Ex Parte Tuvell et al

Patent Trial and Appeal Board

Oct 29, 2014

11869729 (P.T.A.B. Oct. 29, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte GEORGE TUVELL and CHUNYU JIANG
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Appeal 2012-006309
Application 11/869,729
Technology Center 2400
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Before: ROBERT E. NAPPI, DEBRA K. STEPHENS, and
MICHELLE N. WORMMEESTER, Administrative Patent Judges.

Per Curiam.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection
of claims 1 through 31.
We affirm.
INVENTION
The invention is directed to a network management system that
monitors malware within a mobile network. See Abstract of Appellants’
Specification. Claim 1 is illustrative of the invention and reproduced below:
1. A system that monitors malware within a mobile
network, comprising:
a receiver component that obtains data regarding the
malware transferred to or from mobile devices in the mobile
network, the data comprising a first set of malware data,
obtained from a first source that monitors applications
transferred to or from at least a first one of the mobile devices,
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and a second set of malware data obtained from a second source
that monitors applications transferred to or from at least a
second one of the mobile devices, wherein at least one of the
first source and the second source is separate from the first
mobile device and the second mobile device, and wherein the
first source is of a different type than the second source; and
an analysis component that generates a malware analysis
of malware included within the applications transferred to or
from the first mobile device of the mobile network and of
malware included within the applications transferred to or from
the second mobile device the mobile network as a function of
the data.

REJECTIONS AT ISSUE
The Examiner has rejected claims 1 through 5, 7 through 9, 11
through 14, 19, 20, and 27 under 35 U.S.C. § 103(a) as unpatentable over
Liang (US 7,0625,553 B2, June 13, 2006) and Molen (US 2006/0203736
A1, Sept. 14, 2006). Answer 4–11.1
The Examiner has rejected claim 6 under 35 U.S.C. § 103(a) as
unpatentable over Liang, Molen, and Gil (US 7,702,806 B2, Apr. 20, 2010).
Answer 11–12.
The Examiner has rejected claims 10, 17, and 18 under 35 U.S.C.
§ 103(a) as unpatentable over Liang, Molen, and Oliver (US 7,748,038 B2,
June 29, 2010). Answer 12–13.

1 Throughout this opinion we refer to the Appeal Brief dated November 1,
2011, Reply Brief dated March 5, 2012, and the Examiner’s Answer mailed
on January 5, 2011.
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The Examiner has rejected claim 15 under 35 U.S.C. § 103(a) as
unpatentable over Liang, Molen, and Ramsey (US 7,331,061 B1, Feb. 12,
2008). Answer 13–14.
The Examiner has rejected claim 16 under 35 U.S.C. § 103(a) as
unpatentable over Liang, Molen, and Libenzi (US 6,993,660 B1, Jan. 31,
2006). Answer 14.
The Examiner has rejected claim 21 through 23 under 35 U.S.C.
§ 103(a) as unpatentable over Liang, Molen, and Sheppard (US
2007/0118759 A1, May 24, 2007). Answer 15–16.
The Examiner has rejected claims 24, 26, 29, and 31 under 35 U.S.C.
§ 103(a) as unpatentable over Liang, Molen, and Bare (US 2007/0089172
A1, Apr. 19, 2007). Answer 16–21.
The Examiner has rejected claim 25 under 35 U.S.C. § 103(a) as
unpatentable over Liang, Molen, and Chefalas (US 2002/0116639 A1, Aug.
22, 2002). Answer 21.
The Examiner has rejected claim 28 under 35 U.S.C. § 103(a) as
unpatentable over Liang, Molen, and Jiang (US 2004/0235455 A1, Nov. 25,
2004). Answer 21–22.
The Examiner has rejected claim 30 under 35 U.S.C. § 103(a) as
unpatentable over Liang, Molen, Bare, and Sheppard. Answer 22–23.

ISSUES
Appellants argue, on pages 10 through 14 of the Appeal Brief and
pages 5 through 8 of the Reply Brief, that the Examiner’s obviousness
rejection of claims 1 through 5, 7 through 9, 11 through 14, 19, 20, and 27 is
in error. These arguments present us with the issues:
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1) Did the Examiner err in finding the combination of Liang and
Molen teaches first and second sources for obtaining malware data
as recited in representative claim 1?
2) Did the Examiner err in finding the combination of Liang and
Molen teaches monitoring applications transferred to or from
mobile devices as recited in claim 1?
3) Did the Examiner err in finding the combination of Liang and
Molen teaches an analysis component that generates a malware
analysis as a function of the malware data obtained from two
sources as recited in claim 1?

