Ex Parte Hawkins et al

Patent Trial and Appeal Board

Oct 23, 2012

11377755 (P.T.A.B. Oct. 23, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JOSHUA HAWKINS, WILLIAM BROTHERS,
PHIL A. FLOCKEN, JAY SHAUGHNESSY, and
TRAVIS SCOTT TRIPP
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Appeal 2010-004040
Application 11/377,755
Technology Center 2400
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Before DENISE M. POTHIER, JEFFREY S. SMITH, and
JEREMY J. CURCURI, Administrative Patent Judges.

CURCURI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-004040
Application 11/377,755

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SUMMARY
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-4, 6-10, 12-20, and 22-24. Claims 5, 11, and 21 are
canceled. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
Claims 1-4, 6-10, 12-20, and 22-241 stand rejected under 35 U.S.C.
§ 103(a) as obvious over Sampath (US 6,892,317 B1; issued May 10, 2005;
filed Dec. 16, 1999). Ans. 3-5.
We affirm-in-part.

STATEMENT OF CASE
Appellants’ invention relates to receiving messages including error
information from client computers through a computer network.
Recommendations for resolving errors associated with the error information
are made available to the client computers through the network. Abstract.
Claim 1 is illustrative and reproduced below with the key disputed limitation
emphasized:
1. A computer product comprising:
first logic instructions on a computer readable storage device operable
in a first node to:
receive first messages including error information from a plurality of
client computers via a computer network;
transmit second messages to the client computers via the computer
network, wherein the second messages indicate availability of

1The rejection’s heading mistakenly includes canceled claims 5, 11, and 21.
See Ans. 3.
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recommendations for resolving errors reported with the error information;
and
discontinue accepting the first messages when the number of the first
messages received from one of the client computers exceeds a limit within a
specified time period.

CONTENTIONS2
The Examiner finds that Sampath teaches all recited limitations of
claim 1 except the key disputed limitation. The Examiner takes Official
Notice
that it [was] well known in the art at the time the invention was made
to discontinue accepting messages when the number of the messages
received from at least one of a plurality of client computers exceeds a
threshold within a specific time period and that Sampath would have
been motivated to do so for the purpose of [] providing a preventative
security measure for denial-of-service attacks.

Ans. 4; see also Ans. 3, 5-8.

Appellants argue:
Neither of [the examples provided by the Examiner when taking
Official Notice] take[s] into account that the number of message[s]
received exceeds a threshold within a specific time period. Even if a
network includes a switch or router with rate limiting, the cited
reference does not teach or suggest that the rate limiting discriminates

2 Rather than repeat the Examiner’s positions and Appellants’ arguments in
their entirety, we refer to the following documents for their respective
details: the Final Rejection (Fin. Rej.) mailed March 23, 2009; the Appeal
Brief (App. Br.) filed June 15, 2009; the Examiner’s Answer (Ans.) mailed
September 18, 2009; and the Reply Brief (Reply Br.) filed November 18,
2009.
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based on whether the messages are from one particular client
computer.

App. Br. 5; see also App. Br. 6-9; Reply Br. 5-9.
In response, the Examiner states, “[t]he instant claim makes no
requirement as to what constitutes ‘specified,’ such that the time period
would have to be ‘specified’ before or after the messages were received,
stored, or anything else.” Ans. 5.

ISSUE
Under 35 U.S.C. § 103(a), has the Examiner erred in rejecting claim 1
as obvious over Sampath, when the recited term “specified time period” is
broadly, but reasonably construed?

