Ex Parte Newton et al

Board of Patent Appeals and Interferences

Jul 23, 2012

10346920 (B.P.A.I. Jul. 23, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CHRIS NEWTON, WILLIAM BIRD, and
DWIGHT SPENCER
____________

Appeal 2010-000279
Application 10/346,920
Technology Center 2400
____________

Before JEAN R. HOMERE., CARL W. WHITEHEAD, JR., and
JAMES R. HUGHES, Administrative Patent Judges.

WHITEHEAD, JR., Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-000279
Application 10/346,920

2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1, 2, 9-12, 19, 20, 22, 23, 25, and 26 are appealed.1 Appeal Brief 5,
10. We have jurisdiction under 35 U.S.C. § 6(b) (2002).
We affirm.

Introduction
The invention is directed to “permitting access for monitoring
network traffic.” Appeal Brief 7.

1 Appellants contend that: “Pending Claim 19, although not explicitly
rejected in the Office Action dated April 29, 2008, is also understood to be
finally rejected. Claims 3-8, 13-19, 21, 24, and 27 have previously been
withdrawn. It is from the final rejection of Claims 1, 2, 9-12, 20, 22, 23,
25,] and 26 that this appeal is taken.” Appeal Brief 5.

However the Examiner notes that: “a] substantially correct copy of
appealed claim 19 appears on page 4 of the Appendix to the Appellants’]
brief. The minor errors are as follows: Claim 19 has a status identifier of
‘Withdrawn’. [sic] However, claim 19 was originally restricted on 7/13/06
into Group I which was subsequently elected by Appellants].” Answer 3.

“If upon filing an appeal brief, the applicant limits the claims to be
considered on appeal, then it is the practice of the Patent and Trademark
Office to treat the claims not pursued in the appeal brief as having been
withdrawn from appeal.” See Ex parte Ghuman, 88 USPQ2d 1478, 1480
(BPAI 2008). Appellants provide arguments for claim 19 and in doing so,
constructively appeal the claim that would otherwise be withdrawn. See
Appeal Brief 15. Therefore, we will consider claim 19 as pending and
rejected.
Appeal 2010-000279
Application 10/346,920

3
Exemplary Claim
Exemplary independent claim 1 under appeal reads as follows:
1. A method permitting access for monitoring network
traffic, said method comprising:
defining a plurality of views of network traffic, each of
the views containing a subset of network traffic that satisfies a
set of conditions, and at least one of the views is a group view
comprising two or more previously defined views as members;
classifying network traffic passing through a network
component according to the views;
selecting a group view for permitting access to a given
user; and
associating the given user with the group view.

Rejection on Appeal
Claims 1, 2, 9-12, 19, 20, 22, 23, 25, and 26 stand rejected under 35
U.S.C. §102(b) as being anticipated by Ethereal (RICHARD SHARPE & ED
WARNICKE, ETHEREAL USER’S GUIDE: V1.1 FOR ETHEREAL 0.8.19, 17-30,
59-65, 449-454¸(2001) ). Answer 3-5.

Issue on Appeal
The dispositive issue is: Does Ethereal disclose at least one plurality
of views of network traffic that is a group view having two or more
previously defined views?

Appeal 2010-000279
Application 10/346,920

4
ANALYSIS
Claims 1, 2, 9-12, 19, 20, 22, 23, 25, and 26
The Examiner set forth his interpretation of the claim language recited
in claim 1 and we find the interpretation to be reasonable. See Answer 5-6.
The Examiner interprets the claim as follows:
The language of claim 1 begins by stating “defining
a plurality of views”. In line 5, the claim states that at
least one of these views is “a group view” that comprises
“two or more previously defined views as members”. In
line 8 the claim then states “selecting a group view . . .”.
The Examiner has interpreted the limitation “a group
view” of line 5 to be different from the limitation “a group
view” of line 8 since they are both preceded by the word
“a” thus inferring that they can either be the same group
view or be two different types of group views. The latter
interpretation is taken.
To further explain this, the claim establishes that
there are a plurality of views. A “group view comprising
two or more . . .” is just one of the plurality. This means
that there are other types of views that can be within the
set of “plurality of views”, where the other types of views
may be the same as or different from “a group view
comprising two or more . . . ”. The claim is worded in this
broad way which does not put further limitations on what
the set of “a plurality of views” will actually consist of.
Therefore, it is reasonable to interpret that the “plurality of
views” can include two different types of “group views”;
where one group view “comprises two or more . . .” as
defined in line 5, and where the other group view of line 8
comprises something else which is not defined and thus
broadly interpreted.
Answer 5-6.
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Appeal 2010-000279
Application 10/346,920

