Ex Parte Bekiares et al

Board of Patent Appeals and Interferences

May 29, 2012

10767486 (B.P.A.I. May. 29, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte TYRONE D. BEKIARES, MATTHEW C. KELLER,
VIDYA NARAYANAN, and GEORGE POPOVICH
____________

Appeal 2009-015185
Application 10/767,486
Technology Center 2400
____________

Before BRADLEY W. BAUMEISTER, DENISE M. POTHIER, and
ANDREW CALDWELL, Administrative Patent Judges.

POTHIER, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-015185
Application 10/767,486

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm.

Invention
Appellants’ invention switches between behavior sets of middleware
based on triggers. See generally Spec. 1:4-6. Claim 1 is reproduced below
with the key disputed limitations emphasized:
1. A method for use by middleware in a communication system
comprising the steps of:
enabling a group of behavior sets for use by middleware wherein
the middleware provides an interface between at least one application
running on a first device and at least one network transport element
external to the first device, and wherein each behavior set in the group
provides for at least one of a different set of routing rules and a
different Quality of Service for traffic sent between the at least one
application and the at least one network transport element;
operating in accordance with a first behavior set from said group;
receiving at least one trigger that indicates at least one of a
condition of mission criticality or a level of mission criticality for a
situation that is external to the middleware, external to data routed to
and from the middleware, and external to data associated with a user
of the middleware;
selecting a second behavior set from said group based upon said at
least one trigger; and
operating in accordance with said second behavior set.

The Examiner relies on the following as evidence of unpatentability:
Jasen US 2002/0019879 A1 Feb. 14, 2002
Benveniste US 2004/0196864 A1 Oct. 7, 20041

1 Filed Feb. 3, 2004; Prov. App. No. 60/444,196, filed Feb. 3, 2003.
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The Rejection
The Examiner rejected claims 1-20 under 35 U.S.C. § 103(a) as
unpatentable over Jasen and Benveniste. Ans. 2-6.

CONTENTIONS
Regarding representative claim 1 the Examiner finds that Jasen
discloses all the limitation in the claim, including receiving a trigger, but not
the particular recited features of what the trigger indicates. Ans. 2-3. The
Examiner relies on Benveniste to teach the particular trigger recited in claim
1 and provides a reason to combine the references. Ans. 3-4.
Appellants argue Benveniste fails to teach middleware or a change in
monitored condition or parameters. Br. 15.2 Appellants also assert that the
type of packets in Benveniste determine how to route the packets or its
priority (id.) and that combining this teaching with Jasen “would at most
provide for one or more coupons in a user device that include[] data directed
to an emergency condition” ( id.).

ISSUE
Under § 103, has the Examiner erred in rejecting claim 1 by finding
that Jasen and Benveniste collectively would have taught or suggested
receiving a trigger that indicates a mission criticality condition or a mission
criticality level for a situation external to: (a) the middleware; (b) data routed
to and from the middleware; and (c) data associated with a user of the
middleware?

2 Throughout this opinion, we refer to the Appeal Brief filed January 12,
2009, and supplemented March 19, 2009.
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FINDING OF FACT (FF)
1. Appellants define a “trigger” as “a change in monitored conditions
or parameters.” Spec. 7:8-9. Examples of triggers include: a light bar being
activated/deactivated on a public safety vehicle, a change in the time of day,
a public safety vehicle’s speed, location information, an emergency button
activation/deactivation, and a siren activation/deactivation. Spec. 7:9-13.

ANALYSIS
Based on the record before us, we find no error in the Examiner’s
rejection of representative claim 1, which calls for, in pertinent part,
receiving a trigger that indicates a mission criticality condition or a mission
criticality level for a situation external to: (a) the middleware; (b) data routed
to and from the middleware; and (c) data associated with a user of the
middleware. 3 As stated above, the Examiner relies on Jasen to teach the
recited middleware and to teach a trigger in general. See Ans. 2-3, 7. Thus,
Appellants’ argument (see Br. 15) regarding Benveniste failing to teach
middleware that provides an interface or a change in monitored condition or
parameters (i.e., a trigger (FF 1)) in general is not consistent with the
Examiner’s position.
Appellants further contend that combining Benveniste’s teaching with
Jasen would not result in the recited receiving step. Br. 15. In Appellants’
view, the combination would result in the data in a packet determining how

