Ex Parte Rolia et al

Board of Patent Appeals and Interferences

Apr 25, 2011

11158776 (B.P.A.I. Apr. 25, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JEROME ROLIA, KEITH I. FARKAS, MARTIN F. ARLITT, and
SVEN GRAUPNER
____________
Appeal 2009-009774
Application 11/158,776
Technology Center 2100
___________

Before JAY P. LUCAS, ST. JOHN COURTENAY III, and
THU A. DANG, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s final rejection of claims 1-4, 6-15, 18, and 21-28. Claims 5, 16,
17, 19, and 20 have been cancelled. We have jurisdiction under 35 U.S.C.
§ 6(b).
We Affirm.
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Invention
Appellants’ invention relates generally to monitoring systems. More
particularly, the invention on appeal is directed to systems and methods for
autonomously configuring a reporting network. (Spec 1).

Representative Claim 1
1. A method comprising:

dynamically configuring a reporting network for
communicating data among parts of a monitoring architecture,
wherein the monitoring architecture includes at least one source
to gather monitored data of monitored devices collected by
monitoring instrumentation;

communicating, through the reporting network, the
monitored data from the at least one source to one or more
monitoring tools;

maintaining a machine-readable model of the monitoring
architecture; and

autonomously adapting configuration of the reporting
network based on the machine-readable model.

Rejection
1. Claims 1-4, 6-15, 18, and 21-28 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Tindal ‘946
(US 7,054,946 B2) and Tindal ‘301(US 6,978,301 B2).

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ISSUE
Based upon our review of the administrative record, we have
determined that the following issue is dispositive in this appeal regarding
Appellants’ principal argument on appeal:
1. Under § 103, did the Examiner err in determining that the
combination of Tindal ‘946 and Tindal ‘301 would have
taught or suggested the following argued limitations:
the monitoring architecture includes at least one source to
gather monitored data of monitored devices collected by
monitoring instrumentation;
. . . .
maintaining a machine-readable model of the
monitoring architecture; and
autonomously adapting configuration of the
reporting network based on the machine-readable model,

within the meaning of claim 1?

FINDINGS OF FACT
1. Tindal ‘301 teaches that “health manager 180 can collect individual
device information and model overall network health.” (col. 7, l. 66
through col. 8, l. 2).
2. Tindal ‘301 teaches that “[t]he health manager 180 can operate in an
active mode and/or a passive mode.” (Col. 7, ll. 61-62).
3. Tindal ‘301 teaches that “[i]n the active mode, the health manager
actively polls at least some of the network devices 135 about their
status, utilization, congestion, etc.” (Col. 7, ll. 63-65).
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4. Tindal ‘301 teaches that “[i]n the passive mode, the various network
devices 135 automatically report to the health manager 180.’ (Col. 7,
ll. 65-66).
5. Tindal ‘301 teaches storing present and previous configuration
records that correspond to network devices. (Col. 8, ll. 44-49).
6. Tindal ‘301 teaches the policy manager 170 can take the appropriate
course of action (as implemented by action manager 185) in response
to messages regarding network device problems published by the
health manager 180. (Col. 8, ll. 1-8).

ANALYSIS
Claims 1, 2, 4, 6-11, 23, and 24
Based on Appellants’ arguments in the Briefs, we will decide the
appeal for claims 1, 2, 4, 6-11, 23, and 24 on the basis of representative
claim 1. See 37 C.F.R. § 41.37(c)(1)(vii).
Regarding claim 1, Appellants principally contend that the cited
combination of Tindal ‘946 and Tindal ‘301 does not teach or suggest the
limitations of:
maintaining a machine-readable model of the monitoring
architecture; and

autonomously adapting configuration of the reporting
network based on the machine-readable model.”
(Claim 1).

