LogicMonitor, Inc.

Patent Trials and Appeals Board

Apr 19, 2021

2019006015 (P.T.A.B. Apr. 19, 2021)

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.
15/826,522 11/29/2017 Steve Reginald George Francis 041281.00002 5546
68543 7590 04/19/2021
Arent Fox LLP - Los Angeles
555 West Fifth Street
48th Floor
Los Angeles, CA 90013
EXAMINER
GEORGANDELLIS, ANDREW C
ART UNIT PAPER NUMBER
2459
NOTIFICATION DATE DELIVERY MODE
04/19/2021 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):
patentdocket@arentfox.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte STEVE REGINALD GEORGE FRANCIS and JIE SONG
____________________

Appeal 2019-006015
Application 15/826,522
Technology Center 2400
____________________

Before ERIC S. FRAHM, CATHERINE SHIANG, and
MICHAEL T. CYGAN, Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from a rejection of
claims 1–22, which constitute all pending claims on appeal. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42 (2017). “The word ‘applicant’ when used in this title refers
to the inventor or all of the joint inventors, or to the person applying for a
patent as provided in §§ 1.43, 1.45, or 1.46.” 37 C.F.R. § 1.42(a). Appellant
identifies the real party in interest as LogicMonitor, Inc. (Appeal Br. 1).
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DISCLOSED AND CLAIMED INVENTION
According to Appellant, the disclosed invention “relates to monitoring
of Information Technology (IT) infrastructure components” (Spec. ¶ 3).
According to Appellant, “IT infrastructure includes the hardware, software
and services to maintain web sites, intranets, and extranets, including web
hosting services and web software application development tools” (Spec.
¶ 5), and “IT infrastructure components include servers, storage, networking
and applications” (Spec. ¶ 5). “Performance, availability and capacity
metrics are collected from the IT infrastructure components and then
uploaded to a management server for storage, analysis, alerting and
reporting to administrators” (Spec. ¶ 6). Appellant discloses using “an event
collection process of a collector routine” (Spec. ¶ 10), as shown in Figure 3,
to collect IT infrastructure information (see Spec. ¶¶ 10, 25–43). Claims 1
(computer-implemented method) and 12 (computer program product with
instruction to perform the method) are independent and recite commensurate
limitations pertaining a collector routine. Claims 1 and 3 are illustrative of
the claimed subject matter:
1. A computer-implemented method, operable in a data network
and operable on a host comprising hardware including memory
and at least one processor, the data network comprising a
plurality of computers, each computer comprising hardware
including memory and at least one processor, the method
comprising, by a collector routine operating in the host:
an operations process:
on a continuous basis, assessing data characteristics
of the host by the collector routine operating in the host,
on a continuous basis, the collector routine
generating data messages from the data characteristics as
assessed,
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on a continuous basis, the collector routine storing
the data messages as generated in [A] a persistent, time-
framed buffer,
on a continuous basis, the collector routine
transmitting each data message as stored to a predefined
monitor service, and
on a continuous basis, the collector routine [B]
receiving response messages from the monitor service in
response to receipt of each transmitted data message;
a recovery process:
on a continuous basis, the collector routine sensing
failed transmission to the monitor service and thereafter
[C] transmitting subsequent data messages to a selected
proxy from a plurality of proxies connected to the monitor
service for re-transmission to the monitor service, instead
of transmitting to the monitor service, and
on a continuous basis, the collector routine [D]
receiving response messages from the selected proxy
originating from the monitor service in response to receipt
by the monitor service of each re-transmitted data
message.

Appeal Br. 8–9, Claims Appendix (bracketed lettering and emphasis added).
3. The method of claim 2 further comprising, in the recovery
process when the collector routine needs to transmit to a proxy,
the collector routine selecting from the available proxies
comprising [E] a random selection and testing of the randomly
selected proxy for its capability at that time to relay data
messages to the monitor service.

Appeal Br. 9, Claims Appendix (bracketed lettering and emphasis added).