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions that the Examiner has erred. Further, we have reviewed the
Examiner’s response to Appellants’ arguments. We disagree with
Appellants’ conclusion that the Examiner erred in rejecting claims 1 through
5, 7 through 9, 11 through 14, 19, 20, and 27.

First issue
Appellants’ arguments directed to the first issue focus on Molen not
teaching obtaining malware data by using two sources monitoring
applications transferred to or from a mobile device, where one of the sources
is a different type than the other. Appeal Brief 10–11; Reply Brief 5. The
Examiner has provided a comprehensive response on pages 23 and 24 of the
Answer. In this response, the Examiner identifies Molen teaches that there
are plural Gateways 510 monitoring mobile devices which report to the
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regional POP 512. Further, Molen teaches devices which use different
communication protocols IEEE 802.11b and IEEE 802.11g, thus, the
monitoring gateways are different (i.e., one gateway using one protocol is
different than another gateway using the other protocol). We concur with
the Examiner’s finding and, as such, are not persuaded of error in the
Examiner’s rejection by Appellants’ arguments directed to the first issue.

Second issue
Appellants’ arguments directed to the second issue assert that Molen
teaches monitoring traffic and not applications transferred to or from mobile
devices as claimed. Appeal Brief 12; Reply Brief 6. The Examiner
responds on page 24 of the Answer, that Molen teaches monitoring virus (an
application) traffic. We concur with the Examiner’s findings. Appellants’
Specification identifies a virus as a type of malware application. Spec. 1.
Further, claim 1 recites monitoring applications transferred to or from at
least one mobile device; we consider the Examiner’s finding that Molen’s
virus traffic meets the claimed traffic generated by malware that has been
transferred to the mobile device to be reasonable. Thus, Appellants’
arguments directed to the second issue have not persuaded us of error in the
Examiner’s rejection.

Third issue
Appellants’ arguments directed to the third issue asserts that since the
combined references do not teach the two sources and monitoring an
application as discussed above, the combination of the references does not
teach an analysis component that generates analysis of malware. Appeal
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Brief 13. The Examiner has provided a comprehensive response to
Appellants’ arguments finding that Liang teaches a management network
system which receives and stores information associated with the managed
devices and performs analysis to make the monitoring scheme more
accurate. Answer 24–25. Thus, the Examiner finds Liang teaches an
analysis component. Id. We have reviewed the Examiner’s findings and we
concur with the Examiner. Thus, Appellants’ arguments directed to the third
issue have not persuaded us of error in the Examiner’s rejection.
As Appellants’ arguments directed to these three issues have not
persuaded us of error in the Examiner’s rejection of claim 1, we sustain the
Examiner’s obviousness rejection of claim 1.
Appellants argue the Examiner’s rejection of claims 2 through 5, 7
through 9, 11 through 14, 19, 20, and 27, is in error for the same reasons as
discussed with respect to claim 1. Accordingly, we similarly sustain the
Examiner’s rejection of claims 2 through 5, 7 through 9, 11 through 14, 19,
20, and 27.

Rejections of claims 6, 10, 15 through 18, 21 through 26, and 28
through 31
Appellants’ arguments directed to the rejection of each of these claims
present the same issues as discussed above with respect to claim 1. See
Appeal Brief 15–29. These arguments further assert that the teachings of the
additional references recited in the individual rejection (i.e., Gill, Oliver,
Ramsey, Libenzi, Sheppard, Bare, Chefalas, and Jiang) do not remedy the
deficiency noted in the arguments directed to the rejection of claim 1. As
discussed above, Appellants’ arguments directed to the rejection of claim 1
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have not persuaded us of error in the Examiner’s rejection, thus, we see no
deficiency in the rejection for the additional references to remedy.
Accordingly, we sustain the Examiner’s rejections of claims 6, 10, 15
through 18, 21 through 26, and 28 through 31.

DECISION
The decision of the Examiner to reject claims 1 through 31 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)(1)(iv).

AFFIRMED

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