Ex Parte Cochran

Patent Trial and Appeal Board

Sep 14, 2016

13425619 (P.T.A.B. Sep. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/425,619 03/21/2012
25537 7590 09/16/2016
VERIZON
PA TENT MANAGEMENT GROUP
1320 North Court House Road
9th Floor
ARLINGTON, VA 22201-2909
FIRST NAMED INVENTOR
Marc J. COCHRAN
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.
20110899 9844
EXAMINER
DO,STEVENM
ART UNIT PAPER NUMBER
2196
NOTIFICATION DATE DELIVERY MODE
09/16/2016 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):
patents@verizon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARC J. COCHRAN
Appeal2015-005858
Application 13/425,619
Technology Center 2100
Before THU A. DANG, JENNIFER L. McKEOWN, and
NATHAN ENGELS, Administrative Patent Judges.
McKEOWN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
Appellant's invention is directed to
A device [that] designates a primary virtual machine for
applications to be executed by the device, and designates a
backup virtual machine for the applications. The device also
establishes a primary link between the primary virtual machine
and each of the applications, and establishes a backup link
between the backup virtual machine and each of the applications.
The device further determines whether the primary virtual
machine is available, and enables, when the primary virtual
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Application 12/953,343
machine is available, traffic to be securely communicated
between the applications via the primary virtual machine and the
primary links.
Abstract.
Claim 1 is illustrative of the claimed invention and reads as follows:
1. A method, comprising:
establishing, by a device, a primary virtual machine
for applications to be executed by the device;
establishing, by the device, a backup virtual
machine for the applications;
providing, by the device, primary connections
between the primary virtual machine and the applications;
providing, by the device, backup connections
between the backup virtual machine and the applications,
the primary connections and the backup connections being
established after establishing the backup virtual machine
for the applications;
determining, by the device, whether the primary
virtual machine is available; and
enabling, by the device and when the primary
virtual machine is available; traffic to be
securely communicated between the applications
via the primary virtual machine and the primary
connections.
THE REJECTIONS
The Examiner rejected claims 1-3, 8-10 and 15-17 under 35 U.S.C.
§ 103(a) as unpatentable over Bhanot et al. (US 5,796,934,issued Aug. 18,
1998) and Nelson et al. (US 2009/0113109, published Apr. 30, 2009). Final
Act. 2---6. 1
1 Throughout this opinion, we also refer to ( 1) the Final Action, mailed May
29, 2014 ("Final Act."); (2) the Appeal Brief filed October 20, 2014 ("App.
Br."); (3) the Examiner's Answer mailed March 27, 2015 ("Ans."); and (4)
the Reply Brief filed May 20, 2015 ("Reply Br.").
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The Examiner rejected claims 4, 5, 7, 11, 12, 14, 18 and 19 under 35
U.S.C. § 103(a) as unpatentable over Bhanot, Nelson, and Elzur (US
2013/0174157 Al, published July 4, 2013 filed Feb. 25, 2013). Final Act.
6-9.
The Examiner rejected claims 6, 13, and 20 under 35 U.S.C. § 103(a)
as unpatentable over Bhanot, Nelson, and Croft (US 2013/0174157 Al,
published Aug. 16, 2007; filed Jan. 18, 2007). Final Act. 9-11.
ANALYSIS
THE OBVIOUSNESS REJECTION BASED ON BRANOT AND NELSON
Claims 1-3, 8-10and15-17
Based on the record before us, we are not persuaded the Examiner
erred in rejecting claims 1-3, 8-10 and 15-17 as unpatentable over Bhanot
and Nelson.
Appellant contends that Bhanot and Nelson combined do not teach or
suggest providing primary connections between the primary virtual machine
and the applications and backup connections between the backup virtual
machine and the applications, as required by claim 1. App. Br. 7.
According to Appellant, Bhanot' s "making or specifying a single
'connection' to a server does not disclose or suggest providing multiple
'connections' between a 'virtual machine' and multiple 'applications,' as
recited in claim 1 (emphasis added)." App. Br. 8; see also Reply Br. 5.
Appellant's argument is unpersuasive. The Examiner finds that the
Bhanot teaches making a connection to a primary server and a secondary
connection to a backup server. The Examiner explains that the rejection
relies on the client device (or more specifically applications running on the
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Application 12/953,343
client device) and the database management system (DBMS) for the recited
applications. Ans. 7. In other words, Bhanot satisfies the required plural
connections as Bhanot provides connections between the primary server and
the applications on the client device as well as between the primary server
and the DBMS. Similarly, Bhanot provides connections between the backup
server and the applications on the client device and between the primary
server and the DBMS. As such, we are not persuaded that the combination
of Bhanot and Nelson fails to teach or suggest the recited primary and
backup connections as required by claim 1.
Appellant additionally alleges that Bhanot and Nelson combined lacks
the recited "primary connections and the backup connections being
