Ex Parte Kasper

Board of Patent Appeals and Interferences

May 11, 2009

10218346 (B.P.A.I. May. 11, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte DAVID J. KASPER II
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Appeal 2008-3982
Application 10/218,346
Technology Center 2400
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Decided:1 May 11, 2009
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Before ALLEN R. MACDONALD, HOWARD B. BLANKENSHIP, and
STEPHEN C. SIU, Administrative Patent Judges.

MACDONALD, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Data (electronic delivery).

Appeal 2008-3982
Application 10/218,346

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Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
According to Appellant, the invention relates to a method for
watchdog termination of an application in a communication system.2
Generally, the invention involves (1) checking the status of a data link
session between a local and remote unit, and (2) terminating an application if
the status indicator indicates an offline status for the data link session.3
Exemplary Claim
1. A method for watchdog abort of an application in a
communication system having a local unit and a remote unit, the
method comprising:
establishing a data link session between the local unit and the
remote unit;
checking a status indicator of the data link session; and
if the status indicator indicates an offline status for the data link
session, terminating execution of the application based on the status
indicator indicating the offline status.

2 Spec. ¶ [0005].
3 id.
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Prior Art
The Examiner relies on the following prior art references to show
unpatentability:
Heath 5,553,239 Sep. 3, 1996

Examiner's Rejection
The Examiner rejected claims 1-20 under 35 U.S.C. § 102(b) as being
anticipated by Heath.4

Appellant’s Arguments and Contentions
Appellant contends Heath discloses (1) “when the status indicator is
set as offline, the applications initiated by the remote user are terminated,”
and (2) “[h]ence, one of ordinary skill in the art would understand that
terminating execution of the application ‘based on the status indicator
indicating an offline status’ means that the application is terminated
whenever the status indicator indicates an offline status”
(App. Br. 6-7).
Appellant also contends “Heath states ‘[w]hen the client quits an
application, the circuit is terminated and its duration noted in circuit
databases’” (emphasis omitted) (id. at 7). Further, Appellant argues
“[t]erminating the circuit or breaking the connection as described in Heath,
however, does not terminate or close the application” (id.).

4 A rejection of claim 1 under 35 U.S.C. § 102(e) was withdrawn by the
Examiner (Ans. 2).
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Additionally, Appellant contends Heath discloses that (1) the
application passes a message to application manager 64, notifying it of the
circuit termination; (2) the application manager 64 then determines whether
the application has any active circuits associated with it; (3) if not, the
application manager 64 determines if the pool of available applications
exceeds that necessary for effective operation; and (4) if so, closes the
application (id.). Appellant then argues, “[h]ence, the application is not
terminated if it is ‘necessary for effective operation’ even if the client quits
the application or the client connection is idle” (id.).
Further, Appellant argues (1) Heath discloses that an application is
started prior to a client requesting or connecting to it; (2) even if no user ever
connects to the application, it is still closed when not needed; and (3) “[a]n
idle client connection or a client quitting an application is, thus, not a
requirement for closing the application or for determining when to close the
application” (See id. at 8). Appellant contends “[t]herefore . . . Heath does
not terminate an application based on a ‘status indicator indicating the
offline status’” but “[r]ather, Heath terminates an application based on
whether or not the application is ‘necessary for effective operation’”
(id.).
Examiner’s Findings and Conclusions
The Examiner agreed with Appellant that (1) Heath teaches “when the
client quits an application, the circuit is terminated,” and (2) “[i]n response
to the circuit termination, application manager 64 closes the application if
the pool of available applications exceeds that necessary for effective
operation” (emphasis omitted) (Ans. 12). The Examiner concluded
“[h]owever, Heath does not need to close or terminate the application
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whenever the circuit is terminated to meet the claims,” as “the ‘based on’
language merely limits the claims to requiring termination of the application
at least in part in response to the status indicator indicating an offline status”
(id.).
Additionally, the Examiner found “[a]n idle connection does not need
to be a ‘requirement’ for closing the application or determining when to
close the application to meet the claims” (emphasis omitted) (id.). The
Examiner concluded “[i]n response to the circuit termination, application 64
closes the application if the pool of available applications exceeds that
necessary for effective operation,” and [t]hus, Heath teaches that an
application is at least sometimes closed at least in part in response to the
status indicator indicating an offline status” (emphasis omitted) (id. at 13).

