Ex Parte Hoche et al

Patent Trial and Appeal Board

Sep 26, 2013

10951820 (P.T.A.B. Sep. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL WALTER HOCHE, PETER SZABO,
and HORST ROSSLER
___________

Appeal 2011-005222
Application 10/951,820
Technology Center 2400
____________

Before DEBRA K. STEPHENS, ERIC B. CHEN, and HUNG H. BUI,
Administrative Patent Judges.

CHEN, Administrative Patent Judge.

DECISION ON APPEAL

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This is an appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1-8. Claim 9 has been cancelled. We have jurisdiction under 35
U.S.C. § 6(b). We affirm.

STATEMENT OF THE CASE
Appellants’ invention relates to a method for screening and
disinfecting a communication network for viral infection, the
communication network having interconnected network nodes and a
designated network node. (Abstract.)
Claim 1 is exemplary, with disputed limitations in italics:
1. A method for screening and disinfecting a
communication network for viral infection, the communication
network comprising interconnected network nodes and at least one
designated network node, the interconnected network nodes and the at
least one designated node comprising an operative software system,
the method comprising:
scanning a plurality of data streams,
detecting the presence of components of a computer virus at the
designated network node with detection means,
applying cure or protection means for ensuring an operative
state in case of a virus detection, wherein
the cure or protection means and/or the detection means is/are
propagated to an originating network node of an infected data stream,
other cure or protection means and/or detection means is/are
received by the originating network node,
the originating network node is cured by applying the other
cure or protection means and/or the detection means, if necessary, and
the other cure or protection means and/or the detection means
is/are propagated to potential source network nodes from which the
virus could be received, and to potential target network nodes where
the virus could be distributed,
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wherein all of the interconnected nodes are equipped with the
cure or protection means, and any of the interconnected nodes may
distribute the other cure or protection means.

Examiner’s Rejections
Claims 1 and 3 stand rejected under 35 U.S.C. § 103(a) as being
obvious over Lerche (U.S. Patent No. 5,511,163; Apr. 23, 1996), Liang
(U.S. Patent Application Publication No. 2005/0050334 A1; Mar. 3, 2005),
and Arnold (U.S. Patent No. 5,440,723; Aug. 8, 1995).
Claims 4 and 6-8 stand rejected under 35 U.S.C. § 103(a) as being
obvious over Lerche and Liang.
Claim 2 stands rejected under 35 U.S.C. § 103(a) as being obvious
over Lerche, Liang, Arnold, and Kavalam (U.S. Patent Application
Publication No. 2005/0091535 A1; Apr. 28, 2005).
Claim 5 stands rejected under 35 U.S.C. § 103(a) as being obvious
over Lerche, Liang, and Kavalam.
Claims 4-6 stand rejected under 35 U.S.C. § 112, second paragraph,1
as being indefinite for failing to particularly point out and distinctly claim
the subject matter which applicant regards as the invention.

ANALYSIS
Initially, we note claims 4-6 stand rejected under 35 U.S.C. §112,
second paragraph, as being indefinite for failing to particularly point out and

