Ex Parte Bhogal et alDownload PDFPatent Trial and Appeal BoardFeb 26, 201613080884 (P.T.A.B. Feb. 26, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/080,884 04/06/2011 133905 7590 03/01/2016 IBM CORPORATION- POUGHKEEPSIE (JVL) C/O LESLIE A. VAN LEEUWEN 6123 PEBBLE GARDEN CT. AUSTIN, TX 78739 Kulvir Singh Bhogal 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. A US920 l 10026US 1 2761 EXAMINER SAVENKOV, VADIM ART UNIT PAPER NUMBER 2431 NOTIFICATION DATE DELIVERY MODE 03/01/2016 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): leslie@vI-patents.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KUL VIR SINGH BHOGAL and LISA SEACAT DELUCA Appeal2014-004322 Application 13/080,8841 Technology Center 2400 Before LARRY J. HUME, NATHAN A. ENGELS, and CARLL. SILVERMAN, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the Non- Final Rejection of claims 1-3, 5-10, 12-16, and 18-20. Appellants have previously canceled claims 4, 11, and 17. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is International Business Machines Corp. App. Br. 2. Appeal2014-004322 Application 13/080,884 STATEMENT OF THE CASE2 The Invention Appellants' disclosed and claimed "invention relates to an approach that identifies possible imposters in a network environment. More particularly, the present invention relates to an approach that uses historical interaction patterns to identify a possible imposter in a network environment." Spec. i-f 1. Exemplary Claim Claim 1, reproduced below, is representative of the subject matter on appeal (emphasis added): 1. A method implemented by an information handling system comprising: receiving, from a source, an electronic message at a network interface accessible from the information handling system; identifying a source address corresponding to the electronic message, wherein the source address also corresponds to a legitimate source; extracting one or more current usage patterns from the received electronic message; retrieving, from a nonvolatile data store, one or more historical usage patterns corresponding to the identified source address, wherein the historical usage patterns were previously gathered from one or messages received from the legitimate source; 2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed Oct. 15, 2013); Reply Brief ("Reply Br.," filed Jan. 17, 2014); Examiner's Answer ("Ans.," mailed Nov. 27, 2013); Non-Final Office Action ("Non- Final Act.," mailed May 23, 2013); and the original Specification ("Spec.," filed Apr. 6, 2011 ). 2 Appeal2014-004322 Application 13/080,884 comparing the extracted current usage patterns to the retrieved historical usage patterns; setting an imposter indicator in response to the comparison revealing that the source is an imposter; and inhibiting further collection of historical usage patterns from the received message, and from one or more additional messages received from the source, while the imposter indicator is set. Prior Art The Examiner relies upon the following prior art as evidence in rejecting the claims on appeal: Coffman et al. ("Coffman") US 2008/0109730 Al May 8, 2008 Winfield et al. ("Winfield") US 7 ,555,548 B2 June 30, 2009 Goodman et al. ("Goodman") US 8,046,832 B2 Oct. 25, 2011 McCann et al. ("McCann") US 2011/0296003 Al Dec. 1, 2011 Rejections on Appeal RI. Claim 1-3, 5, 7-10, 12, 14--16, 18, and 20 stand rejected under 35 U.S.C. § 103(a) as being obvious over the combination ofMcCann, Goodman, and Winfield. Non-Final Act. 3. R2. Claims 6, 13, and 19 stand rejected under 35 U.S.C. § 103(a) as being obvious over the combination of McCann, Goodman, Winfield, and Coffman. Non-Final Act. 25. CLAIM GROUPING Based on Appellants' arguments (App. Br. 7-9), we decide the appeal of obviousness Rejection RI of claims 1-3, 5, 7-10, 12, 14--16, 18, and 20 on the basis of representative claim 1. 3 Appeal2014-004322 Application 13/080,884 Remaining claims 6, 13, and 19 in Rejection R2, not argued separately, are addressed, infra. 