Ryan Smith et al.

Patent Trials and Appeals Board

Sep 26, 2019

13628901 - (D) (P.T.A.B. Sep. 26, 2019)

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.
13/628,901 09/27/2012 Ryan Smith KAS-0212 3459
67208 7590 09/26/2019
Proactive Patents LLC
955 Garden Park Drive
Ste 230
ALLEN, TX 75013
EXAMINER
LI, LIANG Y
ART UNIT PAPER NUMBER
2143
NOTIFICATION DATE DELIVERY MODE
09/26/2019 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):
eofficeaction@appcoll.com
mzarinelli@proactivepatents.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RYAN SMITH, CHAD GNIFFKE,
ROBERT WENDELL DAVIS, MARK THOMAS LINGEN,
and MARK JAMES SUTHERLAND
____________

Appeal 2018-008777
Application 13/628,901
Technology Center 2100
____________

Before IRVIN E. BRANCH, JOSEPH P. LENTIVECH, and
SCOTT RAEVSKY, Administrative Patent Judges.

RAEVSKY, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 4–6, 8, 11–13, 15, and 18–20, all the
pending claims in the present application. See App. Br. 46–51 (Claims
Appendix). 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. Appellant identifies the real party in interest as Kaseya
Limited. Appeal Br. 2.
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THE CLAIMED SUBJECT MATTER
Appellant’s invention generally relates to providing a user application
with a notification message. See Spec., Abstract. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A method of providing a user application with a
notification message, the method comprising:
receiving a notification message;
parsing at least one word from the notification message
indicating a server status;
increasing an initial level of importance of the
notification message to an elevated level of importance based
on a filtering function that identifies the at least one word as
requiring an elevated level of importance with regard to the
server status, and wherein the elevated level of importance
invokes a different type of notification than a notification
associated with the initial level of importance;
identifying a predetermined category of a notification bar
portion of the user application to display the notification
message and using the parsed at least one word to select the
predetermined category of the notification bar portion and at
least one notification type used to display the notification
message on the notification bar portion of the user application;
identifying the notification message as being assigned to
the predetermined category based on one or more notification
statements stored in a database and wherein the predetermined
category comprises a category name and display icon which are
subjectively related to content of the notification message and
wherein the predetermined category is linked to one or more
portions of the notification bar, based on the predetermined
category, associating the notification message with the
predetermined category of the notification bar portion
associated with the elevated level of importance;
displaying a notification indicator on the notification bar
according to the predetermined category of the notification bar
portion and the at least one notification type that corresponds to
the elevated level of importance;
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maintaining the displaying of the notification indicator for
a predetermined period of time and associating the notification
indicator with a predetermined automated action to correct the
server status; and
performing the automated action to the server after the
predetermined period of time has lapsed absent a user selection
operation being received.

REJECTIONS
The Examiner made the following rejections:
Claims 1, 4, 8, 11, 15, and 18 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Kekic (US 5,999,179, issued Dec. 7,
1999) and Zabbix (“Zabbix 1.8 manual,” 2010–20112). Final Act. 2.
Claims 5, 6, 12, 13, 19, and 20 stand rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over Kekic, Zabbix, and Horvitz (US
2004/0143636 A1, July 22, 2004). Id. at 4.
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).

ANALYSIS
Appellant initially challenges the publication date of Zabbix as not
being before the filing date of the present application (September 27, 2012).
App. Br. 12–15; Reply Br. 2–4. Appellant asserts that in the Final Action,
the Examiner admitted that Zabbix published May 4, 2016. App. Br. 12–13;

2 We list the Examiner’s proffered dates of 2010 and 2011 (separate dates
for different pages of Zabbix). Ans. 6. We address Appellant’s dispute of
Zabbix’s publication date below. See App. Br. 12–15.
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see Final Act. 2 (“Claims 1, 4, 8, 11, 15, 18 . . . are rejected . . . in view of
Zabbix (‘Zabbix 1.8 manual,’ published 5/4/2016)”). Appellant also relies
on the following screenshot from www.zabbix.com:

App. Br. 13. According to Appellant, the above screenshot shows “the only
reference to a date associated with a Zabbix 1.8 manual is December 15,
2014, which is also later than the filing date of the present application.” Id.
Appellant further contends the only evidence the Examiner relies on for an
earlier date is the form PTO-892’s listing of “22 Nov. 2009,” appended to
the Final Action. Id. at 14. The form PTO-892 also includes a link to the
Zabbix version 1.8 manual, but Appellant contends the website at the link
does not support the Examiner’s proffered publication date. Id.
In the Answer, the Examiner cites new evidence supporting a
publication date earlier than Appellant’s filing date. Ans. 6. This evidence
includes, among other things, a link to archive.org showing a date of
October 7, 2011 for “section 2.8.4 [of Zabbix] corresponding to p.12.” Id.
The evidence also includes a link to the Zabbix manual on www.zabbix.com,
which the Examiner asserts includes a date of February 25, 2010 for “section
7 corresponding to p.59.” Id. Of the evidence the Examiner cited, this
evidence is most relevant because the Final Action relies on pages 12 and 59
of Zabbix. Final Act. 4.
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On Reply, Appellant does not persuasively rebut the Examiner’s new
evidence in the Answer but instead reiterates its arguments from the Appeal
Brief. See Reply Br. 2–4 (“Appellant submits that regardless of the
archive.org and WAYBACK MACHINE evidence provided by the Examiner
. . . .”). But arguments not made are waived. See Frye, 94 USPQ2d at 1075
(The Board “reviews . . . rejection[s] for error based upon the issues
identified by appellant, and in light of the arguments and evidence produced
thereon,” and treats arguments not made as waived.). Accordingly,
Appellant does not persuade us of error in the Answer’s new findings.
Appellant next contends the combination of Kekic and Zabbix fails to
teach or suggest claim 1’s “parsing at least one word from the notification
message to identify a server status.” App. Br. 16. Specifically, Appellant
contends:
The example on column 4 of Kekic discloses SNMP and PDUs
using standard commands. . . . The Examiner then moves from
column 4 to columns 67 and 85 of Kekic to allegedly provide
support for the parsing operation of claim 1. Appellant
disagrees and submits that 60 some-odd columns later, the
teachings of Kekic disclose various classes associated with a
target container. One class “Class Severity” is a helper class
that identifies severity parameters, creates color indicators and
blinking intervals (see column 67 of Kekic). Also, column 85
provides nothing further to support those features of claim 1.
Appellant submits that none of those examples disclose or
suggest the parsing of the notification message to identify a
server status, this feature was not taught by Kekic.

