Ex Parte Nguyen

Board of Patent Appeals and Interferences

Dec 4, 2009

09750475 (B.P.A.I. Dec. 4, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LYNH NGUYEN
____________

Appeal 2008-004800
Application 09/750,4751
Technology Center 2400
____________

Decided: December 4, 2009
____________

Before JOHN C. MARTIN, JAY P. LUCAS, and CAROLYN D. THOMAS,
Administrative Patent Judges.

THOMAS, Administrative Patent Judge.

DECISION ON APPEAL

1 Application filed December 28, 2000. The real party in interest is
International Business Machines Corporation.
Appeal 2008-004800
Application 09/750,475

2

I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection
of claims 1-22, which are all the claims pending in the application. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

A. INVENTION
Appellant invented a system, method, and computer readable medium
for providing connection of a plurality of remote applications with a data
source. (Spec. 30, Abstract.)

B. ILLUSTRATIVE CLAIM
The appeal contains claims 1-22. Claims 1, 8, and 15 are independent
claims. Claim 1 is illustrative:
1. A method for automatically re-establishing a connection
to a data source accessible by a plurality of remote applications, the
method comprising:
providing at least one interface module configured to
interface with a remote application;
providing at least one port module configured to interface
between the interface module and the data source;
providing a connection manager to facilitate the interface
between the interface module and the port module;
detecting unavailability of the data source in response to
an initial request for the data source by the remote application;
dynamically detecting availability of the data source in
response to a subsequent request for the data source; and
Appeal 2008-004800
Application 09/750,475

3
re-connecting the data source to the remote application in
response to the subsequent request.

C. REFERENCES
The references relied upon by the Examiner as evidence in rejecting
the claims on appeal are as follows:
Brendel US 5,774,660 Jun. 30, 1998
Guenthner US 6,134,588 Oct. 17, 2000
Polizzi US 2002/0023158 A1 Feb. 21, 2002

D. REJECTIONS
The Examiner entered the following rejections2 which are before us
for review:
(1) Claims 1-19 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Polizzi in view of Guenthner; and
(2) Claims 20-22 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Polizzi and Guenthner in view of Brendel.

II. FINDINGS OF FACT
The following findings of fact (FF) are supported by a preponderance
of the evidence.
Guenthner
1. In Guenthner, “a special policy may be implemented if a server
fails to respond to a given HTTP [(Hypertext Transfer Protocol)] request. In

2 In the Examiner’s Answer, the Examiner withdrew the rejection of claims
1-5, 8-12, and 15-19 under 35 U.S.C. § 103(a) as being unpatentable over
Polizzi in view of Mastors, U.S. Patent No. 5,826,021 (“Mastors”) (Ans. 3.)
Appeal 2008-004800
Application 09/750,475

4
particular, the browser marks the entry ‘Bad’ for a short while (e.g., one
hour) and tries the next list entry on a primary/backup list or another random
entry on a random list.” (Col. 9, ll. 12-17.)
2. Guenthner discloses:
[I]t is desirable that clients resume using primary servers as
soon as possible when the servers are restored to service.
Therefore, the invention enforces a policy whereby a client
retries entries that were marked “Bad” at a fairly frequent
interval (at least once an hour)(so long as the client is still
making requests, of course). This policy enables the client to
access servers that, while previously down or overloaded, are
later returned to service or otherwise available to handle the
request.

(Col. 9, ll. 26-35.)
Brendel
3. In Brendel, “FIG. 6 is a diagram of a web server which
asymmetrically routes incoming traffic through a load-balancer while
bypassing the load-balancer for data transmitted back to client browsers.”
(Col. 9, ll. 18-21.)

III. PRINCIPLES OF LAW
“What matters is the objective reach of the claim. If the claim extends
to what is obvious, it is invalid under § 103.” KSR Int’l Co. v. Teleflex, Inc.,
550 U.S. 398, 419 (2007). To be nonobvious, an improvement must be
“more than the predictable use of prior art elements according to their
established functions.” Id. at 417.

Appeal 2008-004800
Application 09/750,475

5
IV. ANALYSIS
Grouping of Claims
In the Appeal Brief:
Appellant argues claims 1-19 as a group (App. Br. 10-12). For claims
2-19, Appellant repeats the same argument made for claim 1. We will,
therefore, treat claims 2-19 as standing or falling with claim 1.
Appellant argues claims 20-22 as a group (App. Br. 14-15). For
claims 21 and 22, Appellant repeats the same argument made for claim 20.
We will, therefore, treat claims 21 and 22 as standing or falling with claim
20. See 37 C.F.R. § 41.37(c)(1)(vii). See also In re Young, 927 F.2d 588,
590 (Fed. Cir. 1991).

