Ex Parte PHAN et al

Patent Trial and Appeal Board

Feb 24, 2016

12771868 (P.T.A.B. Feb. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
121771,868 04/30/2010 The PHAN
56436 7590 02/26/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82259564 2619
EXAMINER
GARCIA-CHING, KARINA J
ART UNIT PAPER NUMBER
2449
NOTIFICATION DATE DELIVERY MODE
02/26/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THE PHAN, GREGORY D. DOLKAS, and SERGE
ZELENOV
Appeal2014-000261
Application 12/771,868
Technology Center 2400
Before DEBRA K. STEPHENS, JOSEPH P. LENTIVECH, and
JOYCE CRAIG, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
STATEMENT OF THE INVENTION
According to Appellants, the claims are directed to a method and
system for logging trace events of a network device (Abstract). Claim 1,
reproduced below, is illustrative of the claimed subject matter:
Appeal2014-000261
Application 12/771,868
1. A method for logging trace events of a network device in a
network, the method comprising:
generating, by the network device, a plurality of log events
based on a source level;
storing the plurality of log events to a log buffer of the
network device;
monitoring the plurality of log events in the log buffer for a
trigger event, wherein the trigger event is a condition in the
network;
determining whether the trigger event is detected;
determining one or more log events of the plurality of log
events in an ex-ante window of the log buffer upon detecting
the trigger event;
providing a log event of the one or more log events to a
system log; and
determining whether the one or more log events of the
plurality oflog events in the log buffer satisfy a log level upon
determining the trigger event is not detected, wherein a
severity of the source level is lower than a severity of the log
level.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
James
Wang
Lynn
Anna
US 6,647,446 Bl
US 2005/0198281 Al
US 2006/0036660 Al
US 2009/0282297 Al
2
Nov. 11, 2003
Sept. 8, 2005
Feb. 16,2006
Nov. 12, 2009
Appeal2014-000261
Application 12/771,868
REJECTIONS
Claims 1-8, 10-13, and 15-19 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Anna, Lynn, and Wang (Final Act. 2-8).
Claims 9, 14, and 20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Anna, Lynn, Wang, and James (Final Act. 8-9).
We have only considered those arguments that Appellants actually
raised in the Briefs. Arguments Appellants could have made but chose not
to make in the Briefs have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2012).
ISSUE 1
35 U.S.C. § 103(a): Claims 1-8, 10--13, and 15-19
Appellants assert their invention is not obvious over Anna, Lynn, and
Wang (App. Br. 7-14). The issues presented by the arguments are:
Issue 1 a: Has the Examiner erred in finding the combination of Anna,
Lynn, and Wang teaches or suggests "monitoring the plurality of log events
in the log buffer for a trigger event, wherein the trigger event is a condition
in the network," as recited in claim 1?
Issue 1 b: Has the Examiner improperly combined the teachings and
suggestions of Anna, Lynn, and Wang?
Issue 1 c: Has the Examiner erred in finding the combination of Anna,
Lynn, and Wang teaches or suggests "an ex-post window of the log buffer,"
as recited in claims 3, 4, 12, 13, 17, and 18?
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Appeal2014-000261
Application 12/771,868
ANALYSIS
We disagree with Appellants' conclusions and adopt as our own:
( 1) the findings and reasons set forth by the Examiner in the action from
which this appeal is taken; and (2) the reasons set forth by the Examiner in
the Answer in response to the Appeal Brief. With respect to the claims
argued by Appellants, we highlight and address specific findings and
arguments for emphasis as follows.
Appellants argue Anna teaches an error is a device I/O failure or other
error pertaining to a particular device and not to a condition in a network
(App. Br. 9). Additionally, Appellants argue, none of Anna, Lynn, and
Wang discloses "wherein the trigger event is a condition in the network," as
recited in independent claim 1 (id.). Appellants further argue Lynn
describes activity in log buffers 140 is monitored for certain events that
pertain to determination of when information needs to be written to memory
120 (App. Br. 10). Additionally, Appellants contend the event in Lynn is
described as pertaining to a relational database in which data is to be written
to a direct access storage device or memory (id.; Reply Br. 6). However,
Appellants argue Lynn does not disclose the trigger event is a condition in
the network as recited (App. Br. 1 O; Reply Br. 6).
Appellants next assert Wang, relied on by the Examiner, does not
teach the events in the event storing module are monitored for a trigger event
(App. Br. 11; Reply Br. 7). Therefore, Appellants contend Wang does not
disclose "monitoring the plurality of log events in the log buffer for a trigger
event, wherein the trigger event is a condition in the network," as recited in
claim 1 (App. Br. 11; Reply Br. 7).
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Appeal2014-000261
Application 12/771,868
We are not persuaded by Appellants' arguments. We agree with the
Examiner's findings and further emphasize the Examiner is relying on the
combination of Anna, Lynn, and Wang as teaching or suggesting the
invention as recited in claim 1. "It is well-established that a determination
of obviousness based on teachings from multiple references does not require
an actual, physical substitution of elements." In re Mouttet, 686 F.3d 1322,
1332 (Fed. Cir. 2012) (citing In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985)
(en bane) (noting that the criterion for obviousness is not whether the
references can be combined physically, but whether the claimed invention is
rendered obvious by the teachings of the prior art as a whole)).
More specifically, Appellants' arguments attack the references
separately; however, the Examiner's obviousness rejection is based upon the
combination of Anna, Lynn, and Wang. As such, we agree with the
Examiner's findings as to the teachings of Anna, Lynn, and Wang (Final
Act. 3--4; Ans. 4---6) and the Examiner's conclusion of obviousness (id.).
Appellants' arguments regarding Anna not teaching "monitoring a
