Ex Parte 6119236 et al

Board of Patent Appeals and Interferences

Aug 30, 2012

90010849 (B.P.A.I. Aug. 30, 2012)

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.
90/010,849 02/02/2010 6119236 FORT-000010L 5148
6449 7590 08/31/2012
ROTHWELL, FIGG, ERNST & MANBECK, P.C.
607 14th Street, N.W.
SUITE 800
WASHINGTON, DC 20005
EXAMINER
STEELMAN, MARY J
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
08/31/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ENHANCED SECURITY RESEARCH, L.L.C.
____________

Appeal 2012-008692
Reexamination Control 90/010,849
Patent 6,119,236
Technology Center 3900
____________

Before KARL D. EASTHOM, STEPHEN C. SIU, and THOMAS L.
GIANNETTI, Administrative Patent Judges.

SIU, Administrative Patent Judge.

DECISION ON APPEAL
Patent owner (Appellant) appeals under 35 U.S.C. §§ 134(b) and 306
from a final rejection of claims 1-5 and 7-19. Claim 6 has been cancelled.
We have jurisdiction under 35 U.S.C. §§ 134(b) and 306.
An oral hearing was conducted on August 8, 2012.

STATEMENT OF THE CASE
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This proceeding arose from a request for ex parte reexamination filed
by Michael A. DeSanctis on behalf of Fortinet, Inc. on February 2, 2010, of
United States Patent 6,119,236 (the ‘236 Patent) issued to Peter M. Shipley
on September 12, 2000 and filed December 10, 1998. Presently, claims 1-5
and 7-19 are rejected. Claim 6 was cancelled.
The prior art references relied upon by the Examiner in rejecting the
claims are:
Haystack Labs, Inc., “NetStalker, Installation and User’s Guide, Version
1.0.2,” (Date disputed) (“NetStalker”).

G.E. Liepins and H.S. Vaccaro, “Anomaly Detection: Purpose and
Framework,” pp. 495-504, Oak Ridge National Labortatory andf Los
Alamos National Laboratory, research paper submitted, 1989 (“Liepins”).

Eric Hall, “Sneak Previews – Seattle Software’s Firewall Keeps Watch,”
Network Computing, September 24, 1996 (“Hall”).

Claim 1 on appeal reads as follows:
1. In a computer system connected to an external communications
medium, a security device comprising:
a programmable firewall device interposed between the computer
system and the external communications medium;
a controller device configured within the computer system such that
said controller device can access all communications into and out of the
computer system; and
a communications device for communicating instructions from said
controller device to said firewall device for controlling said firewall device;
wherein
said controller device is configured to operate generally continuously
and repeatedly to:
(i) examine, in essentially real time, communications incoming to
the computer system;
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(ii) analyze, in essentially real time, communications to detect if the
communications contain patterns of activity indicative of an
attempted security breach;
(iii) assign a weight to the attempted security breach if an attempted
security breach is detected; and
(iv) continuously control the firewall during the operation of the
computer system to block communications between the
computer system and the external communications medium,
based on the weight assigned to the attempted security breach,
when an attempted security breach is detected.

(App. Br., Claims App’x. 1)

The Examiner rejects claims 1-5 and 7-19 under 35 U.S.C. § 103(a) as
unpatentable over NetStalker and one of Hall or Liepins (Ans. 8).

ISSUE
Did the Examiner err in rejecting claims 1-5 and 7-19?

PRINCIPLES OF LAW
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, and
(3) the level of skill in the art. Graham v. John Deere Co. of Kansas City,
383 U.S. 1, 17-18 (1966).
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007).