6
When one of the packets in the packet list view is
selected, the contents of that packet are used to populate
the tree view and the byte view (see bottom 2 paragraphs
of page 59). The tree view and packet view are tied to the
particular packet in the packet view that was selected. The
packet view is thus seen a “group view” and this satisfies
the limitation of line 5 “a group view comprising two or
more previously defined views as members”.
Ethereal discloses that the tree view, i.e. the middle
pane, is made up of segments of a packet with each
segment designated by a plus-signs-in-a-box on the left
hand side of the pane (see first sentence of last paragraph
of page 59). A user can select to view a packet segment
by first expanding the segment by clicking the plus-sign-
in-a-box, and then by selecting the desired individual field.
This will then highlight a group of bytes in the byte view
pane (see last sentence of page 59, and see highlighted
bytes “cd 4b cd 90” in Figure 3-10). Since the claim
states “selecting a group view”, then based upon the claim
interpretation established above, it is seen that Ethereal
satisfies this by selecting a field (i.e. “a group view”) and
then presenting a group of bytes to be viewed by the user.
It is noted that the group view of line 8 is interpreted
differently than the group view of line 5 for the reasons
mentioned above.
Answer 6-7.
Appellants also argue that Ethereal’s byte view pane is not a group
view and does not comprise two or more previously defined views as
members. Appeal Brief 12. In light of the Examiner’s findings to the
contrary of Appellants’ contentions, we do not find Appellants’ arguments
persuasive because Ethereal’s byte view pane is a group view, as defined by
Appellants and reasonably interpreted by the Examiner. Appellants further
argue:
Appeal 2010-000279
Application 10/346,920

7
Appellants in Claim 1 recite “selecting a group
view for permitting access to a given user.” In this regard,
Appellants disclose, for example, determining whether to
permit a user access to a view previously defined in
configuration files. Specification of Subject Application,
p.8 ll.8-18 and Fig. 4. In contending that Ethereal teaches
this same limitation as recited in independent Claim 1, the
Examiner cites pp.59-62 of Ethereal, stating that
Ethereal’s disclosure of a user selecting a particular type
of view that is then presented to the user is equivalent to
selecting a group view for permitting access to a given
user. As discussed above, this cited portion of Ethereal
discloses how a packet’ s payload is displayed. There is
no explanation, however, of how the displayed payload
relates to permitting a given user access to a given view,
or associating the given user with a group view. The only
“user” in Ethereal is whoever is reviewing the collected
data. No permissions are assigned and no association is
made between any user and a certain group view.
Appeal Brief 13.
Appellants also argue:
There is nothing in the cited pp.59-62 of Ethereal,
or anywhere else in Ethereal that teaches or even
suggests] anything related to permitting access to a given
user or associating the given user with a group view as
featured in independent Claim 1. Accordingly, Ethereal
does not teach “selecting a group view for permitting
access to a given user,” or “associating the given user with
the group view,” as recited in independent Claim 1.
Appeal Brief 13-14.
We do not find Appellants’ arguments to be commensurate with the
scope of the claim because as the Examiner contends, “There is no mention
within claim 1 of a configuration file that is used to make some sort of
determination of whether to permit a user to have access to a view or to not
Appeal 2010-000279
Application 10/346,920

8
permit a user to have access to a view.” Answer 7. “The claim simply states
that when a view is selected, a user is permitted access to that view. In
Ethereal, a user makes a view selection and is then presented with that view
(i.e. permitted access to).” Id. Therefore, we find the limitation “selecting a
group view for permitting access to a given user” (claim 1) does not
distinguish the claimed invention over the prior art. Finally, we do not find
the claim limitation “associating a user with a view” distinguishes the
claimed invention over the prior art because as the Examiner contends, “the
arguments fail to specifically point out how the language of the claims
patentably distinguishes them from the references.” Answer 8.
Claims 9 and 10
Appellants argue:
As discussed above with reference to independent
Claim 1, the Examiner has not shown that Ethereal teaches
[sic] teaches at least one of a plurality of views of network
traffic that is a group view comprising two or more
previously defined views as members, selecting a group
view for permitting access to a given user, or associating
the given user with the group view. For the same reasons,
the Examiner has not shown that Ethereal teaches at least
one of a plurality of views of network traffic that is a
group view comprising two or more previously defined
views as members, or associating a given user with the
group view thereby giving access thereto, as recited in
independent Claim 9. Accordingly, prima facie
anticipation of independent Claim 9 has not been
established by the Examiner.
Appeal Brief 14-15.
Appeal 2010-000279
Application 10/346,920

9
The Examiner finds, “In reference to claims 9, 10, the claims are
‘method for monitoring’ claims that correspond to the above method claims
of claims 1, 2. Therefore, claims 9, 10 are rejected based upon the same
rationale as used for the rejection of claims 1, 2.” Answer 4.
We do not find Appellants’ arguments to be persuasive because claim
9 reads upon the Ethereal reference (See Answer 3-4) and further, claim 9
only recites a “group view” as opposed to multiple recitations of “group
view[s]” as recited in the other independent claims. Looking at Appellants’
Specification (page 8, lines 20-25) as well as Appellants’ Figure 4, we find
nothing that would distinguish Appellants “group view” from the teachings
of Ethereal. Therefore, we sustain the Examiner’s rejection of claim 9, as
well as, dependent claim 10 not separately argued.

DECISION
The rejection of claims 1, 2, 9-12, 19, 20, 22, 23, 25, and 26 is
affirmed.
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). See 37
C.F.R. § 41.50(f).

AFFIRMED

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