Ex Parte Ferlitsch

Board of Patent Appeals and Interferences

Mar 4, 2010

10650657 (B.P.A.I. Mar. 4, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ANDREW RODNEY FERLITSCH
____________________

Appeal 2009-004101
Application 10/650,657
Technology Center 2100
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Decided: March 5, 2010
____________________

Before JEAN R. HOMERE, JAY P. LUCAS, and THU A. DANG,
Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-004101
Application 10/650,657

I. STATEMENT OF CASE
Appellant appeals the Examiner’s final rejection of claims 1-47 under
35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

A. INVENTION
According to Appellant, “[t]he present invention addresses the
problem of obtaining information from one or more devices, by selectively
using a plurality of query methods” (Spec. 3, ll. 20-22).

B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary and reproduced below:

1. In a system of devices, a policy-driven method for
querying, the method comprising:

establishing a plurality of device communication query
policies, where each query policy is cross-referenced to
methods for communicating a query to a device;

accepting a query, from a client, directed to a device;

selecting a query policy; and,

sending the query to an agent representing the device,
using a method responsive to the selected query policy.

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C. REJECTION
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Mandal US 6,170,009 B1 Jan. 2, 2001
Aggarwal US 6,985,944 B2 Jan. 10, 2006

Claims 1-47 stand rejected under 35 U.S .C. § 103(a) as being
unpatentable over the teachings of Aggarwal in view of Mandal.1

II. ISSUE
Has Appellant shown the Examiner erred in finding that the
combination of Aggarwal and of Mandal would have taught or suggested
selecting one of a “plurality of device communication query policies …
cross-referenced to methods for communicating a query to a device” and
querying “an agent representing the device, using a method responsive to the
selected query policy” (claim 1)?

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Aggarwal
1) Aggarwal discloses a performance monitoring system that
collects fault information, via a proxy process, from data gathering elements
(“DGEs”) assigned to devices of different networks (col. 3, l. 4 – col. 4, l.
28); i.e., the devices are tested/monitored by the DGE’s (col. 6, ll. 57-62).
1 The rejection of claims 1 and 25 under 35 U.S.C. § 112, first paragraph
(written description requirement), has been withdrawn (Ans. 2).

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2) During system configuration, performance tests and DGE’s are
associated with the tested devices (col. 5, l. 43 – col. 6, l. 5) and related
queries are issued to the DGE’s (col. 4, ll. 62-67).
3) In one example, Internet Control Message Protocol (“ICMP”)
network monitors use the ICMP protocol to check the reachability of hosts
on an Internet Protocol (“IP”) network (col. 7, ll. 14-16).
4) In another example, a Simple Network Management Protocol
(“SNMP”) manager uses an SNMP agent to monitor and control a managed
device (col. 8, ll. 51-60).
Mandal
5) Mandal discloses a system that allows an operator to specify,
via a graphical user interface (GUI), one of multiple policies for controlling
devices of a network (Abstract; col. 3, ll. 51-61).
6) The specified policy is automatically translated into device-
specific commands, which are sent to the devices (col. 3, ll. 61-67).
7) “Dynamic entries” specify parameters of the different policies
(col. 4, ll. 15-20; Fig. 2) and create corresponding policy objects, each of
which includes data and methods that implement an associated policy (col.
4, ll. 21-29).
8) The policy objects use device adapters to communicate with the
devices via device-specific communication protocols, e.g., Network File
System (NFS), database (DB), and Internet (IP) protocols (col. 4, ll. 31-43;
Fig. 2).

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Application 10/650,657

IV. PRINCIPLES OF LAW
Claim Interpretation
The claims measure the invention. See SRI Int’l v. Matsushita Elec.
Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc). “[T]he PTO gives
claims their ‘broadest reasonable interpretation.’” In re Bigio, 381 F.3d
1320, 1324 (Fed. Cir. 2004) (quoting In re Hyatt, 211 F.3d 1367, 1372 (Fed.
Cir. 2000)). “Moreover, limitations are not to be read into the claims from
the specification.” In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993)
(citing In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989)).
35 U.S.C. § 103(a)
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007).
In KSR, the Supreme Court emphasized “the need for caution in
granting a patent based on the combination of elements found in the prior
art,” and discussed circumstances in which a patent might be determined to
be obvious. Id. at 415 (citing Graham v. John Deere Co., 383 U.S. 1, 12
(1966)). The Court reaffirmed principles based on its precedent that “[t]he
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” Id. at 416.
The operative question in this “functional approach” is thus “whether the
improvement is more than the predictable use of prior art elements according
to their established functions.” Id. at 417.
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In affirming a determination of obviousness, the Federal Circuit has
relied, in part, on an applicant’s failure to present evidence that the proposed
combination of teachings was “uniquely challenging or difficult for one of
ordinary skill in the art” or “represented an unobvious step over the prior
art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed.
Cir. 2007) (citing KSR, 550 U.S. at 418-19).

