Ex Parte Kambatla et al

Patent Trial and Appeal Board

Mar 9, 2016

13100073 (P.T.A.B. Mar. 9, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/100,073 05/03/2011 Karthik Shashank Kambatla
56436 7590 03/11/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
82613056 2127
EXAMINER
STRANGE, AARON N
ART UNIT PAPER NUMBER
2448
NOTIFICATION DATE DELIVERY MODE
03/11/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KAR THIK SHA SHANK KAMBA TLA and JUN LI
Appeal2014-006240
Application 13/100,073
Technology Center 2400
Before CAROLYN D. THOMAS, KAL YANK. DESHPANDE, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
DESHPANDE, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2014-006240
Application 13/100,073
STATEMENT OF CASE1
Appellants seek review under 35 U.S.C. § 134(a) of the Examiner's
Final Rejection of claims 1-20. We have jurisdiction over the appeal
pursuant to 35 U.S.C. § 6(b).
We REVERSE and ENTER A NEW GROUND OF REJECTION
PURSUANT TO 37 C.F.R. § 41.50(b).
Appellants invented a method, system, and medium to establish a
scalable publish and subscribe based notification service that may process
large volumes of events and subscriptions efficiently and reliably. Spec.
ii 12.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below:
1. A method of processing notifications, comprising:
generating a plurality of notifications for a plurality of
subscribers to a plurality of topics, vvherein the plurality of
notifications are generated based on a plurality of events
comprising the plurality of topics; and
sending the plurality of notifications for the plurality of
subscribers, concurrently with generating a second plurality of
notifications for a second plurality of subscribers to a second
plurality of topics, wherein the second plurality of
notifications are generated based on a second plurality of
events comprising the second plurality of topics.
REFERENCES
The Examiner relies on the following prior art:
1 Our decision makes reference to Appellants' Appeal Brief ("Appeal Br.,"
filed Dec 2, 2013) and Reply Brief ("Reply Br.," filed Apr. 28, 2014), and
the Examiner's Answer ("Ans.," mailed Feb. 28, 2014) and Final Office
Action ("Final Act.," mailed July 31, 2013).
2
Appeal2014-006240
Application 13/100,073
Pather et al. US 7,177,859 B2
Kumar et al. US 2007 /0067780 Al
Cabrera et al. US 7,676,812 B2
REJECTIONS
Feb. 13,2007
Mar. 22, 2007
Mar. 9, 2010
Claims 1, 2, 4-6, 9-12, 14-16, 18, and 19 stand rejected under 35
U.S.C. § 102(b) as being anticipated by Cabrera. Final Act. 3-6.
Claims 3 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cabrera in view of Kumar. Final Act. 6-7.
Claims 7, 8, 17, and 20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Cabrera in view of Pather. Final Act. 7-8.
ISSUE
The issue of whether the Examiner erred in rejecting claims 1-2 0
turns on whether Cabrera discloses "sending the plurality of notifications for
the plurality of subscribers, concurrently with generating a second plurality
of notifications for a second plurality of subscribers to a second plurality of
topics," as recited in independent claim 1, and similarly recited in
independent claims 9 and 18.
ANALYSIS
Appellants contend that Cabrera fails to describe "sending the
plurality of notifications for the plurality of subscribers, concurrently with
generating a second plurality of notifications for a second plurality of
subscribers to a second plurality of topics," as recited in independent claim
1, and similarly recited in independent claims 9 and 18. Appeal Br. 6--8;
Reply Br. 1-2. Appellants specifically argue that, although Cabrera
describes a large scale notification system, and transmits event notifications
to consumers via a subscription manager network, Cabrera fails to explicitly
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Application 13/100,073
disclose concurrently sending a plurality of notifications and generating a
second plurality of notifications. Id. We agree with Appellants.