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ANALYSIS
Priority date of the ‘236 patent
The ‘236 patent is a continuation-in-part of U.S. Serial No.
08/726,563 (the ‘563 application), filed October 7, 1996. Respondent argues
that the ‘236 patent is not entitled to the October 7, 1996 priority date (filing
date of the ‘563 application). We disagree.
“Over time”
Claim 1 recites code for determining, over time, if the
communications between a local area network and a wide area network
contain patterns of activity. The Examiner states that “the ‘236 specification
provides explicit definitions for” the term “over time” (Ans. 32). The ‘236
patent discloses that “the term ‘over time’ is herein specifically defined to
mean over a time period which includes the examination of a series of more
than one packet” (col. 9, ll. 31-34), while the ‘563 application discloses a
“look for known patterns operation 36” (p. 12, ll. 11-12) that requires
retention of “data for a limited amount of time, as it is patterns of activity
over time . . . that is being examined” (id. at 15-18). Hence, one of skill in
the art would have understood that the process is performed over a time
period.
In addition, the ‘563 application discloses a that a “large number of . .
. attempts [to access a port] would leave little doubt of a methodical attempt
at intrusion” (p. 13, ll. 18-20), “a quantity of ‘responses’ from machines on
the internet 16” (p. 13, l. 22-23), and a “multitude of responses . . .
forthcoming [through] the internet 16 to the LAN12” (p. 14, ll. 1-3). One of
skill in the art, given the disclosure of the ‘563 application that discloses a
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“large number,” “a quantity of,” or a “multitude of responses,” would have
also understood that the process includes examination of “more than one
packet” since such a “large number” of responses would have included more
than one packet “over time.” (Id.)
Hence, the ‘563 application discloses determining patterns of activity
“over time,” which appears to be precisely what is claimed in the ‘236
patent.

“Controlling a firewall”
The Examiner states that “the ‘236 specification provides explicit
definitions” for the term “control the firewall” (Ans. 32). The Specification
discloses that “[t]he term ‘control the firewall’ is herein specifically defined
to mean sending instructions to the firewall to direct it to reject packets
which would not otherwise be rejected” (col. 10, ll. 5-8). The ‘563
application discloses sending “a control signal to the firewall” (p. 16, ll. 22-
23), the control signal to “direct the firewall . . . . to take . . . action” (p. 16,
ll. 24-25). An example of an action to take, according to the ‘563
application, is “to block all access to the LAN12 from a sender which has
been detected as attempting the security breach” (p. 17, ll. 3-5). Hence, the
‘563 application discloses directing (or “controlling”) a firewall to block
communications.1 It appears that the ‘563 Specification supports the feature
of “controlling a firewall” as recited in claim 1 of the ‘236 patent.

1 Each of these disclosures is also present in the ‘236 patent (see, col. 7,
ll.53-55 and col. 8, ll. 5-7).
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NetStalker and Liepins
Missing pages (NetStalker)
Appellant argues that Netstalker should not be considered as prior art
because “it is a woefully incomplete document, missing material that likely
would be highly relevant” (App. Br. 22). We disagree with Appellant.
Appellant has not indicated any reason why missing material “would be
highly relevant” in this case. The disclosure of NetStalker in those portions
that are present serve to disclose that portion of NetStalker that presumably
is relevant to the patentability of the ‘236 patent. Indeed, Appellant has not
indicated that the portions of NetStalker provided are in any way irrelevant
to the patentability of the ‘975 patent. If the provided portions of NetStalker
disclose, for example, each feature recited in claim 1 (which the Examiner
finds and Appellant does not appear to refute), then NetStalker would
anticipate claim 1, regardless of what might be further disclosed in other
portions of NetStalker that were not provided.
Appellant cites the Manual for Patent Examiner Procedure (MPEP §
2218) and Federal Rules of Evidence, Rule 106 (App. Br. 24-25) but neither
MPEP § 2218 nor Rule 106 applies to the present situation. As Appellant
points out, MPEP § 2218 merely states that references should be legible.
Appellant does not argue that any of the provided portions of NetStalker are
illegible. Rule 106 permits, after submission of portions of evidence by a
party, the introduction of additional portions of the evidence by an adverse
party. Even assuming that the Federal Rules of Evidence apply to Inter
Partes Reexamination matters at the U.S. Patent & Trademark Office, Rule
106 does not pertain to the present fact pattern since Appellant has not
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indicated that Appellant was denied entry of additional pages of the
NetStalker reference.
We therefore find unpersuasive Appellant’s argument regarding
whether every page of the NetStalker reference was provided or not and its
bearing on whether NetStalker qualifies as prior art.