V. ANALYSIS
As to independent claim 1, Appellant argues that the combination of
Aggarwal and Mandal does not teach or suggest the claimed invention
because “Aggarwal’s query method is not driven in consideration of a query
policy” (App. Br. 7); and because “[u]nlike the Applicant’s explicit
recitation of a device communication query policy, Mandal describes a more
abstract concept of policy as a system level behavior” (id. at 8). Appellant
further argues that “[i]t would be understood by an expert reading the
Applicant’s specification that a query method is the specific protocol used to
by a client to query a device” (id.) and, thus, “Mandal’s concept of policy
has little application to the Applicant’s query policy” (id. at 9).
However, the Examiner finds that “Aggarwal discloses a method of
distributing queries in a distributed system to monitor and gather
performance data regarding devices of the system” (Ans. 11); and that
Mandal “teaches selecting a query policy as a user specifying a high level
policy” (id. at 13). The Examiner states that Mandal’s teachings would have
provided Aggarwal’s system “the benefit of specifying a high-level policy
for monitoring devices” and using “policy objects … that can include
methods for implementing the associated policy” (id.; citation omitted).
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Appeal 2009-004101
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Thus, an issue we address on appeal is whether Appellant has shown
the Examiner erred in finding that the combination of Aggarwal and Mandal
would have taught or suggested selecting one of a “plurality of device
communication query policies … cross-referenced to methods for
communicating a query to a device” and querying “an agent representing the
device, using a method responsive to the selected query policy” (claim 1).
We begin our analysis by giving the claims their broadest reasonable
interpretation. See In re Bigio, 381 F.3d at 1324. Furthermore, our analysis
will not read limitations into the claims from the specification. See In re
Van Geuns, 988 F.2d at 1184.
Contrary to Appellant’s arguments, neither claim 1 nor Appellant’s
disclosure precludes the recited “query policy” from relating to system-level
behavior or requires it to relate to communication protocols. Claim 1 merely
recites that the “query policy” is selected from “device communication
query policies … cross-referenced to methods for communicating a query to
a device” and that a query is sent a device agent “using a method responsive
to the selected query policy.” Appellant’s disclosure merely states that “the
term ‘query policy’ means one or more groups of query methods” and
provides a list of communication protocols that query methods may include
(Spec. 4, ll. 5-13). Therefore, we will not confine the meaning of “query
policy” or “method” to the definitions asserted by Appellant’s arguments.
Rather, in addition to its recited meaning, we interpret a “query policy” as
being one or more groups of methods for querying devices.
Aggarwal discloses a system that queries data gathering elements
(“DGEs”) used for testing/monitoring devices (FF 1). During system
configuration, tests and DGE’s are associated with devices and related
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queries are issued to the DGE’s (FF 2). An ordinarily skilled artisan would
have understood Aggarwal’s system as querying a device agent, as required
by claim 1, by way of sending queries to the DGE’s.
Mandal discloses a system that specifies, via a GUI, one of multiple
policies for controlling devices (FF 5). A specified policy is translated into
device-specific commands, which are sent to the devices (FF 6). A
“dynamic entry” specifies the parameters of the policy and creates a “policy
object” defining the data and methods that implement the policy (FF 7). The
policy objects use device adapters to communicate with the devices via
device-specific protocols, e.g., NFS, DB, and IP protocols (FF 8).
The ordinarily skilled artisan would have understood Mandal’s
specifying of a policy as teaching or suggesting the recited selecting of a
“query policy,” because Mandal’s policies are each cross-referenced to one
or more groups of methods for querying devices. More particularly, the
device-specific commands of each policy are cross-referenced to a policy
object (via a dynamic entry) for implementing that policy and, in turn, cross-
referenced to the device-specific communication protocols (via the device
adapters) that allow the policy object to communicate with the devices.
We agree with the Examiner’s finding that it would have been
obvious, in view of Mandal, to give Aggarwal’s system a means of
establishing query policies (e.g., GUI instructions) and corresponding policy
objects having methods to implement those policies (Ans. 13). Mandal’s
teachings would also give Aggarwal’s system a means of associating those
policies with the device-specific protocols needed to communicate related
queries. In that regard, we note that Aggarwal’s system also uses device-
specific protocols, e.g., SNMP and ICMP (FF 3-4).
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We conclude that the above application of one known element
(Aggarwal’s querying of a device agent to monitor devices) with another
known element (Mandal’s selection of policies cross-referenced to
respective methods for communicating with devices) would have yielded
predictable results to a skilled artisan. That is, selecting a policy (reference
by Mandal’s GUI instructions) to query device agents (Aggarwal’s DGE’s)
via query methods cross-referenced to that policy (by Mandal’s policy and
device objects) is no more than a simple arrangement of old elements
performing their known functions and yields no more than expected results.
See KSR, 550 U.S. at 417. Further, Appellant has presented no evidence that
such an arrangement of known elements was “uniquely challenging or
difficult for one of ordinary skill in the art” or otherwise “represented an
unobvious step over the prior art.” Leapfrog, 485 F.3d at 1162 (citing KSR,
550 U.S. at 418-19).
For the above reasons, Appellant has not shown the Examiner erred in
finding that the combination of Aggarwal and Mandal would have taught or
suggested the selecting one of a “plurality of device communication query
policies … cross-referenced to methods for communicating a query to a
device” and querying “an agent representing the device, using a method
responsive to the selected query policy” (claim 1).
Accordingly, Appellant has not shown the Examiner erred in rejecting
claim 1, and dependent claims 2-24 falling therewith, under 35 U.S.C. §
103(a) as unpatentable over the combination of Aggarwal and Mandal. As
Appellant does not provide separate arguments for independent claim 25,
claim 25 and dependent claims 26-47 fall with representative claim 1. See
37 C.F.R. § 41.37(c)(1)(vii). We therefore also affirm the rejection of
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claims 25-47 under 35 U.S.C. § 103(a) as unpatentable over the combination
of Aggarwal and Mandal.

VI. CONCLUSION
Appellant have not shown the Examiner erred in finding that claims
1-47 are unpatentable over the combination of Aggarwal and Mandal.

VII. DECISION
We affirm the Examiner’s decision rejecting claims 1-47 under
35 U.S.C. § 103(a).
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

peb

GERALD W. MALISZEWSKI
THE LAW OFFICE OF GERALD MALISZEWSKI
P.O. BOX 270829
SAN DIEGO, CA 92198-2829
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