Anand Srinivas et al.Download PDFPatent Trials and Appeals BoardJul 25, 201914520238 - (D) (P.T.A.B. Jul. 25, 2019) Copy Citation 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. 14/520,238 10/21/2014 Anand Srinivas 700186.401 7310 136767 7590 07/25/2019 Seed IP Law Group LLP/General Firm (Email) 701 FIFTH AVE SUITE 5400 SEATTLE, WA 98104 EXAMINER ZHANG, SHIRLEY X ART UNIT PAPER NUMBER 2442 NOTIFICATION DATE DELIVERY MODE 07/25/2019 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): USPTOeAction@SeedIP.com pairlinkdktg@seedip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ANAND SRINIVAS, RICHARD BARRY, ABRAHAM ANKUMAH, and DANIEL KAN ____________ Appeal 2018-008538 Application 14/520,2381 Technology Center 2400 ____________ Before DAVID M. KOHUT, IRVIN E. BRANCH, and JOSEPH P. LENTIVECH, Administrative Patent Judges. BRANCH, Administrative Patent Judge. DECISION ON APPEAL2 Appellants appeal under 35 U.S.C. § 134(a) from a Non-Final Action rejecting claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 According to Appellants, the real party in interest is “Nyansa, Inc.” App. Br. 2. 2 Our decision relies upon the Non-Final Action mailed August 17, 2017 (“Non-Final”), Appeal Brief filed April 3, 2018 (“App. Br.”), Answer mailed June 28, 2018 (“Ans.”), and Reply Brief filed August 28, 2018 (“Reply”). Appeal 2018-008538 Application 14/520,238 2 STATEMENT OF THE CASE Appellants’ invention “relates to . . . observing and controlling a programmable network via higher layer attributes.” Spec. ¶ 3. Claim 1, reproduced below, is a representative claim. See 37 C.F.R. 41.37(c)(1)(iv) (representative claims). 1. A system for simultaneously and centrally analyzing a plurality of networks, the system comprising: one or more collectors configured to receive network traffic data from a plurality of network elements in the plurality of networks, wherein a first network of the plurality of networks is from a first company and a second network of the plurality of networks is from a second company; a remote network manager comprising a network interface and configured to connect to the one or more collectors over the Internet via the network interface, and further configured to simultaneously and centrally analyze (1) the network traffic data from the plurality of network elements in the plurality of networks and (2) network management data from a plurality of enterprise systems in the plurality of networks, wherein the network management data includes L1 through L7 network topology data, network configuration data, and simple network management protocol data; wherein the one or more collectors extract metadata from the network traffic data and send the metadata to the remote network manager; wherein the remote network manager combines the network traffic data from the plurality of networks and the network management data from the plurality of enterprise systems in the plurality of networks into combined cross-network data from multiple companies, simultaneously and centrally analyzes the combined cross-network data from the multiple companies within the plurality of networks, learns a pattern from the first network of the first company within the plurality of networks, Appeal 2018-008538 Application 14/520,238 3 and applies the pattern to the second network of the second company within the plurality of networks. App. Br. 21 (claims appendix). RELATED APPEALS The present application claims a benefit of priority (i.e., of the filing date) to U.S. Provisional Application 61/893,789. Spec. ¶ 2. The following three applications also claim this benefit and have appeals before the Board: U.S. Applications 14/520,257 (Appeal 2018-008815), 14/520,245 (Appeal 2018-008813), and 14/520,262 (Appeal 2018-008540). REFERENCES AND REJECTIONS3 Claims 1, 2, 4–14, and 16–20 stand rejected under 35 U.S.C. § 103 as obvious over Herold et al. (US 9,215,142 B1; Dec. 15, 2015). Non-Final 6– 13. Claim 3 stands rejected under 35 U.S.C. § 103 as obvious over Herold and Agarwal et al. (US 2015/0085694 A1; Mar. 26, 2015). Non-Final 13– 14. Claim 14 stands rejected under 35 U.S.C. § 103 as obvious over Herold and Friedman et al. (US 2013/0117847 A1; May 9, 2013). Non-Final 14–15. ANALYSIS Claim 1 is representative of claims 2, 4–14, and 16–20. See 37 C.F.R. 41.37(c)(1)(iv). Appellants do not assert separate bases of 3 The Examiner has withdrawn the nonstatutory double patenting rejections against copending applications 14/520,245, 14/520,250, 14/529,257, and 14/520,238. Ans. 2. Appeal 2018-008538 Application 14/520,238 4 patentability for remaining claims 3 and 15. App. Br. 18. We accordingly limit our analysis to claim 1. Appellants’ arguments, addressed below, are directed to the claimed “analyze (1) the network traffic data from the plurality of network elements in the plurality of networks and (2) network management data from a plurality of enterprise systems in the plurality of networks, wherein the network management data includes L1 through L7 network topology data, network configuration data, and simple network management protocol data.” Id. at 14–16. A first issue is whether the Examiner errs in addressing the claim requirement