Ex Parte Wilson

Patent Trial and Appeal Board

Aug 6, 2018

12913203 (P.T.A.B. Aug. 6, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/913,203 10/27/2010
106095 7590 08/08/2018
Baker Botts LLP/CA Technologies
2001 Ross Avenue
SUITE 900
Dallas, TX 75201
FIRST NAMED INVENTOR
Russell David Wilson
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
063170.9607 3453
EXAMINER
BASOM, BLAINE T
ART UNIT PAPER NUMBER
2173
NOTIFICATION DATE DELIVERY MODE
08/08/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
PTOmaill@bakerbotts.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex Parte RUSSELL DAVID WILSON
Appeal 2018-001681
Application 12/913 ,203
Technology Center 2100
Before ROBERT E. NAPPI, BETH Z. SHAW, and
JOHN D. HAMANN, Administrative Patent Judges.
SHAW, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1-24. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
INVENTION
Appellant's invention is directed to monitoring network performance.
Spec., 1 :4--5.
1 Throughout this Decision we have considered the Appeal Brief filed May
30, 2017 ("App. Br."), the Reply Brief filed December 6, 2017 ("Reply
Br."), the Specification filed October 27, 2010 ("Spec."), the Examiner's
Answer mailed October 6, 2017 ("Ans.") and the Final Rejection mailed
December 29, 2016 ("Final Act.").
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Application 12/913,203
Claim 1 is illustrative of the claims at issue and reproduced below:
1. A system for monitoring performance in electronic networks, the
system comprising:
a data collection server in electronic communication with a switch
disposed in an electronic network and in electronic communication with a
destination port associated with the switch, the data collection server
compnsmg:
a processor operable to receive data collected by the data collection
server from the switch and convert the data into a first format including a
plurality of performance metrics;
and
a user interface configured to display a matrix of data charts of a
first network node and a second network node including:
a first data stack including two or more data charts to illustrate
data associated with the first network node separately from data
associated with the second network node; and
a second data stack including two or more data charts to
illustrate data associated with the second network node separately
from data associated with the first network node;
the user interface being further configured to:
display a plurality of selectable metrics including a time frame;
receive a selection of the time frame; and
in response to receiving the selection of the time frame,
displaying a first data chart of the first data stack as a present view of
the time frame and displaying a second data chart of the first data
stack as a past view of the time frame from the past,
wherein each data chart includes a trace of at least one of the
plurality of performance metrics,
wherein the switch comprises a port mirroring feature such that
data received by the switch is copied and delivered to the destination
port.
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REJECTIONS
The Examiner rejected claims 1, 3-8, 10, 12-17, 19, and 21-23 under
pre-AIA 35 U.S.C. I03(a) as being unpatentable over U.S. Patent No.
7,797,634 B2; iss. Sept. 14, 2010 ("Wang"), over U.S. Patent Application
Publication No. 2002/0075297 Al; pub. June 20, 2002 ("Boulter"), over
U.S. Patent No. 5,966,139; iss. Oct. 12, 1999 ("Anupam"), over U.S. Patent
Application Publication No. 2012/0023429 Al; pub. Jan. 26, 2012
("Medhi"), over U.S. Patent No. 7,450,502 Bl; iss. Nov. 11, 2008
("Croak"), and U.S. Patent Application Publication No. 2006/0117099 Al;
pub. June 1, 2006 ("Mogul"). Final Act. 2-19.
The Examiner rejected claims 2, 11, and 20 under pre-AIA 35 U.S.C.
I03(a) as being unpatentable over the combination of Wang, Boulter,
Anupam, Medhi, Croak, and Mogul, and U.S. Patent No. 8,056,034 Bl; iss.
Nov. 8, 2011 ("Schutt-Aine"). Final Act. 19-20.
The Examiner rejected claims 9, 18, and 24 under pre-AIA 35 U.S.C.
I03(a) as being unpatentable over the combination of Wang, Boulter,
Anupam, Medhi, Croak, Mogul, and U.S. Patent Application Publication
No. 2011/0012902 Al; pub. Jan. 20, 2011 ("Rajagopalan"). Final Act. 20-
21.
ANALYSIS
We have reviewed Appellant's arguments in the Brief, the Examiner's
obviousness rejections, and the Examiner's response to the Appellant's
arguments. Appellant does not proffer sufficient argument or evidence for
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us to find error in the Examiner's findings. We agree with and adopt the
Examiner's findings and conclusions in the Final Action and Answer.