Public accessibility (NetStalker)
Appellant also argues that “the Examiner has not made a prima facie
showing that the NetStalker reference was publicly accessible prior to Oct.
7, 1996 (or any other date)” (App. Br. 25). However, we note that the
NetStalker reference was copyrighted 1996 and has a publication date of
May 1996 indicated on the cover. (In re Ronald A. Katz Tech. Licensing,
L.P., 2011 WL 1676313 at *6 (BPAI May 2, 2011) (informative) (holding
that a document constituted a printed publication with indicia of copyright
date and notices).
Appellant argues that NetStalker was not publicly available in May
1996 (as indicated on the cover of the NetStalker reference) because the
version of NetStalker provided is “a draft rather than [a] final version” as
evidenced by a notation (i.e., “6-1-??, 6-5”) in the index (App. Br. 26)
concerning certain specified page numbers. Appellant construes the clerical
errors in the index of the NetStalker reference (with question marks inserted)
as indicating that the NetStalker reference “was a work-in-progress” (App.
Br. 26). However, Respondent provides a Declaration of the Chief Executive
Officer and chairman of the board of Haystack Labs, Inc. (Stephen Smaha)
that avers that the NetStalker reference provided “was available in May
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1996” and was available to “[m]embers of the public showing an interest in
buying or licensing the NetStalker product” by “requesting [a copy of the
manual]” (Declaration of Stephen Smaha, dated February 24, 2010, ¶ 5).
Appellant has not provided evidence refuting Mr. Smaha’s sworn testimony.
We also disagree with Appellant that a clerical error or a missing page
reference in the index of a document (even if replaced by question marks)
indicates that the reference was not publicly available since Appellant has
not demonstrated a meaningful relationship between such misprints and
whether a document is publicly accessible or not.
Appellant argues that even if the NetStalker reference were available
to members of the public, Respondent has not demonstrated that the
NetStalker reference was also publicly accessible to members of the public
(see, e.g., App. Br. 26-27). To be considered a printed publication, the
reference “must have been sufficiently accessible to the public interested in
the art; dissemination and public accessibility are the keys to the legal
determination whether a prior art reference was ‘published.’” Constant v.
Advanced Micro-Devices, Inc., 848 F.2d 1560, 1568 (Fed. Cir. 1988)
(citation omitted). “‘[P]ublic accessibility’ has been called the touchstone in
determining whether a reference constitutes a ‘printed publication’ bar . . . .”
In re Hall, 781 F.2d 897, 899 (Fed. Cir. 1986) (citation omitted).
In the present case, Respondent has provided testimony from the
Chief Executive Officer (Stephen Smaha) of the company that developed
NetStalker (Haystack, Inc.) that the NetStalker reference “was available in
May 1996” and that “[m]embers of the public . . . could have obtained a
copy of the manual by . . . requesting one” (Declaration of Stephen Smaha,
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dated February 24, 2010, ¶ 5). Mr. Smaha also testified that “NetStalker
was advertised no later than 1995 . . .” and “advertisements . . . were
directed at members of the networking community” (Declaration of Stephen
Smaha, dated February 24, 2010, ¶ 6). In addition, Requester has provided
evidence corroborating the existence of such advertisements, for example, in
PR Newswire, Minneapolis, MN (Sep. 1995) “Network Systems and
Haystack Labs Introduce NetStalker to Track Hacker Attempts” Accession
No. 00531881 (3 pgs.) (cited in U.S. Patent No. 6,298,445 B1, “Other
Publications” to Shostack – hereinafter, “PR Newswire”). PR Newswire
(dated September 1995) provides a description of the NetStalker system,
pricing information (e.g., “starts at under $5000”), and contact information
for providing “more information.” The contact information provided in PR
Newswire includes names, telephone numbers, and e-mail addresses of
contacts and website information for potential customers.
Members of the relevant public would have been apprised of the
NetStalker system as early as September 1995 at least by viewing
advertisements, such as PR Newswire, as according to Mr. Stephen Smaha’s
testifimony. The members of the public, having been informed of the
availability of the NetStalker system as early as September 1995, would also
have been invited to contact specifically named individuals at Haystack, Inc.
(developer of the NetStalker system) as indicated in PR Newswire for more
information or to obtain the NetStalker system. As early as May 1996
(publication date of the NetStalker reference), such members of the public
would have received the NetStalker reference upon request, according to Mr.
Stephen Smaha’s testimony.
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Just as the “indexing, cataloging, and shelving” of a document in a
library is “persuasive evidence that the [reference] was accessible” (In re
Hall, 781, F.2d 897, 899 (Fed. Cir. 1986)), the NetStalker reference in the
present case would also have been “accessible” since the advertisement, at
least, would have amply informed the interested public of the accessibility of
the NetStalker reference by exercising reasonable diligence (i.e., upon
request). Based on the record, we disagree with Appellant’s assertion that
such notification of the relevant public (e.g., via advertisements) of the
NetStalker product and provision of the NetStalker reference to anyone who
then requested the reference does not constitute sufficient accessibility to
those interested individuals exercising reasonable diligence.
Appellant argues that Requester has failed to identify “a single
customer to which . . . [the NetStalker reference] was distributed by May
1996 (or even later)” (App. Br. 27). We disagree with Appellant’s theory of
the requirement of the identification of a specific customer in possession of
the NetStalker reference before the reference can be deemed a publicly
accessible publication. Rather, a printed document may qualify as a publicly
accessible publication “so long as accessibility is sufficient ‘to raise a
presumption that the public concerned with the art would know of (the
invention).’” (In re Bayer, 568 F.2d 1357, 1361 (CCPA 1978)) or so long as
the reference was “made available to the extent that persons interested and
ordinarily skilled in the subject matter or art, exercising reasonable
diligence, can locate it and recognize and comprehend therefrom the
essentials of the claimed invention without the need of further research or
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experimentation (In re Wyer, 655 F.2d 221, 223 (CCPA 1981) (citation
omitted).