ISSUE
The issue before us is whether the prior art teaches terminating
execution of an application based on a status indicator indicating an offline
status.

FINDINGS OF FACT
1. The Specification of the present application discloses "[w]hen a
remote user desires to initiate a data link session with the local computer, he
typically logs on to the system with a user identification and/or password."
"This information is then transmitted to the local computer over a physical
layer for authentication." "After the information has been authenticated,
handshaking is performed in order to activate a data link session." "Once
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the data link session has been established, the remote user can initiate
applications on the local computer over the data link."
(See id. ¶ [0002] - [0003]).
2. The Specification of the present application discloses (1) “[t]he local
computer then checks for a response from the remote computer (207)
(Spec. ¶ [0022]); (2) “[i]f the response is not received within the selected
response time (209), the remote computer is declared to be offline (211)”;
(3) “[t]he status indicator is set offline”; and (4) “when the status indicator is
set as offline, the applications initiated by the remote user are terminated”
(id. ¶ [0024]).
3. The Examiner (1) found “the claims at issue recite . . . ‘checking a
status indicator’ and ‘if the status indicator indicates an offline status . . . ,
terminating execution of the application based on the status indicator
indicating the offline status’”; (2) found “[t]he specification does not define
the term ‘based on’”; and (3) broadly interpreted “the term ‘based on’ to
mean at least in part in response to” (Ans. 10).
4. We find that Heath discloses “[w]hen the client quits an application,
the circuit is terminated and its duration noted in circuit databases 72a, 72b”
(emphasis omitted) (Heath, col. 7, ll. 25-26). Heath also discloses “[t]he
application passes a message to application manager 64, notifying it of
circuit termination” (emphasis omitted) (id., col. 7, ll. 27-28). The Examiner
found Heath discloses (1) “[w]hen an application manager (64) receives a
message notifying it of a circuit termination it determines whether the
associated application has any active circuits”; (2) “[i]f there are no active
circuits, the application manager (64) determines whether a pool of available
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applications exceeds that necessary for effective operation”; and (3) “if so,
closes the application” (Ans. 11; See also Heath, col. 7, ll. 27-33).
5. We find Figure 3 of Heath illustrates a connection 701 between client
50 and application 251 (See Heath, FIG. 3). We also find Heath,
alternatively, refers to connection 701 as a circuit, as Heath discloses
“process server 60 directs an associated application manager 64 . . . to
instruct the optimal instance of the requested application to establish a
logical connection 701, 702, or circuit, between client 50 and the requested
application over physical connection 56” (emphasis omitted)
(Heath, col. 6, ll. 41-47; See also Heath, FIG. 3).

PRINCIPLES OF LAW
In rejecting claims under 35 U.S.C. § 102, “[a] single prior art
reference that discloses, either expressly or inherently, each limitation of a
claim invalidates that claim by anticipation.” Perricone v. Medicis
Pharmaceutical Corp., 432 F.3d 1368, 1375 (Fed. Cir. 2005) (citing Minn.
Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc., 976 F.2d
1559, 1565 (Fed. Cir. 1992)).
Analysis of whether a claim is patentable over the prior art under
35 U.S.C. § 102 begins with a determination of the scope of the claim. We
determine the scope of the claims in patent applications not solely on the
basis of the claim language, but upon giving claims their broadest reasonable
construction in light of the specification as it would be interpreted by one of
ordinary skill in the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004). The properly interpreted claim must then be
compared with the prior art.
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If the Examiner’s burden is met, the burden then shifts to the
Appellants to overcome the prima facie case with argument and/or evidence.
Obviousness is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992).

