Ex Parte Beach et al

Patent Trial and Appeal Board

Mar 17, 2016

12915160 (P.T.A.B. Mar. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/915,160 10/29/2010
7590 03/17/2016
John G. Posa
Gifford, Krass, Sprinkle, Anderson & Citkowski,P.C
2701 Troy Center Drive, Suite 330
Post Office Box 7021
Troy, MI 48007-7021
Glenn J. Beach
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
CYB-11602/03 7106
EXAMINER
KUDIRKA, JOSEPH R
ART UNIT PAPER NUMBER
2114
MAILDATE DELIVERY MODE
03/17/2016 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 GLENN J. BEACH, KEVIN TANG, CHRIS C. LOMONT,
RYAN O'GRADY, GARY MOODY,
EUGENE FOULK, and CHARLES J. JACOBUS
Appeal2014-006202
Application 12/915, 160
Technology Center 2100
Before JOHN A. EVANS, LINZY T. McCARTNEY, and
MATTHEW J. McNEILL, Administrative Patent Judges.
EV ANS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of Claims 1-5, 7, and 8, which are all of the
claims pending in the application. App. Br. 2-3. Claim 6 is canceled. Final
Act. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.2
1 The Appeal Brief identifies Cybemet Systems Corporation as the real
party in interest. App. Br. 1.
2 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed January 14, 2014, "App. Br."), the Reply
Brief (filed April 28, 2014, "Reply Br."), the Examiner's Answer (mailed
February 28, 2014, "Ans."), the Final Action (mailed June 19, 2013, "Final
Appeal2014-006202
Application 12/915, 160
STATEMENT OF THE CASE
The claims relate to an intelligent system for automatically
monitoring, diagnosing, and repairing complex hardware and software
systems. See Abstract.
Claim 1 is independent. An understanding of the invention can be
derived from a reading of exemplary Claim 1, which is reproduced below
with some formatting added:
1. A system to automatically test and repair a complex,
distributed target system having a network topology including
hardware and software, the automated test and repair system
compnsmg:
a knowledge base memory storing information about the
target system, including information about the network
topology of the target system, system events and system faults;
one or more computer processors including specialized
hardware and software implementing a system status module, a
decision module, and a user interface module, all modules
being in operative communication with the knowledge base
memory;
a communications interface between the target system
and system status module enabling the system status module to
automatically detect faults in the target system, automatically
determine the underlying cause or causes of a fault, and
automatically predict potential future faults in the target system
based upon information stored in the knowledge base memory;
a decision module in operative communication with the
system status module enabling the decision module to
automatically identify an appropriate response to a fault
detected by the system status module, wherein the response
Act."), and the Specification (filed October 29, 2010, "Spec.") for their
respective details.
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Application 12/915, 160
Lora
may include an automated repair of the fault depending upon
the severity of the fault; and
a user interface module in operative communication with
the decision module, the user interface module including a
display presenting repair actions taken by the decision module.
References and Rejections
The Examiner relies upon the prior art as follows:
Ouchi
US 2005/0187940 Al
US 2006/0156141 Al
Aug. 25, 2005
July 13, 2006
The claims stand rejected as follows:
1. Claims 1-5, 7, and 8 stand rejected under 35 U.S.C. § l 12(b) or 35
U.S.C. § 112 (pre-AIA), second paragraph, as being indefinite. Final
Act. 2-3.
2. Claims 1--4, 7, and 8 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Lora. Final Act. 3---6.
3. Claim 5 stands rejected under 35 U.S.C. § 103(a) as obvious over
Lora and Ouchi. Final Act. 7-8.
ANALYSIS
We have reviewed the rejections of Claims 1-5, 7, and 8 in light of
Appellants' arguments that the Examiner erred and the evidence presented.
We have considered in this decision only those arguments Appellants
actually raised in the Briefs. Arguments that Appellants could have made
but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R.
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Application 12/915, 160
§ 41.37(c)(l)(iv). We are not persuaded that Appellants identify a reversible
error. Upon consideration of the arguments presented in the Appeal Brief
and Reply Brief, we agree with the Examiner that all the pending claims are
unpatentable over the cited combination of references. We adopt as our own
the findings and reasons set forth in the rejection from which this appeal is
taken and in the Examiner's Answer. We provide the following explanation
to highlight and address specific arguments and findings primarily for
emphasis.
CLAIMS 1-5, 7, AND 8: INDEFINITENESS
The Examiner finds the recitation "may include" is indefinite because
the limitation following the term "may include" is not definitely included in
all embodiments. Ans. 9. Appellants state their disagreement with the
