Ex Parte Balakrishnan

Patent Trial and Appeal Board

Feb 3, 2017

13897002 (P.T.A.B. Feb. 3, 2017)

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.
13/897,002 05/17/2013 Sandhya Balakrishnan 83138320 6182
56436 7590
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
EXAMINER
CHU, GABRIEL L
ART UNIT PAPER NUMBER
2114
NOTIFICATION DATE DELIVERY MODE
02/07/2017 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):
hpe.ip.mail@hpe.com
chris. mania @ hpe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SANDHYA BALAKRISHNAN
Appeal 2016-005514
Application 13/897,002
Technology Center 2100
Before ALLEN R. MacDONALD, JOHN P. PINKERTON, and
GARTH D. BAER, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-005514
Application 13/897,002
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1—15. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Exemplary Claim
Exemplary claim 1 under appeal reads as follows (emphasis added):
1. A method of fault management in an IT
infrastructure, comprising:
monitoring, by a processor, an IT resource to
identify a likelihood of occurrence of a fault related to
the IT resource;
determining, upon said identification, whether a
solution is available for preventing the occurrence of the
fault related to the IT resource;
if the solution is available, displaying an icon
representing the solution next to the IT resource to
indicate that the solution is available to be applied to
the IT resource to prevent the occurrence of the fault
related to the IT resource;
receiving, by the processor, a selection to apply the
solution to the IT resource; and
applying, by the processor, the solution to the IT
resource prior to the occurrence of the fault related to the
IT resource in response to the receipt of the selection.
2
Appeal 2016-005514
Application 13/897,002
Rejections on Appeal
1. The Examiner rejected claims 9, 11, and 13 under 35 U.S.C. § 102
as being anticipated by Alberti (US 2006/0265630 Al; Nov. 23, 2006).1
2. The Examiner rejected claims 1—3 and 15 under 35 U.S.C. § 103 as
being unpatentable over the combination of Alberti and Steams
(US 2012/0159611 Al; June 21, 2012).2
3. The Examiner rejected claim 4 under 35 U.S.C. § 103 as being
unpatentable over the combination of Alberti, Steams, and Igarashi
(US 2009/0063611 Al; Mar. 5, 2009).
4. The Examiner rejected claim 5 under 35 U.S.C. § 103 as being
unpatentable over the combination of Alberti, Steams, Igarashi, and Official
Notice.
5. The Examiner rejected claims 6—8 under 35 U.S.C. § 103 as being
unpatentable over the combination of Alberti, Steams, Igarashi, and Official
Notice.
6. The Examiner rejected claim 10 under 35 U.S.C. § 103 as being
unpatentable over the combination of Alberti and Steams.
7. The Examiner rejected claim 12 under 35 U.S.C. § 103 as being
unpatentable over the combination of Alberti and Igarashi.
1 The patentability of claims 10—14 is not separately argued from that of
claim 9. See Appeal Br. 8, 15—17. Except for our ultimate decision, claims
10—14 are not discussed further herein.
2 The patentability of claims 2—3, 5—8, and 15 is not separately argued from
that of claim 1. See Appeal Br. 11—12, 14—15. Except for our ultimate
decision, claims 2—3, 5—8, and 15 are not discussed further herein.
3
Appeal 2016-005514
Application 13/897,002
8. The Examiner rejected claim 14 under 35 U.S.C. § 103 as being
unpatentable over the combination of Alberti and Cain
(US 2006/0080656 Al; Apr. 13, 2006).
Appellant’s Contentions
1. Appellant contends that the Examiner erred in rejecting claim 9
under 35 U.S.C. § 102 because:
Alberti generally discusses a system that has a software patch to
be installed at endpoints in order to fix a software problem or
bug. In paragraph [0046], Alberti indicates that the automation
engine (225 in Fig. 2) runs a query in a catalog (230) to identify
the endpoints that require the installation of the patch to fix the
software problem on those endpoints, and then distributes the
patch to the identified endpoints.
