Ex Parte Ladwig

Board of Patent Appeals and Interferences

Jul 27, 2005

10017739 (B.P.A.I. Jul. 27, 2005)

The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of the Board

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________

Ex parte MICHAEL D. LADWIG
______________

Appeal No. 2005-1243
Application 10/017,739
______________

ON BRIEF1
_______________

Before THOMAS, DIXON, and MACDONALD, Administrative Patent Judges.

THOMAS, Administrative Patent Judge.

DECISION ON APPEAL

Appellant has appealed to the Board from the examiner’s final
rejection of claims 1, 2, 4-6, 8, 14-20, 22-24, 26-29, 31 and 32.
Representative claim 1 is reproduced below:

1 Appellant’s attendance at the Oral Hearing set for July 12, 2005, was
waived in a communication received on July 11, 2005.
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1. A method of monitoring a computer network for specified events
at a presence, comprising:

gathering heterogeneous data, as directed by the presence, at two or
more remote computers and placing the gathered data in a data stream
and forwarding the data stream to the presence;

receiving, at the presence, the at least one data stream sent from the
two or more remote computers, the data stream including data
representative of events; and

applying rules to the at least one data stream at the presence for
sorting data representative of events and for taking one or more actions
based on a specified event.

The following reference is relied on by the examiner:
McCreery et al. (McCreery) 5,787,253 July 28, 1998
(filing date May 28, 1996)

Claims 1, 4-6, 8, 15-19, 22, 24, 26, 28, 31 and 32 stand rejected
under 35 U.S.C. § 102(e) as being anticipated by McCreery. Claims 2, 14,
20, 23, 27 and 29 stand rejected under 35 U.S.C. § 103. As evidence of
obviousness, the examiner relies upon McCreery alone.
Rather than repeat the positions of the appellant and the examiner,
reference is made to the brief and reply brief for the appellant’s positions,
and to the answer for the examiner’s positions.
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OPINION
For the reasons set forth by the examiner in the answer, we sustain
the rejection of the noted claims on appeal under 35 U.S.C. § 102 and
35 U.S.C. § 103. Since appellant has presented arguments only as to
representative independent claim 1 and claims 4-6 and 16 rejected under
35 U.S.C. § 102, and to claim 2 under 35 U.S.C. § 103, all remaining claims
fall with their respective parent claims. The subject matter of independent
claims 1, 22, 24 and 26 is to be considered together with respect to
representative independent claim 1 on appeal since they are stated to have
similar limitations as noted at the top of page 6 of the principal brief on
appeal.
We add the following to round out the examiner’s positions in the
answer.
McCreery’s system captures or otherwise gathers data from/on/at the
Internet by means of the entire Internet activity analyzer in Figures 2 and
3. Even though appellant recognizes at the top of page 7 of the principal
brief on appeal that McCreery captures and analyses data packets and is
even said to gather them, appellant asserts at the top of page 9 of the
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principal brief on appeal that McCreery does not gather data, all the while
recognizing at the top of page 2 of the reply brief that McCreery does
gather data to the extent recited in representative claim 1 on appeal.
It is noted that the claimed “a presence” is not defined to be any
type of structural or software element in the claims on appeal and may be
physically located anywhere on the broadly defined computer network of
this claim. It appears then that even in McCreery and the claimed the
presence, any gathering function may take place at any point on the
Internet, on any local area network associated with the Internet, and even
internal to the Internet analyzer itself such as its network interface 240 in
Figure 2 and element 316 in Figure 3 as well as the remote access
interface 310 in Figure 3. The various nodes or remote computers
associated with them in McCreery process, send, and otherwise gather
data which are intercepted or captured (answer page 10) in McCreery’s
analyzer. The assertion at page 7 of the principal brief on appeal that
claim 1 requires the heterogeneous data not be intercepted between nodes
of computers as in McCreery is misplaced since such a feature is not
recited in claim 1 on appeal.
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The filtering capability of McCreery is taught throughout this
reference to be able to select/specify computer/nodes/events. Indeed,
specific packets may be captured representative of heterogeneous data or
events. Note column 5, lines 15-20; column 6, lines 65-67; column 8, lines
1-9; column 12, lines 22-38 and column 13, lines 57-60. These are
consistent with appellant’s contemplation of events in the specification at
pages 9, 11 and 12.
Correspondingly, the captured data is sorted by nodes by the packet
analysis section 220 in Figure 2 and the data sorter 340 in Figure 4c as well
as the sorting and filtering module 362 in Figure 4d. The compare
functions are analogous to a sorting operation as discussed at column 8,
lines 45-49 and column 14, beginning at line 17. The application of rules
feature at the end of claim 1 on appeal is taught by the use of the
inference analyzer 358 in Figure 4d and the discussion at column 2,
lines 43-46; column 5, lines 48-53 and column 7, lines 50-59.
The additional assertion at page 7 of the principal brief on appeal
that McCreery does not take any actions based on the events detected is
misplaced. Even as asserted by the examiner in the Statement of the
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Rejection at page 5 of the answer, this is plainly taught at column 5, lines
44-57 in addition to column 6, lines 65-column 7, line 5. The entire ability
of an alarm function such as the alarm generation element 270 in Figure 2
is instructive as to this feature as well.
Thus, generally all these locations specified here plainly teach that
the specific data is gathered as directed by the Internet activity analyzer at
least in this reference. Specific packets or types of packets may be
gathered or filtered according to the general repeated teachings in
McCreery of filtering which are then selectively sorted by the user and
organized in such a manner as to eliminate undesired data. This is most
succinctly revealed in the Summary of the Invention at column 2.
The features of dependent claims 2, 4, 5, 6 and 16 in the remaining
pages of the principal brief on appeal are only generally argued not to be
taught by this reference. Each of these features of each of these claims is
asserted by the examiner in the Statement of the Rejection to have been
taught by specific portions of McCreery, which views are not challenged by
appellant in the reply brief.
In this regard, page 2 of the reply brief generally states that the
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examiner contends that McCreery discloses an agent. The discussion here
merely asserts an agent is a software agent as defined by a handbook. It
is significant to note that appellant does not challenge or assert here that
McCreery does not teach such an agent or a software agent. The examiner
first asserts that the network interface 240 in Figure 2 and the
corresponding element 316 in Figure 3 within McCreery works on behalf of
the analyzer, thus acting as an agent. Specific teachings also exist of a
software-based user agent at column 11, lines 29-51 and the so-called GET
function discussed beginning at column 12, line 39, both of which appear
to be conventional in well-known Internet protocols.
In view of the foregoing, the decision of the examiner rejecting
various claims on appeal under 35 U.S.C. § 102 and 35 U.S.C. § 103 is
affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 CFR § 1.136(a)(1)(iv)(effective
Sept. 13, 2003; 69 Fed. Reg. 49960 (Aug. 12, 2004); 1286 Off. Gaz. Pat.,
Office 21 (Sept. 7, 2004)).
AFFIRMED

James D. Thomas )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
Joseph L. Dixon ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
Allen R. MacDonald )
Administrative Patent Judge )

JDT/cam

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