to analyze data for “network” traffic, management, topologies, and configurations. App. Br. 14; Reply Br. 4–5. The Examiner finds Herold’s invention analyzes network data by analyzing usages of “network” switches, hardware, and bandwidth. Ans. 2–3 (citing Herold col. 3, ll. 47– 60; col. 5, ll. 3–7; Figs. 1, 4). The Examiner further finds Appellants’ Specification does not describe the claimed “network management data” and thereby conveys this data as being well known. Ans. 3. Appellants contend Herold “focus[es] . . . on ‘system-centric’ information, while in contrast, [claim 1] recites a ‘network-centric’ invention.” App. Br. 14. Appellants further contend their Specification describes the claimed network management data as “data from a network management system” (internal quotations omitted) and, therefore, the Examiner cannot “dismiss” this data as being well known. Reply Br. 4–5. We are unpersuaded of error. The Examiner finds, and we agree, Herold’s system analyzes network data by analyzing usages of “network” resources. Ans. 2–5. Appellants cannot rebut this finding by, as here, summarily characterizing the claimed invention and Herold’s invention as Appeal 2018-008538 Application 14/520,238 5 respectively “network-centric” and “system-centric.” Appellants must, but do not, articulate a distinction. See In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011) (applicants must “articulate what gaps, in fact, exist”). Further, the Examiner does not dismiss the claimed network management data. The Examiner finds, and we agree, “network management data” is not described by the Specification, consequently applies the broadest ordinary meanings of these terms, and accordingly reads the claimed network management data on Herold’s data collected and analyzed to manage networks. Ans. 3. A second issue is whether the Examiner errs in addressing the claimed analysis of “L1 through L7 network topology data” (herein “L1–L7 topology data”). App. Br. 14–15; Reply Br. 5–6. The Examiner finds Herold teaches “the data collection module may store data models such as topology models.” Non-Final 7 (citing Herold col. 5, ll. 62–67; col. 11, ll. 19–40). The Examiner further finds Appellants’ Specification does not describe L1– L7 topology data, thereby conveys L1–L7 topology data as well known, and accordingly evidences it would have been obvious to include L1–L7 topology data within Herold’s topology models. Id.; Ans. 4. Appellants acknowledge Herold teaches topology models, but contend Herold cannot suggest the claimed L1–L7 topology data because “nowhere in Herold is L1 through L7 network data even mentioned.” App. Br. 15. Appellants further contend their Specification describes L1–L7 topology data and, therefore, the Examiner cannot “dismiss” this data as well known. Reply Br. 5 (citing Spec. ¶ 84). We are unpersuaded of error. The Examiner finds, and we agree, L1– L7 topology data was a well-known type of network topology data and, Appeal 2018-008538 Application 14/520,238 6 therefore, would have been obvious to include within Herold’s topology models. Ans. 3. Appellants cannot rebut these findings by, as here, merely contending their Specification discloses L1–L7 topology data. Reply Br. 5– 6. Assuming an adequate disclosure under 35 U.S.C. § 112(a), the scant description evidences the L1–L7 topology data was well known inasmuch the Specification would otherwise not “enable [an artisan] . . . to make and use” the data. 35 U.S.C. § 112(a).4 Because Appellants fail to sufficiently address this issue and do not expressly dispute L1–L7 topology data was a well-known type of network topology data, we agree with the Examiner’s official notice and consequent determination of obviousness. See In re Boon, 439 F.2d 724, 728 (CCPA 1971) (An adequate challenge to official notice “creates a reasonable doubt regarding the circumstances justifying the . . . notice.”); see also In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984) (“After a prima facie case . . . , the burden of . . . [r]ebuttal is . . . a showing of facts supporting the opposite conclusion.”); Manual of Patent Examining Procedure (MPEP) § 2144.03.C (“To adequately traverse [official notice], an applicant must . . . stat[e] why the noticed fact is not . . . well-known.”). 4 The Office has expressly endorsed this reasoning for rejections under 35 U.S.C. §§ 101 and 112(a), stating “the analysis [under § 101] as to whether an element . . . [was] widely prevalent or in common use is the same as the analysis under . . . § 112(a) as to whether an element is so well known that it need not be described in detail in the patent specification.” USPTO Memorandum of April 19, 2018, “Changes in Examination Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.)” (Apr. 19, 2018) at 3 (available at https://www.uspto.gov/sites/default/files/documents/ memo-berkheimer-20180419.PDF). Appeal 2018-008538 Application 14/520,238 7 A third issue is whether the Examiner errs in addressing the claimed analysis of “simple network management protocol data.” App. Br. 16; Reply Br. 5–6. The Examiner finds the simple network management protocol (herein “SNMP”) was a well-known protocol for