Ex Parte HansenDownload PDFPatent Trial and Appeal BoardFeb 24, 201411140288 (P.T.A.B. Feb. 24, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ERIC J. HANSEN ____________________ Appeal 2011-011146 Application 11/140,288 Technology Center 2400 ____________________ Before JOHN C. KERINS, EDWARD A. BROWN, and MICHAEL L. HOELTER, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-011146 Application 11/140,288 2 STATEMENT OF THE CASE Eric J. Hansen (Appellant) appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1-7, 9, 11, 13-16, 18-20, and 22-28.1 App. Br. 8. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. CLAIMED SUBJECT MATTER Claims 1, 3, 14, and 23 are the independent claims on appeal. Claim 1 is illustrative of the claimed subject matter and reads: 1. A method of testing a target server’s website visitor actions, the method comprising: a reverse proxy server receiving a request from an electronic device operated by a visitor; said reverse proxy server requesting and retrieving content from a target server; modifying said content for testing; said reverse proxy server sending modified content to said electronic device; and tracking actions of said visitor. REJECTIONS I. Claim 1 stands rejected under 35 U.S.C. § 102(e) as anticipated by George (US 2005/0144315 A1; pub. Jun. 30, 2005). 1 Claims 8, 10, 12, 17, 21, and 29-31 have been cancelled. Appellant does not include dependent claim 19 in the “GROUNDS OF REJECTION TO BE REVIEWED ON APPEAL.” App. Br. 8. However, Appellant argues for the patentability of claim 19. Id. at 18. Thus, we include dependent claim 19 within our review. Appeal 2011-011146 Application 11/140,288 3 II. Claim 2 stands rejected under 35 U.S.C. § 103(a) as unpatentable over George and Louviere (US 6,934,748 B1; iss. Aug. 23, 2005). III. Claims 3, 5-7, 9, 11, 13-16, 18-20, and 22-28 stand rejected under 35 U.S.C. § 103(a) as unpatentable over George, Louviere, and Lockwood (US 7,093,023 B2; iss. Aug. 15, 2006). IV. Claim 4 stands rejected under 35 U.S.C. § 103(a) as unpatentable over George, Louviere, Lockwood, and Domi (US 6,202,201 B1; iss. Mar. 13, 2001). ANALYSIS Rejection I Regarding claim 1, the Examiner found that George teaches, inter alia, “a reverse proxy server” (proxy/surrogate server 404) that performs the steps of the recited method. Ans. 4. For support that the proxy/surrogate server 404 of George is a reverse proxy server, the Examiner found that George’s proxy/surrogate server 404 can accept requests as though it were a web server and is used in the same manner as the reverse proxy server in claim 1. Id. at 15-16 (citing George, para. [0077]). The Examiner also found that RFC 30402 states that “[d]evices commonly known as ‘reverse proxies’ and ‘(origin) server accelerators’ are both more properly defined as surrogates.” RFC 3040 at 6; see also Ans. 17. The Examiner concluded that one of ordinary skill in the art would interpret a surrogate server as a reverse 2 I. Cooper et al., Internet Web Replication and Caching Taxonomy, Network Working Group Request for Comments: 3040, 1-31 (Jan. 2001), available at http://www.ietf.org/rfc/rfc3040.txt (last visited Dec. 19, 2009) (hereinafter “RFC 3040”). Appeal 2011-011146 Application 11/140,288 4 proxy server, and that George’s proxy/surrogate server 404 is a surrogate server. Ans. 17. In contrast, Appellant contends that George’s proxy/surrogate server 404 is not a “reverse proxy server,” but instead is a “forward proxy server.” App. Br. 10-11. Appellant agrees with the Examiner that RFC 3040 shows that a surrogate server is a reverse proxy server; however, Appellant contends that the proxy/surrogate server 404 of George is not a surrogate server as defined in RFC 3040. Id. at 11-12. Rather, Appellant contends that a surrogate server as defined in RFC 3040 must be linked to providing cached content from one or more specific origin servers, and must be delegated authority to operate on behalf of the origin server. Id. at 11. Appellant contends that the proxy/surrogate server 404 of George does not have these characteristics, and in support, provides three Declarations3 as evidence to show that one of ordinary skill in the art, upon reading George’s disclosure, would recognize that George discloses a forward proxy server, not a reverse proxy server. Id. at 12. Appellant contends that the Examiner ignored the Declarations by failing to address them. Id. at 12-13. We agree with Appellant that the Examiner did not indicate in the record that the Declarations were considered. “Evidence traversing rejections, when timely presented, must be considered by the examiner whenever present.” Manual of Patent Examining Procedure (MPEP) § 716.01 (8th ed., rev. 9, Aug. 2012) (emphasis added). “Affidavits and declarations submitted under 37 CFR 1.132 and other evidence traversing rejections are considered timely if submitted . . . prior to a final rejection.” 3 The three Declarations are Declarations of Eric Hansen, Paul Silevitch, and Theodore Loder (hereinafter, collectively “Declarations”). Appeal 2011-011146 Application 11/140,288 5 Id. The Declarations were submitted by Appellant on July 1, 2010, prior to a Final Rejection dated September 15, 2010. Thus, the Declarations were timely presented by Appellant and, as such, should have been considered by the Examiner. “The ultimate determination of patentability must be based on consideration of the entire record, by a preponderance of [the] evidence, with due consideration to the persuasiveness of any arguments and any secondary evidence.” MPEP § 716.01(d); see In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). We find no indication that the Examiner considered the merits of the Declarations in either the Final Rejection or the Examiner’s Answer. Thus, the Examiner’s determination of anticipation was not based on consideration of the entire record, including all of Appellant’s arguments and supporting evidence. Therefore, we do not sustain the anticipation rejection of claim 1. Rejection II Claim 2 depends from claim 1. The Examiner’s reliance on Louviere does not cure the deficiencies of the rejection of claim 1, as described supra. Ans. 5-6. Hence, we do not sustain the obviousness rejection of claim 2 over George and Louviere. Rejection III Independent claims 3, 14, and 23 each require a “reverse proxy server.” The Examiner’s findings (Ans. 6-10) and Appellant’s contentions (App. Br. 13-18) regarding George in relation to these claims are similar to those discussed supra for claim 1. The Examiner’s application of Louviere and Lockwood does not cure the deficiencies of George. Ans. 6-9. Hence, we do not sustain the obviousness rejection of claims 3, 14, and 23, and their Appeal 2011-011146 Application 11/140,288 6 dependent claims 5-7, 9, 11, 13, 15, 16, 18-20, 22, and 24-28, over George, Louviere, and Lockwood. Rejection IV Claim 4 depends from claim 3. The Examiner’s reliance on Domi does not cure the deficiencies of the rejection of claim 3, as described supra. Ans. 14-15. Hence, we do not sustain the obviousness rejection of claim 4 over George, Louviere, Lockwood, and Domi. DECISION We REVERSE the Examiner’s rejections of claims 1-7, 9, 11, 13-16, 18-20, and 22-28. REVERSED hh Copy with citationCopy as parenthetical citation