Ex Parte Lewis

Board of Patent Appeals and Interferences

Feb 23, 2009

09578156 (B.P.A.I. Feb. 23, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte LUNDY LEWIS
____________________

Appeal 2008-4230
Application 09/578,156
Technology Center 2100
____________________

Decided:1 February 24, 2009
____________________

Before ALLEN R. MACDONALD, ST. JOHN COURTENAY III, 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 CFR § 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 2008-4230
Application 09/578,156

STATEMENT OF CASE
Introduction
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 1-6, 9-13, 15-18, 20, 21, and 23-26. Appellant indicates that claims
7, 8, 14, 19, and 22, have been cancelled (App. Br., Claim Appendix).2 We
have jurisdiction under 35 U.S.C. § 6(b). An oral hearing for this appeal was
conducted on February 12, 2009.
According to Appellant, the invention is related to various aspects of
service level management (SLM), whereby a state of the service is defined
by one or more service parameters, and the service parameters depend upon
performance of network components that support the service, e.g.,
component parameters. (Abstract).
Exemplary Claim(s)
Exemplary independent claim 1 under appeal reads as follows:
1. A computer-implemented system for providing service level
management in a network, wherein the network includes a plurality of
network components, and wherein a service operates on a subset of the
plurality of network components, the service having a state, the system
comprising:

multiple monitoring agents that each monitor a respective
aspect of operation of one or more of the network components, wherein each
monitoring agent detects events in the respective monitored aspect of
operation and generates alarms as a function of the detected events; and

2 We note that the Final Rejection, the Examiner’s Answer, the Appeal
Brief, and the Reply Brief, each list one or more of these claims as being
rejected or appealed. However, these claims are indicated as cancelled and
are not part of this appeal.
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an alarm correlation agent that receives the generated alarms
from the monitoring agents, wherein the alarm correlation agent determines
a current state of the service based on the received alarms and issues one or
more instructions to autonomously establish a desirable state of the service
when the current state of the service is undesirable.

Prior Art
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Feridun US 6,336,139 B1 Jan. 1, 2002
The Board makes note of additional prior art as follows:
Turek US 6,460,070 Oct. 1, 2002
Feridun incorporates Turek by reference at column 11, lines 4-10.
Rejections
The Examiner rejected claim 1 on the ground of non-statutory
obviousness-type double patenting as being unpatentable over claim 1 of
U.S. Patent 6,430,712.
The Examiner rejected claims 1, 6, 11, 13, 18, 20, 21, 23, and 26
under 35 U.S.C. § 112, second paragraph, as being indefinite.
The Examiner rejected claims 1-6, 9-13, 15-18, 20, 21, and 23-26,
under 35 U.S.C. § 102(e) as being anticipated by Feridun.
Appellant’s Contentions
(1) Appellant does not appeal the rejection of claim 1 on the ground of
non-statutory obviousness-type double patenting. Thus, the Appellant does
not contend that the Examiner erred as to this rejection. Therefore, we
affirm this rejection.
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(2) Appellant contends that the Examiner erred in rejecting claims 1,
6, 11, 13, 18, 20, 21, and 23 under 35 U.S.C. § 112, second paragraph, as
being indefinite. (App. Br. 6-8). We agree for the reasons set forth by the
Appellant. Therefore, we reverse this rejection.
(3) Appellant contends that the Examiner erred in rejecting claims
1-6, 9-13, 15-18, 20, 21, and 23-26, under 35 U.S.C. § 102(e) as being
anticipated by Feridun. More specifically, the Appellant contends that the
Examiner erred because:
(A) Feridun does not disclose at least the feature of:
an alarm correlation agent that receives the generated
alarms from the monitoring agents, wherein the alarm
correlation agent determines a current state of the service
based on the received alarms and issues one or more
instructions to autonomously establish a desirable state of
the service when the current state of the service is
undesirable.
(App. Br. 8).

Result
We affirm.

ISSUE(S)
Issues on Appeal
(1)
Whether Appellant has shown that the Examiner has erred because the
disclosure of Feridun (an the incorporated disclosure of Turek) does not
teach limitations required by claims 1-6, 9-13, 15-18, 20, 21, and 23-26?

