Ex Parte Cooper

Patent Trial and Appeal Board

Feb 19, 2014

11474117 (P.T.A.B. Feb. 19, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARK COOPER
____________

Appeal 2011-004276
Application 11/474,1171
Technology Center 2400
____________

Before MARC S. HOFF, JOHNNY A. KUMAR, and LARRY J. HUME,
Administrative Patent Judges.

HOFF, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-9, 11, 12, 14, 18, 19, and 22-36.2 We have jurisdiction under
35 U.S.C. § 6(b).
We affirm-in-part.

1 The real party in interest is Hewlett-Packard Development Company, LP.
2 Claims 10, 13, 15-17, 20, and 21 have been cancelled.
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STATEMENT OF THE CASE
Appellant’s invention is a system for determining data flows within a
network configuration comprising a plurality of nodes and a plurality of
network devices through which data is routed between the nodes. A
plurality of remote agents determine information about each of the plurality
of nodes. A mapping engine receives the determined information from each
of the remote agents and is configured to determine the data flows based on
the information from the remote agents and configuration information
relating to the network devices. Each of the remote agents is located at a
respective one of the nodes and is arranged to obtain information about
processes executing on its respective node (Spec. 2).
Independent claim 1, reproduced below, is representative of the
subject matter on appeal.
1. A system for determining data flows within a network
configuration, the network configuration comprising a plurality
of nodes and a plurality of network devices through which data
is routed between the nodes, each of the nodes having a
plurality of processes executing thereon, the system
comprising:
a plurality of remote agents configured to gather
information about corresponding ones of the plurality of nodes,
wherein the gathered information at each of the plurality of
nodes includes a list of the processes at the corresponding node
and network traffic samples of network traffic captured at the
corresponding node; and
a mapping engine configured to receive the gathered
information from each of the remote agents, wherein the
mapping engine is configured to determine the data flows based
on the gathered information from the remote agents and
configuration information relating to the network devices,
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wherein each of the remote agents is located at a
corresponding one of the nodes and is configured to obtain
information about the processes executing on the corresponding
node.

REFERENCES
Drees US 2002/0152277 Al Oct. 17, 2002
Vaid US 6,502,131 B1 Dec. 31, 2002
Nguyen US 2003/0172145 Al Sep. 11, 2003
Mimura US 2005/0094572 Al May 5, 2005
Doshi US 2005/0114397 Al May 26, 2005
Joy US 2005/0157732 Al Jul. 21, 2005
Dale US 7,529,543 B2 May 5, 2009

REJECTIONS
Claims 1, 2, 5-9, 11, 12, 14, 15, 18, 19, 22, 23, 29, 31, and 36 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over Mimura in
view of Dale and Drees.
Claims 3 and 4 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Mimura in view of Dale, Drees, and Doshi.
Claims 24, 25, 32, and 33 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Mimura in view of Dale, Drees, and Nguyen.
Claims 26 and 30 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Mimura in view of Dale, Drees, and Joy.
Claims 27, 28, 34, and 35 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Mimura in view of Dale, Drees, and Vaid.

ISSUES
Appellant argues that the combination of Mimura, Dale, and Drees
would not have led to the subject matter of claim 1 (App. Br. 8). Appellant
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contends that neither Dale nor Drees has to do with determining data flows
within a network configuration (App. Br. 9-10).
With respect to claim 5, Appellant further asserts that none of the
statistics collected by Mimura teach configuration information that defines
how a network device processes data arriving at the network device (App.
Br. 12).
With respect to claim 6, Appellant argues that Drees’s disclosure of
endnodes does not have to do with determining data flows, as parent claim 1
requires (App. Br. 13).
With respect to claim 11, Appellant asserts that Mimura’s collection
of statistics data does not correspond to the claim limitation regarding
linking data flows to processes (App. Br. 14).
With respect to claim 27, Appellant contends that Vaid does not
disclose predicting a form of a data packet (App. Br. 17).
Appellant’s arguments present us with the following issues:
1. Did the Examiner properly combine Mimura, Dale, and Drees to
obtain the invention recited in the independent claims?
2. Does the combination of Mimura, Dale, and Drees teach
configuration information defining how a network device processes data?
3. Did the Examiner properly combine Mimura, Dale, and Drees to
obtain the invention of claim 6?
4. Does Mimura teach or suggest linking the determined data flows to
one or more processes?
5. Does Vaid teach or suggest a mapping engine configured to predict
a form of a data packet?

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PRINCIPLES OF LAW
Section 103(a) forbids issuance of a patent when “the
differences between the subject matter sought to be patented
and the prior art are such that the subject matter as a whole
would have been obvious at the time the invention was made to
a person having ordinary skill in the art to which said subject
matter pertains.”

KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 406 (2007). The question of
obviousness is resolved on the basis of underlying factual determinations
including (1) the scope and content of the prior art, (2) any differences
between the claimed subject matter and the prior art, (3) the level of skill in
the art, and (4) where in evidence, so-called secondary considerations.
Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See also KSR, 550
U.S. at 407 (“While the sequence of these questions might be reordered in
any particular case, the [Graham] factors continue to define the inquiry that
controls.”).
ANALYSIS
CLAIMS 1, 2, 7-9, AND 23
Appellant’s various arguments are not persuasive to establish that the
Examiner erred in rejecting the claims.
Appellant argues that there is “nothing . . . [in] Mimura that provides
any hint of a mapping engine that is configured to determine data flows
based on gathered information that includes a list of processes at each
corresponding node and network traffic samples of network traffic captured
at the corresponding node” (App. Br. 8). Appellant later recognizes, and
does not contest, that the Examiner relies on Drees for a teaching of such a
list of processes (App. Br. 9).
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Appellant then asserts that neither Dale nor Drees has anything to do
with determining data flows within a network (App. Br. 9, 10). To the
extent this is an argument that none of the asserted references teaches
determining data flows, the Examiner relies on Mimura for such a teaching
(Ans. 3). To the extent Appellant is arguing that the references are not
properly combinable, i.e., that they are not analogous, we agree with the
Examiner that Mimura, Dale, and Drees are in the field of Appellant’s
endeavor. “Mimura is related to collecting data flows between nodes in a
network using a mapping engine. Dale is directed to configuring nodes on a
network via a mapping engine. . . . Drees is directed to reporting process
and network events occurring on node (sic) located within a network” (Ans.
21). We find that the Examiner has stated reasons to combine Mimura with
Dale and Drees which have a rational underpinning (Ans. 21-22).
Because we are not persuaded that the Examiner improperly
combined Mimura with Dale and Drees, we sustain the Examiner’s § 103
rejection of claims 1, 2, 7-9, and 23.

CLAIM 5
The Examiner’s rejection of claim 1 relied on the teachings of Dale to
teach configuration information relating to the network devices (Ans. 4-5).
Claim 5 further limits that “configuration information” as “information
defining how a network device processes data arriving at the network
device.” The Examiner’s rejection of claim 5, however, makes no mention
of Dale, supposedly finding the claimed limitations in Mimura (Ans. 5-6).
We agree with Appellant that Dale’s configuration parameters for
configuring a configurable device have nothing to do with configuration
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information that comprises information defining how a network device
processes data arriving at the network device (Reply Br. 6).
We find that the combination of Mimura, Dale, and Drees fails to
teach all the limitations of claim 5. We do not sustain the Examiner’s § 103
rejection.
CLAIM 6
Appellant’s argument that Drees’s teaching of endnodes is not
relevant because SCM agents have nothing to do with determining data
flows (App. Br. 13) is not persuasive to show that the Examiner erred. The
Examiner’s rejection of claim 6 relied on Mimura, rather than Drees, to
teach determining data flows. We agree with the Examiner that Drees
provides motivation for its combination with Mimura (Ans. 24, citing Drees
¶ [0007]).
We conclude that the Examiner did not err in combining Mimura with
Dale and Drees to reject claim 6. We sustain the Examiner’s § 103
rejection.

CLAIM 11, 12, 18, AND 22
We do not agree with the Examiner that Mimura discloses linking
determined data flows to one or more processes, as claimed. The Examiner
states that “[t]he data flows come from the processes which are to be
monitored therefore they are in fact linked together” (Ans. 25). We have
reviewed paragraphs [0017] and [0040] of Mimura, relied upon by the
Examiner. Paragraph [0017] discloses collecting statistics data from meters
that observe calls and measure such data per call; it does not disclose linking
data flows to processes. Mimura’s paragraph [0040] does not support the
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Examiner’s position that Mimura links data flows to processes. The
Examiner has also failed to establish that data flows are inherently linked to
processes simply because monitoring occurs.
We find that the combination of Mimura, Dale, and Drees fails to
teach all the limitations of claims 11, 12, 18, and 22. We do not sustain the
Examiner’s § 103 rejection.

CLAIMS 14, 19, 29, 31, 35
With respect to these claims, Appellant relies on the arguments made
for claim 1 (App. Br. 14, 18). As explained supra, we sustain the
Examiner’s rejection of claim 1. Thus, we sustain the § 103 rejection of
claims 14, 19, 29, 31, and 35, for the same reasons given with respect to
claim 1.

CLAIMS 3, 4, 24, 25, 26, 28, 30, 32, 33, AND 36
Appellant makes no further arguments with respect to these claims
and relies on the remarks with respect to the patentability of claim 1 (App.
Br. 16-18). As explained supra, we sustain the Examiner’s rejection of
claim 1. Thus, we sustain the § 103 rejection of claims 3, 4, 24-26, 28, 30,
32, 33, and 36, for the same reasons given with respect to claim 1.

CLAIMS 27 AND 34
We are persuaded by Appellant’s argument that Vaid fails to disclose
predicting a form of a data packet in a link between one of the nodes and one
of the network devices (App. Br. 17). We disagree with the Examiner that
Vaid’s disclosure of techniques are “intended to provide for more
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predictability and orderliness in the event of network congestion,”
corresponds to predicting the form of a data packet (Ans. 26-27) (emphasis
and internal quotation marks omitted).
We find that the Examiner’s combination of Mimura, Dale, Drees,
and Vaid does not teach all the limitations of claims 27 and 34. We do not
sustain the Examiner’s § 103 rejection.

CONCLUSIONS
1. The Examiner properly combined Mimura, Dale, and Drees to
obtain the invention recited in the independent claims.
2. The combination of Mimura, Dale, and Drees does not teach
configuration information defining how a network device processes data.
3. The Examiner properly combined Mimura, Dale, and Drees to
obtain the invention of claim 6.
4. Mimura does not teach or suggest linking the determined data flows
to one or more processes, as recited in claim 11.
5. Vaid does not teach or suggest a mapping engine configured to
predict a form of a data packet.

DECISION
The Examiner’s decision rejecting claims 1-4, 6-9, 14, 19, 23-26, 28-
33, 35, and 36 is affirmed. The Examiner’s decision rejecting claims 5, 11,
12, 18, 22, 27, and 34 is reversed.
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).

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AFFIRMED-IN-PART

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