Ex Parte Wechter et al

Board of Patent Appeals and Interferences

May 12, 2011

10693965 (B.P.A.I. May. 12, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GABRIEL WECHTER, ERIC PULSIPHER,
and MAX C. KNEES
____________

Appeal 2009-006106
Application 10693965
Technology Center 2100
____________

Before LANCE LEONARD BARRY, ELENI MANTIS MERCADER, and
CARL W. WHITEHEAD JR., Administrative Patent Judges.

BARRY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Patent Examiner rejected claims 1-23. The Appellants appeal
therefrom under 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C.
§ 6(b).

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Application 10693965

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INVENTION
The Appellants describe the invention at issue on appeal as follows.
An exemplary method for managing a discovery-related process
in a network, includes identifying topology information of the
network using the discovery-related process in an active mode,
placing the discovery-related process from the active mode into
a standby mode using a management process, monitoring to
detect specified events in the network using the management
process and then forward the detected specified events to the
discovery-related process, and/or monitoring to detect arrival of
a predetermined point in time, and placing the discovery-related
process from the standby mode into the active mode when the
detected specified events exceed a threshold and/or when the
predetermined point in time arrives.
(Abstract.)

ILLUSTRATIVE CLAIM
1. A method for managing a discovery-related process in a
network, comprising:
identifying topology information of the network using the
discovery-related process in an active mode;
placing the discovery-related process from the active
mode into a standby mode using a management process;
monitoring to detect specified events in the network
using the management process and then forward a count of the
detected specified events to the discovery-related process,
and/or monitoring to detect arrival of a predetermined point in
time; and
placing the discovery-related process from the standby
mode into the active mode when the count of the detected
specified events exceeds a threshold and/or when the
predetermined point in time arrives.

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REJECTIONS
Claims 1-22 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by U.S. Patent No. 6,941,350 B1 ("Frazier").
Claim 23 stands rejected under 35 U.S.C. § 102(e) as being
anticipated by U.S. Patent Application Pub. No. 2004/0172467 A1
("Wechter").

CLAIM GROUPING
Based on the Appellants' arguments, we will decide the appeal of
claims 1-22 on the basis of claim 1 alone and the appeal of claim 23
separately. See 37 C.F.R. § 41.37(c)(1)(vii).

REPRESENTATIVE CLAIM 1
The issue before us is whether the Examiner erred in finding that
Frazier detects arrival of a predetermined point in time, as required by
representative claim 1.

FINDINGS OF FACT
Frazier describes the part on which the Examiner relies as "a method
in a node within network computing system for selecting a master network
manager . . . ." (Col. 2, ll. 13-15.)