Prior invention
Appellant submits the Declaration of Peter M. Shipley Under 37
C.F.R. § 1.131 (Shipley Dec) and the Statement of F. Eric Saunders in
Support of 37 C.F.R. § 1.131 Declaration (Saunders Dec) in order to
establish an earlier date of prior invention (App. Br. 28).
Mr. Shipley provides general allegations of various activity conducted
prior to November 6, 1995 (Shipley Dec, ¶ 3). Mr. Shipley also asserts that
prior to November 6, 1995 “the system was operational and met all of the
limitations of claims 1 – 19 of the ‘236 patent” (Shipley Dec, ¶ 3(m)).
Although not entirely clear, Mr. Shipley appears to argue actual reduction to
practice of the claimed invention “prior to November 6, 1995.” However,
such assertions merely constitute a declaration by the inventor to the effect
that his invention was conceived or reduced to practice prior to the date of
the reference. Absent is a statement of facts demonstrating the correctness
of the inventor’s conclusion. Such general allegations, without more, are not
sufficient to establish earlier invention since general assertions “amount[]
essentially to mere pleading, unsupported by proof or a showing of facts”.
Ex parte Saunders, 1883 C.D. 23 (Comm’r Pat. 1883); In re Borkowski, 505
F.2d 713, 718. (CCPA 1974).
Alternatively, Appellant argues conception of the claimed invention
prior to the date of the NetStalker reference and diligence from before the
date of the NetStalker reference to Appellant’s constructive reduction to
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practice (October 7, 1996). With regard to showing reasonable attorney
diligence, F. Eric Saunders states the following timetable:
1) February 28, 1996: First meeting with Mr. Shipley
to discuss the claimed invention (Saunders Dec, ¶ 2);
2) April 1, 1996: conducted patentability search
(Saunders Dec, ¶ 4);
3) April 19, 1996: analyzed results of patentability
search conducted on April 1, 1996 (Saunders Dec, ¶ 4);
4) May 4, 1996: conducted second patentability
search (Saunders Dec, ¶ 4);
5) May 6, 1996: reported results of second
patentability search (Saunders Dec, ¶ 4);
6) June – July 1996: “had several discussions . . .
[with] Mr. Shipley” (Saunders Dec, ¶ 6);
7) July – August 1996: “worked diligently and
continuously on the draft patent application” (Saunders Dec, ¶
7); and
8) September 4, 1996: “I sent . . . a draft of the patent
application [to Mr. Shipley]” (Saunders Dec, ¶ 8).
9) “Late September or early October 1996”: Met with
inventor for dinner (Saunders Dec, ¶ 8).
10) October 7, 1996: “I submitted the final draft . . .
for review” (Saunders Dec, ¶ 9).

