Ex Parte Keohane et al

Patent Trial and Appeal Board

Sep 16, 2016

10677660 (P.T.A.B. Sep. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
10/677,660 10/02/2003
60501 7590 09/20/2016
LENOVO COMPANY (LENOVO-KLS)
c/o Kennedy Lenart Spraggins LLP
8601 Ranch Road 2222
Ste. 1-225
AUSTIN, TX 78730
FIRST NAMED INVENTOR
Susann Marie Keohane
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.
A US920030640US 1 9966
EXAMINER
PHAN, TUANKHANH D
ART UNIT PAPER NUMBER
2154
NOTIFICATION DATE DELIVERY MODE
09/20/2016 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):
office@klspatents.com
kate@klspatents.com
hanna@klspatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUSANN MARIE KEOHANE, SHAWN PA TRICK MULLEN,
JOHNNY MENG-HAN SHIEH, GERALD FRANCIS McBREARTY, and
JESSICA MURILLO
Appeal2015-004543
Application 10/677 ,660
Technology Center 2100
Before ERIC S. FRAHM, KRISTEN L. DROESCH, and
JASON V. MORGAN, Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-11, 13-24, 26-37, and 39. Claims 12, 25, and 38 have been
canceled. The instant application on appeal was previously appealed, and
the Board in a decision mailed February 29, 2012 affirmed the Examiner's
rejection of claim 1 on the same two base references as now before us. 1
1 We note that the Appeal Brief asserted that there were no related appeals or
interferences. Br. 2. Appellants and Appellants' counsel are reminded that
they have a duty to disclose prior and pending appeals that involve an
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Application 10/677 ,660
Claim 1 has been the subject of further prosecution, and has been amended
to include additional features. The Examiner has applied a new tertiary
reference to address the newly added features. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
Exemplary Claim
Independent claims 1, 11, 14, 24, 27, and 37 contain similar features,
and all recite features relating to determining when a computer is connected
to a changed computing environment having a new type of connection
having the security control required.
Exemplary independent claim 1 under appeal, with emphases added to
key portions of the claim, reads as follows:
1. A method comprising:
monitoring a type of connection between a computer and
a network in a current computing environment;
determining a security level of data before sending the
data across the network;
sending the data across the network if the connection to
the network has a security control required for the determined
security level of the data;
storing the data in a buffer instead of sending the data
across the network if the connection to the network lacks a
security control required for the determined security level of the
data;
application or patent owned by Appellants or the application's assignee, are
known to Appellants, Appellants' legal representative, or assignee, "and
may be related to, directly affect or be directly affected by or have a bearing
on the Board's decision in the pending appeal." 37 C.F.R. § 41.37(c)(ii)
(2014).
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Application 10/677 ,660
determining that the computer is connected to a changed
computing environment having a new type of connection that
has the security control required for the data; and
only sending the data from the buffer in response to
determining that the computer is connected to a changed
computing environment having a new type of connection that
has the security control required for the data.
Examiner's Rejection
The Examiner rejected claims 1-11, 13-24, 26-37, and 39 as being
unpatentable under 35 U.S.C. § 103(a) over the combination of Herrero et al.
(WO 00/74345 Al; published Dec. 7, 2000), Holden et al. (US 5,828,832;
issued Oct. 27, 1998), and Herrod (US 2003/0065784 Al; published Apr. 3,
2003).2 Final Act. 4--8; Ans. 2--4. Herrod has been newly applied to the
claims to teach or suggest at least the newly added feature in the claims of
"determining that the computer is connected to a changed computing
environment having a new type of connection that has the security control
required for the data" (see e.g., claim l ).
2 Appellants present arguments primarily as to claim 1 (see Br. 8-10), and
rely on those arguments with respect to the patentability of the remaining
claims on appeal (see Br. 10-12), with the exception of claims 6 and 7
argued separately (Br. 12-13). Independent claims 1, 11, 14, 24, 27, and 37
recite similar subject matter, namely a method, system, and computer
program product capable of determining that a computer is connected to a
changed computing environment having a new type of connection with the
security control required. We select independent claim 1 as representative
of the group of claims rejected under 35 U.S.C. § 103(a) (claims 1-5, 8-11,
13-24, 26-37, and 39), accordingly, our analysis herein will only address
representative claim 1.
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Principal Issues on Appeal
Based on Appellants' arguments (Br. 8-13), the following principal
issues are presented:
(1) Did the Examiner err in rejecting claims 1-5, 8-11, 13-24, 26-37,
and 39 as unpatentable because the combination of Herrero, Holden, and
Herrod, and specifically Herrod, fails to disclose "determining that the
computer is connected to a changed computing environment having a new
type of connection that has the security control required for the data," as set
forth in representative claim 1?
(2) Did the Examiner err in rejecting claims 6 and 7 as unpatentable
