Ex Parte Joseph et alDownload PDFPatent Trial and Appeal BoardJun 17, 201613406653 (P.T.A.B. Jun. 17, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/406,653 02/28/2012 46320 7590 06/21/2016 CRGOLAW STEVEN M. GREENBERG 7900 Glades Road SUITE 520 BOCA RATON, FL 33434 FIRST NAMED INVENTOR Dinakaran Joseph 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. RSW920060 l 86US3 (264DIV2) 8834 EXAMINER HARPER, KEVIN C ART UNIT PAPER NUMBER 2462 NOTIFICATION DATE DELIVERY MODE 06/21/2016 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): docketing@crgolaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DINAKARAN JOSEPH, JON. K. FRANKS, CHRISTOPHER N. FREEMAN, SIV ARAM GOTTIMUKKALA, JASON P. HAWRYSZ, LAP T. HUYNH, and BARRY MOSAKOWSKI Appeal2014-008785 Application 13/406,653 Technology Center 2400 Before JOHN P. PINKERTON, CARLL. SILVERMAN, and KAMRAN JIVANI, Administrative Patent Judges. PINKERTON, Administrative Patent Judge DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claim 1, which is the only claim pending in the application. Claims 2-9 are canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. 1 Appellants identify the real party in interest as International Business Machines Corp. App. Br. 2. STATEMENT OF THE CASE Introduction Appellants' disclosed and claimed invention is generally directed to resilient and reliable end-to-end connectivity in a heterogeneous network. Abstract. 2 Claim 1 is reproduced below: 1. A method for resilient and reliable end-to-end connectivity in a heterogeneous network environment, the method comprising: abstracting first and second different communications networks of differing network types in the heterogeneous network environment as manageable resources; binding an application endpoint with a connectivity endpoint for the first communications network; detecting an outage in the first communications network; and, re-binding the application endpoint with a connectivity endpoint for the second communications network in response to detecting the outage. Rejections on Appeal Claim 1 stands rejected on the ground of nonstatutory obviousness- type double patenting as being unpatentable over claims 1 and 5 of U.S. Patent No. 7,821,921. Final Act. 2--4. 2 Our Decision refers to the Final Action mailed Oct. 25, 2013 ("Final Act."); Appellants' Appeal Brief filed Apr. 21, 2014 ("App. Br."); the Examiner's Answer mailed June 6, 2014 ("Ans."); Appellants' Reply Brief filed Aug. 6, 2014 ("Reply Br."), and the original Specification filed Feb. 28, 2012 ("Spec."). 2 Claim 1 stands provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 7 of copending Application No. 12/911,707. Id. Claim 1 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Horimoto (US 7 ,577 ,864 B2; issued Aug. 18, 2009) and Persson (US 8,467,390 B2; issued June 18, 2013). Final Act. 4--5. ANALYSIS Obviousness-Type Double Patenting Appellants do not present any response to the Examiner's rejection of claim 1 on the ground of nonstatutory obviousness-type double patenting as unpatentable over claims 1and5 of U.S. Patent No. 7,821,921. Accordingly, we summarily sustain the Examiner's obviousness-type-double patenting rejection. Appellants do not present any response to the Examiner's provisional rejection of claim 1 for nonstatutory obviousness-type double patenting as being unpatentable over claim 7 of copending Application No. 12/911,707. Accordingly, we summarily sustain the Examiner's provisional nonstatutory obviousness-type double patenting rejection. Obviousness The dispositive issue raised by Appellants' briefs is whether Horimoto teaches or suggests the limitation "detecting an outage in the first communications network," as recited in claim 1. See App. Br. 5; Reply Br. 5. The Examiner finds Horimoto describes re-binding an application endpoint to a connectivity endpoint in response to an outage in the first 3 network. See Ans. 3 (citing Horimoto, Figure 12, col. 9, 11. 29-32). In particular, the Examiner finds Horimoto teaches "a detected failure in the communication path that includes the first network 3 00-1." Appellants argue that "absent within Figure 12 is a teaching of detecting an outage in a first one of two different networks." See Reply Br. 4. Appellants also argue the portion of Hirimoto referred to by the Examiner, column 9, lines 29 through 32, describes how an application program starts to communicate with the management server "in response to a failure to a partition or a control program-not an outage in a network as claimed." See id. at 4--5. We are persuaded by Appellants' arguments that the Examiner has erred. In particular, we agree with Appellants' argument that Hiromoto teaches detecting a failure in the communication path that includes the partitions 11 and the control program 10, but does not teach or suggest detecting an outage in a communications network, as claimed. See Hiromoto, col. 9, 11. 26-41. Accordingly, we do not sustain the Examiner's rejection of claim l for obviousness under 35 U.S.C. § 103(a) based on the combination of Hiromoto and Persson. DECISION We affirm the Examiner's rejection of claim 1 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1and5 of U.S. Patent No. 7,821,921. We affirm the Examiner's provisional rejection of claim 1 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 7 of copending Application No. 12/911,707. We reverse the Examiner's rejection of claim 1under35 U.S.C. 4 § 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED-IN-PART 5 Copy with citationCopy as parenthetical citation