monitoring networks and, therefore, it would have been obvious for Herold’s analysis of networks to include an analysis of SNMP data, e.g., if used to communicate L1–L7 topology data. Ans. 5–6. In support, the Examiner cites U.S. Patent Pub. No. 2003/0033402 A1 to Battat (published Feb. 13, 2003) as showing SNMP was used to manage monitoring agents of networks. Id. (citing Battat ¶ 164). Appellants contend: “The Examiner [does not show] that SNMP is an industry-standard protocol . . . designed to collect L1–L7 topology data.” Reply Br. 6 (orig. ellipses and internal quotation marks omitted). Appellants further contend “it would be impossible . . . because . . . SNMP is an application layer (layer 7) protocol suite.” Id. We are unpersuaded of error. The Examiner finds, and we agree, SNMP was a well-known protocol for collecting data from monitoring agents of networks and, therefore, would have been an obvious protocol for Herold’s collecting of topology data such as L1–L7 topology data (discussed supra, second issue). Ans. 5–6. Appellants cannot rebut these findings by, as here, summarily alleging SNMP is a layer-specific protocol that consequently cannot communicate L1–L7 topology data. Reply Br. 6– 7.Appellants’ contention fails to address Battat’s cited disclosure, present sufficient evidence showing SNMP was a layer-specific protocol, and present sufficient evidence showing a layer-specific protocol (assuming SNMP is layer-specific) cannot communicate L1–L7 topology data. Appeal 2018-008538 Application 14/520,238 8 A fourth issue is whether the Examiner errs in addressing the claimed analysis of “network configuration data.” App. Br. 15; Reply Br. 6–7. The Examiner finds Herold’s system recommends “network configuration changes.” Ans. 5 (citing Herold col. 15, ll. 39–55; quoting ll. 52–53). The Examiner further finds Herold’s system could not recommend the “network configuration changes” without first analyzing network configuration data. Id. Appellants contend Herold teaches “system configuration data” and thus “fail[s] to disclose network configuration data, or any equivalent thereof” (italicizing removed). App. Br. 15 (citing Herold col. 3, ll. 26–29). Appellants further contend the Examiner’s above inference is incorrect inasmuch a system need not analyze network configuration data to generate Herold’s cited recommendations for “network configuration changes” to memory and processing. Reply Br. 7 (addressing Herold col. 15, ll. 39–55). We are unpersuaded of error. As the Examiner finds, and we agree, Herold teaches recommendations for “network configuration changes.” Even assuming Herold’s invention could theoretically recommend such changes without first analyzing network configuration data, those recommendations are plainly sometimes based on monitored allocations of network resources. See Herold col. 1, l. 35–col. 2, l. 34 (“summary”); col. 3, ll. 7–32 (“introduction” and “system overview”) col. 14, ll. 51–53 (“[T]he source of the recommendation [may] be . . . from community analysis.”); Fig. 2 (steps 202, 210, 212). Ans. 5–6. For the foregoing reasons, Appellants do not establish an error in the rejection of claim 1. We therefore sustain all rejections. Appeal 2018-008538 Application 14/520,238 9 UNRESPONSIVE ARGUMENTS For dependent claims 18–20, Appellants present separate arguments that are not responsive to the Examiner’s findings. For claims 18 and 19, Appellants merely contend the Non-Final Action does not state how Herold teaches or suggests some claim limitations. App. Br. 17. Even assuming Appellants are correct, they do not contest the Examiner’s findings regarding the disputed claim features. See Ans. 6–7. Thus, we sustain the Examiner’s rejection of these claims. For claim 20, Appellants address both the Non-Final Action and Answer. Reply Br. 7–8. Appellants again contend the Non-Final Action does not state how Herold teaches or suggests some claim limitations. App. Br. 17. Appellants additionally contend the Examiner’s finding also fails to discuss one of the disputed claim features—namely a claimed “protocol.” Reply Br. 7–8. We are unpersuaded of Examiner error. Claim 20 recites, in relevant part, “the system learns a pattern by identifying . . . [a] protocol.” See Reply Br. 8 (“nowhere . . . is there a mention of the system learning a pattern by identifying a protocol, as required by claim 20”). As Appellants acknowledge, the Examiner reads this claimed learning of a pattern on Herold’s extraction of statistics from monitoring data. The Examiner finds that Herold’s monitoring data be communicated as SNMP data (see supra, third issue). Thus, the Examiner reads the claimed “learn[] a pattern by identifying . . . [a] protocol” on Herold’s extraction of statistics (“learn[] a pattern”) from proposed SNMP data (“by identifying . . . [a] protocol”). Appellants do not sufficiently address this pertinent finding and, therefore, we sustain the Examiner’s rejection of claim 20. Appeal 2018-008538 Application 14/520,238 10 DECISION We affirm the Examiner’s rejections of claims 1–20. 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). AFFIRMED Copy with citationCopy as parenthetical citation