Ex Parte Grib et al

Patent Trial and Appeal Board

Jun 25, 2013

09964232 (P.T.A.B. Jun. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte TIMOTHY E. GRIB and MICHAEL A. BROWN
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Appeal 2010-004190
Application 09/964,232
Technology Center 2400
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Before JEFFREY S. SMITH, JASON V. MORGAN, and
LYNNE E. PETTIGREW, Administrative Patent Judges.

PETTIGREW, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-29. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
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STATEMENT OF THE CASE
Introduction
Appellants’ invention relates to communications and computer
systems, and more particularly to performance measurement of different
network routes between devices. Spec. 1:7-9.
Claims 1, 15, 16, and 21 are independent. Claim 1 is illustrative of
the invention (disputed limitation in italics):
1. A method performed by one or more components
in a network comprising a plurality of paths between a first
device and a second device, the method comprising:
conducting a first performance test of a first type over a
first path of the plurality of paths between the first and second
devices;
conducting a second performance test of the first type
over a second path of the plurality of paths between the first and
second devices; and
wherein a processor initiates the simultaneous execution
of the first and the second non-sequential performance tests.
Rejections on Appeal
The Examiner has rejected claim 15 under 35 U.S.C. § 101 as being
directed to non-statutory subject matter. Ans. 3-4.
The Examiner has rejected claims 1-4 and 15-17 under 35 U.S.C.
§ 102(e) as being anticipated by Beaven (US 5,627,766, May 6, 1997). Ans.
5-9.
The Examiner has rejected claims 5-9, 13, and 18-29 under 35 U.S.C.
§ 103(a) as being unpatentable over Beaven and Mayton (US 6,763,380 B1,
July 13, 2004). Ans. 9-17.
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The Examiner has rejected claims 10, 11, and 14 under 35 U.S.C.
§ 103(a) as being unpatentable over Beaven, Mayton, and Silva (US
6,360,268 B1, Mar. 19, 2002). Ans. 17-19.
The Examiner has rejected claim 12 under 35 U.S.C. § 103(a) as
being unpatentable over Beaven, Mayton, and Zhou (2003/0036865 A1, Feb.
20, 2003). Ans. 19-20.
ISSUES
(1) Did the Examiner err in rejecting claim 15 under 35 U.S.C. § 101
as being directed to non-statutory subject matter?
(2) Does Beaven disclose “wherein a processor initiates the
simultaneous execution of the first and the second non-sequential
performance tests,” as recited in claim 1?
(3) Does Beaven disclose “presenting a service level performance
comparison based on the first and second sets of results” as recited in claim
2?
ANALYSIS
Rejection under 35 U.S.C. § 101
Claim 15 is directed to “[a] computer-readable medium containing
computer-executable instructions for performing a method.” Appellants’
Specification provides that a “computer-readable medium is an extensible
term including . . . signaling mechanisms . . . , as well as any
communications devices and signals received and transmitted.” Spec. 8:4-7.
In view of Appellants’ disclosure, the Examiner finds that “computer-related
medium” is not limited to tangible embodiments and therefore the claim is
directed to non-statutory subject matter. Ans. 4, 20.
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We are not persuaded by Appellants’ arguments that the Examiner
erred. First, we disagree with Appellants’ contention that a “signaling
mechanism” is necessarily a physical device. See App. Br. 11. Second, we
are not persuaded that “signals received and transmitted” are described only
in conjunction with a communications device. See id. We agree with the
Examiner that in view of Appellants’ Specification, the broadest reasonable
interpretation of “computer-readable medium” includes “signals received
and transmitted.” See Ans. 4, 20.
For these reasons, we sustain the Examiner’s rejection of claim 15
under 35 U.S.C. § 101. See In re Nuijten, 500 F.3d 1346, 1356-57 (Fed. Cir.
2007) (holding that transitory signals are not patent-eligible subject matter
under 35 U.S.C. § 101); Subject Matter Eligibility of Computer Readable
Media, 1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010).
Rejection under 35 U.S.C. § 102(e)
Claim 1
The Examiner finds that Beaven discloses all of the limitations of
claim 1. Ans. 5-6. In particular, the Examiner finds that Beaven discloses
“wherein a processor initiates the simultaneous execution of the first and the
second non-sequential performance tests,” as recited in claim 1. Ans. 6
(citing Beaven, col. 4, ll. 8-13).
Appellants contend the Examiner erred because Beaven describes
executing performance tests along a first and second path from two distinct
points of control (POCs) and not from a single processor as recited in claim
1. App. Br. 13. Appellants also argue that “although Beaven may be read as
describing initiating a single test that may be dispersed into multiple tests
after being received by the initial [node], the only description of
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simultaneous execution of two tests are [sic] in conjunction with separate
POCs.” App. Br. 15. Appellants further contend that “at best, . . .
simultaneous monitoring of network paths may be accomplished via the
multiple POCs,” and a skilled artisan would understand that monitoring
“means observing/measuring the effect, result, or response of an actual
occurrence of a given event, and not the initiation of the event.” App. Br.
14.
Appellants have not persuaded us that the Examiner erred. Beaven
discloses that a POC injects a test message into the network by sending the
test message to another node. Beaven, col. 2, ll. 44-48; Ans. 5. That node
sends a reply message to the POC and forwards a test message to adjacent
nodes. Beaven, col. 2, ll. 50-54. This process is repeated by each
subsequent receiving node. Id., col. 2, ll. 55-59. The POC analyzes the
received reply messages to determine the performance of links in the
network, including links for first and second paths between two devices in
the network. See Beaven, col. 2, ll. 60-65; col. 3, ll. 19-24. Based on these
disclosures, we agree with the Examiner that the POC in Beaven initiates
performance tests of alternate paths between two nodes or devices when it
sends the initial test message, and thus Beaven discloses a processor that
initiates execution of first and second performance tests, as recited in claim
1. See Ans. 6, 21. We also find that performance tests of alternate paths
between two nodes or devices are executed simultaneously, as recited in
claim 1.
For at least these reasons, we sustain the Examiner’s § 102(e)
rejection of claim 1 and claims 15 and 16, each of which recites a similar
limitation.
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Claim 2
Claim 2 depends from claim 1 and further recites “presenting a
service level performance comparison based on the first and second sets of
results.” Appellants contend that “there appears to be no description of a
presentation of a comparison made by the POC of Beaven.” App. Br. 16.
We disagree. As correctly found by the Examiner, Beaven discloses that the
POC analyzes link performance and displays the results of the analysis, i.e.,
presents a performance comparison of the test results. Ans. 6, 22; Beaven,
col. 3, ll. 19-24; col. 13, ll. 32-37.
For at least these reasons, we sustain the Examiner’s § 102(e)
rejection of claim 2 and claim 17, which recites a similar limitation, as well
as claims 3 and 4, which depend from claim 2 and are not separately argued.
Rejections under 35 U.S.C. § 103(a)
Appellants do not make separate arguments regarding the Examiner’s
rejections of claims 5-14 and 18-29 under 35 U.S.C. § 103(a) except that the
secondary references do not overcome the alleged deficiencies of Beaven.
App. Br. 16-18. We therefore affirm the Examiner’s § 103(a) rejections for
the same reasons discussed with respect to claims 1 and 2.
DECISION
The Examiner’s rejections of claims 1-29 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
ELD