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FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Appellant’s Invention
1. According to Appellant in one embodiment, a system is
provided for determining a state of the service, the service being composed
of network components, and the service affecting operation of a business
process. (Spec. 14:8-10).
2. The system comprises agents for monitoring and determining
the state of one or more of the network components. (Spec. 14:10-11).
3. A network includes four general categories of components:
transmission devices, transmission media (also referred to as lines or links)
among the devices, computer systems, and applications (residing on the
computer systems and transmission devices). (Spec. 20:1-3).
4. A component is used broadly herein to include hardware,
software, firmware, applications, processes, etc. (Spec. 20:3-5).
5. Computer systems include servers, desktops, workstations, etc.
(Spec. 20:5).
6. Transmission media is used broadly to include copper, wireless,
optical, satellite, etc. (Spec. 20:5-6).
7. A network is also used broadly to include a business network
(sometimes called an enterprise, typically owned by the business), a service
provider network (not typically owned by the SP, e.g., an intermediary
between the Internet and customer), telephony networks, etc. (Spec. 20:6-9).
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8. The information conveyed on the network is meant to broadly
include data, voice, video, etc. (Spec. 20:9-10).
9. A service is a function that a network provides for the business.
(Spec. 20:11).
10. A service is an abstraction over and above the network,
and arises in virtue of the structure and operation of the network.
(Spec. 20:11-13).
11. A service may be a function whose performance depends upon
performances of network components that support the service. One example
of a service is providing Internet access. (Spec. 20:13-15).
12. Service level management (SLM) is the identification and
monitoring of service level parameters. (Spec. 23:5-6)
13. In one embodiment, SLM refers to a process which includes
“deploying agents to monitor and control component parameters.”
(Spec. 23:6 and 8-9).
Feridun
14. Feridun discloses a method of event correlation implemented
within a distributed environment having a management server and a set of
managed machines. The preferred event correlation method begins by
establishing a discrete set of correlation rules. Each correlation rule is
adapted to recognize a given pattern of one or more events indicative of a
given condition. (Abstract).
15. An object of Feridun is to deploy a Java-based software agent
into a large distributed computing environment, which agent is then dropped
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into a local runtime environment to correlate a set of event streams. (Col. 1,
ll. 64-67).
16. A more general object of this invention is to correlate events
that convey status changes in monitored objects within a distributed
computing environment. (Col. 2, ll. 1-3).
17. Feridun incorporates Turek by reference. (Col. 11, ll. 4-10).
Turek
18. Turek is directed to managing a large distributed computer
enterprise environment and, more particularly, to diagnosing and correcting
network faults in such an environment using mobile software agents. (Col.
1, ll. 7-10).
19. Turek discloses “a method of diagnosing a given event (e.g., a
fault, an alarm, or the like) in a large, distributed computer network in which
a management infrastructure is supported.” (Col. 2, ll. 27-30).
20. In a preferred embodiment, the present invention envisions
automatic deployment of one or more software agents to locate a particular
network fault, and the use of such agent (once the fault is located) to rectify
the problem. (Col. 6, ll. 27-31).
21. Turek states that “a given event is a network ‘fault’, alarm or
other such trigger” and “[o]ne of ordinary skill will appreciate that the
particular event need not be a fault or alarm type of condition, however.”
(Col. 7, ll. 3-6).
22. An alternative event might be a request for maintenance in
some non-specific area of the network. (Col. 7, ll. 6-7).
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23. Once the fault or other problem has been diagnosed, the agent
attempts to fix the problem. The agent may have the necessary code or it
may send requests to the dispatch mechanism for additional code to effect
the repair. The dispatch mechanism may be located in distributed locations
as well, if desired. The additional code may be other software agent(s). If
unable to effect repairs, the agent will, at a minimum, report back with the
diagnosis to a user interface of the dispatch mechanism. (Col. 9, ll. 21-30).

PRINCIPLES OF LAW
Appellant has the burden on appeal to the Board to demonstrate error
in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir.
2006).
For a rejection under § 102, Appellant may sustain this burden by
showing that the prior art reference relied upon by the Examiner fails to
disclose an element of the claim. It is axiomatic that anticipation of a claim
under § 102 can be found only if the prior art reference discloses every
element of the claim. See In re King, 801 F.2d 1324, 1326 (Fed. Cir. 1986)
and Lindemann Maschinenfabrik GMBH v. American Hoist & Derrick Co.,
730 F.2d 1452, 1457 (Fed. Cir. 1984).

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ANALYSIS
Appellant essentially argues two points. First, the events of Feridun
are not equivalent to the alarms of Appellant’s claims. (Reply Br. 6).
Second, Feridun does not disclose that analysis of the correlated events
includes the “current state of the service” as claimed. (Reply Br. 7).
We disagree. Firstly, Turek (which is incorporated by Feridun)
explicitly states that events include faults, alarms, and requests for
maintenance. (FF 21, 22).
Secondly, although Appellant has in one instance described a
“service” as an abstraction over and above the network (FF 10), Appellant
also describes a “service” as being composed of network components. (FF
1). Appellant goes on to describe the components as including hardware on
the network. (FF 2-3). Further, Appellant repeatedly states that the agents
monitor the service by monitoring the state of network components. (FF 2
and 13). Given Appellant’s broad description of “service” we conclude that
Feridun/Turek’s disclosure of event/alarm diagnosis/correction for
networked computer system components does teach establishing a desirable
current “state of the service” as claimed.
Therefore, for the reasons above, Appellant has not established that
the Examiner erred with respect to this rejection of claims 1-6, 9-13, 15-18,
20, 21, and 23-26 under § 102(e).

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CONCLUSION OF LAW
(1) Appellant has failed to establish that the Examiner erred in
rejecting claims claim 1 on the ground of non-statutory obviousness-type
double patenting.
(2) Appellant has established that the Examiner erred in rejecting
claims 1, 6, 11, 13, 18, 20, 21, 23, and 26 under 35 U.S.C. § 112, second
paragraph, as being indefinite.
(3) Appellant has failed to establish that the Examiner erred in
rejecting claims 1-6, 9-13, 15-18, 20, 21, and 23-26, as being unpatentable
under 35 U.S.C. § 102(e) over Feridun.
(4) Claims 1-6, 9-13, 15-18, 20, 21, and 23-26 are not patentable.

DECISION
The Examiner's rejection of claims 1, 6, 11, 13, 18, 20, 21, and 23
under § 112 is reversed.
The Examiner's rejection of claim 1 on the ground of non-statutory
obviousness-type double patenting is affirmed.
The Examiner's rejection of claims 1-6, 9-13, 15-18, 20, 21, and
23-26, under 35 U.S.C. § 102(e) is affirmed.
At least one rejection of each pending claim is affirmed.

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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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