Cabrera is directed to a scalable event notification system where event
sources generate event notifications and transmit the event notifications to a
topic manager. Cabrera 1 :45--47. The topic manager may then assign the
event notification to a topic, which is transmitted to a subscription manager,
which is implemented with a network of subscription managers that are
configurable to increase reliability and on time delivery of event
notifications. Cabrera 1 :50-53. Events could be triggered when an event
source, such as a printer, transmits an event notification indicating that the
printer is out of paper or that the toner is low. Cabrera 3:41--43. Events
could also be dynamic news, such as the notification of a traffic jam or a
traffic accident. Cabrera 3 :49-51. Cabrera discloses that event consumers
(subscribers), are presented with event notifications that have been triggered
by an event, using a parent subscription manager, child subscription
manager, referral generator, and forwarding referral. Cabrera 9: 1-30, Fig.
6. Cabrera also discloses that when a portion of a subscription manager
network is experiencing overload conditions, referral filtering engines and
referral generators may be activated in that portion to reduce congestion and
increase throughput. Cabrera 9: 33-37.
As found by the Examiner, Cabrera discloses generating notifications
for a plurality of topics and subscribers. Ans. 2 (citing Cabrera 3 :25-26,
5:46--49). The Examiner further finds that although "Cabrera does not
specifically recite the term 'concurrently,"' it is apparent that a system
continuously generating and delivering large numbers of event notifications
from multiple dynamic sources necessarily performs the generation of new
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Application 13/100,073
notifications for new subscribers '"concurrently' with delivery of previously
generated notifications for old subscribers. Id. (citing Cabrera 3 :25-26,
3:49-51, 3:53-65, 5:46-49). The Examiner determines that this teaching
falls well within the broadest reasonable interpretation of the claim
language. Id.
We disagree with the Examiner. Although Cabrera discloses
generating notifications for a plurality of topics and subscribers in a large
scale event notification system, we are unable to discern how the Examiner
has equated this disclosure of Cabrera as being the same as the claimed
concurrently sending a plurality of notifications and generating a second
plurality of notifications. The Examiner has not provided a construction for
the term "concurrently" or the limitation "sending the plurality of
notifications for the plurality of subscribers, concurrently with generating a
second plurality of notifications for a second plurality of subscribers to a
second plurality of topics," but rather simply states that "this teaching falls
well within the broadest reasonable interpretation of the claim language." It
appears that the Examiner is construing the "concurrently" limitation to
encompass the "continuous" processing of notifications from multiple
dynamic sources as falling within the scope of the disputed limitation. See
Ans. 2. The Examiner, however, has not provided any evidence on the
record that demonstrates that Cabrera expressly discloses the "continuous"
generating and delivering of notifications. Even if "continuous" was
highlighted in the Examiner's evidence, which it has not, we find that one of
ordinary skill in the art would recognize that the tern "continuous" indicates
an uninterrupted sequence, whereas "concurrently" denotes occurring at the
same time. Absent an express disclosure from Cabrera that second
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notifications are generated concurrently with the sending of notifications, we
find that Cabrera fails to explicitly disclose this limitation.
The Examiner also appears to be finding that the system "necessarily"
generates new notifications concurrently while sending notifications. That
is, the Examiner appears to be making a finding that Cabrera inherently
discloses "sending the plurality of notifications for the plurality of
subscribers, concurrently with generating a second plurality of notifications
for a second plurality of subscribers to a second plurality of topics." See
Ans. 2. Under principles of inherency, when a reference is silent about an
asserted inherent characteristic, it must be clear that the missing descriptive
matter is necessarily present in the thing described in the reference, and that
it would be so recognized by persons of ordinary skill. Continental Can
Co. USA, Inc. v. Monsanto Co., 948 F.2d 1264, 1268 (Fed. Cir. 1991).
"Inherency, however, may not be established by probabilities or
possibilities. The mere fact that a certain thing may result from a given set of
circumstances is not sufficient." In re Robertson, 169 F.3d 743, 745 (Fed.
Cir. 1999) (citations omitted). When relying upon a theory of inherency, the
Examiner must provide a basis in fact and/or technical reasoning to
reasonably support the Examiner's determination that the allegedly inherent
characteristic necessarily flows from the teachings of the applied prior art.
Ex parte Levy, 17 USPQ2d 1461, 1463-64 (BPAI 1990).
Here, the Examiner, however, does not provide any evidence or
rationale as to why the system "necessarily" generates new notifications
currently while sending notifications. Absent any evidence or rationale, we
cannot agree with the Examiner that this limitation is inherent.