First, Appellant argues Wang, Boulter, Anupam, Medhi, Croak, and
Mogul are not all from the same field of endeavor and are not all reasonably
pertinent to the problem faced by the inventor, and as such, are not
analogous art. App. Br. 12-13; Reply Br. 2. Prior art is analogous where
either (1) "the mi is from the same field of endeavor, regardless of the
problem addressed" or (2) even if not within the same field of endeavor, "the
reference still is reasonably pertinent to the particular problem with which
the inventor is involved." In re Clay, 966 F.2d 656, 658-59
(Fed. Cir. 1992) ( citation omitted).
Appellant argues the inventor "was concerned with more than device-
status, but rather with comparing multiple time frames at the same time, in
addition to simultaneously comparing other variables." App. Br. 13.
However, to qualify as analogous art under the second criterion, a prior art
reference need not be reasonably pertinent to each and every problem with
which an inventor is involved. Rather, "[a] reference is reasonably pertinent
if, even though it may be in a different field from that of the inventor's
endeavor, it is one which, because of the matter with which it deals,
logically would have commended itself to an inventor's attention in
considering his problem." In re Clay, 966 F.2d at 659.
The Examiner explains how Appellant's claimed invention relates to
the field of communications networks, and specifically to methods and
systems for monitoring network performance. Ans. 22. The Examiner
further explains that the Specification suggests that the problems or issues
faced by the inventor concern accessing and visualizing network
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performance data, for example to aid in troubleshooting. Id. We agree with
the Examiner's findings because the Background of the Specification
discusses monitoring the performance of electronic networks to troubleshoot
(Spec. 2:1-7), and the Summary section describes a user interface
"configured to display a matrix of data charts, each data chart including a
trace of at least one of the plurality of performance metrics." Spec. 3: 1-10.
The Examiner goes on to explain in detail in the Answer how each
cited reference is from the same field of endeavor (i.e., communications
networks), or is reasonably pertinent to the problem faced by the inventor,
(i.e., accessing and visualizing network performance data, for example to aid
in troubleshooting.) Ans. 22-23. For example, the Examiner finds Wang,
Medhi, and Mogul are from the same field of endeavor, and Anupam is
reasonably pertinent to the problem faced by the inventor, i.e., accessing and
visualizing network performance data. Ans. 22-23. Appellant does not
respond to these specific findings. See Reply Br. 2. Thus, absent persuasive
rebuttal, the Examiner's findings are reasonable and we find no reversible
error.
Appellant makes various arguments regarding the teachings of Wang,
Boulter, Anupam, Medhi, and Croak. App. Br. 14--23. However, many of
Appellant's arguments generally consist of stating that it is "unclear what
elements the Office Action is relying on" for each reference, restating the
claim language, and quoting the assertions by the Examiner. These
arguments with respect to the prior art, which consist of conclusory
statements unsupported by evidence from the record, are insufficient to
overcome the Examiner's prima facie conclusion of obviousness. Our
reviewing court has explicitly held that "[37 C.F.R. §] 41.37 require[s] ...
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more substantive arguments in an appeal brief than a mere recitation of the
claim elements and a naked assertion that the corresponding elements were
not found in the prior art." In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011).
Appellant argues Wang does "not disclose a first network node and a
second network node because Wang describes that 'the first device can be a
baseline reference of a device at a first time, and the second device can be an
updated comparison of the first device at a second time."' App. Br. 14.
However, the Examiner explains, and we agree, that Wang also discloses
that the first and second devices can be distinct devices. Ans. 23-24 ( citing
Wang, 2:44--54, 5: 17--46).
Appellant argues Anupam does not "disclose or suggest visualizing
two or more data charts associated with a first node and two or more data
charts associated with a second node." App. Br. 18. However, the
Examiner does not rely on Anupam alone as teaching this element. Ans. 25.
Rather, Anupam is used to teach displaying traces (instead of or in addition
to alphanumerical data in a table.) Id.
Appellant argues Medhi discloses "a magnification graph view 704
and within that same view the user can scroll through the time axis and use
with historical data" and thus does not disclose or suggest "displaying a first
data chart of the first data stack as a present view of the time frame and
displaying a second data chart of the first data stack as a past view of the
time frame from the past," as recited in claim 1. App. Br. 20-21; Reply Br.
4--5. However, the Examiner does not rely on Medhi for such a teaching.
Ans. 27. Rather, Medhi is used to teach displaying a plurality of
performance metrics including a time frame; receiving a selection of the
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time frame; and in response to receiving the selection of the time frame,
displaying a first data chart as a first view of the time frame. Id.; Final Act.
