Ex Parte Pulito et al

Patent Trial and Appeal Board

Sep 19, 2014

11191333 (P.T.A.B. Sep. 19, 2014)

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.
11/191,333 07/28/2005 Brian Pulito LOT920040052US4_088 5146
51835 7590 09/19/2014
IBM Lotus & Rational SW
c/o Schmeiser, Olsen & Watts LLP
5 Mount Royal Avenue
Mount Royal Office Park
Marlborough, MA 01752
EXAMINER
JOSHI, SURAJ M
ART UNIT PAPER NUMBER
2447
MAIL DATE DELIVERY MODE
09/19/2014 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BRIAN PULITO, MALISSA SULLIVAN, YAFIT SAMI,
ODED HIRSCHFIELD, and MARK WALLACE
____________

Appeal 2012-002662
Application 11/191,3331
Technology Center 2400
____________

Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and
NINA L. MEDLOCK, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL

1 The real party in interest, identified by Appellants, is International
Business Machines Corporation. Appeal Brief 2.
Appeal 2012-002662
Application 11/191,333

2
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
final decision rejecting claims 11–25. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We REVERSE.
Claim 11 is illustrative:
11. A method of handling requests in a communication
infrastructure, the method comprising:
receiving a plurality of application protocols;
multiplexing the received plurality of application
protocols;
generating a persistent HTTP connection providing for
repeated engagements to and from the plurality of application
protocols, the persistent HTTP connection maintaining its
persistent connection during communication inactivity absent a
communication response from a server to the plurality of
application protocols, the communication response delayed to
maintain the persistent HTTP connection; and
sending asynchronous data associated with the
multiplexed plurality of application protocols over the
generated persistent HTTP connection, wherein additional
asynchronous data is capable of being transmitted to the server
on the persistent HTTP connection maintained during the
delayed communication response from the server.

Appellants appeal the following rejections:
1. Claims 11–20, 24 and 25 under 35 U.S.C. § 103(a) as unpatentable over
Erickson (US 6,412,009 B1, iss. Jun. 25, 2002), Chen (US
2003/0206192 A1, pub. Nov. 6, 2003), and Miller (US 7,305,546 B1, iss.
Dec. 4, 2007).
2. Claims 21–23 under 35 U.S.C. § 103(a) as unpatentable over Erickson,
Chen, Miller, and Halliday (US 2002/0083345 A1, pub. Jun. 27, 2002).
Appeal 2012-002662
Application 11/191,333

3
ISSUE
Did the Examiner err in rejecting claim 11 because Miller does not
disclose multiplexing the received plurality of application protocols?

ANALYSIS
The Appellants argue that Miller discloses multiplexing data, not
multiplexing application protocols. We agree.
With reference to Figure 2, we find that the Specification discloses
that, for example, an application protocol for eMeeting and an application
protocol for Instant Messaging are multiplexed at protocol
multiplexing/demultiplexing layer 204 and sent from client 102 to server
108 and demultiplexed at protocol multiplexing/demultiplexing layer 214 in
the server.
The Examiner relies on Miller at column 5, line 63 to column 6, line 2
and column 7, lines 13–15 for teaching this subject matter. However, the
relied on portions of Miller relate to the multiplexing of data rather than the
multiplexing of application protocols. The Examiner has not explained how
the disclosure in Miller of multiplexing application data is a teaching of
multiplexing application protocols. Therefore, on the record before us, the
Examiner has not shown that each and every limitation of the claim is either
described or suggested by the prior art or would have been obvious based on
the knowledge of the ordinary artisan. See In re Fine, 837 F.2d at 1074; see
also In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“A rejection based
on section 103 clearly must rest on a factual basis, and these facts must be
interpreted without hindsight reconstruction of the invention from the prior
art”). The fact finder must be aware “of the distortion caused by hindsight
Appeal 2012-002662
Application 11/191,333

4
bias and must be cautious of arguments reliant upon ex post reasoning.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (citing Graham v.
John Deere Co., 383 U.S. 1, 36 (1966) (warning against a “temptation to
read into the prior art the teachings of the invention in issue”)).
In view of the foregoing, we will not sustain the Examiner’s rejection
of claim 11 and claims 12 and 13 dependent therefrom.
Independent claim 14 requires the step of encapsulating within a
HTTP message a plurality of multiplexed application protocols. The
Examiner relies on Miller for teaching this subject matter. As we have
found above that Miller does not disclose multiplexing application protocols,
we will likewise not sustain the rejection of claim 14 and claims 15–25
dependent therefrom.

DECISION
The decision of the Examiner is reversed.

ORDER
REVERSED

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