Ex Parte Faulk

Patent Trial and Appeal Board

Sep 20, 2016

10868093 (P.T.A.B. Sep. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
10/868,093 06/14/2004 Robert L. Faulk JR.
56436 7590 09/22/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82169156 5075
EXAMINER
DAVENPORT, MON CHERI S
ART UNIT PAPER NUMBER
2462
NOTIFICATION DATE DELIVERY MODE
09/22/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT L. FAULK, JR.
Appeal2015-002030
Application 10/868,093
Technology Center 2400
Before ERIC S. FRAHM, JOHN A. EV ANS, and LINZY T. McCARTNEY,
Administrative Patent Judges.
McCARTNEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
1, 2, 4--12, 14, 16, 18-23, 25-33, 35, 37, and 39--43. The Examiner objected
to claims 13, 15, 17, 34, 36, and 38 as dependent on a rejected base claim
but otherwise allowable. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal2015-002030
Application 10/868,093
STATEMENT OF THE CASE
The present patent application concerns "an apparatus and method for
rate limiting of events." Spec. 1 :7-8. Claim 1 illustrates the claimed subject
matter:
1. A method for rate limiting of events, the method
compnsmg:
monitoring and processing, via a network device, a
plurality of event instances of an event type, the plurality of event
instances received by the network device over a network;
said event type comprising a type of network traffic in the
network;
determining whether a first count value of a first event
instance in said monitored and processed plurality of event
instances meets or exceeds a suspension threshold value
associated with the first event instance;
suspending, via the network device, the first event instance
in response to a determination that the first count value of the
first event instance meeting or exceeding the suspension
threshold value;
determining whether a second count value of a second
event instance in said monitored and processed plurality of event
instances meets or exceeds another suspension threshold value
associated with the second event instance; and
suspending, via the network device, the second event
instance in response to a determination that the second count
value of the second event instance meeting or exceeding the
another suspension threshold value.
REJECTIONS
Claims 1, 2, 4--10, 14, 19, 20, 22, 23, 25-31, 35, 40, 41, and 43 stand
rejected under 35 U.S.C. § 103(a) as unpatentable over Barnard (US
2
Appeal2015-002030
Application 10/868,093
2004/0030537 Al; Feb. 12, 2004) ("Barnard") and Topper (US 5,642,483
June 24, 1997) ("Topper").
Claims 11, 12, 16, 18, 21, 23, 32, 33, 37, 39, and 42 stand rejected
under 35 U.S.C. § 103(a) as unpatentable over Barnard, Topper, and one of
Costa (US 2002/0156767 Al; Oct. 24, 2002) ("Costa"), Balogh (US
6,681,228 B2; Jan. 20, 2004), Gary (US 7,133,912 Bl; Nov. 7, 2006), and
Nemes (US 5,287,499; Feb. 15, 1994).
ANALYSIS
Independent Claim 1
Appellant contends the Examiner's combination of Barnard and
Topper fails to teach or suggest the following limitations recited in claim 1:
monitoring and processing, via a network device, a
plurality of event instances of an event type, the plurality of event
instances received by the network device over a network;
suspending, via the network device, the second event
instance in response to a determination that the second count
value of the second event instance meeting or exceeding the
another suspension threshold value.
See App. Br. 8-11; Reply Br. 5-7. According to Appellant, "the Examiner
appears to assert that the notification messages discussed in Topper are
equivalent to the first event instance recited in independent claim l ." App.
Br. 9. Appellant argues "Topper clearly fails to disclose that those
notifications of changes are counted .... Instead, Topper discusses that the
broadcast notification messages are counted and compared with a broadcast
counter maximum value." Id. (emphases omitted). Moreover, Appellant
contends "in Topper the device (network device) that broadcasts the
3
Appeal2015-002030
Application 10/868,093
notification messages and counts the number of broadcast notification
messages does not also appear to receive the broadcasted notification
messages." Id. Appellant argues this arrangement is contrary to claim 1,
which "recites that the network device both receives the event instances and
suspends the first event instances." Id. at 10.
We find Appellant's arguments unpersuasive. Appellant asserts the
Examiner mapped Topper's notification messages to the recited "first event
instance" and Topper's "device ... that broadcasts the notification
messages" to the claimed "network device." See id. at 9-10. But the
Examiner found Barnard teaches most of the limitations and elements
recited in claim 1, including the "first event instance" and "network device."
See Non-Final Act. 3--4. The Examiner found Barnard failed only to
"specifically point out suspending for the first event instance in response to a
determination that the first/second count value of the first event instance
meeting or exceeding the suspension threshold value." Id. at 4. The