We begin our analysis by noting that the claimed “monitoring
architecture” need only include at least one source to gather monitored data
of monitored devices collected by monitoring instrumentation. (Claim 1).
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We broadly but reasonably read the “at least one source” of claim 1 on the
“health manager 180 [that] can collect individual device information and
model overall network health. ” (FF 1; Tindal ‘301, col.7, l. 66 through col.
8, l. 2). Thus, as tacitly acknowledged by Appellants on page 3, line 7 of the
Reply Brief, the monitoring architecture in Tindal ‘301 is the overall system
that merely includes the health manager as the “at least one source” of the
“monitoring architecture” of claim 1.
We note that the Examiner clearly indicates in both the rejection and
the response to arguments that the claimed “monitoring architecture” is not
the health manager, but rather broadly encompasses the network itself.
(Ans. 6, ¶1, p. 18, ¶3). Therefore, on this record, we find Appellants’
arguments as articulated in the Briefs are unresponsive to the thrust of the
Examiner’s rejection, because these arguments are grounded on an incorrect
premise that the Examiner is reading the claimed model of the monitoring
architecture on the health manager of Tindal ‘301. (FF 1).
Appellants’ arguments notwithstanding, we find no error in the
Examiner’s ultimate legal conclusion that the claimed “machine-readable
model of the monitoring architecture” that is used to “autonomously adapt[]
[the] configuration of the reporting network” (claim 1) is rendered obvious
by Tindal’s stored network device configuration records (i.e., model) that
are “adapted” by the health manager that “autonomously” operates in active
and passive modes (FF 2-4) in close coordination with the policy manager
170 and action manager 185 to “adapt” the configuration of the (reporting)
network. (FF 6).
We likewise find no support in the record for Appellants’ arguments
attacking the combinability of the Tindal ‘946 and Tindal ‘301 references on
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the principal basis, inter alia, that the provision of a model is completely
absent in Tindal ‘946. (App. Br. 7, ¶2).
We find the two references are clearly analogous art because both
references are from the same field of endeavor: network device
configuration. We also observe that the Tindal ‘946 and Tindal ‘301
references share a common inventor. Moreover, we conclude that the
Examiner’s proffered combination of Tindal ‘946 and Tindal ‘301
reasonably teaches and/or suggests Appellants’ claimed invention in terms
of known elements that would have been combinable by an artisan using
known methods to achieve a predictable result. “The combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” Leapfrog Enters., Inc. v. Fisher-
Price, Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007) (quoting KSR Int’l Co. v.
Teleflex Inc. 550 U.S. 398, 401(2007)). This reasoning is applicable here.
On this record, we find Appellants have not met their burden of
showing reversible error in the Examiner’s underlying factual findings and
ultimate legal conclusion of obviousness regarding representative claim 1. 1

1 See In re Jung, No. 2010-1019, 2011 WL 1235093 at *7 (Fed. Cir. Mar.
28, 2011) (“Jung argues that the Board gave improper deference to the
examiner’s rejection by requiring Jung to ‘identif[y] a reversible error’ by
the examiner, which improperly shifted the burden of proving patentability
onto Jung. Decision at 11. This is a hollow argument, because, as discussed
above, the examiner established a prima facie case of anticipation and the
burden was properly shifted to Jung to rebut it. . . . ‘[R]eversible error’
means that the applicant must identify to the Board what the examiner did
wrong . . . .”).

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Accordingly, we sustain the §103 rejection of independent claim 1 and
claims 2, 4, 6-11, 23, and 24 which fall therewith. See 37 C.F.R.
§ 41.37(c)(1)(vii).
Claim 3
For the same reasons discussed supra regarding claim 1, we find
unavailing Appellants’ argument urging the patentability of claim 3 because
“[t]here is nothing here to even remotely hint at updating the machine-
readable model of a monitoring architecture (which corresponds to the
health manager of Tindal-2) to reflect a current configuration of the
monitoring architecture, where the monitoring architecture includes at least
one source to gather monitored data of monitored devices collected by
monitoring instrumentation.” (App. Br. 7-8).
We find Appellants’ statement that the monitoring architecture
corresponds to the health manager of Tindal ‘301 (App. Br. 8, ¶1) is a
mischaracterization of the Examiner’s rejection that explicitly describes “the
network [as] being the [claimed] monitoring architecture.” (Ans. 7).
Because Appellants have failed to address the thrust of the Examiner’s
rejection, the burden of showing reversible error in the Examiner’s
underlying factual findings and ultimate legal conclusion of obviousness has
not been met. Therefore, we sustain the Examiner’s rejection of claim 3.

