Ex Parte Victor et al

Board of Patent Appeals and Interferences

Mar 29, 2011

10938209 (B.P.A.I. Mar. 29, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte HENDRIK JOHANNES VICTOR and MIKHAIL AVERGUN
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Appeal 2010-001560
Application 10/938,209
Technology Center 2400
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Before JOSEPH L. DIXON, LANCE LEONARD BARRY, and
CAROLYN D. THOMAS, Administrative Patent Judges.

BARRY, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
The Patent Examiner rejected claims 1-33. The Appellants appeal
therefrom under 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C.
§ 6(b).
INVENTION
The Appellants describe the invention at issue on appeal as follows.
A data acquisition service on a network node . . . forward[s]
received process data to a process history database over a
potentially slow and/or intermittent network connection.
A store and forward functionality within the networked node
receives incoming process data via a first network interface and
forwards outgoing process data via a second network interface.
The disclosed store and forward functionality includes an
immediate transmission cache and a store and forward storage.
The store control enters, in response to detecting an entry
condition, an activated mode wherein incoming process data is
directed to the store and forward storage. A read control
forwards outgoing process data to the second network interface
from the immediate transmission cache and store and forward
storage. The read control includes at least a first configurable
parameter that constrains a rate at which data retrieved from the
store and forward storage is forwarded via the second network.
(Abstract.)
ILLUSTRATIVE CLAIM
1. A networked node incorporating a data acquisition
service for forwarding received process data to a process
history database over a potentially slow and/or intermittent
network connection, the data acquisition service comprising:
a first network interface for receiving incoming process
data via a first network connection;
a second network interface for transmitting outgoing
process data via a second network connection; and
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a store and forward functionality that receives the
incoming process data and forwards the outgoing process data,
the store and forward functionality comprising:
an immediate transmission cache,
a store and forward storage,
a store control for directing the incoming process
data to a selected one of the immediate transmission
cache and the store and forward storage, wherein the
store control enters, in response to detecting an entry
condition, an activated mode wherein incoming process
data is directed to the store and forward storage, and
a read control for forwarding outgoing process
data to the second network interface from the immediate
transmission cache and store and forward storage, the
read control comprising at least a first configurable
parameter that constrains a rate at which data retrieved
from the store and forward storage is forwarded via the
second network interface.
REJECTIONS
Claims 1-33 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over U.S. Patent No. 2003/0135639 ("Marejka") and U.S.
Patent No. 6,405,258 ("Erimli").
ISSUE
The issue before us is whether the Examiner erred in finding that
Marejka teaches a store control for directing incoming process data to a
selected one of an immediate transmission cache and a store and forward
storage, wherein the store control enters, in response to detecting an entry
condition, an activated mode wherein incoming process data are directed to
the store and forward storage as required by independent claims 1, 12, and
23.
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FINDINGS OF FACT
Marejka describes its invention as follows.
[A] method and system . . . provid[e] self-monitoring services
to clients to allow monitoring of operation history and status
and other information regarding their computer systems and
networks. More specifically, a service system is provided that
includes data transmission throttle mechanisms within one or
more relay in the customer environment or network to control
data transmission volume and/or timing from monitored
systems toward the service provider . . . .
(¶ 0019.)
Erimili describes its invention as "selectively controlling the flow of
data between plural network stations." (Col. 1, ll. 10-12.)
ANALYSIS
In an ex parte appeal, the Board "is basically a board of review — we
review . . . rejections made by patent examiners." Ex parte Gambogi,
62 USPQ2d 1209, 1211 (BPAI 2001). More specifically, "[i]n rejecting
claims under 35 U.S.C. § 103, the examiner bears the initial burden of
presenting a prima facie case of obviousness." In re Rijckaert, 9 F.3d 1531,
1532 (Fed. Cir. 1993) (citing In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir.
1992)). "The review authorized by 35 U.S.C. Section 134 is not a process
whereby the examiner . . . invite[s] the [B]oard to examine the application
and resolve patentability in the first instance." Ex parte Braeken,
54 USPQ2d 1110, 1112 (BPAI 1999).
Here, the Examiner changes his position throughout the appeal. In the
Grounds of Rejection section of his Answer (p. 4), the Examiner begins by
finding that the claimed immediate transmission cache and store and forward
storage read on Marejka's relay message store mechanism 236 and message
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store 242, respectively. On the same page of the same section, however, his
admission that "Marejka does not disclose expressly the use of immediate
transmission cache for primary storage and store and forward storage as the
overflow storage" clouds, if not contradicts, his initial finding.
The Appellants argue that "Marejka neither discloses nor suggests
Appellants' claimed . . . store control that commences diverting received
process data to the store and forward storage in response to detecting a
condition for entering an activated mode . . . ." (Appeal Br. 10.)
The Examiner then changes his initial position by finding that the
claimed immediate transmission cache and store and forward storage read on
Marejka's "highest priority queues" (Ans. 9) and "rest of the secondary
priority queues" (id.), respectively. He then reads the claimed and argued
store control on "the highest priority work queue being transferred on
page 6, section [0040])" (Id.) of the same reference. Having found the
claimed immediate transmission cache and store and forward storage to be
taught by Marejka's queues, the Examiner's continued reliance on Erimil is
confusing. As best as we can tell, he relies on the latter reference merely to
evidence that caches were known to be small, and that store and forward
storages were known to be large, (id.), limitations absent from the
independent claims.
The Examiner's changing of positions throughout the appeal amounts
to an invitation to the Board to examine plural teachings from the plural
references and choose the best ones. We decline this invitation and take the
Examiner's last position, viz., that the claimed and argued store control read
on Marejka's "highest priority work queue being transferred on page 6
section [0040])" (id.) as his final position.
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For its part, the paragraph of Marejka on which the Examiner finally
relies follows in pertinent part.
The upstream work scanner 330 is included to determine which
messages are transmitted to the upstream interface 334 for
transmittal to upstream relays (not shown). During message
transmission, the scanner 330 examines the job counter 312 and
when not zero, the scanner 330 reads the value of the highest
priority register 314. The scanner 330 then obtains the next
message (e.g., start of message, data, or end of message
commands) from the highest priority work queue 396. The
scanner 330 then sends the retrieved message to the upstream
interface 334, such as by blocked transmission (e.g., by waiting
for receipt of message prior to scanning for new work) to
support throttling at the upstream interface 334.
(¶ 0046.)
In summary, this part of the reference teaches the reading of messages
from the queues rather than the storing of messages therein. Because of the
difference between reading from and writing to queues, we agree with the
Appellants' following argument.
[The Examiner's final position] has not identified any storage in
Marejka having the above referenced functional relationship
between the "store control" and the "store and forward storage"
. . . wherein data, which is normally directed to an immediate
transmission cache, is directed by the store control to the "store
and forward storage" when an entry condition is detected.
(Reply Br. 5.)
Therefore, we conclude that the Examiner erred in finding that
Marejka teaches a store control for directing incoming process data to a
selected one of an immediate transmission cache and a store and forward
storage, wherein the store control enters, in response to detecting an entry
condition, an activated mode wherein incoming process data are directed to
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the store and forward storage as required by independent claims 1, 12, and
23.
DECISION
We reverse the rejection of claims 1, 12, and 23 and that of claims 2-
11, 13-22, and 24-33, which fall therewith.

REVERSED

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