ANALYSIS
The issue turns on one question: what is the meaning of “specified
time period”? Appellants’ Specification does not define the term “specified
time period,” (App. Br. 6; Reply Br. 6) but does indicate, “[g]ateway nodes
122 can maintain a threshold counter that will cause the gateway node 122 to
stop accepting fault data when an event storm is detected. The term ‘event
storm’ as used herein refers to a predetermined number of fault events being
detected within a specified time period.” Spec. [0008]. Appellants’
Specification further explains the “[g]ateway node 122 can resume
transferring fault data when the number of faults detected with[in] a
specified time period is within the predetermined limit.” Spec. [0024].
Consistent with the Specification, a broad, but reasonable construction
of “specified time period” includes a time period that is expressed in relation
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to a number of events or items (for example, an expression of the form
“items/time period” specifies a time period). Rate limiting by a buffer, in
terms of items per time, specifies a time period. This construction also
comports with the plain meaning of the term “specify” which is defined in
pertinent sense as “1 : to name or state explicitly or in detail.”3
Using this construction, we see no error in the Examiner’s reliance on
Official Notice,4 and in particular the Examiner’s buffer example, for
teaching the argued limitation. As the Examiner explains,
For instance, if you send ten messages in one second, and the buffer
can only handle 5 messages, then 5 messages will be dropped when
the computer exceeds that limit. The specified time period would be
the one second. Examiner submits that the claim does not require how
the time period is specified (i.e. is it stored?) and furthermore, when it
is specified? While in the above example, the time period is specified
after the messages are dropped, it clearly reads upon the limitation as
recited in the claim.

Ans. 5-6. This buffer example all but suggests that the buffer has a
maximum capacity or threshold of messages that it can handle within a set or
given time period, after which messages will be dropped.
Further, claim 1 does not recite discriminating based on whether the
messages are from one particular client computer as Appellants argue (App.

3 Merriam Webster’s Collegiate Dictionary (10th ed. 1997).
4 Notably, except for the “specified time period” recitation, Appellants did
not and have not challenged the Examiner’s taking of Official Notice that it
is well known in the art at the time the invention was made to discontinue
accepting messages when the number of messages received from computers
exceeds a limit, such as during buffer overflow. See Amendment filed
December 8, 2008 in response to the § 103 rejection taking Official Notice;
see also App. Br. 5-6. Since this well-known finding has not been traversed,
it is taken to be admitted prior art. See MPEP § 2144.03(C).
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Br. 5-6; Reply Br. 5-6). Such discriminating is irrelevant to the language of
the claim at issue; rather, the claim recites discontinuing accepting the first
messages when the number of the first messages received from one of the
client computers exceeds a limit within a specified time period. Skilled
artisans would recognize that a buffer that drops messages after a threshold
would drop the messages whether the messages are from multiple computers
or from one computer.
Appellants have not provided persuasive rebuttal or persuasive
explanation as to why the Examiner’s explanation is insufficient. Weighing
Appellants’ arguments against the Examiner’s findings, we conclude
Appellants have not sufficiently shown error in the Examiner’s obviousness
rejection based on Sampath regarding claim 1. We therefore sustain the
Examiner’s rejection of claim 1, as well as claims 2 and 9, which are not
argued separately.
We also agree with the Examiner’s position, with regard to claims 3
and 4, that Sampath and Official Notice collectively teach all claim
limitations. Ans. 3-6. Appellants argue (App. Br. 6; Reply Br. 6-7) that the
cited art does not teach the recited claim limitations. The Examiner explains
(Ans. 6) that the findings regarding claim 1 also apply to claims 3 and 4, and
cites Sampath (col. 10, ll. 1-6) as teaching forwarding analysis results to a
diagnostic server. The cited portion of Sampath teaches transmitting
messages to a diagnostic computer as recited in claim 3. Claim 4 recites
discontinuing transmitting messages to the diagnostic computer; however,
skilled artisans would recognize that discontinuing transmitting messages to
the diagnostic computer would occur upon discontinuing accepting
messages (as recited in claim 1). Accordingly, we are not persuaded that the
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Examiner has erred in rejecting claims 3 and 4, and we therefore sustain the
Examiner’s rejection of claims 3 and 4.
With regard to claims 6-8, the Examiner cites Sampath (col. 6, ll. 17-
38 and col. 12, ll. 30-34) as teaching the recited limitations in claims 6 and
7, and cites Sampath (col. 10, ll. 16-37) as teaching the recited limitations in
claim 8. Fin. Rej. 5. Beyond these cites, the Examiner has not made a
specific detailed mapping of each recited limitation in claims 6-8 to Sampath
or offered any further explanation as to why the recited limitations would
have been obvious to one of ordinary skill in the art – particularly those
regarding communicating to a node or other computers that the first node
has discontinued accepting messages from the client computer recited in
claims 6 and 7. Fin. Rej. 5; Ans. 3-5. The Examiner also did not squarely
address Appellants’ specific arguments concerning Sampath’s deficiencies
(App. Br. 6-7; Reply Br. 7-8) in the Response to Arguments section of the
Answer (see Ans. 5-8). On this record, we are persuaded that the Examiner
has erred in rejecting claims 6-8, and we therefore do not sustain the
Examiner’s rejection of claims 6-8.
Concerning independent claim 10, the Examiner cites Sampath (col.
10, ll. 32-37) as teaching the recited steps of transmitting an event storm
message to a second node, and broadcasting the event storm message from
the second node. Fin. Rej. 6. Appellants argue (App. Br. 8; Reply Br. 8)
that the cited art does not teach or suggest broadcasting the event storm
message as recited in claim 10. The Examiner explains (Ans. 6-7) that the
findings regarding claim 1 also apply to claim 10. Even if we assume, but
do not decide, that Sampath (col. 10, ll. 32-37) teaches transmitting an event
storm message to a second node, the Examiner does not clearly explain how
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the cited art teaches or suggests the additional recited limitation of
broadcasting the event storm message from the second node to other
computer systems. On this record, we are persuaded that the Examiner has
erred in rejecting claim 10. We therefore do not sustain the Examiner’s
rejection of claim 10, as well as claims 12-145, which depend therefrom.
Regarding to independent claim 15, the Examiner states that claims
15-16 are substantially the same as claims 4-56 and are similarly rejected.
Fin. Rej. 6. Appellants argue (App. Br. 8) that the cited art does not teach or
suggest notifying a second node of the event storm, and notifying other
computer systems of the event storm from the second node as recited in
claim 15. We note that these argued limitations in claim 15 do not appear in
claim 4 cited by the Examiner. Also, the Examiner did not squarely address
Appellants’ specific arguments in this regard (App. Br. 8) in the Response to
Arguments section of the Answer (see Ans. 5-8). On this record, we are
persuaded that the Examiner has erred in rejecting claim 15, and we
therefore do not sustain the Examiner’s rejection of claim 15, as well as
claims 16-19, which depend therefrom.
With regard to claim 20, the Examiner states that claims 20-21 are
substantially the same as claims 15-16 and are similarly rejected. Fin. Rej.
7. Appellants argue (App. Br. 9; Reply Br. 9) that the cited art does not
teach or suggest means for communicating an event storm message to a
second node as recited in claim 20. The Examiner explains (Ans. 8) that the