The Obviousness Rejection
We now consider the Examiner’s rejection of the claims under
35 U.S.C. § 103(a).
Claims 1-19
Appellant contends that “Guenthner does not disclose dynamically
detecting the availability of a data source in response to a subsequent request
for the data source, as recited in claim 1. Rather, Guenthner discloses
retrying an entry marked as ‘Bad’ ‘at a fairly frequent interval (at least once
an hour).’” (App. Br. 11.) Appellant further contends that “Guenthner
explicitly teaches to avoid using a ‘Bad’ server, and therefore, according to
Guenthner, so long as a client is making requests, those requests are serviced
by a server that is not marked as ‘Bad’.” (Reply Br. 5.)
The Examiner found that “Guenthner discloses detecting
unavailability of a data source in response to a request for the data
Appeal 2008-004800
Application 09/750,475

6
source . . . , dynamically detecting availability of the data source and
reconnecting to the data source in response to a subsequent request . . . .”
(Ans. 5.)

Issue: Has Appellant shown that the Examiner erred in finding that
the combination of Polizzi and Guenthner discloses “dynamically detecting
availability of the data source in response to a subsequent request for the
data source”?

Here, the Examiner admits that Polizzi does not explicitly disclose
detecting unavailability and availability of a data source, but instead relies
upon Guenthner to disclose such features. As such, we shall look for error
in the Examiner’s interpretation of Guenthner.
Specifically, Guenthner discloses that if a server fails to respond to a
request, the server is marked as “Bad” for a short while (FF 1). Thereafter,
Guenthner enforces a policy whereby a client re-attempts to access the
server by retrying to connect at frequent intervals (FF 2). In other words,
Guenthner discloses detecting unavailability (e.g., a “Bad” server) and
dynamically detecting (e.g., at frequent intervals) availability of the server in
response to a subsequent request (e.g., retrying entries). We add that claim 1
is broadly written to include “a subsequent request” from any source, not
necessarily from the remote application.
Appellant further contends that Guenthner avoids using a “Bad”
server and thus teaches against retries for the same data source (Reply Br. 6).
We disagree. Here, both Appellant and the Examiner associate Guenthner’s
“Bad” server with the claimed “data source.” As noted supra, Guenthner
Appeal 2008-004800
Application 09/750,475

7
merely avoids using a “Bad” server (i.e., data source) for a short time, not
indefinitely. Thereafter, Guenthner tries to detect when the “Bad” server has
returned to service (FF 2). It is this “Bad” server that Guenthner attempts to
re-connect to. Thus, Appellant’s argument that Guenthner teaches against
retries to the same “Bad” server is unpersuasive.
Thus, Appellant has not persuaded us of error in the Examiner’s
conclusion of obviousness for representative claim 1. Therefore, we affirm
the Examiner’s § 103 rejection of independent claim 1 and of claims 2-19,
which fall therewith.

Claims 20-22
Appellant contends that “Brendel does not teach or suggest
connecting directly the interface module and the port module for
communicating independently from the connection manager in subsequent
communications as claimed.” (App. Br. 14-15.) Appellant further contends
that “[a]ccording to Brendel, the claimed subsequent communication of
requests for a data source would still be routed through the load balancer.”
(Reply Br. 8.)
The Examiner found that Brendel discloses that “the user and the
remote application may connect directly with one another allowing
subsequent communications from the server to be sent to the user such that
the load balancer is bypassed . . . .” (Ans. 6.)

Issue: Has Appellant shown that the Examiner erred in finding that
Brendel discloses “connecting directly the interface module and the port
Appeal 2008-004800
Application 09/750,475

8
module for communicating independently from the connection manager in
subsequent communications”?

The Examiner found that Appellant’s argument “relies upon an
unduly narrow interpretation of the claimed ‘subsequent communications’”
(Ans. 10.) We agree.
Although Appellant argues that “[t]he scope of claim 20 includes
subsequent incoming communication” (App. Br. 14), we find that claim 20
is not limited to incoming communications. While we agree with Appellant
that “subsequent communications” includes “subsequent incoming
communications,” we add that “subsequent communications” also includes
“outgoing communications.” In other words, the claimed “subsequent
communications” reads on any later communications, not merely incoming
communications. Thus, Appellant’s argument is not commensurate with the
actual scope of instant claim 20.
Here, the Examiner has shown that Brendel discloses how “outgoing
communications” bypass the load-balancer (FF 3). Thus, the claimed
“communicating independently from the connection manager in subsequent
communications” reads on Brendel’s outgoing communications from the
server to the client browser bypassing the load-balancer.
Thus, Appellant has not persuaded us of error in the Examiner’s
conclusion of obviousness for representative claim 20. Therefore, we affirm
the Examiner’s § 103 rejection of dependent claim 20 and of claims 21 and
22, which fall therewith.

Appeal 2008-004800
Application 09/750,475

9
V. CONCLUSION
We conclude that Appellant has not shown that the Examiner erred in
rejecting claims 1-22.
Thus, claims 1-22 are not patentable.

VI. DECISION
In view of the foregoing discussion, we affirm the Examiner’s
rejection of claims 1-22.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2009).

AFFIRMED

llw

SUGHRUE MION PLLC
USPTO CUSTOMER NO WITH IBM/SVL
2100 PENNSYLVANIA AVENUE, N.W.
WASHINGTON, DC 20037