As such, Alberti runs a query in the catalogue to identity the
endpoints that have the software problem and then distributes the
patch to the identified endpoints to fix the software problem. In
other words, when the system of Alberti runs the query in the
catalog to identify the endpoints that require the installation of
the patch, the identified endpoints already have the software
problem. Because the endpoints identified in the catalog
already have the software problem, Alberti does not identify a
“likelihood of occurrence of a fault ” at those endpoints. Thus,
the system of Alberti does not monitor an endpoint to identify a
likelihood of occurrence of a fault related to that endpoint.
Therefore, Alberti fails to teach, “monitor an IT resource to
identify a likelihood of occurrence of a fault related to the IT
resource, ” as recited in independent claim 9.
Appeal Br. 7, Appellant’s emphasis omitted, panel’s emphasis added.
2. In the Reply Brief, further as to above contention 1, Appellant also
contends that the Examiner erred in rejecting claim 9 under 35 U.S.C. § 102
because:
4
Appeal 2016-005514
Application 13/897,002
Alberti is silent on identifying a likelihood of a fault. Rather,
Alberti stores problems (i.e. vulnerabilities) in a catalogue, and
identifies an endpoint (i.e. computer) for which the catalogue
lists a problem. Then, Alberti installs a patch to address the
problem. At no point in this process is a likelihood of an
occurrence of a fault identified, because the software problem
of Alberti is already known, and then fixed.
Reply Br. 2, Appellant’s citations omitted, panel’s emphasis added.
3. Appellant also contends that the Examiner erred in rejecting claim 1
under 35 U.S.C. § 103 because:
Alberti fails to teach or suggest [“monitoring, by a processor, an
IT resource to identify a likelihood of occurrence of a fault
related to the IT resource,”] recited ... in independent claim 1
for the same reasons as set forth above for independent claim 9.
Steams generally discusses a computer screen 210 in Fig. 2,
which includes a graphical depiction of a plurality of clients 221
(Client 1, Client 2, and Client 3) available to be configured
within a license abstraction server 100. The screen in Fig. 2 of
Steams also shows “Features” 230 which is a listing of software
packages for the user to select to install on the Clients 1, 2, and
3. The screen in Fig. 2 also shows “Profiles” 235 which are
templates to configure the Clients.
As such, the icons of Clients 1, 2, and 3 in Fig. 2 represent
different types of clients to be configured within the server 100.
The Features 230 are software packages to be installed on the
clients. Thus, the Features 230 are not icons of solutions of a
fault in the clients. Similarly, the Profiles 235 in Fig. 2 of
Steans [sic] are not solutions to a fault in the clients. Thus, the
graphical depiction of the Clients 1, 2, and 3 in Stearns does
not include an icon representing a solution for a fault in the
clients. In addition, none of the Clients 1, 2, and 3 in Fig. 2 has
a “solution” icon next to that client to indicate that there is a
solution available to be applied to that client. Therefore,
contrary to the assertion by the Examiner, Stearns fails to teach
5
Appeal 2016-005514
Application 13/897,002
or suggest, “displaying an icon representing the solution next
to the IT resource to indicate that the solution is available to be
applied to the IT resource to prevent the occurrence of the fault
related to the IT resource, ” as recited in independent claim 1.
Appeal Br. 10-11, Appellant’s emphasis omitted, panel’s emphasis added.
4. In the Reply Brief, further as to above contention 3, Appellant also
contends that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103
because:
In the Answer, the Examiner states that [Appellant’s argument]
“is an argument of bodily incorporation as Appellant merely
recites what Steams does without taking the combination with
Alberti into account. Appellant refers only to Steams when
saying that it is for applying a software package, which does not
address faults. Appellant ignores the teaching of Alberti which
shows the application of patches for preventing a ‘fault’.”
