Ex Parte Coughlin

Board of Patent Appeals and Interferences

May 5, 2009

10096135 (B.P.A.I. May. 5, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CHESLEY B. COUGHLIN
____________

Appeal 2008-3866
Application 10/096,135
Technology Center 2400
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Decided1: May 5, 2009
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Before LEE E. BARRETT, HOWARD B. BLANKENSHIP, and
CAROLYN D. THOMAS, Administrative Patent Judges.

BLANKENSHIP, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date.
Appeal 2008-3866
Application 10/096, 135

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STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-20, which are all of the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

Invention
Appellant’s invention relates to a method, load balancer, and
computer readable medium to access data from a plurality of servers. The
method comprises receiving a request for data, with the request including a
first transport protocol independent message (Fig. 2, 110; ¶ [0019]). The
request for data is sent to a first server of the plurality of servers (Fig. 2, 150;
¶ [0020]). The data is received from the first server through a session, and
the data includes a second transport protocol independent message (Fig. 2,
170; ¶ [0022]). A first session identifier that corresponds to the session is
added to the second transport protocol independent message (Fig. 2, 180; ¶
[0023]).

Representative Claim
1. A method of accessing data from a plurality of servers
comprising:
receiving a request for the data, the request comprising a first
transport protocol independent message;
sending the request to a first server of the plurality of servers;
receiving the data from the first server through a session, the
data comprising a second transport protocol independent message; and
adding a first session identifier that corresponds to the session
to the second transport protocol independent message.

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Application 10/096, 135

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Prior Art
Block US 6,658,473 B1 Dec. 2, 2003
Au US 2002/0174034 A1 Nov. 21, 2002

Examiner’s Rejections
Claims 1, 3-6, 8, 9, 11-13, 15, and 17-19 stand rejected under 35
U.S.C. § 102(e) as being anticipated by Block.
Claims 2, 7, 10, 14, 16, and 20 stand rejected under 35 U.S.C. § 103
as being unpatentable over Block and Au.

Claim Groupings
Based on Appellant’s arguments in the Appeal Brief in response to the
rejections, we will decide the appeal on the basis of claims 1 and 2. See 37
C.F.R. § 41.37(c)(1)(vii).

ISSUE
Does the meaning of a “transport protocol independent message”
recited in claim 1 include a message that is independent of the corresponding
protocol used to transport the message as disclosed by Block?

FINDINGS OF FACT
Block
1. Block discloses a method and apparatus for distributing load in
a multiple server computer environment (Abstract).
2. Services provide data from data sources to a desktop unit (col.
6, ll. 49-67).
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3. The data sources can come from the Internet, or from television
or radio signals (Fig. 1; col. 6, ll. 60-65).
4. The protocol of data that is output from a service is converted
to a standard protocol for the desktop unit (col. 7, ll. 3-12).
Au
5. Au teaches that a person of ordinary skill in the art at the time
of invention readily appreciated that protocols other than HTTP, such as
SOAP, could be used for interaction between clients and servers (¶ [0042]).
Appellant’s Specification
6. In one embodiment, a client accesses a load balancer and
servers using Simple Object Access Protocol (SOAP) messages (¶ [0015]).
7. SOAP version 1.1 was disclosed in a World Wide Web
Consortium note published May 8, 2000 (id.).
8. Although the described embodiments of Appellant’s invention
utilize SOAP messages, any known or future transport protocol independent
messages having a header may be used (¶ [0016]).

PRINCIPLES OF LAW
Claim Interpretation
During examination, claims are to be given their broadest reasonable
interpretation consistent with the specification, and the language should be
read in light of the specification as it would be interpreted by one of ordinary
skill in the art. In re Am. Acad. of Sci. Tech Ctr, 367 F.3d 1359, 1364 (Fed.
Cir. 2004) (citations omitted). The Office must apply the broadest
reasonable meaning to the claim language, taking into account any
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definitions presented in the specification. Id. (citing In re Bass, 314 F.3d
575, 577 (Fed. Cir. 2002)).
The burden is the applicant’s, not the USPTO’s, to precisely define
the invention. In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997).

Anticipation
For a prior art reference to anticipate in terms of 35 U.S.C. § 102,
every element of the claimed invention must be identically shown in a single
reference. However, this is not an “ipsissimis verbis” test. In re Bond, 910
F.2d 831, 832 (Fed. Cir. 1990).

