Ex Parte Wakumoto et al

Patent Trial and Appeal Board

Mar 21, 2013

11244505 (P.T.A.B. Mar. 21, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte SHAUN K. WAKUMOTO, FRANK A.
REICHSTEIN, and BALLARD C. BARE
____________________

Appeal 2010-009867
Application 11/244,505
Technology Center 2400
____________________

Before: ERIC B. CHEN, BRYAN F. MOORE, and
MICHAEL J. STRAUSS, Administrative Patent Judges.

STRAUSS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-009867
Application 11/244,505

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

The claims are directed to a method and apparatus for connection-rate
filtering. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method of connection-rate filtering, the method
comprising:
measuring a rate of traffic through a port of a network
device;
comparing the measured traffic rate with a pre-set
threshold rate;
sampling packets from the port over a period of time if
the pre-set threshold rate is exceeded by the measured traffic
rate;
and analyzing the sampled packets;
in which said analyzing comprises counting a number of
distinct destinations for each source in the sampled packets.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Tamura US 7,457,965 B2 Nov. 25, 2008
Poletto US 2003/0145232 A1 Jul. 31, 2003

REJECTIONS
The Examiner rejected claims 1-20 under 35 U.S.C. § 103(a) as being
unpatentable over Tamura and Poletto (Ans. 6) and provisionally rejected
claim 1-3, 5-8, and 11-15 on the ground of non-statutory obviousness-type
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patenting as being unpatentable over claims 1-8, 14-17, and 19 of
co-pending application no. 11/827,398 (Ans. 3) which subsequently issued
as U.S. Patent 8,159,948. The Examiner has further objected to claim 2 to
under 35 U.S.C. § 132(a) because it introduces new matter into the
disclosure. Ans. 24.

REJECTION UNDER 35 U.S.C. § 103(A)
Issue1
Appellants present the issues whether Tamura teaches “counting a
number of distinct destinations for each source in the sampled packets”
thereby rendering obvious claim 1 under 35 U.S.C. § 103(a).

Analysis
Appellants argue that “Tamura teaches looking at the number of
destination IP address ‘for each packet,’ but makes no connection
whatsoever to ‘counting a number of distinct destinations for each source in
the [volume of] sampled packets.” App. Br. 13. The Examiner responds
“Tamura did teach counts the number of destination IP address (reads on
number of distinct destination) for each packet identified by the combination
of the packet type which source IP address was being counted at step S 13
(reads on each source in the sampled packet).” Ans. 15-16. However, we
disagree with the Examiner that counting the number of destination IP
addresses for each packet meets the requirement of counting a number of
distinct destinations for each source in the sampled packets. We instead

1 We note that Appellants’ arguments present additional issues; however, we
do not reach these issues, as this issue is dispositive of the appeal.
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Application 11/244,505

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agree with Appellants that “[m]erely counting a number of sources is not the
same as identifying individual sources to enable ‘counting a number of
distinct destinations for each source in the [volume of] sampled packets.’”
Reply Br. 8. An ordinary and customary meaning of “each” is “every one of
two or more considered individually or one by one”.2 Therefore, consistent
with Appellants’ Specification, we find the language “for each source”
means individually per source such that counting a number of distinct
destinations is performed individually in connection with a respective
source. Because Tamura does not disclose the disputed limitation of
“counting a number of distinct destinations for each source in the sampled
packets”, we cannot sustain the rejection of claim 1 or, for the same reasons,
independent claim 12 and dependent claims 2-11, and 13-18. Although
claim 19 uses slightly different language, reciting “means for analyzing the
forwarded copies to determine a number of distinct destinations per source
therein,” we find an ordinary and customary meaning of “per” in the present
context is “for each; for every.”3 Therefore, we cannot sustain the rejection
of claim 19 or dependent claim 20 on the same basis as presented supra in
connection with claim 1.

PROVISIONAL OBVIOUSNESS-TYPE DOUBLE PATENTING
Appellants have not presented any arguments challenging the
propriety or the substance of the rejection of claims 1-3, 5-8, and 11-15
under the judicially created doctrine of obviousness-type double patenting.

2 Webster's encyclopedic unabridged dictionary of the English language.
(1996). New York: Gramercy Books.
3 Id.
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Thus, any such arguments are deemed to be waived and we summarily
sustain the rejection.4

OBJECTION UNDER 35 U.S.C. § 132(A)
The Examiner's objection to the specification under 35 U.S.C.
§ 132(a) (Ans. 24-25; FOA 7) is not an appealable matter because no related
claim rejection under 35 U.S.C. § 112, first paragraph has been made. See
MPEP § 2163.06(II).

CONCLUSION
Appellants have persuaded us of error in the Examiner’s decision to
reject claims 1-20 under 35 U.S.C. § 103(a) as being unpatentable over
Tamura and Poletto. Thus, we will not sustain the Examiner's rejections of
claims 1-20. However, we sustain the rejection of claim 1-3, 5-8, and 11-15
on the ground of non-statutory obviousness-type patenting as being
unpatentable over claims 1-8, 14-17, and 19 of co-pending application no.
11/827,398. Finally, absent a corresponding rejection, the Examiner's
objection under 35 U.S.C. § 132(a) is not appealable.

4 Because the 11/827,398 application has matured into a patent, we leave it
to the Examiner to determine whether the claims of U.S. Patent 8,159,948
continue to serve as the basis for an obviousness-type double patenting
rejection.
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DECISION
The decision of the Examiner to reject claims 4, 9, 10, and 16-20 is
reversed. The decision of the Examiner to reject claims 1-3, 5-8, and 11-15
is affirmed.

AFFIRMED-IN-PART

msc