because the combination of Herrero, Holden, and Herrod fails to teach or
suggest the security level determination limitations recited in claims 6 and
7?
ANALYSIS
We have reviewed the Examiner's rejection (Final Act. 4--8) in light
of Appellants' contentions in the Appeal Brief (Br. 8-13) that the Examiner
has erred, as well as the Examiner's response to Appellants' arguments in
the Appeal Brief (Ans. 2--4). We disagree with Appellants' conclusions.
With regard to representative claim 1, we adopt as our own (1) the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken (Final Act. 2--4), and (2) the reasons set forth by the Examiner in the
Examiner's Answer in response to Appellants' Appeal Brief (see Ans. 2--4).
We concur with the conclusions reached by the Examiner.
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Representative Independent Claim 1
The Examiner has provided a factual basis and articulated reasoning
with a rational underpinning to support the conclusion of obviousness with
regard to claim 1 (see Final Act. 4---6; Ans. 2--4). See KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007). We agree with the Examiner (Final
Act. 5; Ans. 3) that:
Herrod discloses determining that the computer is connected to
a changed computing environment having a new type of
connection that has the security control required for the data
and only sending in response to the determination (i-f [0083],
since data transmission between two computers are prevented
due to lack of security, data transmission is allowed when a
new type (alternative) communication (connection) that meets
certain criteria, such as security (i-f [0087]).
(Ans. 3; see also Final Act. 5 making a similar finding).
Specifically, paragraph 34 of Herrod discloses "storing and queuing
the data messages in each respective computer while a new link is
established; and re-establishing a link (or changing the operating
characteristics of the same link) between in the respective computers in
order to continue a session between the first and second applications"
(Herrod i134) (emphasis added). Paragraph 83 of Herrod supports this
disclosure by also disclosing "re-establishing a link between first and second
virtual sockets." Finally, paragraph 87 of Herrod discloses that (i) "a search
is made for an alternative communication channel meeting certain criteria
(e.g., bandwidth, reliability, coverage, quality of service, security, etc.);" and
(ii) when "a new channel is found which re-establishes communication to
the remote computer, an acknowledgement is received by the sending
computer, that the channel is acceptable to the receiving computer and the
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alternate link is established" (Herrod if 87) (emphasis added). Thus, Herrod
teaches or suggests determining if a new connection is made based on a
security control for access to the data.
Accordingly, we disagree with Appellants' assertions that Herrod fails
to disclose "determining that the computer is connected to a changed
computing environment having a new type of connection that has the
security control required for the data" as recited in claim 1 (Br. 10), and
Herrod simply discloses first and second communication channels that each
meet security level criteria (Br. 10 and 11 ).
Dependent Claims 6 and 7
With regard to claim 6, Appellants contend (Br. 12) the combination
of references, and specifically Herrero, fails to teach or suggest the recited
markup element. With regard to claim 7, Appellants contend (Br. 12-13)
the combination of references, and specifically Holden, fails to teach or
suggest the recited meta-data in a header.
Neither of the arguments presented as to claims 6 and 7 are persuasive
in light of the Examiner's cogent response found in the Answer (Ans. 3--4).
We agree with the Examiner that (i) lines 15-17 of Herrero teaches or
suggests the markup element of claim 6 (Ans. 3--4); and (ii) Holden's
datagram (Holden, col. 16, 1. 56) meets the meta-data limitation recited in
claim 7 (Ans. 4). Appellants have not filed a Reply Brief or shown
otherwise with responsive arguments or evidence.
Summary
In view of the foregoing, Appellants have not sufficiently shown that
the Examiner erred in rejecting representative independent claim 1, as well
as remaining independent claims 11, 14, 24, 27, and 37, or their respective
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dependent claims 2-10, 13, 15-23, 26, 28-36, and 39, under
35 U.S.C. § 103(a), and we sustain the rejection before us.
CONCLUSIONS
(1) The Examiner has not erred in determining that the combination of
Herrero, Holden, and Herrod teaches or suggests a method including
"determining that the computer is connected to a changed computing
environment having a new type of connection that has the security control
required for the data," as set forth in representative claim 1.
(2) Appellants have not shown that (i) Herrero fails to teach or suggest
the security level determination features recited in claim 6; and/or (ii)
Holden fails to teach or suggest the security level determination features
recited in claim 7, or otherwise overcome the Examiner's prima facie case of
obviousness as to claims 6 and 7.
DECISION
The Examiner's rejection of claims 1-11, 13-24, 26-37, and 39 under
35 U.S.C. § 103(a) 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)(l). See 37 C.F.R. §§ 41.50(±), 41.52(b) (2013).
AFFIRMED
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