REJECTIONS
The Examiner made the following rejections:
(1) Claims 1, 2, 7, 12, 13, and 18 stand rejected under 35 U.S.C.
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§ 103 as being unpatentable over Maturana et al. (US 2015/0134733 A1;
published May 14, 2015) (hereinafter, “Maturana”) and Schlomer et al.
(US 7,478,264 B1; issued Jan. 13, 2009) (hereinafter, “Schlomer”). Final
Act. 5–7.
(2) Claims 3 and 14 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Maturana, Schlomer, and Amemiya et al.
(US 2012/0254389 A1; published Oct. 4, 2012) (hereinafter, “Amemiya”).
Final Act. 7–8.
(3) Claims 4, 6, 10, 15, 17, and 21 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Maturana, Schlomer, and Gurun et al.
(US 2010/0185771 A1; published July 22, 2010) (hereinafter, “Gurun”).
Final Act. 8–9.
(4) Claims 5 and 16 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Maturana, Schlomer, and Schoenthal (US 6,910,154 B1;
issued June 21, 2005). Final Act. 9–10.
(5) Claims 8 and 19 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Maturana, Schlomer, and Bhargava (US 2012/0284790
A1; published Nov. 8, 2012). Final Act. 10.
(6) Claims 9 and 20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Maturana, Schlomer, and Qian et al. (US 2011/0173495
A1; published July 14, 2011) (hereinafter, “Qian”). Final Act. 10–11.
(7) Claims 11 and 22 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Maturana, Schlomer, and Official Notice.2 Final Act. 11.

2 The Examiner took Official Notice “of the fact that assessing performance,
availability and capacity characteristics was known to one of ordinary skill
in the art at the time of the invention” (Final Act. 11 citing eleven prior art
references in support).
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ISSUES
Based on Appellant’s arguments in the Appeal Brief (Appeal Br. 2–
7),3 the following principal issue is presented on appeal:
(1) Did the Examiner err in rejecting claims 1, 2, 4–12, and 15–22
under 35 U.S.C. § 103 as being unpatentable over the base combination of
Maturana and Schlomer because the base combination fails to teach or
suggest limitations A, B, C, and/or D, as set forth in representative claim 1?
(2) Has Appellant shown the Examiner erred in rejecting claims 3 and
14 under 35 U.S.C. § 103 as being unpatentable over the base combination
of Maturana, Schlomer, and Amemiya because the combination fails to
teach or suggest selecting available proxies using a randomly selected proxy
as set forth in limitation E of claim 3, and as commensurately set forth in
claim 14?

ANALYSIS
We have reviewed the Examiner’s rejections (Final Act. 5–11) in light
of Appellant’s arguments (Appeal Br. 2–7) that the Examiner has erred, as
well as the Examiner’s response to Appellant’s arguments in the Appeal
Brief (Ans. 3–9).
Issue (1): Representative Claim 1
With regard to representative claim 1, we agree with and adopt as our
own the Examiner’s findings of fact and conclusions as set forth in the Final