However, this response by the Examiner does not address
Appellant’s argument that Stearns and Albert fail to disclose
“displaying an icon representing the solution next to the IT
resource” (let alone to indicate that the solution is available to
be applied to the IT resource to prevent the occurrence of the
fault related to the IT resource). Instead, the Examiner only
alleges that “application of patches for preventing a fault is
taught by Alberti, and nothing more. The Examiner's
argument that makes an argument of bodily incorporation is
incorrect and also a red herring, given that the Examiner does
not point to any reference to discusses “displaying an icon
representing the solution next to the IT resource”. Therefore,
the Examiner in effect fails to rebut Appellant's argument.
Moreover, insofar as the Examiner provides any rebuttal, it is
devoid of any argument about any teachings of Stearns, devoid
of any factual support from Stearns, and devoid of any
argument that Alberti teaches an “displaying an icon
representing the solution next to the IT resource.” It is
respectfully submitted that factual findings made by the
Examiner (i.e. scope and content of the prior art, differences
6
Appeal 2016-005514
Application 13/897,002
between the claimed invention and prior art, and the level of
ordinary skill in the pertinent art) and articulated reasoning are
necessary underpinnings to establish obviousness and must be
made explicit. ... A mere conclusory statement cannot support
the legal conclusion of obviousness.
Reply Br. 3—4, Appellant’s emphasis omitted, panel’s emphasis added.
5. Appellant also contends that the Examiner erred in rejecting claim 4
under 35 U.S.C. § 103 because:
[I]n paragraph [0007], Igarashi generally discusses a technique
to suppress the impact of an unsuccessful firmware update, by
allowing the firmware update of one device to operate for a fixed
period of time and once the firmware update of one device is
confirmed to be operating correctly, the firmware of the
remaining devices is updated.
As such, Igarashi operates the firmware update on one device for
a fixed period of time and confirms that the firmware update runs
correctly before installing the firmware update in other devices.
However, confirming that the firmware update runs correctly
does not include evaluating the “effectiveness” in “preventing
an occurrence of a fault” by the firmware update. In other
words, Igarashi may determine whether the firmware update
operates correctly or incorrectly, but Igarashi does not evaluate
the “effectiveness” of the firmware update in preventing the
occurrence of a fault. Therefore, Igarashi fails to teach or
suggest, “evaluating its effectiveness in preventing the
occurrence of the fault related to the IT resource over a time
frame, ” as recited in claim 4.
Appeal Br. 13—14, emphasis added.
6. In the Reply Brief, further as to above contention 5, Appellant also
contends that the Examiner erred in rejecting claim 4 under 35 U.S.C. § 103
because:
In the Answer, the Examiner states that, “as claimed, Appellant
merely checks over a time frame. This is their claimed method
7
Appeal 2016-005514
Application 13/897,002
of evaluating its effectiveness in preventing the occurrence of the
fault. Similarly, Igarashi specifies a period of time to see if the
firmware update is working correctly, which in the context of the
combination with Alberti is for patching a problem which may
manifest as a fault Appellant again ignores the combination with
Alberti.”
However, evaluating successful operation of a completed
firmware update is different from evaluating effectiveness of
preventing a fault in the first place. These are two separate
problems - the solution of fixing a problem as opposed to the
solution of preventing a problem.
Reply Br. 4—5, Appellant’s citations omitted, panel’s emphasis added.
Issues on Appeal
1. Did the Examiner err in rejecting claim 9 as being anticipated?
2. Did the Examiner err in rejecting claims 1 and 4 as being obvious?
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We disagree with Appellant’s
conclusions. Except as noted herein, we adopt as our own: (1) the findings
and reasons set forth by the Examiner in the action from which the appeal is
taken (Final Act. 2—16); and (2) the reasons set forth by the Examiner in the
Examiner’s Answer (Ans. 2—5) in response to the Appellant’s Appeal Brief.
We concur with the conclusions reached by the Examiner. We highlight the
following.
