Ex Parte Rouland et al

Board of Patent Appeals and Interferences

Jul 21, 2010

10400938 (B.P.A.I. Jul. 21, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/400,938 03/27/2003 Christopher Jay Rouland 05456.105042 2176
69151 7590 07/21/2010
KING & SPALDING, LLP
INTELLECTUAL PROPERTY DEPT. - PATENTS
1180 PEACHTREE STREET, N.E.
ATLANTA, GA 30309-3521
EXAMINER
KIM, JUNG W
ART UNIT PAPER NUMBER
2432
MAIL DATE DELIVERY MODE
07/21/2010 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CHRISTOPHER JAY ROULAND,
PATRICK MORTON BECKER,
and CHRISTOPHER W. KLAUS
____________

Appeal 2009-006022
Application 10/400,938
Technology Center 2400
____________

Before JOSEPH F. RUGGIERO, MAHSHID D. SAADAT, and
CARLA M. KRIVAK, Administrative Patent Judges.

KRIVAK, Administrative Patent Judge.

DECISION ON APPEAL1
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims-1-32 and 34-59. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-006022
Application 10/400,938

2

STATEMENT OF THE CASE
Appellants’ claimed invention is a method for dynamically protecting
a computer system by determining its vulnerabilities to attack and generating
a policy for protecting the computer system based on the identified
vulnerabilities (Abstract).
Independent claim 1, reproduced below, is representative of the
subject matter on appeal.
1. A computer-implemented method for dynamically protecting
a computer system comprising the steps of:

generating a policy for defending the system from an attack;

receiving a data packet at the system;

comparing information in the data packet to the policy to
determine if an intrusion event has been detected;

determining if the data packet should be blocked from entering
the system based on the policy for defending the system;

determining a method of blocking the data packet based on a
positive determination to block the data packet from entering
the system; and

blocking the packet from entering the system using the
determined method.

REFERENCES
Magdych US 6,546,493 B1 Apr. 8, 2003
Liston US 2004/0103314 A1 May 27, 2004
Hrabik US 6,988,208 B2 Jan. 17, 2006

Appeal 2009-006022
Application 10/400,938

3
Bruton US 7,076,803 B2 July 11, 2006
Fitzgerald US 7,095,759 B1 Aug. 22, 2006

The Examiner rejected claims 1, 2, 5-9, 13-23, 25, 29-32, 34-41, 44,
45, and 49-58 under 35 U.S.C. § 102(e) based upon the teachings of
Bruton.23
The Examiner rejected claim 4 under 35 U.S.C. § 103(a) based upon
the teachings of Bruton and Hrabik.
The Examiner rejected claims 3, 42, 43, and 59 under 35 U.S.C.
§ 103(a) based upon the teachings of Bruton and Magdych.
The Examiner rejected claims 10-12, 26-28, and 46-48 under 35
U.S.C. § 103(a) based upon the teachings of Bruton and Liston.
The Examiner rejected claim 24 under 35 U.S.C. § 103(a) based upon
the teachings of Bruton and Fitzgerald.
Appellants contend Bruton fails to teach or suggest a method of
dynamically protecting a computer system that includes the step of
comparing information in a data packet to a policy for determining if an
intrusion has been detected (App. Br. 12). Further, Appellants contend
Bruton teaches a policy is examined only after an attack or intrusion event is
detected (Bruton col. 8, ll. 21-29; App. Br. 13). Appellants also contend
Fitzgerald discloses blocking only when a certain number or percentage of
packets has been reached (App. Br. 17). Appellants assert neither Bruton
nor Magdych teaches or suggests installing a new protection program in
addition to existing protection programs.

2 Although claim 33 is listed in the Examiner’s rejections (Ans. 5), claim 33
was cancelled by the Amendment filed February12, 2007.
3 The Examiner rejected claims 1-23 and 41-58 under 35 U.S.C. § 112, first
paragraph, but withdrew this rejection in the Examiner’s Answer (Ans. 2).
Appeal 2009-006022
Application 10/400,938

4
The Examiner concurs that Bruton “discloses not examining a policy
until an attack or intrusion event is detected,” but asserts “other
embodiments exist” (Ans. 10). The Examiner however, in noting these
“other embodiments” has not shown that Bruton compares information in a
data packet to a policy to determine if an intrusion event has been detected
and then blocking that data packet if a positive determination has been made,
as claimed. That is, the passages of Bruton cited by the Examiner do not
support the finding that Bruton teaches comparing a data packet to a policy
to determine if an intrusion event has been detected. Thus, Bruton does not
read on claims 1 and 24 and claims 2, 5-9, 13-23, 25, 29-32, 34-41, 44, 45,
and 49-58, which depend therefrom.
Fitzgerald, Hrabik, Magdych, and Liston, have been considered but do
not cure the deficiencies of Bruton. Thus, claims 3, 4, 10-12, 24, 26-28, 42,
43, and 46-48 and 59 are obvious over the various combinations of these
references.

DECISION
The Examiner’s decision rejecting claims 1-32 and 34-59 is reversed.

REVERSED

KIS

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INTELLECTUAL PROPERTY DEPT. - PATENTS
1180 PEACHTREE STREET, N.E.
ATLANTA, GA 30309-3521