ANALYSIS
"Both anticipation under § 102 and obviousness under § 103 are two-
step inquiries. The first step in both analyses is a proper construction of the
claims. . . . The second step in the analyses requires a comparison of the
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properly construed claim to the prior art." Medichem, S.A. v. Rolabo, S.L.,
353 F.3d 928, 933 (Fed.Cir. 2003) (internal citations omitted).
Regarding the first step, the U.S. Court of Appeals for the Federal
Circuit "ha[s] consistently interpreted the word 'or' to mean that the items in
the sequence are alternatives to each other." Schumer v. Lab. Computer
Sys., 308 F.3d 1304, 1311 (Fed.Cir. 2002).
Here, claim 1 recites in pertinent part the following limitations:
"monitoring to detect specified events in the network using the management
process and then forward a count of the detected specified events to the
discovery-related process, and/or monitoring to detect arrival of a
predetermined point in time." (Emphasis added.) We construe the
expression "and/or" as permitting items in an associated sequence to be
alternatives of each other. Therefore, we agree with the Examiner that "the
claim construction provides either forwarding a count to the discovery
related process, monitoring to detect the arrival of a predetermined point in
time, or both" (Ans. 9), but does not require both. For the sake of judicial
efficiency, we will focus on the monitoring to detect the arrival of a
predetermined point in time.
"It is axiomatic that anticipation of a claim under § 102 can be found
only if the prior art reference discloses every element of the claim, and that
anticipation is a fact question . . . ." In re King, 801 F.2d 1324, 1326 (Fed.
Cir. 1986) (citing Lindemann Maschinenfabrik GMBH v. Am. Hoist &
Derrick Co., 730 F.2d 1452, 1457 (Fed. Cir. 1984)).
Here, the Examiner makes the following "specific and detailed
findings," Ex parte Belinne, No. 2009-004693, 2009 WL 2477843, at *4
(BPAI Aug. 10, 2009) (informative), about Frazier.
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In the present case, Frazier teaches transitioning from a
standby state S2 back to a discovering state S 1 if the master
subnet manager does not respond within a defined time out or
after a predetermined number of retries ([COL 11 lines 49-63])
Frazier monitors the arrival of a predetermined point in time by
detecting the expiration a defined time out and/or a
predetermined number of retires prior to effectuating a state
transition from a standby mode to a discovery state S1. Since a
predetermined point in time, in light of Appellant's instant
specification, is reasonably interpreted as one of a defined time
out or a predetermined number of retires, it is Examiner's
contention that Frazier monitors the arrival of a predetermined
point in time (e.g., time out and/or number of retries)[.]
(Ans. 10.)
The reference supports these findings by including the following
teachings.
A subnet manager in standby state S2 periodically sends
requests to the subnet manager in the master state and waits for
a response to the request. This process is also referred to as
polling. . . . If the master subnet manager does not respond
within the defined time out . . . a state change
occurs in which state machine 800 transitions from standby
state S2 back to discovering state SI to begin the discovery
process again for selecting another master subnet manager.
(Frazier, Col. 11, ll. 53-64.)
For their part, the Appellants do not address the Examiner's findings.
Instead, they merely argue that "Frazier does not disclose or suggest
'monitoring to detect specified events in the network using the management
process and then forward a count of the detected specified events to the
discovery-related process,' as recited in claim 1." (Appeal Br. 5-6.) This
argument "do[es] not . . . explain why the Examiner's explicit fact finding is
in error." Belinne, at *4. Therefore, we conclude that the Examiner in
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finding that Frazier detects arrival of a predetermined point in time, as
required by representative claim 1.

INDEPENDENT CLAIM 23
The issue before us is whether the Examiner erred in finding that
Wechter changes a discovery-related process from an active mode into a
standby mode as required by independent claims 23.

FINDINGS OF FACT
Wechter describes its invention as follows.
An exemplary method for monitoring a network [that] includes
detecting changes in the network, and initiating discovery of the
topology of the network when a number of the detected changes
in the network exceeds a threshold. Another exemplary method
includes initiating discovery of the topology of the network
when a predetermined time period expires.

(Abstract.)

ANALYSIS
"It is axiomatic that anticipation of a claim under § 102 can be found
only if the prior art reference discloses every element of the claim, and that
anticipation is a fact question . . . ." In re King, 801 F.2d 1324, 1326 (Fed.
Cir. 1986) (citing Lindemann Maschinenfabrik GMBH v. Am. Hoist &
Derrick Co., 730 F.2d 1452, 1457 (Fed. Cir. 1984)).
Here, Wechter teaches that "rediscovery check module 114 can trigger
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itself (as indicated by the loop 146) at periodic intervals (for example, every
five minutes, or at any other interval) to check the count of changes or delta
events in the network against the threshold." (¶ 0018.)
In view of these teachings, we agree with the Examiner's following
findings.
[P]eriodic triggering of the module implies that a period of
active discovery occurs upon being triggered (e.g., at periodic
intervals delta events in the network are checked against a
threshold, i.e., active mode, paragraph 18.) During this period,
the module is in an active, discovery mode. When the module
is not triggered, the module is not actively checking delta
events in the network against a threshold (e.g., the module is in
a standby mode until otherwise triggered).

(Ans. 13.) In other words, while the module is in the standby mode for the
five minutes, or other interval, it is waiting to check the count against the
threshold.
The Appellants argue that the "rediscovery module is active
throughout the process disclosed by Wechter, including a topology
discovery operation is occurring." (App. Br. 10.) We do not construe the
claim as requiring the module to be turned off, but rather being merely in
standby. Waiting for a time interval to expire constitutes being in standby.
Therefore, we conclude that the Examiner did not err in finding that
Wechter changes a discovery-related process from an active mode into a
standby mode as required by independent claims 23.

DECISION
We affirm the rejections of claims 1 and 23 and that of claims 2-22,
which fall with claim 1.
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No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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