Examiner found Topper disclosed a method of suspending message
transmission and concluded the combination of Barnard's and Topper's
teachings would have suggested the claimed subject matter. Id. at 4; Ans. 3.
Appellant's arguments address Topper individually when the Examiner
relied on a combination of Barnard's and Topper's teachings. "[O]ne cannot
show non-obviousness by attacking references individually where, as here,
the rejections are based on combinations of references." In re Keller, 642
F.2d 413, 426 (CCPA 1981).
Appellant also contends "at best, the proposed combination of
Barnard and Topper would result in the limiting of the sending of
notification messages concerning changes to a user's status and not to a
4
Appeal2015-002030
Application 10/868,093
suspension of the user status broadcast messages as the Examiner suggests."
App. Br. 10-11; see also Reply Br. 6. Moreover, citing In re Ratti,
Appellant argues the Examiner's proposed combination would change
Barnard's principle of operation because "Barnard fails to disclose that the
threshold event organizer is able to control any actions with respect to the
collection of the heterogeneous scalar measurement data." App. Br. 11; see
also Reply Br. 7.
We find Appellant's arguments unpersuasive. Appellant fails to
provide persuasive evidence or reasoning to support Appellant's contention
that the Examiner's "combination of Barnard and Topper would result in the
limiting of the sending of notification messages concerning changes to a
user's status and not to a suspension of the user status broadcast messages."
App. Br. 10-11. Simply asserting this would be the case does not make it
so. Moreover, to the extent this assertion assumes that one of ordinary skill
in the art would slavishly apply Topper's teachings to Barnard's invention,
we note "[a] person of ordinary skill is also a person of ordinary creativity,
not an automaton." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007).
Appellant has also failed to provide persuasive evidence or reasoning
to support Appellant's argument that the Examiner's combination would
change Barnard's principle of operation. In the case cited by Appellant to
support this argument, In re Ratti, the Court of Customs and Patent Appeals
found the proposed combination "would require a substantial reconstruction
and redesign of the elements shown in [a cited prior art reference] as well as
a change in the basic principles under which the [reference] construction was
designed to operate." In re Ratti, 270 F.2d 810, 813 (CCPA 1959).
Appellant's assertion that Barnard does not disclose the threshold event
5
Appeal2015-002030
Application 10/868,093
organizer can suspend certain actions does not demonstrate that modifying
Barnard's organizer to do so would "require a substantial reconstruction and
redesign" of the organizer or "change in the basic principles under which
the" organizer was designed to operate. See id. Moreover, Appellant's
argument, taken to its logical conclusion, would preclude most prior art
combinations, as combinations of prior art often involve modifying a prior
art reference to include features the reference does not disclose. We do not
understand In re Ratti to support such a sweeping proposition.
Dependent Claim 11
Claim 11 depends from claim 1 and recites "deleting, via the network
device, for event instances of the plurality of event instances that do not
occur within a maximum age time value, identifiers and eventKeys
associated with the event instances." App. Br. 20. Appellant argues Costa
fails to teach or suggest this limitation. Id. at 13. In particular, Appellant
asserts "Costa discusses the deletion of data based upon how long ago the
data was stored or created," but in claim 11 "the deletion of the identifiers
and the eventKeys of event instances is based upon the time value of the
occurrence of an event instance and not based upon the length of time that
the identifiers and the eventKeys of event instances have been stored." Id.
(emphases added).
We find Appellant's arguments unpersuasive. Appellant's conclusory
argument does not explain why storing identifiers and eventKeys of event
instances is not an "occurrence" of an event instance. Id. Moreover, even if
Appellant were correct that storing is not an "occurrence," Appellant admits
that the cited portions of Costa concern the creation of data, and Appellant
6
Appeal2015-002030
Application 10/868,093
has not addressed this aspect of Costa. Id. Accordingly, we find
Appellant's arguments unpersuasive and sustain the Examiner's rejection of
claim 11. Because Appellant argues claims 21, 32, and 42 together with
claim 11, see id., we also sustain the rejection of these claims.
Remaining Claims
Appellant has not presented separate, persuasive patentability
arguments for claims 2, 4--10, 12, 14, 16, 18-20, 22, 23, 25-31, 33, 35, 37,
39--41, and 43. We therefore sustain the Examiner's rejections of these
claims.
DECISION
For the above reasons, we affirm the rejections of claims 1, 2, 4--12,
14, 16, 18-23, 25-33, 35, 37, and 39--43.
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
7