Ex Parte Haber

Board of Patent Appeals and Interferences

Mar 29, 2010

10740162 (B.P.A.I. Mar. 29, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LIOR HABER
____________

Appeal 2009-005081
Application 10/740,162
Technology Center 2100
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Decided: March 29, 2010
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Before JOHN A. JEFFERY, THU A. DANG, and JAMES R. HUGHES,
Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-7 and 9-23. Claim 8 has been cancelled. App. Br. 2.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.

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STATEMENT OF THE CASE
Appellant invented a performance management system that optimizes
web pages. See generally Spec. ¶¶ 0006. Claim 1 is reproduced below with
the key disputed limitations emphasized:
1. A method comprising:

receiving a request for a web page at a web server, wherein the
request issues from a web client;

inserting a callout to a performance management agent into the
requested web page, wherein the callout comprises an invocation of
the performance management agent;

sending the requested web page from the web server to the web
client; and

loading the performance management agent at the web client using
the callout in the requested web page.

The Examiner relies on the following as evidence of unpatentability:
Bland US 5,732,218 Mar. 24, 1998

THE REJECTION
The Examiner rejected claims 1-7 and 9-231 under 35 U.S.C. § 102(b)
as anticipated by Bland. Ans. 3-6.2

1 Although the Examiner mistakenly includes cancelled claim 8 in the
rejection, we deem this error harmless. See Ans. 3 and 5.
2 Throughout this opinion, we refer to (1) the Appeal Brief filed April 21,
2008; (2) the Examiner’s Answer mailed July 22, 2008; and (3) the Reply
Brief filed September 22, 2008.
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CLAIM GROUPING
Appellant argues the following claim groupings separately: (1) claims
1, 3-7, 9, 10, 12-17, and 19-23, and (2) claims 2, 11, and 18. See App. Br.
5-8; Reply Br. 6-9. Accordingly, we treat each group separately, and select
claim 1 as representative of group (1). See 37 C.F.R. § 41.37(c)(1)(vii).

THE ANTICIPATION REJECTION
Regarding representative independent claim 1, the Examiner finds that
Bland discloses all recited limitations, including: (1) returning a requested
home page containing a management data gathering request at step 206 (i.e.,
inserting a “callout” into the web page), and (2) gathering local management
data in the service management data file at step 210 (i.e., loading a
“performance management agent” at the web client using the “callout”).
Ans. 3-4.
Appellant argues that Bland’s discussion of the management data
gathering request and extensions does not disclose: (1) a callout to a
performance management agent, or (2) loading an agent using the callout as
claimed. App. Br. 6; Reply Br. 8-9. Appellant also contends that attaching
an add-on or a plug-in to the browser to implement the extension when a
request to collect service-management data is received is not loading the
agent using the callout as recited. App. Br. 6-7.
As for claims 2, 11, and 18, Appellant argues that Bland fails to
discuss cache memory and that Bland’s executing software on a client
machine does not determine whether the performance management agent
resides in a cache memory as claimed. App. Br. 7-8.

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The issues before us, then, are as follows:

ISSUES
Under § 102, has the Examiner erred by finding that Bland discloses:
(1) inserting a callout to a performance management agent into the
requested web page as recited in claim 1?
(2) loading the performance management agent at the web client using
the callout as recited in claim 1?
(3) determining whether the performance management agent resides
in a cache memory at the web client as recited in claim 2?

FINDINGS OF FACT (FF)
1. Appellant’s disclosure indicates that a performance management
agent 304 collects performance metrics 420 on the client computer 402.
Moreover, the agent “may comprise instructions which are expressed in a
scripted language (e.g., an applet)” and is executable by the client 402.
Spec. ¶ 0027-28; Figs. 3-4.
2. According to Appellant’s disclosure, a “callout” includes “callouts,
function calls, and other commands which are usable to invoke or retrieve
the performance management agent 304.” Spec. ¶ 0030; Fig. 5.
3. Bland discloses a client (e.g., 101 and 102) and server (e.g., 103
and 104) system. Each client includes a browser 130 through which the user
interacts with servers 103 and 104 to obtain information. Col. 2, ll. 55-61;
col. 3, ll. 3-6; Fig. 1.

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4. Bland’s clients 101 and 102 include extensions 131 to browser 130
that locally gather service management data and are associated with the
browsers 130, by either being implemented as add-on software to a
conventional web browser or integrated into a new browser. The
extensions’ functions are executed on clients 101 and 102 and may be
performed by software independent of browser 130. Col. 3, ll. 24-27 and
33-39; col. 5, ll. 52-53; Fig. 1.
5. Bland’s browser extension 131 collects management-related data
responsive to a request from client 101 at step 202. For example, a server
receives the client’s request, and returns the requested home page containing
a request to browser 130 to collect service management data or a
management-data gathering request to client 101 at step 206. Col. 4, l. 65 -
col. 5, l. 4; col. 5, ll. 45-50; Figs. 1-2.
6. Bland’s extensions 131 may be located either in the client or may
be included in server requests to the client to collect service management
data. When extensions 131 are included in a server request, the extension
131 is then installed on the client by a capability (e.g., Active X) that enables
browser 130 to attach “add-ons” or “plug-ins,” including applets, scripts, or
other programs. Col. 5, ll. 24-37 and 50-54; Fig. 1.
7. Upon receiving a service-management data request (e.g., step 208),
Bland’s browser 130 attaches an “add-ons” or “plug-in” to itself that
executes extensions 131 and starts gathering local management data on
client 101 at step 210. Col. 5, ll. 25-38 and 50-54; Figs. 1-2.