3 ISSUE Appellants argue (App. Br. 7-9; Reply Br. 2---6) the Examiner's rejection of claims 1-3, 5, 7-10, 12, 14--16, 18, and 20 under 35 U.S.C. § 103(a) as being obvious over the combination ofMcCann, Goodman, and Winfield is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art combination teaches or suggests a method that includes, inter alia, the step of "inhibiting further collection of historical usage patterns from the received message, and from one or more additional messages received from the source, while the imposter indicator is set," as recited in claim 1? ANALYSIS In reaching this decision; we consider all evidence presented and all arguments actually made by Appellants. We do not consider arguments which Appellants could have made but chose not to make in the Briefs so that we deem any such arguments as waived. 37 C.F.R. § 41.37(c)(l)(iv). We disagree with Appellants' arguments with respect to claims 1-3, 5, 7-10, 12, 14--16, 18, and 20, and we incorporate herein and adopt as our own: ( 1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in response to Appellants' arguments. We 3 "Notwithstanding any other provision of this paragraph, the failure of appellant to separately argue claims which appellant has grouped together shall constitute a waiver of any argument that the Board must consider the patentability of any grouped claim separately." 37 C.F.R. § 41.37(c)(l)(iv). 4 Appeal2014-004322 Application 13/080,884 incorporate such findings, reasons, and rebuttals herein by reference unless otherwise noted. However, we highlight and address specific findings and arguments regarding claim 1 for emphasis as follows. Appellants generally contend Winfield does not teach or suggest the contested "inhibiting" limitation of claim 1, and specifically allege Winfield is concerned with collecting data, such as performance metrics, from network elements ... [which] are not analogous to messages, such as email messages, received from a source [and] Winfield does not teach or suggest collecting or inhibiting the collection of "historical usage patterns" from a "received message" as taught and claimed by Appellant. App. Br. 8. Appellants further argue, "[t]he 'conditions' disclosed by Winfield do not have anything to do with an imposter or an imposter indicator, as taught and claimed by Appellant. Rather, Winfield is concerned with system conditions, such as the number of retries to reach a network element or a configuration change." Id. As an initial matter, we specifically note Appellants' challenge to the references individually is not convincing of error in the Examiner's position because all of the features of the secondary reference need not be bodily incorporated into the primary reference, but consideration should be given to what the combined teachings, knowledge of one of ordinary skill in the art, and the nature of the problem to be solved as a whole would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 425 (CCP A 1981 ). Furthermore, the artisan is not compelled to blindly follow the teaching of one prior art reference over the other without the exercise of independent judgment (see Lear Siegler, Inc. v. Aeroquip Corp., 733 F .2d 881, 889 (Fed. Cir. 1984)). 5 Appeal2014-004322 Application 13/080,884 In response to Appellants' arguments against the references separately, the Examiner finds, and we agree, McCann is relied upon as teaching or suggesting collection of "historical usage patterns" (Ans. 3, citing McCann i-fi-15, 6), while Goodman is relied upon as teaching or suggesting a system for determining whether received messages are spam based on comparison to training sets of both legitimate and spam messages. Ans. 4 (citing Goodman Abstract, and col. 10, 11. 1-20). The Examiner cites Winfield for its teaching or suggestion of the collection of performance metrics being suspended in a case "where a condition exists regarding the network element, until such condition is removed." Id. (citing Winfield col. 3, 11. 40-50; col. 5, 1. 51 to col. 6, 1. 5; and col. 2, 11. 14--26). The Examiner further concludes it would have been obvious "to modify the teachings of McCann-Goodman such that collection of baseline metrics is halted during the time when an account is flagged as potentially compromised." Ans. 5. Appellants further argue Winfield is nonanalogous art. Reply Br. 2; see also App. Br. 8. Allegedly, because Winfield's network elements are not analogous to electronic messages, such as the claimed email messages, Winfield is nonanalogous art. Appellants further argue: One skilled in the art will recognize that the type of data collected by Winfield is vastly different from the historical usage patterns taught and claimed by Appellant, which include items such as misspelled words, use of emoticons, greeting and sign-off phrases, etc. Performance data, as disclosed by Winfield, is simply not analogous to historical usage patterns, as taught and claimed by Appellant, and thus Appellant respectfully submits that Winfield is nonanalogous art. Reply Br. 3. 