1 The Examiner has inadvertently stated that claims 4-6 stand rejected under
35 U.S.C. § 112, first paragraph, rather than second paragraph. (Ans. 3-4,
13-14.) However, we consider the misstatement in the heading to be
harmless error.
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distinctly claim the subject matter which applicant regards as the invention.
See Final Rej. at 5; and Advisory Action dated March 17, 2010. However,
Appellants do not address the §112 rejection of claims 4-6 (see App. Br. 10).
As such, the final rejection of claims 4-6 under 35 U.S.C. §112, second
paragraph is pro forma affirmed.
Regarding the Examiner’s art rejections of claims 1-8, we are
unpersuaded by Appellants’ arguments (App. Br. 13-16; see also Reply Br.
6-7) that the combination of Lerche, Liang, and Arnold would not have
rendered obvious independent claim 1, which includes the limitation “other
cure or protection means and/or detection means is/are received by the
originating network node.”
The Examiner found that the release of the anti-virus agent V1 of
Liang to the affected computers corresponds to the limitation “other cure or
protection means and/or detection means is/are received by the originating
network node.” (Ans. 5, 10-11; Liang, ¶ [0072].) We agree with the
Examiner.
Liang relates to “intercepting and removing computer viruses and
worms from transmitted media.” (¶ [0002].) Figure 1 of Liang illustrates a
distributed network 100 having a network virus monitor 102 and individual
client devices 104-116 that are susceptible to attack by a computer virus or
worm. (¶ [0044].) Figure 6A of Liang illustrates that a server 128 releases
and directs an anti-virus agent V1 (¶ [0072]) to client devices 104 and 106
that have been compromised by a virus V (i.e., the claimed “originating
network node”) (¶ [0067]). Liang explains that “[t]he anti-virus V1 then
proceeds to overwrite the original virus V in the computers 104 and 106 and
executes the repair payload portion 716.” (¶ [0072].) Thus, Liang teaches
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the limitation “other cure or protection means and/or detection means is/are
received by the originating network node.”
Appellants argue that “Liang does not propagate the anti-virus
software to the originating network or even to other network nodes” because
Liang “uses a server to provide viral clean up and repair to infected
computers and to uninfected but vulnerable computers” and “may install
anti-virus software in client devices and, if the appropriate anti-virus
software is not installed in a client, the client may download the appropriate
software from the server.” (App. Br. 16 (emphasis in original); see also
Reply Br. 6-7.) However, as found by the Examiner (Ans. 5, 10-11), Liang
explains that “[t]he anti-virus V1 then proceeds to overwrite the original
virus V in the computers 104 and 106” (¶ [0072]), such that the computers
104 and 106 correspond to the claimed “originating network node.”
Thus, we agree with the Examiner that the combination of Lerche,
Liang, and Arnold would have rendered obvious independent claim 1, which
includes the limitation “other cure or protection means and/or detection
means is/are received by the originating network node.”
We are further unpersuaded by Appellants’ arguments (App. Br. 16-
17; see also Reply Br. 7-8) that the combination of Lerche, Liang, and
Arnold would not have rendered obvious independent claim 1, which
includes the limitation “any of the interconnected nodes may distribute the
other cure or protection means.”
The Examiner found that the propagation of a “kill signal” for virus
removal of Arnold from one computer to another computer within a network
corresponds to the limitation “any of the interconnected nodes may
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distribute the other cure or protection means.” (Ans. 6, 11-12; Arnold,
col. 5, ll. 61-65, col. 20, ll. 14-17.)
Arnold relates to monitoring of a data processing system for an
undesirable software entity such as a computer virus, worm, or Trojan
Horse. (Abstract.) Figure 1C of Arnold illustrates computers P1 to P7,
connected via a network, such that a “kill signal” (K) is transmitted from an
infected computer to neighboring computers. (Col. 19, ll. 48-52.) Arnold
explains that “a data processor that has received a kill signal from one or
more of its neighbors sends a kill signal to its neighbors only if it is
sufficiently certain that it is also infected.” (Col. 20, ll. 14-17.) Arnold
further explains that “the virus [is] removed (killed) by traditional methods,
such as restoration from backup (either automatically or manually by the
user) or disinfection (removal of the virus from all of the software it has
infected).” (Col. 5, ll. 61-65.) Thus, Arnold teaches the limitation “any of
the interconnected nodes may distribute the other cure or protection means.”
Appellants argue that “[t]he kill signal of Arnold is simply a signal or
message that is transmitted from an infected computer to neighboring
computers to inform the neighboring computers of the infection.” (App.
Br. 17; see also Reply Br. 7.) However, as found by the Examiner (Ans. 11-
12), Arnold explains that “the virus [is] removed (killed) by traditional
methods, such as restoration from backup . . . or disinfection” (col. 5, ll. 61-
65).
Thus, we agree with the Examiner that the combination of Lerche,
Liang, and Arnold would have rendered obvious independent claim 1, which
includes the limitation “any of the interconnected nodes may distribute the
other cure or protection means.”
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Accordingly, we sustain the rejection of independent claim 1 under 35
U.S.C. § 103(a). Claim 3 depends from claim 1, and Appellants have not
presented any substantive arguments with respect to this claim. Therefore,
we sustain the rejection of claim 3 under 35 U.S.C. § 103(a), for the same
reasons discussed with respect to independent claim 1.
Independent claims 4, 7, and 8 recite limitations similar to those
discussed with respect to independent claim 1, and Appellants have not
presented any substantive arguments with respect to these claims. We
sustain the rejection of claims 4, 7, and 8, as well as dependent claim 6, for
the same reasons discussed with respect to claim 1.
Although Appellants nominally argue the rejection of dependent
claim 2 separately (App. Br. 17-18), the arguments presented do not point
out with particularity or explain why the limitations of this dependent claim
are separately patentable. Instead, Appellants summarily allege that
“Kavalam does not make up for the above noted deficiencies of Lerche,
Liang, and Arnold.” (App. Br. 17.) We are not persuaded by these
arguments for the reasons discussed with respect to claim 1, from which
claim 2 depends. Accordingly, we sustain this rejection.
Although Appellants nominally argue the rejection of dependent
claim 5 separately (App. Br. 18), the arguments presented do not point out
with particularity or explain why the limitations of this dependent claim are
separately patentable. Instead, Appellants summarily allege that “Kavalam
does not make up for the above noted deficiencies of Lerche and Liang.”
(Id.) We are not persuaded by these arguments for the reasons discussed
with respect to claim 4, from which claim 5 depends. Accordingly, we
sustain this rejection.
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DECISION
The Examiner’s decision rejecting claims 1-8 is 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

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