Ex Parte Bowman et al

Patent Trial and Appeal Board

Dec 16, 2014

10853099 (P.T.A.B. Dec. 16, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DON BOWMAN
and HARMEET SINGH BEDI
____________

Appeal 2012-008433
Application 10/853,0991
Technology Center 2400
____________

Before JASON V. MORGAN, TERRENCE W. MCMILLIN, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

MCMILLIN, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal under 35 U.S.C. § 134(a) of the final
rejection of claims 63 – 69, 93, and 95 – 97. Br. 5. Claims 1–62, 70 – 92,
and 94 have been cancelled. Id. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 According to Appellants, the real party in interest is Sandvine Incorporated
ULC. Appeal Brief under 37 C.F.R. § 41.37 filed January 4, 2012, at 3
(hereinafter “Br. __.”).

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Application 10/853,099

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REJECTIONS ON APPEAL
Claims 63 and 93 were rejected under 35 U.S.C. § 102(e) as
anticipated by U.S. Patent No. 7,725,545 B2 issued May 25, 2010, to
Rusche et al. (hereinafter “Rusche”). Examiner’s Answer dated February 1,
2012, at 4 (hereinafter “Ans. __.”); Br. 9.
Claims 63 – 66, 68, 69, 93, and 95 – 97 were rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Rusche and U.S. Patent Application
Publication No. 2003/0105976 A1 published June 5, 2003, to Copeland III.
(hereinafter “Copeland”). Ans. 5; Br. 9.
Claim 67 was rejected under 35 U.S.C. § 103(a) as being unpatentable
over Copeland, Rusche, and U.S. Patent No. 6,708,212 B2 issued March 16,
2004, to Porras et al. (hereinafter “Porras”). Ans. 8; Br. 9.

DISCUSSION
The Claimed Invention
The application is directed to a method for detecting a source or
destination of abnormal message traffic on a network. Claim 63 recites
(indentations to separate elements added):
A method for detecting a source or destination of abnormal message
traffic on a network, said method comprising
tracking messages between a source and a destination,
wherein said tracking comprises storing the source and
destination of a message as a pair,
generating a counter unique to the pair and incrementing
the counter based on at least some of the messages between said
source and said destination, and
comparing said counter to a threshold to determine the
credibility of said source or said destination.
Br. 18.
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The Section 102 Rejection
Appellants argue that Rusche fails to disclose uniquely counting each
source and destination pair as required by claim 63. Br. 10. The Examiner
relies on Fig. 5 and the related disclosure at 5:22 – 33 of Rusche as
disclosing this element. Ans. 4, 9. In their Appeal Brief at 11, Appellants
essentially admit that Rusche discloses this element in this passage:
In particular, Rusche would have one counter per source that
would be incremented each time a message originated from that
source and separate sub-entry per destination. This counting
system amounts to two counters: one is counting the source;
and another is counting the destination of the source (figure 5
and column 5, lines 40 to 59).

The Appellants argue that because Rusche discloses additional elements
beyond those claimed—generating a separate counter for the source and
applying a timestamp when the counter is incremented—that Rusche
discloses something different than, and teaches away from, the claimed
invention. Br. 11–12. We reject these arguments. Rusche discloses
generating a counter unique to the source and destination of the message—
the separate sub-entry counter. See, e.g., Rusche, # 240 in Fig. 5. Rusche is
anticipatory even if it discloses elements beyond those required by open-
ended claim 63. The Appellants have not shown error in the Examiner’s
finding that Rusche discloses all the elements of claim 63 and anticipates the
claimed invention.
Appellants rely on this same argument with regard to claim 93, which
is directed to non-transitory computer readable medium containing
instructions that, when executed on a processor, cause the processor to
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perform the method of claim 63. We affirm the rejection of claim 93 for the
same reasons as we affirm the rejection of claim 63.

The Section 103 Rejections
Claims 63 to 65, 68, and 93
Appellants reiterate the argument made with regard to the anticipation
of claim 63 by Rusche and argue that the cited combination of references
fails to teach or suggest uniquely counting each source and destination pair.
We reject this argument for the reasons already stated.
Appellants additionally rely on the Declaration of Don Bowman under
37 C.F.R. 1.132 (Br. 21 – 29) as allegedly evidencing “the commercial
success of the product embodying the subject matter of claim[s] 63 and 93.”
Br. 13. The Examiner rejected this evidence as failing to establish the
required nexus between the claimed invention and the evidence of
commercial success. Ans. 11 – 13. The Examiner found the Declaration
lacked, inter alia, a sufficient showing that whatever commercial success
that may have occurred was attributable to the claimed features. Id. The
Appellants have not shown any error by the Examiner and we also find the
Declaration lacking in this regard.
Appellants do not submit any separate arguments with regard to
claims 64, 65, and 68. Therefore, we affirm the obviousness rejection of
claims 63 to 65, 68, and 93.

Claims 66, 67, and 95 – 97
Although Appellants separate their argument with regard to these
claims under three separate headings in their brief, they present the same
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argument offered with regard to the anticipation of claim 63 in support of the
patentability of these claims. Br. 14 – 16. For the reasons stated above, we
affirm the rejection of claims 66, 67, and 95 – 97 as obvious.

CONCLUSION
The rejections of claims 63 – 69, 93, and 95 – 97 are 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)(1)(iv).

AFFIRMED

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