Ex Parte ZELEK et al

Patent Trial and Appeal Board

Jan 13, 2017

13568924 (P.T.A.B. Jan. 13, 2017)

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.
13/568,924 08/07/2012 Mark C. ZELEK 063170.9850 6588
106095 7590
Baker Botts LLP
2001 Ross Avenue, 6th Floor
Dallas, TX 75201
EXAMINER
VU, VIET D
ART UNIT PAPER NUMBER
2448
NOTIFICATION DATE DELIVERY MODE
01/18/2017 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 MARK C. ZELEK and RICHARD L. SCHERTZ
Appeal 2016-004506
Application 13/568,924
Technology Center 2400
Before THU A. DANG, CATHERINE SHIANG, and STEVEN M.
AMUNDSON, Administrative Patent Judges.
SHIANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 3—6, 8—10, 12—15, 17—22, and 24, which are all the
claims pending and rejected in the application. We have jurisdiction under
35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Introduction
According to the Specification, the present invention relates to
throttling polling to reduce timeouts. See generally Spec. 1. Claim 1 is
exemplary:
1. A method, comprising:
sending a request to an agent device;
Appeal 2016-004506
Application 13/568,924
determining whether a response to the sent request is
successfully received from the agent device;
storing a result of the determination in a memory and
associating the result with the agent device;
calculating a success rate for the agent device based on a
plurality of the results; and
adjusting a metric related to the sent request and a
subsequently sent request for the agent device based on the
calculated success rate for the agent device,
wherein the success rate is calculated based on a number of
successfully received responses from the agent device in a
predetermined amount of time.
References and Rejections1
Claims 1, 3—6, 8—10, 12—15, 17—22, and 24 are rejected under
35 U.S.C. § 102(e) as being anticipated by Tseng (US 8,194,610 B2; June 5,
2012).
ANALYSIS
We disagree with Appellants’ arguments, and agree with and adopt
the Examiner’s findings and conclusions in (i) the action from which this
appeal is taken and (ii) the Answer to the extent they are consistent with our
analysis below.
On this record, the Examiner did not err in rejecting claim 1.
I
Appellants contend Tseng does not disclose “adjusting a metric . . .
based on the calculated success rate for the agent device,” as recited in
1 The Examiner withdrew the rejection of claims 7, 16, and 23. Ans. 4.
2
Appeal 2016-004506
Application 13/568,924
claim 1 (emphases added). See App. Br. 14—15. In particular, Appellants
cite excerpts from Tseng’s column 4, and argue “Tseng merely describes
adjusting a timeout period when a single response is not received within the
current timeout period.” App. Br. 15.
In response to Appellants’ arguments, the Examiner finds Tseng
discloses the disputed claim limitation. See Ans. 4. In particular, the
Examiner finds “Tseng . . . clearly teaches that the adjustment amount is
based on the calculated success rate of the device.” Ans. 4 (citing Tseng
3:28—50). Appellants fail to persuasively respond to such findings and,
therefore, fail to show error in the Examiner’s findings. See In re Baxter
TravenolLabs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of
this court [or this Board] to examine the claims in greater detail than argued
by an appellant, looking for [patentable] distinctions over the prior art.”).
Further, the Examiner’s findings are reasonable. The Examiner
correctly finds Tseng discloses adjusting a metric (mapped to Tseng’s
timeout) based on the calculated success rate shown in the stats table of
Figure 5. See Ans. 4 (citing Tseng 3:28—50).
II
Appellants contend Tseng does not disclose “adjusting a metric
related to the sent request and a subsequently sent request for the agent
device,” as recited in claim 1 (emphases added). See App. Br. 16—17. In
particular, Appellants argue “Tseng describes increasing the timeout period
for the current request/response round-trip, rather than for a subsequent
request/response round-trip.” App. Br. 16.
In response to Appellants’ arguments, the Examiner finds Tseng
discloses the disputed claim limitation. See Ans. 4. Specifically, the
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Appeal 2016-004506
Application 13/568,924
Examiner cites Tseng’s column 1 and explains why Tseng discloses the
disputed claim limitation. See Ans. 5. Appellants fail to critique the Tseng
excerpt cited by the Examiner, and fail to persuasively respond to the
Examiner’s findings. Therefore, Appellants fail to show error in the
Examiner’s findings. See Baxter Travenol Labs., 952 F.2d at 391.
IIII
Appellants contend Tseng does not teach “the success rate is
calculated based on a number of successfully received responses from the
agent device in a predetermined amount of time,” as recited in claim 1
(emphases added). See App. Br. 17—18. In particular, Appellants argue
“Tseng’s sample is based on the number of transmissions made (i.e., 100)
rather than a predetermined amount of time (e.g., the number of samples
making the roundtrip within the predetermined time).” App. Br. 17.
In response to Appellants’ arguments, the Examiner finds Tseng
discloses the disputed claim limitation. See Ans. 5—6. In particular, the
Examiner points out “Tseng’s stat table clearly shows a number of
successfully received responses for different timeout ranges (i.e.,
predetermined period of times).” Ans. 6 (citing Tseng 3:28—33). Appellants
fail to persuasively respond to such findings and, therefore, fail to show
error in the Examiner’s findings. See Baxter Travenol Labs., 952 F.2d at
391.
Further, the Examiner’s findings are reasonable. The Examiner
correctly finds Tseng discloses calculating the success rate based on a
number of successfully received responses in a predetermined amount of
time (mapped to Tseng’s time range, such as 1 second or 2 seconds). See
Ans. 5—6 (citing Tseng 3:28—33).
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Appeal 2016-004506
Application 13/568,924
Because Appellants have not persuaded us the Examiner erred, we
sustain the Examiner’s rejection of claim 1, and independent claims 10 and
19 for similar reasons.
We also sustain the Examiner’s rejection of corresponding dependent
claims 3—6, 8, 9, 12—15, 17, 18, 20-22, and 24, which Appellants do not
argue with separate substantive contentions.
DECISION
We affirm the Examiner’s decision rejecting claims 1, 3—6, 8—10, 12—
15, 17-22, and 24.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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