Ex Parte Overby, Jr. et al

Patent Trial and Appeal Board

Sep 28, 2016

13547603 (P.T.A.B. Sep. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/547,603 07 /12/2012
46320 7590 09/30/2016
CRGOLAW
STEVEN M. GREENBERG
7900 Glades Road
SUITE 520
BOCA RATON, FL 33434
FIRST NAMED INVENTOR
Linwood H. Overby, Jr.
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.
RSW920040 l 68US2
(220DIV)
1857
EXAMINER
HUYNH, DUNG B.
ART UNIT PAPER NUMBER
2469
NOTIFICATION DATE DELIVERY MODE
09/30/2016 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):
docketing@crgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JR., LINWOOD H. OVERBY, JOYCE A. PORTER,
and DAVID J. WIERBOWSKI
Appeal2015-001551
Application 13/547,603
Technology Center 2400
Before MAHSHID D. SAADAT, LINZY T. McCARTNEY, and
JOYCE CRAIG, Administrative Patent Judges.
McCARTNEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1, 4--13, and 16-19. Appellants have canceled claims 2, 3, 14, and 15. We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
Appeal2015-001551
Application 13/547,603
STATEMENT OF THE CASE
The present patent application concerns "the field of secure forms of
computer communications and more particularly to secure forms of
computer communications for multiple clients sharing s a single network
address." Spec. i-f 1. Claim 1 illustrates the claimed subject matter:
1. A computer implemented method for Internet protocol
security (IP sec) packet processing for multiple clients sharing a
single network address comprising:
receiving a packet for IPsec processing in association with
a specified client among the multiple clients sharing the single
network address;
locating a specific dynamic filter rule for the specified
client by
locating multiple dynamic filter rules matching a 5-
tuple for the packet; and
determining the specific dynamic filter rule from
the multiple dynamic filter rules using client identifying
information exclusive of the 5-tuple produced for the
packet; and,
performing IPsec processing of the packet using the
located specific dynamic filter rule.
REJECTIONS
Claims 1, 5, 6, 8-13, and 17-19 stand rejected on the ground of non-
statutory obviousness-type double patenting as unpatentable over Overby, Jr.
et al. (US 8,250,229 B2; Aug. 21, 2012).
Claims 13, 16, 17, and 19 stand rejected under 35 U.S.C. § 101 as
directed to non-statutory subject matter.
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Claims 1, 4---6, 8, 13, and 16-19 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Attwood et al. (US 6,347,376 Bl; Feb. 12,
2002) and Alles et al. (US 6,952,728B1; Oct. 4, 2005).
ANALYSIS
Double Patenting Rejection
Appellants have not contested the Examiner's rejection of claims 1, 5,
6, 8-13, and 17-19 on the ground of non-statutory obviousness-type double
patenting. Appellants have therefore waived any argument that the
Examiner erred. See 37 C.F.R. §§ 41.37(c)(iv); Ex parte Borden, 93
USPQ2d 1473, 1474 (BPAI 2010) (informative). Accordingly, we sustain
the Examiner's rejection of claims 1, 5, 6, 8-13, and 17-19 on the ground of
non-statutory obviousness-type double patenting.
§ 101 Rejection
Independent claim 13 recites "[a] computer program product
comprising a computer useable storage medium having stored therein
computer usable program code." Claims 16, 17, and 19 depend from claim
13. The Examiner concluded these claims encompass non-statutory subject
matter because Appellants' specification fails to exclude non-transitory
signals from the term "computer usable storage medium." See Final Act.
16-18. Appellants argue paragraph 3 5 of their specification distinguishes
storing "from the emphasized other functions of containing, communicating,
propagating, and transporting." App. Br. 6. Therefore, according to
Appellants, the specification distinguishes a "storage medium" from a non-
statutory "signal medium." Id. at 7; see also Reply Br. 2-3.
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We find Appellants' arguments unpersuasive. "During examination,
claims ... are to be given their broadest reasonable interpretation consistent
with the specification." In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004) (citation and internal quotation marks omitted). The
broadest reasonable interpretation claims drawn to a "computer usable
storage medium" and the like usually encompasses transitory signals, unless
the specification explicitly discloses otherwise. See Ex parte Mewherter,
107 USPQ2d 1857, 1859-64 (PTAB 2013) (precedential); see also David J.
Kappos, Subject Matter Eligibility of Computer Readable Media, 1351 Off.