5. The Examiner relies on Croak, not Medhi, to teach displaying a first data
chart of a data stack as a present view of a predetermined time frame and
displaying a second data chart of the data stack as a past view of the time
frame. See Final Act. 5; Ans. 27; Croak Fig. 3.
Appellant additionally makes several general arguments that the
Examiner improperly combined the cited references. See App. Br. 14--26.
For example, Appellant argues Wang already describes a way of viewing
data, and therefore one of ordinary skill in the art would not modify Wang to
include a data collection server of Boulter. App. Br. 16 ( emphasis added).
Similarly, Appellant argues Wang already discloses displaying data, so
"[t]here is nothing to indicate that it would be beneficial to a user for this
type of data to be displayed in the line graph data chart disclosed by
Anupam." Id. at 19.
Upon reviewing the record before us, we find that the Examiner's
suggestion for the proposed modification in the prior art suffices as an
articulated reason with a rational underpinning to establish a prima facie
case of obviousness. See KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). Not only are Appellant's contentions unsubstantiated by any
persuasive evidence on this record, it is well settled that "a determination of
obviousness based on teachings from multiple references does not require an
actual, physical substitution of elements." In re Mouttet, 686 F.3d 1322,
1332 (Fed. Cir. 2012) (citations omitted). Nor is the test for obviousness
whether a secondary reference's features can be bodily incorporated into the
structure of the primary reference. In re Keller, 642 F.2d 413, 425 (CCPA
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1981 ). Rather, the test is what the combined teachings of the references
would have suggested to those of ordinary skill in the art. Id. And here, the
Examiner's proposed combination is not based on impermissible hindsight
reconstruction as Appellant contends (App. Br. 12, 21 ), but rather uses prior
art elements predictably according to their established functions to yield a
predictable result. See KSR, 550 U.S. at 417. Therefore, the Examiner's
proposed combination of the cited references is supported by articulated
reasoning with some rational underpinning to justify the Examiner's
obviousness conclusion. See Ans. 24--30.
Similarly, with respect to dependent claims 2-9, 11-18, and 20-24,
Appellant argues the Examiner does not articulate a rational explanation for
the combination of Schutt-Aine with Wang, Boulter, Anupam, Medhi,
Croak, and Mogul. App. Br. 25-26. We disagree. The Examiner's
suggestion for the proposed modification in the prior art suffices as an
articulated reason with a rational underpinning to establish a prima facie
case of obviousness. In summary, we find that an ordinarily skilled artisan
at the time of the claimed invention would have combined Schutt-Aine's "s-
parameters" to characterize network performance (Schutt-Aine 2:46-3:3;
10:20-32) with a user interface taught by Wang, Boulter, Anupam, Medhi,
Croak, and Mogul, such that the data presented includes scattering
parameters, as taught by Schutt-Aine, because it would provide users with a
more complete understanding of network behavior. Ans. 31. The ordinarily
skilled artisan, being "a person of ordinary creativity, not an automaton,"
would be able to fit the teachings of the cited references together like pieces
of a puzzle to predictably result in a system where the data presented
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includes scattering parameters (S-parameters ), as recited in dependent claim
2. KSR, 550 U.S. at 420-21.
Appellant makes a conclusory statement that any combination with
Rajapalan would "change the principles of operation" of the other references
and render them "unsatisfactory for their intended purposes." App. Br. 26;
Reply Br. 7-8. Yet, Appellant provides no further explanation as to why that
would be the case. As the Examiner finds, and we agree, incorporating
Rajapalan's teachings would not change the principles of operation of Wang,
Boulter, Anupam, Medhi, Croak, and Mogul or render them unsatisfactory
for their intended purposes, because the system would still be able to access
and visualize network performance data. Ans. 32.
Because Appellant has not demonstrated that the Examiner's
proffered combinations would have been "uniquely challenging or difficult
for one of ordinary skill in the art," we agree with the Examiner that the
proposed modifications would have been within the purview of the
ordinarily skilled artisan. Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485
F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Thus, the
Examiner's findings are reasonable and we find no reversible error.
Accordingly, for these reasons and for the reasons stated in the Final
Rejection and Answer, we sustain the § 103 rejection of claim 1. For the
same reasons, we sustain the rejection of independent claims 10 and 19, for
which Appellant presents the same arguments as claim 1. For the reasons
discussed above, we also sustain the rejections of dependent claims 2-9,
11-18, and 20-24.
DECISION
The decision of the Examiner to reject claims 1-24 is affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
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