3 Appellant argues claims 1, 2, 4–13, and 15–22 on the basis of claim 1 (see
Appeal Br. 3–6). Based on Appellant’s arguments, we select claim 1 as
representative of claims 1, 2, 4–13, and 15–22. See 37 C.F.R.
§ 41.37(c)(1)(iv).
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Rejection (Final Act. 5–7), and the Examiner’s Answer (Ans. 3–8). We
provide the following explanation for emphasis only.
Appellant’s contention (Appeal Br. 4) that Maturana fails to disclose a
buffer that is persistent and time-framed (see claim 1, limitation A), is
unpersuasive. We agree with and adopt the Examiner’s findings and
reasoning in this regard (see Final Act. 6; Ans. 3–6), namely that Maturana’s
local cache storage system 113 (see Maturana ¶ 26) teaches or suggests the
recited buffer that is both persistent and time-framed as set forth in
limitation A.
Appellant’s contentions that Maturana fails to disclose (i) “a response
message sent in response to the transfer” (Appeal Br. 4); and thus (ii)
“receiving response messages from the monitor service in response to
receipt of each transmitted data message” (Appeal Br. 4), are unpersuasive.
We agree with and adopt the Examiner’s findings and reasoning in this
regard (see Final Act. 6; Ans. 6), namely that Maturana’s acknowledgement
message (see Maturana ¶ 46) teaches or suggests the recited response
message as set forth in limitation B.
Claims in patent applications are given their broadest reasonable
construction in light of the claims themselves and the specification as it
would be interpreted by one of ordinary skill in the art. Phillips v. AWH
Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005). “A patent’s specification,
together with its prosecution history, constitutes intrinsic evidence to which
the PTAB gives priority when it construes claims.” Knowles Elecs. LLC v.
Cirrus Logic, Inc., 883 F.3d 1358, 1361−62 (Fed. Cir. 2018) (citation and
footnote omitted). Phillips v. AWH Corp., 415 F.3d 1303, 1317 (Fed. Cir.
2005) (en banc) (discussing sources of evidence in claim construction, and
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stating “while extrinsic evidence ‘can shed useful light on the relevant art,’
we have explained that it is ‘less significant than the intrinsic record in
determining ‘the legally operative meaning of claim language’” (citations
omitted)).
Here, with regard to limitations C and D, the recited “proxy” serves
the function of a relay, i.e., it forwards messages. Specifically, in claim 1,
the recited “proxy” is (i) selected from a plurality of proxies and receives
“subsequent data messages;” (ii) “connected to the monitor service;” (iii)
sends response messages to the collector routine; and (iv) re-transmits data
messages to the monitor service (see claim 1, limitations C and D).
We agree with the Examiner (Ans. 7–8) that the functionality of the
“proxy” recited in claim 1 (which re-transmits messages) encompasses the
functions of the “second storage device server” (see Schlomer col. 4, l. 12)
described by Schlomer, namely that of sending and routing messages (see
Schlomer col. 2, ll. 20–23; col. 4, ll. 6–17). Under the broadest reasonable
interpretation,4 the recited “proxy” serves to forward or relay data and
response messages (see Spec. ¶¶ 32 (forwarding responses and requests), 33
(“the proxy then relays the messages”), 40, 41 (re-transmission of
messages); Fig. 3, relay proxy steps 332, 333). We also note Appellant has
not cited to a definition of “proxy” in the Specification that would preclude
the Examiner’s reading.5

4 Claim terms are to be given their broadest reasonable interpretation, as
understood by those of ordinary skill in the art and taking into account
whatever enlightenment may be had from the specification. In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).
5 Any special meaning assigned to a term “must be sufficiently clear in the
specification that any departure from common usage would be so understood
by a person of experience in the field of the invention.” Multiform
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Appellant’s contention that extrinsic evidence, such as non-patent
literature cited by Appellant in the Appeal Brief (see Appeal Br. 5), shows
that relays and proxies are different and distinct is not persuasive for at least
six reasons.
First, as stated above, the intrinsic evidence here, such as the present
claims and the supporting Specification, take priority over the extrinsic
evidence. Knowles Elecs. LLC v. Cirrus Logic, Inc., 883 F.3d at 1361−62);
Phillips v. AWH Corp., 415 F.3d at 1317.
Second, Appellant mixes the terms in the Specification and Drawings
(see Spec. ¶¶ 41, 42; Fig. 3, 332, 333) (using the term “relay proxy”).
Third, Appellant’s extrinsic evidence is not entirely contemporaneous.
See Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1299
(Fed. Cir. 2003) (declining to consider extrinsic evidence dated more than 5
years subsequent to the issuance of the patent-in-suit for purposes of claim
construction).6