condition" and alleged inconsistency of the Examiner's arguments set forth
in the Reply Brief are not persuasive (Reply Br. 5). Specifically, we are not
persuaded Anna does not teach or at least suggest "monitoring a condition."
We emphasize, the test for obviousness is what the combined teachings of
the references would have suggested to one of ordinary skill in the art. See
In re Kahn, 441 F.3d 977, 987-88 (Fed. Cir. 2006). Moreover, in evaluating
such references it is proper to take into account not only the specific
teachings of the references but also the inferences which one skilled in the
art would reasonably be expected to draw therefrom. In re Preda, 401 F .2d
825, 826 (CCP A 1968).
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Appeal2014-000261
Application 12/771,868
Additionally, we are not persuaded the Examiner's statement that
Anna teaches "monitoring a condition in a system" is inconsistent with not
relying on Anna for teaching "monitoring a condition in a network."
Accordingly, we are unpersuaded by Appellants' arguments that the
combination of Anna, Lynn, and Wang does not teach or suggest
"monitoring the plurality of log events in the log buffer for a trigger event,
wherein the trigger event is a condition in the network," as recited in claim
1.
Appellants additionally argue the proposed combination improperly
changes the principle of operation of Anna because "the procedure in Anna
with respect to the 'triggering moment' directly contradicts the procedure in
Lynn" asserting Anna's logging server receives the trigger whereas Lynn's
activity in the log buffers is monitored and Anna pertains to determination of
which data to log, but does not pertain to any network condition (App. Br.
12; Reply Br. 8).
We are not persuaded.
To justify combining reference teachings in support of a rejection
it is not necessary that a device shown in one reference can be
physically inserted into the device shown in the other. ... The
test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the
primary reference; nor is it that the claimed invention must be
expressly suggested in any one or all of the references. Rather,
the test is what the combined teachings of the references would
have suggested to those of ordinary skill in the art.
In re Keller, 642 F.2d 413, 425 (CCPA 1981). Here, we are not persuaded
by Appellants' arguments that the combination relied upon by the Examiner
would impermissibly destroy its principle of operation.
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Appeal2014-000261
Application 12/771,868
Appellants do not separately argue claims 10 and 15, relying instead
on the arguments set forth for claim 1 (App. Br. 13). Therefore, for the
reasons set forth above, we are not persuaded the Examiner erred in finding
the combination of Anna, Lynn, and Wang teaches or at least suggests the
invention as recited in claims 10 and 15.
With respect to claims 2-8, 11-13, and 16-19, Appellants first
specifically address claims 3, 12, and 17, contending the teachings of Anna
relied upon by the Examiner, Figures 5 and 6, do not disclose an "ex-post
window of the log buffer," or that log events are determine in the ex-post
window (App. Br. 13).
We are not persuaded by Appellants' general assertions that Figures 5
and 6 do not disclose the recited limitation (id.). The Examiner has set forth
with specificity where the limitations are taught (Final Act. 5---6) and
Appellants have not sufficiently explained or proffered sufficient evidence to
persuade us the limitation is not taught by the relied upon references.
Similarly, with respect to claims 4, 13, and 18, Appellants merely
state "[n]either of these cited paragraphs in Anna and Wang actually
discloses 'an ex-post window of the log buffer"' (App. Br. 14). Appellants
have not proffered sufficient evidence or argument to persuade us of error in
the Examiner's findings.
The remaining claims, claims 2, 5-8, 11, 16, and 19 were not
separately argued but relied upon as being patentable based on their
dependency from claims 1, 10, and 15, respectively (App. Br. 13-14).
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Anna, Lynn, and Wang teaches or suggests the limitations as
recited in claims 1-8, 10-13, and 15-19. Therefore, we sustain the rejection
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Appeal2014-000261
Application 12/771,868
of claims 1-8, 10-13, and 15-19 under 35 U.S.C. § 103(a) for obviousness
over Anna, Lynn, and Wang.
ISSUE 2
35 U.S.C. § 103(a): Claims 9, 14, and 20
Appellants assert their invention is not obvious over Anna, Lynn,
Wang, and James (App. Br. 14--15). The issue presented by the arguments
1s:
Issue 2: Has the Examiner erred in concluding the combination of
Anna, Lynn, Wang, and James teaches or suggests "transmitting a broadcast
message across the network, wherein the broadcast message triggers a
receiving network device to provide to a system log[,] one or more log
events in a log buffer of the receiving device," as recited in claims 9, 14, and
20?
ANALYSIS
Appellants are again attacking the references individually while the
Examiner is relying on a combination of the references. Specifically, the
Examiner determines an ordinarily skilled artisan would have found it
obvious to combine James' teaching of "transmitting a broadcast message
across the network, wherein the broadcast message triggers a receiving
network device to provide information," with the teachings of Anna, Lynn,
and Wang, to provide a specific type of information, i.e., "to provide to a
system log[,] one or more log events in a log buffer of the receiving device."
Appellants have not proffered sufficient evidence or argument to persuade
us of error in the Examiner's findings and conclusion.
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Application 12/771,868
Therefore, we sustain the rejection of claims 9, 14, and 20 under
35 U.S.C. § 103(a) for obviousness over Anna, Lynn, Wang, and James.
DECISION
The Examiner's rejection of claims 1-8, 10-13, and 15-19 under
35 U.S.C. § 103(a) as being unpatentable over Anna, Lynn, and Wang is
affirmed.
The Examiner's rejection of claims 9, 14, and 20 under 35 U.S.C.
§ 103(a) as being unpatentable over Anna, Lynn, Wang, and James 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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