6 Appeal2014-004322 Application 13/080,884 The test of whether a reference is from an analogous art is first, whether it is within the field of the inventor's endeavor, and second, if it is not, whether it is reasonably pertinent to the particular problem with which the inventor was involved. See In re Wood, 599 F.2d 1032, 1036 (CCPA 1979). A reference is reasonably pertinent if, even though it may be in a different field of endeavor, it is one which, because of the matter with which it deals, logically would have commended itself to an inventor's attention in considering the inventor's problem. See In re Clay, 966 F .2d 656, 659 (Fed. Cir. 1992). We agree with the Examiner's finding that the teachings of Winfield regarding network elements and the collection of data while a certain condition is present (i.e., the claimed "imposter indicator") are "reasonably pertinent to the particular problem with which the applicant was concerned." We incorporate the Examiner's findings herein as our own. Ans. 5---6. We further conclude it would have been obvious to combine the teachings and suggestions of McCann, Goodman, and Winfield, for the reasons set forth by the Examiner. See Non-Final Act. 7; Ans. 4--5. We agree because Appellants' invention is simply a combination of known teachings that realize a predictable result. The Supreme Court has determined the conclusion of obviousness can be based on the interrelated teachings of multiple patents, the effects of demands known to the design community or present in the marketplace, and the background knowledge possessed by a person having ordinary skill in the art. KSR Int 'l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). The skilled artisan would "be able to fit the teachings of multiple patents together like pieces of a puzzle" since 7 Appeal2014-004322 Application 13/080,884 the skilled artisan is "a person of ordinary creativity, not an automaton." Id. at 420-21. Moreover, Appellants have not demonstrated the Examiner's proffered combination of references would have been "uniquely challenging or difficult for one of ordinary skill in the art." See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Nor have Appellants provided objective evidence of secondary considerations which our reviewing court guides "operates as a beneficial check on hindsight." Cheese Sys., Inc. v. Tetra Pak Cheese and Powder Sys., 725 F.3d 1341, 1352 (Fed. Cir. 2013). Accordingly, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the combined teachings and suggestions of the cited prior art combination to teach or suggest the disputed limitation of claim 1, nor do we find error in the Examiner's resulting legal conclusion of obviousness. Therefore, we sustain the Examiner's obviousness rejection of independent claim 1, and grouped claims 2, 3, 5, 7-10, 12, 14--16, 18, and 20 which fall therewith. See Claim Grouping, supra. § 103 (a) Rejection R2 of Claims 6, 13, and 19 In view of the lack of any substantive or separate arguments directed to obviousness Rejection R2 of claims 6, 13, and 19 under§ 103 (see App. Br. 9), we sustain the Examiner's rejection of these claims. Arguments not made are considered waived. 8 Appeal2014-004322 Application 13/080,884 REPLY BRIEF To the extent Appellants may advance new arguments in the Reply Brief (Reply Br. 2---6) not in response to a shift in the Examiner's position in the Answer, we note arguments raised in a Reply Brief that were not raised in the Appeal Brief or are not responsive to arguments raised in the Examiner's Answer will not be considered except for good cause (see 37 C.F.R. § 41.41(b)(2)), which Appellants have not shown. CONCLUSION The Examiner did not err with respect to obviousness Rejections RI and R2 of claims 1-3, 5-10, 12-16, and 18-20 under 35 U.S.C. § 103(a) over the cited prior art combinations of record, and we sustain the rejections. DECISION We affirm the Examiner's decision rejecting claims 1-3, 5-10, 12-16, and 18-20. 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 9 Copy with citationCopy as parenthetical citation