Desiccants Inc. v. Medzam Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see
also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381
(Fed. Cir. 2008) (“A patentee may act as its own lexicographer and assign to
a term a unique definition that is different from its ordinary and customary
meaning; however, a patentee must clearly express that intent in the written
description.”) (citing Phillips v. AWH Corp., 415 F.3d 1303, 1316, (Fed. Cir.
2005)).
6 See the following non-patent literature evidence cited by Appellant at page
5 of the Appeal Brief:
https://www.netmanias.com/en/post/techdocs/6001/dhcp-network-
protocol/understanding-dhcp-proxy-agents-and-security (Nov. 7, 2013), last
visited April 11, 2021.
Chris Siebenmann, The different between an SMTP Proxy and a
SMTP relay (August 28, 2010), found at
https://utcc.utoronto.ca/~cks/space/blog/spam/SMTPProxyVersusRelay#:~:t
ext=The%20different%20between%20an%20SMTP%20proxy%20and%20a
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Fourth, although “extrinsic evidence may be useful[,] . . . it is unlikely
to result in a reliable interpretation of patent claim scope unless considered
in the context of the intrinsic evidence.” Phillips 415 F.3d at 1319.
Fifth, as aptly pointed out by the Examiner (see Ans. 7), Appellant’s
extrinsic evidence is not persuasive as it is not commensurate in scope with
the language of claim 1 at hand. Specifically, DHCP proxy and relay agents
and SMTP proxies and relays are not the same as the more broadly recited
“proxy” that simply serves to forward or relay messages.
Sixth, the Examiner’s citation of extrinsic evidence, showing the
equivalence and/or similarity of the functions of relays and proxies (see Ans.
7), is persuasive of Schlomer’s functionality being equivalent to the recited
proxy function, as supported by Appellant’s Specification. We agree with
the Examiner that “[n]othing in claim 1 recites any function or step which is
specific to a proxy but not a relay” (Ans. 7).
Appellant’s contention that Schlomer fails to disclose the response
messages recited in limitation D (see Appeal Br. 5) is conclusory and
unpersuasive. We agree with and adopt the Examiner’s (i) finding that
Schlomer teaches or suggests receiving acknowledgement messages (i.e., the
recited response messages) from the proxy (see Final Act. 6–7 citing
Schlomer col. 2, ll. 14–23; col. 4, ll. 6–17); and (ii) conclusion of

%20SMTP%20relay&text=A%20SMTP%20proxy%20is%20synchronous,w
ith%20the%20inside%20mail%20server.&text=A%20SMTP%20relay%20is
%20asynchronous, last visited April 11, 2021.
https://community.cisco.com/t5/network-security/dhcp-proxy-vs-
relay/td-p/1992635 (June 8, 2012), last visited April 11, 2021.

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obviousness as to claim 1, including limitation D, based on the articulation
that:
It would have been obvious to one of ordinary skill in the art at
the time of the invention to modify the system of Maturana so
that when the on-premises location 110 detects a failure to
communicate records to the remote cloud-based architecture
120, the on-premises location 110 instead communicates the
records to a relay device which relays the records to the remote
cloud-based architecture 120 and relays acknowledgements from
the remote cloud-based architecture 120 to the on-premises
location 110, because doing so increases the reliability of
communication between the on-premises location 110 and the
remote cloud-based architecture 120.