ANALYSIS
Section 102 rejection of claims 1, 3-6, 8, 9, 11-13, 15, and 17-19
Appellant submits that Block does not disclose a “method of
accessing data from a plurality of servers comprising: receiving a request for
the data, the request comprising a first transport protocol independent
message” as recited in claim 1. (App. Br. 5.) However, Appellant does not
dispute that Block discloses a method of accessing data from a plurality of
servers. Appellant does not dispute that Block discloses, consistent with the
claim requirements, receiving and forwarding a request for data. Rather,
Appellant contends that Block does not disclose a request that comprises a
“transport protocol independent message” (Id. at 5-7).
Our primary task in this appeal is thus to determine the scope of
“transport protocol independent message.” According to Appellant, the
“transport protocol independent message” is described at paragraph [0019]
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of the Specification. (See App. Br. 4, in Summary of Claimed Subject
Matter section.)
At box 110 [Fig. 2], load balancer 30 receives a SOAP message
from client computer 10. The SOAP message includes a
request and is directed to a server or to a web site that is
concurrently located on each of servers 41-45. The SOAP
message may be sent via HTTP, SMTP, TCP, or any other
transport protocol. The SOAP message includes a header.

Spec. ¶ [0019].
The Specification further informs us that Simple Object Access
Protocol (SOAP) is an Extensible Markup Language (XML) based protocol
that is known in the prior art. (Spec. ¶ [0015].) Client/server interactions
may be deployed over a network using HyperText Transport Protocol
(HTTP), Transmission Control Protocol (TCP), or Simple Mail Transport
Protocol (SMTP).
Appellant does not allege that “transport protocol independent” has
any special recognized meaning in the art. Nor, for that matter, has
Appellant provided any extrinsic evidence of some special meaning
recognized by the ordinary artisan. Moreover, that a term may appear in the
prior art does not necessarily mean there is a particular, recognized meaning
known to the artisan sufficient to set out the metes and bounds of the subject
matter that Appellant wishes to exclude others from making, using, or
selling for a limited time.
In any event, the Specification does not provide any particular
limiting definition for the recitation in question. Even Appellant’s briefs do
not offer or allege any particular definition for the recitation upon which
Appellant bases the argument for patentability. Appellant’s argument thus
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reduces, in essence, to “whatever a ‘transport protocol independent message’
might include, Block does not have it.”
Appellant’s example of a “transport protocol independent message” in
the Specification is a message that conforms in format to a well known prior
art protocol that may be sent over a network using any of several well
known prior art transport protocols. We observe, however, that instant
claim 1 does not limit the “message” of the “transport protocol independent
message” to conform to any particular protocol. Claim 2, which the
Examiner rejects separately under § 103(a), does limit the “message” to a
particular known prior art protocol.
Based on the evidence Appellant has provided us, we conclude that a
“transport protocol independent message” is a message that is independent
of the transport protocol. That is, the message is independent of the
communications protocol that ensures reliable transmission and reception of
the message over the network. Thus, the information that is transmitted --
the message -- does not rely on the particular underlying communications
protocol for transmitting and receiving the message on the network.
The Examiner found, correctly, that Block discloses transporting a
message to a desktop unit that is independent of the underlying protocol
used in transporting the message (Ans. 6). For example, Internet, television,
and radio signals can be used to transport a data message to the desktop unit
(FF 3). The protocol of the transported message is then converted to a
standard protocol for the desktop unit (FF 4). The fact that the protocol of
the message is converted to a standard protocol without changing the
underlying message means that the message is “transport protocol
independent” within the meaning of claim 1.
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Appellant submits that being able to receive a data message from a
number of sources is not the same as being able to receive a transport
protocol independent message as required by claim 1 (Reply Br. 2, 4).
However, as found by the Examiner, “a message that is able to traverse a
plurality of disparate networks and media . . . is transport protocol
independent.” (Ans. 6.) Such a message is disclosed by Block (FF 3-4).
Being not persuaded of error in the rejection, we sustain the
Examiner’s rejection of claims 1, 3-6, 8, 9, 11-13, 15, and 17-19 under 35
U.S.C. § 102(e).

Section 103 rejection of claims 2, 7, 10, 14, 16, and 20
Appellant contends that claim 2 is allowable because Au fails to remedy the
deficiencies of Block as applied against base claim 1 (App. Br. 8).
However, Appellant has failed to show error in the Examiner’s rejection of
claim 1 as being anticipated by Block. Being not persuaded that claim 2 has
been rejected in error, we sustain the rejection of claim 2 under 35 U.S.C.
§ 103(a), and that of claims 7, 10, 14, 16, and 20, which fall with claim 2.

CONCLUSION OF LAW
The meaning of a “transport protocol independent message” recited in
claim 1 includes a message that is independent of the corresponding protocol
used to transport the message as disclosed by Block.

DECISION
The Examiner’s rejection of claims 1, 3-6, 8, 9, 11-13, 15, and 17-19
under 35 U.S.C. § 102(e) as being anticipated by Block is affirmed.
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The Examiner’s rejection of claims 2, 7, 10, 14, 16, and 20 under 35
U.S.C. § 103 as being unpatentable over Block and Au 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).

AFFIRMED

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