Id.
The Examiner finds, and we agree, that Kekic teaches or suggests “the
parsing of at least one word from a notification message indicating server
status.” Ans. 7 (citing Kekic 67:55–60, 85:53–63). Specifically, Kekic
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describes “severity level information” that is “passed from server 314.”
Kekic 67:52–53. In other words, Kekic discloses a notification message
containing severity level information from the server, i.e., a notification
message related to server status. Kekic also describes a “helper class” that
“helps in parsing the severity parameters” extracted from the notification
message. Id. at 67:56–58. Accordingly, Appellant does not persuade us of
error in the Examiner’s finding that Kekic teaches or suggests claim 1’s
“parsing at least one word from the notification message to identify a server
status.”
Appellant next contends Kekic and Zabbix fail to teach or suggest
claim 1’s “increasing an initial level of importance of the notification
message to an elevated level of importance based on a filtering function that
identifies the at least one word as requiring an elevated level of importance
with regard to the server status.” App. Br. 16–17. Specifically, Appellant
contends, “[c]olumn 22 of Kekic, considered pertinent by the Examiner,
discloses a table 3 that has various severity levels, however, elevating a
severity level is not taught by any of those examples.” Id. (emphasis
omitted). Further, Appellant contends, “[as] there is no teaching of a word
being parsed and then severity increasing, this feature of claim 1 is
completely overlooked by the reliance on the teachings of Kekic.” Id. at 17
(emphasis omitted). Appellant asserts that Kekic column 67 also “offers
nothing about that specific feature of claim 1.” Id.
In the Answer, the Examiner newly finds column 22 of Kekic’s
“disclosure of the various severity levels issued responsive to the receiving
of the message means that changes between these levels, including
escalations, are expected based on the message stream.” Ans. 9. The
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Examiner also finds, “no explicit use of the word ‘elevation’ is needed in
this case.” Id. Further, the Examiner finds, “[a] person of ordinary skill in
the art would understand that server statuses change regularly from a status
indicating, for example, a normal operating condition to an elevated
message.” Id. The Examiner concludes,
[i]n other words, although the term ‘elevation’ is never
explicitly used, one of ordinary skill in the art would understand
that elevations and changes in the system based on messages,
being the very purpose or operating principle of the system, is
disclosed by the Kekic reference in its disclosure of the various
server states.
Id.
Appellant does not address the Examiner’s new findings in the
Answer. As we noted above, Arguments not made are waived. See Frye, 94
USPQ2d at 1075. Accordingly, Appellant does not persuade us of error in
the Examiner’s findings.
Lastly, Appellant contends that Kekic and Zabbix fail to teach or
suggest claim 1’s “identifying the notification message as being assigned to
a predetermined category based on one or more notification statements in a
database.” App. Br. 17. Appellant contends that in Kekic, “there is no pool
or list of notification statements in a database, retrieved by the application
and used to populate the user interface.” Id. Further, Appellant contends,
“there is no operation disclosed in Kekic for retrieving the category name
from a database of category names and display icons and applying it to the
notification bar.” Id.
The Examiner finds Kekic discloses a “network management agent”
and a “network management information database,” which “would contain
the structured and retrievable data used to parse these messages and indicate
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the severity parameters.” Ans. 10. The Examiner finds, and we agree,
“[t]hese associations wi[ll] constitute notification statements in the database
used to identify the category and severity level for display.” Id.
Appellant’s arguments are not commensurate with the scope of the
claim. Claim 1 does not recite a “pool or list of notification statements in a
database, retrieved by the application and used to populate the user
interface.” See App. Br. 17. Likewise, claim 1 does not recite an “operation
. . . for retrieving the category name from a database of category names and
display icons and applying it to the notification bar.” See id. Accordingly,
Appellant does not persuade us of error in the Examiner’s findings.
We, therefore, sustain the Examiner’s rejection of claim 1.
Appellant’s arguments regarding the rejection of independent claims 8 and
15 rely on the same arguments as for claim 1, and Appellant does not argue
separate patentability for the dependent claims. See App. Br. 18–44. We
therefore also sustain the Examiner’s rejection of claims 4–6, 8, 11–13, 15,
and 18–20. See 37 C.F.R. § 41.37(c)(1)(iv) (2013).

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CONCLUSION
In summary:
Claims
Rejected
Basis Affirmed Reversed
1, 4, 8, 11, 15, and
18
§ 103; Kekic, Zabbix 1, 4, 8, 11, 15,
and 18

5, 6, 12, 13, 19,
and 20
§ 103; Kekic,
Zabbix, Horvitz
5, 6, 12, 13,
19, and 20

Overall Outcome 1, 4–6, 8, 11–
13, 15, and
18–20

We affirm the Examiner’s § 103 rejections of claims 1, 4–6, 8, 11–13,
15, and 18–20.
AFFIRMED