Final Act. 7.
We emphasize that the Examiner’s ultimate legal conclusion of
obviousness is based upon the combined teachings of the cited references.
Moreover, “‘the question under 35 USC 103 is not merely what the
references expressly teach but what they would have suggested to one of
ordinary skill in the art at the time the invention was made.’” Merck & Co.
v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989), cert. denied, 493
U.S. 975 (1989) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976);
see also MPEP § 2123 (9th Ed., Rev. 10.2019, June 2020) (emphasis added).
In this light, we agree with the Examiner that the combined teachings and
suggestions of Maturana and Schlomer support the legal conclusion of
obviousness as to claim 1.
Regarding Appellant's hindsight argument (see Appeal Br. 6), we are
cognizant that our reviewing courts have not established a bright-line test for
hindsight. In KSR, the Supreme Court guides that “[a] factfinder should be
aware, of course, of the distortion caused by hindsight bias and must be
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cautious of argument reliant upon ex post reasoning.” KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 421 (2007) (citing Graham v. John Deere Co. of
Kansas City, 383 U.S. 1, 36 (1966)). Nevertheless, the Supreme Court
qualified the issue of hindsight by stating, “[r]igid preventative rules that
deny factfinders recourse to common sense, however, are neither necessary
under our case law nor consistent with it.” Id. In reviewing the record here,
we find Appellant has not identified any knowledge relied upon by the
Examiner that was gleaned only from Appellant's disclosure and that was
not otherwise within the level of ordinary skill in the art at the time of
application filing. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA
1971).
Moreover, Appellant has not provided persuasive evidence that
combining the respective teachings of the references (as proffered by the
Examiner at Final Act. 5–7; Ans. 3–8) would have been “uniquely
challenging or difficult for one of ordinary skill in the art,” or that such a
combination would have “represented an unobvious step over the prior art.”
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007). Nor has Appellant provided any objective evidence of secondary
considerations, which, as our reviewing court explains, “operate[] as a
beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese &
Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013).
In view of the foregoing, Appellant has not overcome the Examiner’s
prima facie case of obviousness with respect to claim 1, and we are not
persuaded the Examiner erred in rejecting claim 1. Accordingly, we sustain
the Examiner’s rejection of independent claim 1, as well as claims 2, 7, 12,
13, and 18 grouped therewith. For similar reasons, based on Appellant’s
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arguments, and because claims 4–6, 8–11, 15–17, and 19–22 depend from
claims 1 and 12, we also sustain the Examiner’s rejections of claims 4–6, 8–
11, 15–17, and 19–22.
Issue (2): Claims 3 and 14
With regard to claims 3 and 14, we agree with and adopt as our own
the Examiner’s findings of fact and conclusions as set forth in the Final
Rejection (Final Act. 7–8), and the Examiner’s Answer (Ans. 8–9). We
provide the following explanation for emphasis only.
Appellant’s arguments (see Appeal Br. 6–7) address the individual
shortcomings of Amemiya, and do not address the collective teachings and
suggestions of the references. Appellant has not shown that the Examiner
erred in rejecting claims 3 and 14 over the combination of Maturana,
Schlomer, and Amemiya. We note that each reference cited by the
Examiner must be read, not in isolation, but for what it fairly teaches in
combination with the prior art as a whole. See In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986) (finding one cannot show non-obviousness by
attacking references individually where the rejections are based on
combinations of references).
Here, Appellant generally argues that Amemiya individually fails to
teach limitations A, B, C, and D recited in claim 1 (see Appeal Br. 6–7),
from which claim 3 ultimately depends. However, the Examiner relies upon
the base combination of Maturana and Schlomer as teaching limitations A,
B, C, and D of the collector routine set forth in claim 1, and relies upon
Amemiya only for teaching “randomly selecting a server from a list of
servers” (Final Act. 8 citing Amemiya ¶ 94), and not for teaching limitations
A, B, C, and D. Notably, Appellant does not dispute the Examiner’s specific
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and limited finding with regard to Amemiya. Thus, Appellant’s arguments
are not persuasive to show the Examiner erred in relying on the combination
of references in teaching or suggesting the disputed limitations.
Regarding Appellant's hindsight argument (see Appeal Br. 7), we
provide similar reasoning as given above as to claim 1. Namely, we find
Appellant has not (i) identified any knowledge relied upon by the Examiner
that was gleaned only from Appellant's disclosure and that was not
otherwise within the level of ordinary skill in the art at the time of
application filing (see In re McLaughlin, 443 F.2d at 1395); (ii) provided
persuasive evidence that combining the respective teachings of the
references (as proffered by the Examiner at Final Act. 5–7; Ans. 3–8) would
have been “uniquely challenging or difficult for one of ordinary skill in the
art,” or that such a combination would have “represented an unobvious step
over the prior art” (Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d at
1162); and/or (iii) provided any objective evidence of secondary
considerations, which, as our reviewing court explains, “operate[] as a
beneficial check on hindsight” (Cheese Sys., Inc. v. Tetra Pak Cheese &
Powder Sys., Inc., 725 F.3d at 1352).
In view of the foregoing, Appellant has not overcome the Examiner’s
prima facie case of obviousness with respect to claims 3 and 14, and we are
not persuaded the Examiner erred in rejecting claims 3 and 14.

CONCLUSION
For the reasons explained above, we sustain the rejections of claims
1–22 under 35 U.S.C. § 103 as being unpatentable over the base
combination of Maturana and Schlomer.
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In summary, we hold as follows:
Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1, 2, 7, 12,
13, 18
103 Maturana,
Schlomer
1, 2, 7, 12,
13, 18

3, 14 103 Maturana,
Schlomer,
Amemiya
3, 14
4, 6, 10,
15, 17, 21
103 Maturana,
Schlomer, Gurun
4, 6, 10, 15,
17, 21

5, 16 103 Maturana,
Schlomer,
Schoenthal
5, 16
8, 19 103 Maturana,
Schlomer,
Bhargava
8, 19
9, 20 103 Maturana,
Schlomer, Qian
9, 20
11, 22 103 Maturana,
Schlomer, Official
Notice
11, 22
Overall
Outcome
1–22

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