Ex Parte Bello et al

Patent Trial and Appeal Board

Feb 24, 2016

13459160 (P.T.A.B. Feb. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/459, 160 04/28/2012
45442 7590 02/26/2016
IBM CORPORATION (RVW)
C/OROBERTV. WILDER, ATTORNEY AT LAW
10212 Cassandra Drive
Austin, TX 78717
Adekunle Bello
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
AUS920090189US2 1006
EXAMINER
CHANG, TIJLIAN
ART UNIT PAPER NUMBER
2455
NOTIFICATION DATE DELIVERY MODE
02/26/2016 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):
bobwilder@netzero.net
rwilder6@austin.rr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ADEKUNLE BELLO, RADHIKA CHIRRA, NIKHIL HEGDE,
and ARUNA YEDA VILLI
Appeal2014-005150
Application 13/459,160
Technology Center 2400
Before CATHERINE SHIANG, TERRENCE W. McMILLIN, and
MATTHEW J. McNEILL, Administrative Patent Judges.
SHIANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-8. We have jurisdiction under 35 U.S.C.
§ 6(b ). We affirm.
STATEMENT OF THE CASE
The present invention relates to information processing. See generally
Spec. 1. Claim 1 is exemplary:
1. A method for server access processing, said method
compnsmg:
determining when a data packet is sent from a server to a client
Appeal2014-005150
Application 13/459,160
device;
counting a number of zero window packets (ZWPs) received from
said client device by said server following said data packet being sent
to provide a ZWP count; and
using said ZWP count to control access to said server by said client
device.
Baratakke
Young
Sherer
Yoneda
References and Rejections
US 2004/0236802 Al
US 6,965,942 Bl
US 2006/0200575 Al
Us 2007 /0050479 Al
Nov. 26, 2004
Nov. 15, 2005
Sep. 7,2006
Mar. 1, 2007
Claims 1-3 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Baratakke and Yoneda.
Claim 4 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Baratakke, Yoneda, and Sherer.
Claims 5-8 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Baratakke, Yoneda, and Young.
ANALYSIS
The Obviousness Rejection
Claims 1-81
On this record, we find the Examiner did not err in rejecting claim 1.
Appellants advance unsupported attorney arguments, contending:
Baratakke does not disclose or suggest determining when a data
packet is sent from a server to a client device and then counting
1 We disagree with Appellants' arguments (App. Br. 5-13; Reply Br. 2-10).
2
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Application 13/459,160
a number of zero window packets received from the client and
using that number to control access to the client from the
server, as recited in claim 1 [.] ...
Yoneda also does not respond to the receipt of a data packet
from a server and then count the number of ZWPs received
from the client in order to control access of the server to the
client as claimed by applicant.
App. Br. 5-7; see also Reply Br. 3-7.2
Appellants further advance unsupported attorney arguments,
contending the proposed combination is improper because Baratakke does
not mention the combination, and the cited references are different. See
App. Br. 7-8, 10-13; Reply Br. 7-9.
Appellants fail to show reversible error.
It is well established that "[a]ttorney's argument in a brief cannot take
the place of evidence." Jn re Pearson, 494 F.2d 1399, 1405 (CCPi\. 1974);
see also Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977) ("Argument
2 Appellants assert: "As is clearly shown and disclosed in Baratakke (see
"616", FIG 6 and related discussion page 4, paragraph 50, et seq), Baratakke
counts "probes" (not ZWPs). The difference is quite significant and cannot
be glossed-over and ignored since the number of probes in fact is an
indication that a client is ACTIVE and not an indication that a client is
INACTIVE as discussed above." Reply Br. 5. Appellants' assertion is
unpersuasive because the argument is not commensurate with the scope of
the claim, as claim 1 does not recite "active" or "inactive." Further,
Appellants merely advanced unsupported attorney argument for the prior
assertion that "the number of probes in fact is an indication that a client is
ACTIVE and not an indication that a client is INACTIVE" and therefore,
fail to show error. Id.
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Application 13/459,160
of counsel cannot take the place of evidence lacking in the record.").
Therefore, Appellants' unsupported attorney assertion-without adequate
evidence support-fails to persuade us of error. 3
Further, the U.S. Supreme Court has held "[t]he combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results." KSR Int'! Co. v. Teleflex,
Inc., 550 U.S. 398, 416 (2007). And "[i]f the claim extends to what is
obvious, it is invalid under§ 103" and "the analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ." Id. at 418-19.
Contrary to Appellants' arguments, "[i]n determining whether the
subject matter of a patent claim is obvious, neither the particular motivation
nor the avowed purpose of the patentee controls." Id. at 419. The Examiner
has proposed articulated reasoning with a rational underpinning as to why
one skilled in the art would have found it obvious to combine the teachings
ofBaratakke and Yoneda. See Ans. 4, 11, 13, and 14. Appellants fail to cite
adequate evidence to show specific fault in such finding.
In addition, the skilled artisan would "be able to fit the teachings of
multiple patents together like pieces of a puzzle" since the skilled artisan is
"a person of ordinary creativity, not an automaton." KSR, 550 US. at
3 The Examiner cites Microsoft Computer Dictionary, 5th Edition. See Ans.
8. Appellants raise objections. See Reply Br. 2. We note the Examiner
does provide the version-"5th Edition." See Ans. 8. We have examined
that dictionary, which was dated 2002 and thus constitutes credible evidence
for the definition of "data." However, even if we exclude such dictionary
definition, Appellants still fail to show specific error because, as discussed
above, Appellants merely advance unsupported attorney arguments.
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Application 13/459,160
420-21. Appellants do not present adequate evidence that the resulting
arrangements were "uniquely challenging or difficult for one of ordinary
skill in the art" or "represented an unobvious step over the prior art." See
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007) (citing KSR, 550 U.S. at 418-19).
In short, the Examiner finds that Baratakke and Yoneda teach prior art
elements that perform their ordinary functions to predictably result in the
disputed claim limitation, the proposed combination would have been within
the purview of the ordinarily skilled artisan. See Ans. 4, 11, 13, 14; KSR,
550 U.S. at 417. Appellants fail to cite adequate evidence to show specific
fault in such finding.
Further, Appellants do not cite any legal support for the attorney
assertion "when it is necessary to hypothetically combine three references
together to provide even the components ... , then that fact alone is at least
probative, if not conclusive, of the non-obviousness of the claimed
invention" (App. Br. 12) and therefore, such assertion is unpersuasive. In
fact, such assertion contradicts case law. See KSR, 550 U.S. at 416, 418-19.
Finally, in the Reply Brief for the first time, Appellants raise many
new arguments. See, e.g., Reply Br. 4---6. Appellants have waived such
arguments because they are untimely, and Appellants have not demonstrated
any "good cause" for the belated presentation. See 3 7 C.F .R. § 41.41 (b )(2)
(2012).
Accordingly, we sustain the Examiner's rejection of claim 1, and
dependent claims 2 and 3 for similar reasons.
Regarding claims 4--8, similar to the discussions above, Appellants'
unsupported attorney arguments (App. Br. 8-10) are unpersuasive. And
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Application 13/459,160
Appellants' unsupported general assertion that the cited references do not
teach the claimed elements fails to show specific error. Therefore, and for
similar reasons discussed above, we sustain the Examiner's rejection of
claims 4--8.
DECISION
The Examiner's decision rejecting claims 1-8 is affirmed.
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
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