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ANALYSIS
Claims 1, 3-7, 9, 10, 12-17, and 19-23
We begin by construing a key disputed limitation of claim 1 which
calls for, in pertinent part, “inserting a callout to a performance management
agent into the requested web page.” While not defined in the Specification,
a “performance management agent” collects performance metrics on a client
computer (FF 1), and “may comprise instructions which are expressed in a
scripted language (e.g., an applet)” that are executable by the client. Id.
Thus, a “performance management agent” includes instructions executable
by a client that collect performance metrics. The Specification also states
that a “callout” includes “callouts, function calls, and other commands
which are usable to invoke or retrieve the performance management agent.”
FF 2. Thus, giving the phrase “inserting a callout to a performance
management agent into the requested web page” its broadest reasonable
interpretation in light of the Specification, the step includes inserting a
command to invoke or retrieve instructions executable by the client that
collect performance metrics. See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d
1359, 1364 (Fed. Cir. 2004) (internal citations omitted).
With this construction, we turn to Bland. As Appellant admits (App.
Br. 6), Bland’s process includes sending a requested web page containing a
data-gathering request at step 206. FF 5. By sending a requested web page
with this request (id.), Bland inserts a data-collecting request into the
requested web page. Additionally, responsive to the request, Bland’s
browser extensions 131 start gathering local management data (e.g.,
performance metrics) at step 210. FF 7. Thus, contrary to Appellant’s
assertions that the data-gathering request is too ambiguous to be a “callout”
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(Reply Br. 8), the data-gathering request inserted into the web page is at
least a command that invokes the browser extension 131 on the client to
collect performance metrics (i.e., a “callout”). See id.
Bland’s extensions 131 can also be included in server requests to the
client to collect service management data. FF 6. When extensions are
included in the server requests, the extension 131 is then installed (e.g.,
loaded) on the client by a capability (e.g., Active X) that enables browser
130 to attach “add-ons” or “plug-ins” to itself. See FF 4, 6, and 7. That is,
Bland’s extension 131 has instructions, such as applets, scripts, or other
programs, to collect the desired service-management data. To this end, this
extension is loaded at the web client upon receipt of a request (i.e., a
“callout”). See FF 5-7. Since these client-executable instructions that
collect service management data effectively constitute a “performance
management agent” (see FF 1), Bland therefore loads a “performance
management agent” (e.g., extension that includes instructions to collect
specific client data) at the web client using a “callout” (e.g., data collection
request).
We therefore disagree with Appellant that Bland’s disclosure is too
ambiguous to disclose the limitation of loading the agent at the client using a
callout. App. Br. 6; see also Reply Br. 8-9. Moreover, Appellant admits
that the extension add-ons are “attached” to the client’s browser (e.g., loaded
at the client) upon receiving the service-management data collection request.
See App. Br. 6 (quoting column 5, lines 34-38 of Bland). As discussed

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above, in light of the Appellant’s disclosure, we find the service-
management data collection request is a “callout.” As such, Bland therefore
loads a performance management agent at the web client using a callout as
recited in claim 1.
For the foregoing reasons, the Examiner has not erred in rejecting
representative claim 1, and claims 3-7, 9, 10, 12-17, and 19-23 which fall
with claim 1.

Claims 2, 11, and 18
We do, however, find error in the Examiner’s anticipation rejection of
claim 2 which calls for (1) determining whether the performance
management agent resides in a cache memory at the web client, and (2)
loading the agent from the cache memory based on this determination. We
agree with Appellant (App. Br. 7-8) that Bland does not disclose a cache
memory, let alone loading the agent from this cache memory as claimed.
Although Bland’s extensions 131 or agents can be included in the client or
sent with the server request (FF 6), Bland does not determine whether the
agent resides in the client and, even more specifically, resides in the client’s
cache memory. Moreover, the Examiner’s reliance of Bland’s executing
browser software on the client machine (Ans. 4) and storing gathered data in
client’s memory (Ans. 9) does not address whether the process also
determines whether a performance management agent (e.g., the extension)
resides in the client’s cache memory. Nor is there evidence on this record
that such an execution or storage would inherently determine whether the
agent resides in cache memory as claimed, let alone that the agent is loaded
from cache memory based on the recited determination.
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We therefore find that the Examiner erred in rejecting claim 2, and
claims 11 and 18 which recite commensurate limitations.

CONCLUSION
Under § 102, the Examiner did not err in rejecting claims 1, 3-7, 9, 10,
12-17, and 19-23, but erred in rejecting claims 2, 11, and 18.

ORDER
The Examiner’s decision rejecting claims 1-7 and 9-23 is affirmed-in-
part.
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-IN-PART

pgc

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