Gaz. Pat. & Trademark Office 212 (Feb. 23, 2010). When the broadest
reasonable interpretation of a claim includes transitory signals, the claim
covers non-statutory subject matter and should be rejected under 35 U.S.C.
§ 101. See In re Nuijten, 500 F.3d 1346, 1356-57 (Fed. Cir. 2007);
Mewherter, 107 USPQ2d at 1862.
Appellants' specification does not define the term "computer usable
storage medium." The specification simply discloses "a computer-usable or
computer readable medium can be any apparatus that can contain, store,
communicate, propagate or transport the program .... The medium can be
electronic, magnetic, optical, electromagnetic, infrared, or semiconductor
system (or apparatus or device) or a propagation medium." Spec. i-f 35
(emphasis added). We see nothing in these statements that requires
excluding transitory signals from the construction of "computer usable
storage medium." To the contrary, as found by the Examiner, disclosing a
"computer-usable medium" that stores data may be "a propagation medium"
indicates the term "computer-usable storage medium" encompasses
transitory signals. See Final Act. 4. Accordingly, Appellants have not
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persuaded us the broadest reasonable interpretation of the term "computer
usable storage medium" excludes transitory signals. We therefore sustain
the Examiner's rejection of claims 13, 16, 17, and 19 under 35 U.S.C. § 101.
§ 103 Rejection
Claim 1 recites in relevant part "locating multiple dynamic filter rules
matching a 5-tuple for the packet" and "determining the specific dynamic
filter rule from the multiple dynamic filter rules using client identifying
information exclusive of the 5-tuple produced for the packet." App. Br. 18.
Independent claims 6 and 13 recite similar limitations. Id. at 18, 22-23.
Appellants contend Attwood fails to teach or suggest claim 1 's
"locating" step because "Attwood discloses the dynamic rules associated
with [a] placeholder are not searched until a matching placeholder is
located." Reply Br. 7 (emphasis modified). According to Appellants, the
"locating" step "requires that a matching 5-tuple be found, not merely a
placeholder." Id. Appellants assert "there is nothing in Attwood that
requires the matching of all five elements of the 5-tuple." Id. (emphasis
omitted); see also App. Br. 14.
We find Appellants' arguments unpersuasive. On its face, claim 1
does not preclude searching dynamic rules after locating a matching
placeholder or require matching all five elements of a 5-tuple as argued by
Appellants. And Appellants have not identified any persuasive evidence that
requires construing claim 1 in this manner. Claim 1 simply recites "locating
multiple dynamic filter rules matching a 5-tuple for the packet." The plain
and ordinary meaning of "matching" includes "that corresponds." See, e.g.,
"matching, adj.," OED Online,
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http://www.oed.com/view/Entry/114893?rskey=goBENJ&result=3&isAdva
nced=false (last visited September 15, 2016). Thus, the broadest reasonable
interpretation of the "locating" limitation includes locating multiple dynamic
filter rules that correspond to a single element of the 5-tuple for the recited
packet. For the reasons discussed below, Attwood teaches or suggests the
"locating" limitation under this construction.
As found by the Examiner, Attwood discloses placeholders that
contain pointers to groups of dynamic rules. Attwood Fig. 5; see Final Act.
19. Attwood teaches the "placeholders ... have a field ... of attributes
which are used to match with the attributes of a packet to determine which
rule to apply to the packet." Attwood 6:13-18 (emphasis added); see Final
Act. 19. "The attributes used for matching typically are IP source address
(SA) and source port (SP), IP destination address (DA) and destination port
(DP) and protocol (P)." Attwood 6: 13-18.
Appellants acknowledge these five attributes "are equivalent to the
ones associated with Appellants' 5-tuple." App. Br. 10 n.2. Although
Attwood teaches that "[n]ot all attributes have to be specified in a rule,"
Attwood explicitly discloses a dynamic rule group that specifies all five of
these attributes. Attwood 6:23-24, 7:47-55. Accordingly, Attwood's
disclosure that "placeholders ... have a field ... of attributes which are used
to match with the attributes of a packet" and "[t]he attributes used for
matching typically" include the five attributes that form a 5-tuple teaches or
suggests locating a placeholder with attributes that match the attributes that
form a packet's 5-tuple. By locating a placeholder that matches a 5-tuple,
Attwood's method has also located a plurality of dynamic rules-the groups
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of rules pointed to by the matching placeholder-that correspond to (i.e.,
that are associated or have a relationship with) the 5-tuple.