As to Appellant’s above contentions 1 and 2, we are not persuaded the
Examiner erred. We agree with the Examiner that paragraph 46 of Alberti
8
Appeal 2016-005514
Application 13/897,002
discloses that a vulnerability catalogue is used to determine endpoints with
vulnerabilities. See Ans. 3^4 (citing Alberti 146). We also agree with the
Examiner that Alberti’s identifying a security vulnerability teaches the
claimed “identify[ing] a likelihood of occurrence of a fault,” (see id.)
because Alberti teaches a security vulnerability exposes a system to
malicious attacks, and malicious attacks are likely to cause an occurrence of
a fault in the system. See Alberti 12. In other words, we conclude the
aforementioned claim element is reasonably interpreted by the Examiner as
reading on Alberti’s identifying a security vulnerability. Accordingly, we
sustain the rejection of claim 9 under 35 U.S.C. § 102.
As to Appellant’s above contentions 3 and 4, we are not persuaded the
Examiner erred. Appellant’s argument regarding the claimed “identity[ing]
a likelihood of occurrence of a fault,” is not persuasive for the reasons
provided above regarding claim 9. Appellant’s argument regarding the
claimed “displaying an icon representing the solution ... to indicate that the
solution is available to be applied to the IT resource,” is also not persuasive,
as we agree with the Examiner that the argument attacks Steams, rather than
the combination of Alberti and Steams. See Ans. 4. It is well established
that one cannot show non-obviousness by attacking references individually
where the rejection is based upon the teachings of a combination of
references. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986);
see also In re Keller 642 F.2d 413, 425 (CCPA 1981). As Appellant’s
argument does not address the actual reasoning of the Examiner’s rejection,
we do not find it persuasive. With respect to Appellant’s argument that the
combination of Alberti and Steams also fails to teach or suggest “displaying
an icon representing the solution next to the IT resource,” we also do not
9
Appeal 2016-005514
Application 13/897,002
find this argument persuasive. Instead, we find Steams teaches the claimed
“next to” element because Steams teaches displaying a feature listing area,
which contains a list or visual depiction of discrete software packages,
software features, or combinations thereof, (i.e., the claimed “solution”)
immediately below (i.e., adjacent to) a client listing area, which includes a
graphical depiction of clients available for configuring, (i.e., the claimed
“resource”). See Steams Fig. 2, || 24—26. As neither Appellant’s claims,
nor Appellant’s specification, provides a definition of the claimed “next to”
element, Steams’ teaching is sufficient to meet the broadest reasonable
interpretation of the claimed “next to” element.
As to Appellant’s above contentions 5 and 6, we are not persuaded the
Examiner erred. We agree with the Examiner’s interpretation of “validating
the solution by evaluating [the solution’s] effectiveness in preventing the
occurrence of the fault. . . over a time frame,” (see Ans. 4) as Appellant’s
Specification describes “a validation may be performed by monitoring the IT
resource over a period of time for occurrence of the problem.” See
Spec. 127. We further agree with the Examiner that Alberti’s patch teaches
the claimed “solution,” and that Igarashi’s monitoring a firmware update
over a period of time teaches the claimed “over a time frame.” See Ans. 4.
Thus, we agree with the Examiner that the combination of Alberti, Steams,
and Igarashi teaches or suggests “validating the solution by evaluating [the
solution’s] effectiveness in preventing the occurrence of the fault. . . over a
time frame.” Accordingly, we sustain the rejection of claim 4 under
35U.S.C. § 103.
10
Appeal 2016-005514
Application 13/897,002
CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 9, 11, and 13 as
being anticipated under 35 U.S.C. § 102.
(2) The Examiner has not erred in rejecting claims 1—8, 10, 12, 14,
and 15 as being unpatentable under 35 U.S.C. § 103.
(3) Claims 1—15 are not patentable.
DECISION
We affirm the Examiner’s rejections of claims 9, 11, and 13 as being
anticipated under 35 U.S.C. § 102.
We affirm the Examiner’s rejections of claims 1—8, 10, 12, 14, and 15
as being unpatentable under 35 U.S.C. § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
11