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Accordingly, we are constrained by the record before us to find that
the Examiner erred in rejecting the claims over Cabrera because Cabrera
fails to expressly or inherently disclose "sending the plurality of
notifications for the plurality of subscribers, concurrently with generating a
second plurality of notifications for a second plurality of subscribers to a
second plurality of topics." Because this issue is dispositive as to the
rejection of the claims, we need not address Appellants' remaining
arguments. Therefore, we reverse the Examiner's rejection of independent
claims 1, 9, and 18 and dependent claims 2-8, 10-17, 19, and 20.
NEW GROUND OF REJECTION
The following new ground of rejection is entered pursuant to
37 C.F.R. § 41.50(b). Independent claims 1, 9, and 18 are rejected under 35
U.S.C. 103(a) as being unpatentable over Cabrera and Pather.
As discussed above, Cabrera fails to explicitly describe "sending the
plurality of notifications for the plurality of subscribers, concurrently with
generating a second plurality of notifications for a second plurality of
subscribers to a second plurality of topics." However, we find that Pather
teaches that "numerous events can be concurrently processed with respect to
a plurality of subscribers and relevant notifications provided to the
respective subscribers in a meaningful manner in accordance with individual
subscriber preferences." Pather 8: 14-18 (emphasis added). That is, Pather
discloses concurrently processing event notifications for numerous events
and a plurality of subscribers. Accordingly, we find that Pather discloses
"sending the plurality of notifications for the plurality of subscribers,
concurrently with generating a second plurality of notifications for a second
plurality of subscribers to a second plurality of topics."
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The Examiner determined that it would have been obvious to a person
with ordinary skill in the art to combine Pather with Cabrera to aggregate
events to send a single notification comprising multiple events to reduce the
number of messages sent to each subscriber. Final Act. 7. Similarly, we
also determine it would have been obvious to a person of ordinary skill in
the art to combine Cabrera with Pather's known technique of performing
join operations at a data class level, allowing batches of common
subscriptions to be processed concurrently, and, thereby, providing for
increased scalability as compared to many conventional notification systems.
Pather 20:39--42. The combination of Pather' s technique of processing
subscriptions concurrently with Cabrera's scalable event notification system
where event sources generate event notifications and transmit the event
notifications to a topic manager would yield nothing more than predictable
results because all of the techniques are known in the prior art (see supra)
and their functions would remain the same upon combination. Accordingly,
we conclude that it would have been obvious to a person with ordinary skill
in the art to modify Cabrera with Pather, and the results of such a
modification would have facilitated concurrently generating and sending
event notifications.
Because this rationale was not presented by the Examiner, we
designate this rejection as a new ground of rejection pursuant to 37 C.F.R.
§ 41.50(b). Accordingly, claims 1, 9, and 18 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Cabrera and Pather. Claims 2-8, 10-17,
and 19-20 depend from independent claims 1, 9, and 18. We leave it to the
Examiner to determine whether dependent claims 2-8, 10-17, and 19-20
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should be rejected under 35 U.S.C. § 103(a) as unpatentable over Cabrera
and Pather based on the rationale discussed above.
CONCLUSION
The Examiner erred in rejecting claims 1-20.
However, a new ground of rejection is entered under 37 C.F.R.
§ 41.50(b). We newly reject claims 1, 9, and 18 under 35 U.S.C. § 103(a) as
being unpatentable over Cabrera and Pather, as designated above.
DECISION
To summarize, our decision is as follows:
• The Examiner's rejection of claims 1-20 is reversed.
• A new ground of rejection is entered 37 C.F.R. § 41.50(b). We newly
reject claims 1, 9, and 18 under 35 U.S.C. § 103(a) as being
unpatentable over Cabrera and Pather, as designated above.
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides "[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review." 37 C.F.R. § 41.50 (b) also provides that Appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise
one of the following two options with respect to the new ground of rejection
to avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the proceeding will be remanded
to the examiner ....
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Application 13/100,073
(2) Request rehearing. Request that the proceeding be
reheard under§ 41.52 by the Board upon the same record ....
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a)(l)(iv) (2010).
REVERSED
37 C.F.R. § 41.50(b)
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