Appellants next contend Attwood does not teach or suggest "locating
multiple dynamic filter rules." App. Br. 11-14; Reply Br. 7-8. In
particular, Appellants assert Attwood' s Figures 7, 9, and 12 illustrate that
Attwood' s method ( 1) searches for dynamic rules only after finding a
matching placeholder and (2) stops searching for dynamic rules after
locating a matching dynamic rule. See App. Br. 11-14; Reply Br. 7-8.
In Appellants' view, Attwood "teaches away from even wanting to locate
dynamic filters, yet alone multiple dynamic filter rules, since [Attwood]
avoids even searching the dynamic rules." Reply Br. 8.
We find Appellants' arguments unpersuasive. As an initial matter,
Appellants' arguments concerning Attwood's Figures 7, 9, and 12 do not
address the Examiner's rejection. The Examiner did not find the portions of
these figures that depict finding a specific dynamic filter teaches or suggests
"locating multiple dynamic filter rules." Instead, the Examiner relied on
Attwood' s disclosure of locating a placeholder that both ( 1) points to a
plurality of dynamic rules and (2) matches the five packet attributes that
make up Appellants' 5-tuple. See Final Act. 19; Ans. 5-9; see also Attwood
6:13-18, 7:32-9:27, 12:3-13:24; Figs. 5, 7, 12.
To the extent Appellants contend Attwood' s method of locating a
placeholder does not teach or suggest "locating multiple dynamic filter
rules," we disagree. As explained above, by locating a placeholder that
matches a 5-tuple, Attwood's method also locates a plurality of dynamic
rules (the groups of rules pointed to by the matching placeholder) that
correspond to the 5-tuple.
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Moreover, Attwood's process of locating placeholders that point to
multiple dynamic rules is consistent with the process described by
Appellants' specification. Appellants' specification discloses that, in some
situations, Appellants' method locates a dynamic filter rule placeholder (a
"NTT anchor") that both points to a plurality of dynamic filter rules ("NTT
filter rules") and encompasses a packet's 5-tuple. See Spec. iii! 22, 30; Figs. 2,
3B. Depending on the circumstances, the method then uses an "UDP
encapsulated source port" to locate a particular dynamic filter rule. See id.
if 30. This indicates that "locating multiple dynamic filter rules matching a 5-
tuple for the packet" includes locating a dynamic filter rule placeholder that
both corresponds to a 5-tuple and points to multiple dynamic rules.
Finally, Appellants contend Alles does not each or suggest "determining
the specific dynamic filter rule from the multiple dynamic filter rules using
client identifying information exclusive of the 5-tuple produced for the
packet." Appellants assert this limitation "requires determining a specific
dynamic filter rule from multiple dynamic filter rules using client identifying
information from only the 5-tuple produced for packet." App. Br. 16
(emphasis added); see also Reply Br. 8-9.
We find Appellants' arguments unpersuasive. As found by the
Examiner, the broadest reasonable interpretation of "exclusive of' encompasses
"not including." See Ans. 10; see also "exclusive, adj. and n.," OED Online,
http://www.oed.com/view /Entry I 65 83 3 ?redirectedFrom=exclusive (last
visited September 15, 2016). Moreover, as pointed out by the Examiner,
Appellants' specification discloses using "client identifying information" (e.g.,
a UDP encapsulating source port) that differs from a 5-tuple to determine a
specific dynamic filter rule. Ans. 10; Spec. iii! 18, 22-23. Therefore, the
broadest reasonable interpretation of "using client identifying information
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exclusive of the 5-tuple" includes "using client identifying information not
including the 5-tuple." The Examiner found (and we agree) that the
combination of Attwood and Alles teaches or suggests this limitation under
this construction. See Final Act. 19-20; Ans. 10-11.
For the above reasons, we sustain the Examiner's rejection of claim 1
under 35 U.S.C. § 103(a). Because Appellants have not presented separate,
persuasive patentability arguments concerning the Examiner's rejection of
claims 4--13, and 16-19 under 35 U.S.C. § 103(a), we also affirm the
Examiner's rejection of these claims.
DECISION
For the above reasons, we affirm the Examiner's non-statutory
obviousness-type double patenting rejection of claims 1, 5, 6, 8-13, and 17-
19. We also affirm the Examiner's rejections of claims 13, 16, 17, and 19
under 35 U.S.C. § 101 and claims 1, 4--6, 8, 13, and 16-19 stand under 35
U.S.C. § 103(a).
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 )(iv).
AFFIRMED
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