The general evidence of attorney diligence in preparation and filing of
the present patent application between May and September 1996 is the
statement by Mr. Saunders that he “had several discussions . . . [with] Mr.
Shipley” (Saunders Dec, ¶ 6) and “worked diligently and continuously on
the draft patent application” (Saunders Dec, ¶ 7).2 However, Appellant and

2 Mr. Shipley also attaches to his declaration an invoice dated July 31, 1996
from Mr. Saunders in an attempt to corroborate “work[] on my patent
application [by Mr. Saunders] during the months of June, July, and August.”
(Saunders Dec. ¶ 9.) The July invoice lists specific activity in July but it
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Mr. Saunders only provide details of specific activities on May 4, 6, and 20,
and activity in July, but do not provide any other details for June or August.
While “reasonable diligence can be shown if it is established that the
attorney worked reasonably hard on the particular application in question
during the continuous critical period” (Bey v. Kollonitsch, 806 F.2d 1024,
1027 (Fed. Cir. 1986)), in the present case, Appellant has not provided
records or other evidence showing the exact days when activity specific to
this application occurred. Id. at 1027-28 (determining an insufficient
showing of attorney diligence when there is a lack of records showing the
exact days when activity specific to preparation of the patent application was
performed).
While “it may not be possible for a patent attorney to begin working
on an application at the moment the inventor makes the disclosure” (Bey,
806 F.2d at 1028), Appellant has not provided sufficient evidence pertaining
to “a backlog of other cases of other cases demanding [the attorney’s]
attention” (id.). For example, Appellant does not provide evidence showing
“that unrelated cases are taken up in chronological order” such as docket
numbers assigned “to the cases in consecutive order . . . [and] the specific
dates when the cases were docketed . . . [and] that the cases were taken up in
chronological order. Bey, 806 F.2d at 1028 (holding that the patent attorney
must generally show that unrelated cases are “taken up in chronological
order” and that “the attorney has the burden of keeping good records of the

does not account for work in June or August. (See Ex. 8S of Saunders Dec.)
A May 31, 1996 invoice lists activity on April 19, May 4, and May 6 for a
total of 3.6 hours, and also lists a file wrapper request on May 20 with no
hours charged for that service. (See Ex. 5S of Saunders Dec.)
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dates when cases are docketed as well as the dates when specific work is
done on the applications”).
In the absence of such evidence, we cannot conclude that the mere
testimony from Mr. Saunders that he “worked diligently and continuously”
over the four month period preceding the filing date of October 7, 1996 and
Appellant’s general assertion that four months is “a reasonable time period
to prepare and file a patent application” (App. Br. 16) are sufficient to
demonstrate attorney diligence.
Obviousness – NetStalker and Liepins