Examiner's finding of indefiniteness, but fail to proffer substantive
arguments in favor of the claims. App. Br. 2. In addition, Appellants
putatively clarifying amendment was not entered. Id.
Because Appellants have failed to present substantive arguments
addressing the Examiner's rejection, Appellants have not persuaded us the
Examiner erred. We therefore sustain this rejection.
CLAIMS 1--4, 7, AND 8: ANTICIPATION BY LORA
Automated repair.
Claim 1 recites "wherein the response may include an automated
repair of the fault depending upon the severity of the fault." Appellants
contend that each of Lora's embodiments discloses a system that alerts
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Application 12/915, 160
human technical support staff who effect the needed repairs instead of an
"automated repair." Appellants argue that Lora's disclosure of
automatically restarting backup hardware, in effect "gives up" on the target
and does not disclose repair of the target. App. Br. 3.
The Examiner finds Appellants disclose human maintainers who
provide minimal input to a system and method which, among other things,
automate repair actions. The Examiner finds "minimal input" does not equal
"without human intervention." Ans. 11 (citing Spec., i-f 32). The Examiner
finds Lora discloses, similarly to Appellants, a system whereby a specialist
at a central monitoring facility can take action by initiating an automated
correction. Id.
Appellants reply the Examiner cites a disclosed mode wherein there is
minimal human intervention, but the claims relate to the Detection &
Predictive Maintenance Mode wherein a user is notified of the error and the
appropriate repair after the A-STAR has performed the repair action. This
mode automates the actions that the user would otherwise take to resolve the
failure. Reply Br. 2 (citing Spec., i-f33). Appellants contend Lora does not
disclose the claimed mode that operates in the absence of human
intervention. Id.
Appellants do not define their claims s to preclude the limited human
intervention disclosed by Lora. Appellants' Specification discloses the
claimed "response potentially including an automated repair of the fault
depending upon the severity of the fault." Spec., i-f 12. Appellants also
disclose the "user interface module may further include a repair action
module enabling a user to input feedback regarding actions undertaken to
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Application 12/915, 160
test and repair the target system." Spec., ,-r 13. Moreover, in "Detection
Mode, the system alerts the user when a problem has been detected and
presents a set of repair actions to resolve the problem." Spec., ,-r 31.
Furthermore, in "Detection & Repair Mode, the system allows the
maintainer to verify the best repair action offered, and then execute the
repair. This mode prompts the maintainer for feedback following the repair
to enhance the system's decision logic for future repairs." Spec., ,-r 32. In
addition, in "Detection & Predictive Maintenance Mode," (the mode cited
by Appellants as allegedly occurring "without human intervention), "the A-
ST AR system automatically performs system repairs with minimal or no
user interaction." Spec., ,-r 33 (emphasis added). Thus, the paragraph cited
by Appellants does not equate "automatically perform[ing] system repairs"
with performance "without human intervention." Further, even if paragraph
33 did limit automated repair to repairs without human intervention, this
paragraph at most represents a non-limiting example, but not a limiting
definition, of the claimed invention. Moreover, the contested limitation
recites "the response may include an automated repair of the fault depending
upon the severity of the fault." App. Br. 5 (emphasis added). Under the
broadest reasonable interpretation of this limitation, the recited "automated
repairs" need not occur. Accordingly, we are not persuaded Appellants'
claims distinguish over Lora.
We note Appellants disclose the Detection & Repair Mode
"essentially automates the actions that the user would otherwise normally
take to resolve the failure." Spec., ,-r 33. However, merely automating
human actions is not inventive. Application of Venner, 262 F.2d 91, 94
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(CCPA 1958) ("Furthermore, it is well settled that it is not 'invention' to
broadly provide a mechanical or automatic means to replace manual activity
which has accomplished the same result").
CLAIM 5: OBVIOUSNESS OVER LORA AND OUCHI
Appellants contend the art does not recite the claimed "cost factors,"
such as "likelihood of success" and "mission impact." App. Br. 4. The
Examiner finds Ouchi teaches repair actions are chosen based in part on
factors such as "% success," which is clearly a "likelihood of success" and
"Time to Repair," which clearly impacts a mission. Ans. 15-16. We are not
persuaded the Examiner errs.
DECISION
The rejection of Claims 1--4, 7, and 8 under 35 U.S.C. § 102 is
AFFIRMED.
The rejection of Claim 5 under 35 U.S.C. § 103 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)(l )(iv).
AFFIRMED
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