Reply 8. We are unpersuaded of error because, contrary to
Appellants’ argument, Herold expressly teaches:
[T]he recommended configuration changes 1122 in the user
interface 1100 are selectable by a user (e.g., via hyperlink) to
cause the community analysis system 140 to send a web service
call or other call to the monitored system in question. In
response to receiving the web service call or other call, the
monitored system can implement the change automatically.
Herold col. 15, ll. 2–8.
A sixth issue is whether the Examiner errs in addressing the claimed
blocking of a specific user, application, and device causing security issues.
App. Br. 19–20. Acknowledging Herold does not teach such blocking, the
Examiner finds it would have been obvious to provide this feature as one of
Herold’s recommendations (i.e., as a selectable recommendation) because
blocking a source of a security problem was well known. Ans. 8. In
support, the Examiner cites U.S. Patent Pub. No. US 2015/0085694 A1 to
Agarwal (published Mar. 26, 2015) as showing that “block[ing data flows]
entirely . . . to address potential security threats . . . would be known to
practitioners of the art.” Id. (quoting Agarwal ¶ 61).
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Appellants contend Herold has “no disclosure whatsoever of
identifying and blocking a specific user, application, and device causing
security/performance issues.” App. Br. 19. Appellants’ Reply Brief does
not address the claimed blocking nor do Appellants respond to the
Examiner’s finding that the claimed blocking was well known.
We are unpersuaded of error. The Examiner presents the above,
supported official notice that the claimed blocking was well known. As
discussed supra, Appellants cannot rebut official notice without raising a
reasonable doubt of its validity. Appellants do not expressly dispute the
official notice.
A seventh issue is whether the Examiner errs in addressing the
claimed closed control loop that is based on a network control objective and
programs a network element. App. Br. 19–20; Reply 9–10. The Examiner
finds such a closed control loop is taught by Herold’s analytics displayed
within the interface of Figure 5. Ans. 9.
Appellants contend Herold’s analytics do not generate a “feedback”
control of “active measures” (App. Br. 20), but rather generate only
recommendations (id. at 19). Appellants further contend Herold’s Figure 5
“shows an information loop, not an ‘automatic closed control loop’.”
Reply 9.
We are unpersuaded of error. The Examiner finds, and we agree,
Herold’s Figure 5 teaches the claimed closed control loop. We agree
because Herold’s Figure 5 interface displays a loop of the following
activities of a tenant: optimizing by recommending “things to do”;
examining identified issues; predicting usage; comparing statistics to those
of peer tenants; and monitoring. Herold Fig. 5. Additionally, a
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recommendation of the loop can be automatically implemented (see
supra 10) and, if so, would cause the loop to program a network element
(see id.) based on the loop’s objectives (e.g., reducing “bottlenecks”) and
feedback (e.g., the monitoring and comparing that drives the
recommendations).
3. Conclusion
For the foregoing reasons, Appellants do not establish an error in the
rejection of claim 1. We therefore sustain all rejections.

DECISION
We affirm the Examiner’s rejections of claims 1–17.
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