Claim 1 recites assigning a weight to a security breach and blocking
communications based on the assigned weight. Appellant argues that the
combination of NetStalker and Liepins fails to disclose or suggest
“classifying by assigning a weight” and blocking communications “based on
either the severity level or a weighted classification” (see, e.g., App. Br. 33-
34).
As the Examiner points out, NetStalker discloses a “user-defined
severity” (pp. 5-5 and 6-16, Table 5-3), blocking communications (i.e.,
“shun,” p. 5-5) (see, e.g., Ans. 42) upon triggering an alarm, and a
“threshold” as the “number of events to be recognized before triggering an
alarm” (p. 6-17). Appellant has not pointed out a specialized definition of
the term “weight” in the Specification or any meaningful difference, as
would have been understood by one of ordinary skill in the art, between the
claimed “weight” and a “severity” level as disclosed by NetStalker.
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Hence, NetStalker discloses not only a user defined severity level of a
security breach but also triggering an alarm when a certain number of
(security) events are recognized and blocking communications when the
alarm is triggered. Based on the NetStalker reference, one of ordinary skill
in the art would have known to characterize a security breach based on level
of severity (i.e., user defined severity) and block communications based on
when a condition has been achieved (for example, when a threshold number
of security events have been encountered).
Given NetStalker’s disclosure of blocking communications when a
threshold criteria is met indicating a security breach and given that one of
ordinary skill in the art is “a person of ordinary creativity, not an automaton”
(KSR, 550 U.S. at 421), one of skill in the art would have understood the
practice of blocking communications when a security breach is detected, the
security breach being of sufficient severity as to exceed a threshold.
NetStalker further discloses that a severity level is assigned to security
breach events thus further indicating that blocking communications when a
severity level of security breach is identified would have been obvious (as
assigning severity levels to security breaches were known to those of
ordinary skill in the art), or at least obvious to try, as a matter of “ordinary
creativity and common sense” (id. at 421 – “When there is a design need or
market pressure to solve a problem and there are finite number of . . .
solutions . . . it is likely the product not of innovation but of ordinary skill
and common sense. In that instance the fact that a combination was obvious
to try might show that it was obvious under 103.”).
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Liepins provides further support for a conclusion that blocking
communications based on a severity level of a security breach would have
been obvious to one of ordinary skill in the art. Like NetStalker, Liepins
generally discloses the identification of security breaches. Liepins
specifically discloses “anomaly detection” in “computer security” (see, e.g.,
p. 495) by application of rules (e.g., “administrative rules, expertly
determined rules, and automatically generated rules,” for example - p. 497)
in which there is a “determination of the strengths (weights) to be assigned
to the rules” (p. 501, last paragraph). Appellant has not sufficiently
demonstrated a difference between the explicit disclosure of Liepins of
assigning “weights” to rules that are utilized to identify security breaches
(and to block communications). Nor do we independently identify any
differences.
Claim 12 recites similar features to claim 1 and Appellant does not
provide additional arguments in support of claims 2-5, 7-11, or 13-19.
Hence, the Examiner did not err in rejecting claims 1-5 and 7-19 as obvious
over NetStalker and Liepins.
Affirmance of the rejection of claims 1-5 and 7-19 over NetStalker
and Liepins renders it unnecessary to reach the propriety of the Examiner’s
decision to reject those claims on a different basis. Cf. In re Gleave, 560
F.3d 1331, 1338 (Fed. Cir. 2009). As such, we need not reach to propriety
of the rejection of those claims over NetStalker and Hall.
.
CONCLUSION
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The Examiner did not err in rejecting claims 1-5 and 7-19 as
unpatentable over NetStalker and Liepins.

DECISION
The Examiner’s decision to reject claims 1-5 and 7-19 is affirmed.

AFFIRMED

rvb

PATENT OWNER

ROTHWELL, FIGG, ERNST & MANBECK, P.C.
1425 K STREET, NW
SUITE 800
WASHINGTON, DC 20005

THIRD PARTY REQUESTER

MICHAEL A. DESANCTIS
FINANCIAL PLAZA AT UNION SQUARE
225 UNION BOULEVARD, SUITE 305
LAKEWOOD, CO 80228