5 Claim 14 depends from claim 11 which is canceled. This appears to be a
mistake, and our analysis assumes that claim 14 depends from claim 10.
6 Claim 5 is canceled.
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Examiner’s findings regarding claim 1 also apply to claim 20, and cites
Sampath. See Abstract, col. 10, l. 54 – col. 11, l. 6.
We interpret the recited elements in claim 20 as having invoked the
provisions of 35 U.S.C. § 112, sixth paragraph. Appellants identify network
106 in Figure 1 as the corresponding structure in the Specification for the
recited means for communicating an event storm message to a second node.
Appellants identify process 220 (on deployment node 134) in Figure 2 as the
corresponding structure in the Specification for the recited means for
broadcasting the event storm message from the second node.
Even if we assume, but do not decide, that cited portions of Sampath
teach a means for communicating an event storm message to a second node,
the Examiner does not clearly explain how the cited art teaches or suggests
the additional recited limitation of means for broadcasting the event storm
message from the second node to other computer systems executing
application programs. On this record, we are persuaded that the Examiner
has erred in rejecting claim 20, and we therefore do not sustain the
Examiner’s rejection of claim 20, as well as claims 22-24, which depend
therefrom.

DECISION7
The Examiner’s decision rejecting claims 1-4 and 9 is affirmed. The
Examiner’s decision rejecting claims 6-8, 10, 12-20, and 22-24 is reversed.

7 The Examiner’s attention is directed to Evaluating Subject Matter
Eligibility Under 35 U.S.C. § 101: August 2012 Update, Office of Patent
Legal Administration, United States Patent and Trademark Office, available
at http://www.uspto.gov/patents/law/exam/101_training_aug2012.pdf
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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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2010).

AFFIRMED-IN-PART

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