ANALYSIS
Representative claim 1 recites “if the status indicator indicates an
offline status for the data link session, terminating execution of the
application based on the status indicator indicating the offline status”
(App. Br. 29).
Appellant contends “one of ordinary skill in the art would understand
that terminating execution of the application ‘based on the status indicator
indicating an offline status’ means that the application is terminated
whenever the status indicator indicates an offline status” (id. at 6-7).
Further, Appellant argues “[t]erminating the circuit or breaking the
connection as described in Heath, however, does not terminate or close the
application” (id. at 7). Additionally, Appellant contends “the application is
not terminated if it is ‘necessary for effective operation’ even if the client
quits the application or the client connection is idle” (id.).
Claim Construction
We find that (1) that there is not an express definition of the term
“based on” in the Specification of the present application, and (2) we agree
with the Examiner that the term “based on” should be broadly interpreted to
mean at least in part in response to (See FF 3). Thus, we agree with the
Examiner that “Heath does not need to close or terminate the application
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whenever the circuit is terminated to meet the claims,” as “the ‘based on’
language merely limits the claims to requiring termination of the application
at least in part in response to the status indicator indicating an offline status”
(See FF 3).
Indicating an Offline Status for Data Link Session
The Specification of the present application does not provide an
express definition of the term "data link session." However, we find that the
Specification of the present application does disclose that once the data link
session has been established, the remote user can initiate applications on the
local computer over the data link. (See FF 1). Thus, we find that a skilled
artisan would have recognized that a data link session is a link or connection
between two computers.
We also find that the present application teaches that a computer that
is nonresponsive with regard to another computer is considered offline
(See FF 2). Further, we find that Heath teaches when a client quits an
application, the circuit is terminated (FF 4). We also find that a skilled
artisan would recognize that a client that quits an application is equivalent to
the client (i.e., a remote unit) that goes offline with regard to the application
(i.e., another unit or a local unit), as the client will be unresponsive to the
application because the client has quit the application.
Further, we find that a person of ordinary skill in the art would have
recognized that the circuit of Heath is equivalent to a data link session, as
(1) Heath alternatively describes a circuit as a logical connection, and
(2) Figure 3 of Heath illustrates the connection, i.e., link, between the client
and the application, as circuit 701 (See FF 5). Accordingly, we find that
when the client of Heath quits an application, the circuit, i.e., data link
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session between the client and the application is offline, as the client who
quits the application will no longer be responsive to the application.
Also, Heath teaches “[t]he application passes a message to application
manager 64, notifying it of circuit termination” (FF 4). Thus, we find that a
skilled artisan would have recognized that the application, when notifying
the application manager of circuit termination, is a status indicator that
indicates that the client has quit the application, i.e. gone offline with respect
to the link or connection to the application. Accordingly, we find that Heath
teaches a status indicator that indicates an offline status for a data link
session.
Further, we agree with the Examiner that “Heath does not need to
close or terminate the application whenever the circuit is terminated to meet
the claims,” as “the ‘based on’ language merely limits the claims to
requiring termination of the application at least in part in response to the
status indicator indicating an offline status” (See FF 3). Accordingly, it
does not matter that Heath does not close an application each time a client
quits an application.
We find that Heath does close an application, when the pool of
available applications exceeds that necessary for effective operation, after
the (1) the application passes a message to the application manager 64,
notifying the application manager 64 of a terminated circuit (i.e., a status
indicator indicates an offline status), and (2) after the application manager
64 determines that the pool of available applications exceeds that necessary
for effective operation (See FF 4). It does not matter that the determination
to close the application is also based on the pool of available applications, as
Heath does close, i.e., terminate, an application at least in part in response to
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the application notifying the application manager 64 of the circuit
termination (i.e., the status indicator indicating an offline status).
Thus, we find Heath teaches “if the status indicator indicates an
offline status for the data link session, terminating execution of the
application based on the status indicator indicating the offline status,” as
recited in representative claim 1. Thus, Appellant has not persuaded us of
error in the Examiner's conclusion of anticipation for representative claim 1,
and the rejection of claim 1 is sustained.
Appellant argues each independent claim, i.e., claims 1, 7, 10, 14, 15,
16, and 18 individually. However, Appellant substantially repeats the
arguments presented with regard to representative claim 1. Thus, for similar
reasons discussed above with regard to representative claim 1, Appellant has
not persuaded us of error in the Examiner's conclusion of anticipation for
claims 2-20.

DECISION
We have sustained the Examiner's rejections with respect to all claims
on appeal. Therefore, the Examiner’s decision rejecting claims is sustained.
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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