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Claim 22
Appellants contend that the cited potions of the references do not
teach or suggest the claimed migration of data and updating the model to
reflect the migration. (App. Br. 8-9).
In the response to argument section of the Answer, the Examiner
again notes that the claimed monitoring architecture is interpreted as being
met by the network of Tindal ‘301. (Ans. 28). The Examiner provides a
detailed response on pages 27 through 31 of the Answer.
In the Reply Brief, Appellants respond that the Examiner has provided
no explanation of what in Tindal ‘946 and Tindal ‘301 constitutes migrating
monitoring instrumentation from one source to another source. (Reply Br.
7). Appellants additionally contend that “the Examiner’s assertion that the
‘monitoring architecture’ can be ‘any network or system’ is also incorrect
since claim 22 (which depends from claim 1) specifically defines what the
‘monitoring architecture’ includes.” (Id.).
Based upon our review of the record, we agree with the Examiner’s
position for essentially the same reasons articulated on pages 27 through 31
of the Answer.
As discussed supra in our discussion of claim 1, we note that the
“monitoring architecture” of claim 1 need only include at least one source to
gather monitored data of monitored devices collected by monitoring
instrumentation. (Claim 1). As also discussed above, we broadly but
reasonably read the “at least one source” of claim 1 on the “health manager
180 [that] can collect individual device information and model overall
network health.” (FF 1; Tindal ‘301, col.7, l. 66 through col. 8, l. 2). On
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this record, we agree with the Examiner’s broader claim construction and
reasoning as articulated on pages 27 through 31 of the Answer.
Because we find Appellants’ arguments unpersuasive, the burden of
showing reversible error in the Examiner’s ultimate legal conclusion of
obviousness has not been met. Accordingly, we sustain the Examiner’s
obviousness rejection of claim 22.

Claims 12, 13, 15, 26, and 27
Based on Appellants’ arguments in the Briefs, we will decide the
appeal for claims 12, 13, 15, 26, and 27 on the basis of representative claim
12. See 37 C.F.R. § 41.37(c)(1)(vii).
Regarding representative claim 12, Appellants contend:
Independent claim 12 is also non-obvious over
Tindal-l and Tindal-2. As explained above, the
hypothetical combination of the references does not
provide any teaching or hint of a machine-readable
model of a monitoring architecture, where the
monitoring architecture includes at least one source to
gather monitored data of monitored devices collected by
a monitoring instrumentation. Moreover, the
hypothetical combination of the references fails to
disclose or hint at a reporting network for communicating
the monitored data from the at least one source to the one
or more monitoring tools, where the reporting network is
autonomously configurable programmatically based on
the machine-readable model.
In addition, no reason existed that would have
prompted a person of ordinary skill in the art to combine
the teachings of Tindal-l and Tindal-2, as explained
above.

(App. Br. 9).
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We do not find these arguments persuasive for the same reasons
discussed supra regarding claim 1. Moreover, mere lawyer’s arguments and
conclusory statements that are unsupported by factual evidence are entitled
to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
On this record, we find Appellants have not met their burden of
showing reversible error in the Examiner’s ultimate legal conclusion of
obviousness regarding representative claim 12. Accordingly, we sustain the
rejection of independent claim 12 and claims 13, 15, 26, and 27 which fall
therewith. See 37 C.F.R. § 41.37(c)(1)(vii).

Claims 14 and 25
Appellants urge that claim 14 is allowable for at least the same
reasons as previously argued for claims 3 and 12. (App. Br. 10). However,
we found these arguments unpersuasive for the reasons discussed above
regarding claims 3 and 12.
Likewise, Appellants urge that claim 25 is allowable for at least the
same reasons as previously argued for claims 12 and 22. (App. Br. 10).
However, we found these arguments unpersuasive for the reasons discussed
above regarding claims 12 and 22.
Because we find Appellants arguments unpersuasive, we sustain the
Examiner’s obviousness rejection of claims 14 and 25.

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Claims 18, 21, and 28
Based on Appellants’ arguments in the Briefs, we will decide the
appeal for claims 18, 21, and 28 on the basis of representative claim 18. See
37 C.F.R. § 41.37(c)(1)(vii).
Appellants again restate the argument we have addressed supra that
the combination of Tindal ‘946 and Tindal ‘301 fails to teach the claimed
machine-readable model of claim 18.
As discussed above, we find Tindal’s stored network device
configuration records would have taught or suggested the claimed machine-
readable model where the “model” records are “adapted” (updated) by the
health manager that “autonomously” operates in active and passive modes
(FF 2-4) in close coordination with the policy manager 170 and action
manager 185 to “adapt” (update) the configuration of the (reporting)
network. (FF 6).
For the same reasons discussed supra regarding claim 1, we find
unconvincing Appellants’ argument restating that Tindal ‘946 and Tindal
‘301 have not been properly combined by the Examiner. (App. Br. 11).
Because Appellants have not met the burden of showing reversible
error in the Examiner’s ultimate legal conclusion of obviousness, we sustain
the Examiner’s obviousness rejection of representative claim 18, and claims
21 and 28 which fall therewith. See 37 C.F.R. § 41.37(c)(1)(vii).

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DECISION
We affirm the § 103 rejection of claims 1-4, 6-15, 18, and 21-28.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

ORDER
AFFIRMED

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