Ex Parte Hyde et al

Patent Trial and Appeal Board

Mar 31, 2016

12150933 (P.T.A.B. Mar. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
12/150,933
138951 7590
Advent, LLP
3930 South 147th
Suite 101
Omaha, NE 68144
FILING DATE FIRST NAMED INVENTOR
04/30/2008 Roderick A. Hyde
03/31/2016
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
0907-004-001-000000
10163
8159
EXAMINER
HELLER, TAMMIE K
ART UNIT PAPER NUMBER
3766
MAILDATE DELIVERY MODE
03/31/2016 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RODERICK A. HYDE, MURIEL Y. ISHIKAWA,
ERIC C. LEUTHARDT, MICHAEL A. SMITH, and
LOWELL L. WOOD, JR.
Appeal2013-007386
Application 12/150,933
Technology Center 3700
Before ANNETTE R. REIMERS, LEE L. STEPINA, and
FREDERICK C. LANEY, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Roderick A. Hyde et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner's decision to reject under 35 U.S.C. § 102(e) claims 1, 2,
4, 9, 14, 16, and 38--41 as anticipated by Stahmann (US 2009/0048644 Al;
pub. Feb. 19, 2009). Appellants present additional evidence in the
Declaration of Gregory T. Byrd (hereinafter the "Byrd Declaration") filed
under 37 C.F.R. § 1.132 on Aug. 9, 2012. Claims 3, 5-8, 10, 11, 13, 15, 17-
Appeal2013-007386
Application 12/150,933
22, and 24--35 have been withdrawn from consideration. Claims 12, 23, 36,
and 37 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to an "intrusion resistant
implantable medical device." Spec. Title; Fig. 4.
Claim 1, the sole independent claim, is representative of the claimed
subject matter and recites:
1. A medical apparatus at least a portion of which is
configured for implantation in an animal, the medical apparatus
compnsmg:
a communication module configured to receive
communications originating external to the animal;
a threat assessment module configured to ascertain a
malware threat characteristic of a communication received by the
communication module; and
a threat mitigation module configured to implement a
mitigation measure responsive to the ascertained malware threat
characteristic of the received communication.
ANALYSIS
Independent claim 1 recites, in relevant part, "a threat assessment
module configured to ascertain a malware threat characteristic of a
communication received by the communication module." Appeal Br. 28,
Claims App. The Examiner finds that the above cited recitation:
is considered to require a module which is configured to take a
communication received by the communication module and
ascertain, or identify, a characteristic of a malware threat. A
characteristic of a malware threat is considered to be any aspect
that would identify a malware threat as such. In the case of the
source authentication of Stahmann, the lack of a valid digital
2
Appeal2013-007386
Application 12/150,933
authenticating signature in a data packet indicates that the data
packet originated from an untrusted source and may contain
unauthorized or unwanted data. In this way, the source
authentication is considered to identify a characteristic of a
malware threat.
Ans. 4; see also Final Act. 4, 8.
Appellants contend that "[t]he Examiner's own 'considerations' about
what Stahmann allegedly discloses (i.e., 'the source authentication is
considered to identify a characteristic of a malware threat' (Answer, p. 4,
emphasis added)) does not constitute evidence to refute Dr. Byrd's
statements in the Declaration." Reply Br. 6; see also Appeal Br. 19.
Appellants further contend that "the Examiner relied on the 'lack of a valid
digital authenticating signature in a data packet,' indicating that 'the source
authentication [of Stahmann] is considered to identify a characteristic of a
malware threat.' These assertions are directly disproved by the Declaration."
See Reply Br. 11-12 (citing the Byrd Declaration 42, para. 7).
Appellants' arguments are persuasive. Stahmann discloses:
Source authentication is a form of trust mutually established
between a requesting device and a receiving AIMD. Trust can
be established through several means. For instance, trust can be
established through data confidentiality mechanisms, such as
cryptographic signatures included in a digital certificate, such as
an X.509 digital certificate, which is included with a request 205
as credentials 206. The receiving intrabody device 203 would
authenticate the credentials 206 against trusted credentials 208
previously received from a certificate authority or trusted agent
or intermediary, such as a manufacturer.
Stahmann, para. 65 (italics added). We agree with Appellants that to verify
a digital certificate "one looks for (and verifies) [authenticates] a signature
consistent with a known trusted party. (Specifically, [as disclosed in
paragraph 65 of Stahmann] the computed signature must be consistent with
3
Appeal2013-007386
Application 12/150,933
one computed with a trusted party's private key.)." Byrd Declaration 42,
para. 7; see also Reply Br. 6, 11-12; Stahmann, para. 65. In other words,
"[a] digital certificate, which includes a digital signature, [such as that
disclosed in paragraph 65 of Stahmann] is used to validate the identity of a
trusted party." Byrd Declaration 42, para. 7; see also Reply Br. 6, 11-12;
Stahmann, para. 65.
In contrast, signature-based malware detection "uses key aspects of an
examined file to create a static fingerprint of known malware. The signature
could represent a series of bytes in the file [characteristic value in a data
packet]."1 See Byrd Declaration 42, para. 7. In other words, in the context
of malware detection, a signature could be unique physical characteristics of
software files (characteristic value in a data packet) that attributes the
malware to its identity or how malware interacts with its environment in a
particular way (characteristic behavior or set of behaviors from the
software being examined) that attributes the malware to its identity. See id.
In this case, the lack of a valid digital authenticating signature in a data
packet could indicate that the data packet originated from an untrusted
source, but it would not necessarily indicate a malware threat characteristic.
See Byrd Declaration 42, para. 7; see also id. at 41, para. 7; Reply Br. 6, 11-
12; Ans. 4; Final Act. 4, 8; Stahmann, para. 65.
Stahmann does indicate that "data could be maliciously deleted by
malware." Stahmann, para. 59; see also Ans. 5. However, Stahmann merely
cites this as an example of how data integrity could be compromised. See id.
As such, we disagree with the Examiner that "Stahmann describes that the
1 http:// searchsecurity. techtarget. com/tip/How-antivirus-software-works-
Virus-detection-techniques (last visited Mar. 29, 2016).
4
Appeal2013-007386
Application 12/150,933
data integrity check would determine if data has been maliciously deleted by
malware." Ans. 5 (emphasis added). Based on the foregoing, the Examiner
fails to establish a prima facie case that Stahmann anticipates the device of
claim 1.
Accordingly, for the foregoing reasons, we do not sustain the
Examiner's rejection of independent claim 1 and its dependent claims 2, 4,
9, 14, 16, and 38--41 as anticipated by Stahmann.
DECISION
We REVERSE the decision of the Examiner to reject claims 1, 2, 4, 9,
14, 16, and 38--41.
REVERSED
5