11040265 (B.P.A.I. May. 8, 2012)

Ex Parte Jennings et al

Board of Patent Appeals and InterferencesMay 8, 2012

11040265 (B.P.A.I. May. 8, 2012)

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. 11/040,265 01/21/2005 Jeffery Bart Jennings RPS920040236US1 4043 50594 7590 05/08/2012 CAREY, RODRIGUEZ, GREENBERG & O''KEEFE, LLP STEVEN M. GREENBERG 950 PENINSULA CORPORATE CIRCLE SUITE 2022 BOCA RATON, FL 33487 EXAMINER LE, CANH ART UNIT PAPER NUMBER 2439 MAIL DATE DELIVERY MODE 05/08/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte JEFFERY BART JENNINGS and KOFI KEKESSIE ____________ Appeal 2009-010760 Application 11/040,265 Technology Center 2400 ____________ Before JOSEPH L. DIXON, LANCE LEONARD BARRY, and ST. JOHN COURTENAY III, Administrative Patent Judges. PER CURIAM DECISION ON REQUEST FOR REHEARING STATEMENT OF THE CASE The Patent Examiner rejected claims 1-20. The Appellants appealed therefrom under 35 U.S.C. § 134(a). We affirmed. See Decision on Appeal (mailed February 15, 2012). The Appellants now request rehearing. Appeal 2009-010760 Application 11/040,265 2 Claim 7, reproduced below, is illustrative of the claimed subject matter: 7. A method for authenticating a communication request sent from a client computing device, the method comprising: initially blocking the communication request from delivery to a server; creating a first logging event corresponding to the communication request; storing the communication request and the logging event in a firewall; notifying the server of the first logging event; authenticating the communication request corresponding to the first logging event; and enabling a port in the firewall if the communication request is authenticated. DISCUSSION The Appellants argue that "the findings of Honorable Board appear to have overlooked . . . three other important arguments presented by Appellants in the Appeal Brief." (Req. Reh’g 6.) We address these arguments seriatim. FIRST ARGUMENT The "Appellants presented a first argument that Examiner had failed to account for the claimed 'initially blocking of a communications request' . . . ." (Req. Reh’g 3.) In an ex parte appeal, the Board "is basically a board of review — we review . . . rejections made by patent examiners." Ex parte Gambogi, 62 USPQ2d 1209, 1211 (BPAI 2001). Appeal 2009-010760 Application 11/040,265 3 Here, we found that, on the record, the preponderance of the evidence supported the Examiner's finding that the combined teachings of U.S. Patent Application Pub. No. 2004/0088409 A1 ("Braemer") and U.S. Patent Application Pub. No. 2004/0181664 A1 ("Hoefelmeyer"), supplemented by the knowledge of persons skilled in the art, would have suggested the limitations of representative claim 7 for the reasons explained by the Examiner, Decision on Appeal at 4, thereby adopting the Examiner's reasons as our own. The limitations of representative claim 7 included "initially blocking the communication request from delivery to a server." The Examiner made specific findings and conclusions regarding this limitation, and we adopted these as our own. SECOND ARGUMENT The "Appellants presented a second, separate argument generally directed to the notion that while Appellants' claim language requires the creation of a logging event that corresponds to a communication request, Examiner only sought to prove that Braemer taught 'maintaining a log'." (Req. Reh’g 4.) "The test for obviousness is what the combined teachings of the references would have suggested to one of ordinary skill in the art." In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). Of course, "'[e]very patent application and reference relies to some extent upon knowledge of persons skilled in the art to complement that disclosed . . . .'" In re Bode, 550 F.2d 656, 660 (CCPA 1977) (quoting In re Wiggins, 488 F.2d 538, 543 (CCPA 1973)). Those persons "must be presumed to know something" about the art "apart from Appeal 2009-010760 Application 11/040,265 4 what the references disclose." In re Jacoby, 309 F.2d 513, 516 (CCPA 1962). Here, the Examiner's found that "Braemer teaches creating a first logging event corresponding to the communication request [Braemer : par. [0006]; lines 8-12; Firewall maintains logs (i.e. logging event) and statistic on network use; . . . ." (Ans. 19.) We adopted this finding as our own and now add the following clarification. Braemer' paragraph 0006] teaches that "[f]irewalls may also provide other advantages by . . . maintaining logs and statistics on network use . . . ." The sending of a communication request from a client computing device to a network constitutes a use of the network. We find, therefore, that the combined teachings of Braemer and Hoefelmeyer, supplemented by the knowledge of persons skilled in the art, would have suggested "creating a first logging event corresponding to the communication request," as recited in claim 7. THIRD ARGUMENT The "Appellants presented yet a third argument generally directed to the failure of Hoefelmeyer to teach the notification of a server of a 'logging event'." (Req. Reh’g 5.) They "drew [a] distinction between 'notifying' as claimed, and 'recording' as disclosed" (Req. Reh’g 5.) by Hoefelmeyer. The Appellants also argued that "the Honorable Board has neither expressly nor implicitly set forth a claim construction for a the [sic] disputed claim term 'notifying'." (Id. at 8.) The limitations of representative claim 7 included "notifying the server of the first logging event." The Examiner made specific findings and conclusions regarding this limitation, and we adopted these as our own. We Appeal 2009-010760 Application 11/040,265 5 note that the Examiner distinguished between notifying the server of an event and the server's recording the event. Such distinguishing implicitly construed the claimed "notifying," and we adopted this construction as our own. DECISION We have granted the Appellants' request for rehearing to the extent that we have reconsidered the Appellants' arguments. We decline, however, to change our original decision. No time for taking any action connected with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(1)(iv). DENIED llw