established after establishing the backup machine for the applications."
App. Br. 7-8; Reply Br. 5. We disagree. As the Examiner points out,
Bhanot teaches that "a secondary connection to a backup server is specified"
at the same time as a connection is made to a primary server. Final Act. 3
(citing Bhanot, col. 2, 11. 39--43). As such, Bhanot at least suggests that the
backup server is established prior to the primary server connections and the
backup server connections. Moreover, choosing from a finite number of
identified, predictable solutions, (e.g. establishing the backup server before,
after, or at the same time as providing connections with the primary and
backup servers) with a reasonable expectation of success would have been
obvious to try at the time of the invention. See MPEP § 2143 (E).
Next, Appellant asserts that Bhanot "does not even show 'virtual
machine[s]'" as required by claim 1. App. Br. 8. The Examiner, however,
relies on Nelson, not Bhanot, for this limitation. Final Act. 3--4. Similarly,
Appellant contends that Nelson fails to teach or suggest "anything related to
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providing" the recited primary and backup connections (App. Br. 9), but the
Examiner relies on Bhanot for these limitations. Final Act. 3--4.
We find these arguments unpersuasive. One cannot show
nonobviousness by attacking references individually where the rejections are
based on combinations of references. See In re Keller, 642 F.2d 413, 426
(CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986).
Accordingly, for the reasons discussed above and by the Examiner,
claims 1, as well as claims 2, 3, 8-10 and 15-17 not argued with
particularity (see App. Br. 10), are unpatentable over Bhanot and Nelson.
THE OBVIOUSNESS REJECTION BASED ON BRANOT, NELSON, AND ELZUR
Claims 4, 5, 7, 11, 12, 14, 18and19
Appellant does not separately argue patentability for dependent claims
5, 7, 11, 12, 14, 18 and 19 and, instead, relies on the arguments presented for
claim 1. See App. Br. 10-11. For the reasons discussed above, we find
these arguments unpersuasive.
With respect to claims 4, 11, and 18, Appellant contends that the
combination of Bhanot, Nelson, and Elzur fails to teach "where the device
utilizes a continuous loop protocol to establish the primary virtual machine
and the backup virtual machine." App. Br. 11-13. Specifically, Appellant
admits that Elzur' s network device will use management protocols such as a
spanning tree protocol, but maintains that "[m]erely engaging in spanning
tree protocol on behalf of a network device does not disclose or suggest
utilizing 'a continuous loop protocol to establish the primary virtual machine
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and the backup virtual machine,' as recited in claim 4 (emphasis added)."
App. Br. 12; see also Reply Br. 7.
We find Appellant's arguments unpersuasive. The present
Specification identifies that the spanning tree protocol is an exemplary
continuous loop protocol. See, e.g., Spec. i-fi-1 45, 58. Further, the
Examiner's rejection merely relies on Elzur for teaching using a spanning
tree protocol to manage traffic between virtual machines. Final Act. 6; Ans.
8. In other words, it would have been obvious at the time of the invention to
modify the combination of Bhanot and Nelson, which already teaches
establishing primary and backup virtual machines, to use the spanning tree
protocol, as taught by Elzur, to manage traffic to the virtual machines so as
to designate or establish the primary and backup virtual machines. See Final
Act. 6.
Accordingly, for the reasons discussed above and by the Examiner,
claims 4, 5, 7, 11, 12, 14, 18 and 19 are unpatentable over the combination
ofBhanot, Nelson, and Elzur.
THE OBVIOUSNESS REJECTION BASED ON BRANOT, NELSON, AND CROFT
Claims 6, 13, and 20
Appellant contends that Bhanot, Nelson, and Croft combined fails to
teach "encrypting the traffic; and providing the encrypted traffic to the
applications via the primary virtual machine and the primary connections."
App. Br. 13. According to Appellant, Croft's teaching of including an
encryption driver for communications with the client if encryption is desired,
does not disclose or suggest "providing the encrypted traffic to
the applications via the primary virtual machine and the primary
connections," as recited in claim 6 (emphasis added). In fact,
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paragraph 0074 of CROFT et al. does not even mention a
"primary virtual machine," as recited in claim 6.
App. Br. 14.
The Examiner, however, does not rely on Croft for teaching a primary
virtual machine or primary connections, but rather relies on Croft as
teaching securely communicating between applications by encrypting traffic.
Final Act. 10. One cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references.
See Keller, 642 F.2d at 426; In re Merck & Co., Inc., 800 F.2d at 1097. As
such, we find Appellant's arguments unpersuasive.
Accordingly, for the reasons discussed above and by the Examiner,
claims 6, 13, and 20 are unpatentable over the combination ofBhanot,
Nelson, and Croft.
CONCLUSION
The Examiner did not err in rejecting claims 1-20 under§ 103.
DECISION
We affirm the Examiner's decision to reject claims 1-20.
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
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