3 Notably, the phrases, “external to the middleware,” “external to data routed
to and from the middleware,” or “external to data associated with a user of
the middleware,” are not located in the disclosure.
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the packet is routed or given priority and contrasts with the recited receiving
step. Id. We disagree.
Appellants provide examples of triggers that are external to: (a) the
middleware; (b) data routed to and from the middleware; and (c) data
associated with a user of the middleware as recited. They include: a light
bar being activated/deactivated on a public safety vehicle, a change in the
time of day, location information, and an emergency button. FF 1. However
and notably, once the initial trigger occurs, a behavioral set selection
function 240 located within the middleware client 16 receives input signals,
evaluates the signals using logic, and when a condition exists, changes or
selects a different behavior set corresponding to the condition. Spec. 6:5–
7:7; Fig. 2. Thus, even in Appellants’ embodiment, signals or data enter the
middleware (i.e., internal to the middleware) and are used to determine how
packets are routed and given priority. We therefore broadly construe a
“trigger” as the initial event that begins the selection process of the second
behavior set as recited, and Appellants’ argument about what happens
subsequent to this initial event or trigger is not persuasive.
With that understanding, Jasen similarly teaches triggers that affect
how a network service provider can provide and control network services
(e.g., on-line stock brokerages or electronic retailers) of the user based on
prioritization. See ¶ 0017. For example, a user in Jasen accesses a Uniform
Resource Locator (URL) (e.g., an on-line stock brokerage web site) or
Internet Protocol (IP) address of the network traffic management (NTM)
provider using a web browser, which can trigger prioritization in the NTM
server. See ¶¶ 0017-18. This initial act of accessing a web site in Jasen is
external to any middleware (e.g., the NTM client/server) and data routed to
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and from the middleware. Moreover, Jasen suggests that specific
transactions (e.g., buy/sell stocks) are also given priority. See ¶ 0005. After
which, the system determines whether the user is eligible for priority and, if
so, whether a coupon exists for this URL or IP address using the NTM
client/server or the middleware. See ¶¶ 0019-24. If a coupon exists, a
priority is selected and given to the client. See ¶¶ 0024-25.
Thus, while the Examiner describes the trigger as the application of
Jasen’s coupon to gain prioritized web traffic (see Ans. 3, 7), the Examiner
is also indicating that the coupon application is based on, as explained
above, accessing a website or performing a particular operation on a website.
See ¶¶ 0005, 0017-24. For example and to elaborate, these coupons in Jasen
located within the NTM client may be associated with a visiting particular
web site (e.g., a URL). See id. Thus, while the Examiner states Jasen does
not teach a trigger having the recited characteristics (see Ans. 3), Jasen
actually teaches and suggests triggers that are external to the middleware and
the data routed to the middleware.
Regarding whether this action involves “a situation . . . external data
associated with a user of the middleware,” we find that at least some of
Appellants’ examples of an external trigger (e.g., activating a light bar,
location information, activating an emergency button) involve the user (e.g.,
user activates light bar or emergency button, location may be the user’s
location) and thus minimally involve data associated with the user.
Likewise, visiting a website or performing a buy/sell operation minimally
involves data associated with a middleware user. Giving this phrase its
broadest reasonable construction in light of the disclosure, Jasen thus teaches
and suggests an “external” trigger as recited.
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Nonetheless, the Examiner further cites to Benveniste to provide a
teaching of the “external” trigger recitation. As explained (Ans. 3),
Benveniste teaches 911 signal frame having priority over other data within a
network. ¶¶ 0011, 0014. Thus, combining Benveniste’s teaching with Jasen
predictably yields no more than one would expect from the collective
teachings – a system that includes receiving a trigger (e.g., a 911 call similar
to Appellants’ emergency activation (see FF 1)) that indicates a mission
critical condition for a situation external to the middleware, data routed to
and from the middleware, and data associated with a user of the middleware
as broadly as recited. We therefore are not persuaded that the combination
would fail to teach or suggest the recited receiving and selecting steps, as
Appellants allege (Br. 15-16).
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of independent claim 1 and claims 2-7, 10, 11, and 15-20 not
separately argued with particularity.

Claim 8
Claim 8 depends from claim 1 and further recites the trigger is a
remote or external trigger. The Examiner finds that Jasen and Benveniste
collectively teach this limitation. See Ans. 3-5, 8. Appellants present a
similar argument to claim 1 stating that the application of the coupon is
internal to the client and thus not a “remote” or “external” trigger. Br. 16.
However, as explained above when addressing claim 1, we disagree that
Jasen and Benveniste fail to teach an external or remote trigger and refer to
the above discussion for details.

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Claim 9
Claim 9 depends from claim 1 and further recites examining state
information and that the second behavior set is selected based on the state
information. The Examiner finds that Jasen’s paragraph 0023 and the state
of the coupon teaches this limitation. See Ans. 5, 8. Appellants argue that
this paragraph does not examine state information or select a second
behavior set based on the state information. Br. 17.

ISSUE
Under § 103, has the Examiner erred in rejecting claim 9 by finding
that Jasen and Benveniste collectively would have taught or suggested
examining state information and selecting a second behavior set based upon
the state information?

ADDITIONAL FINDING OF FACT (FF)
2. Jasen teaches evaluating network traffic against coupon data found
in a URL or IP address field on the user’s device to determine whether
traffic should receive prioritization. If a match is found and the coupon(s) is
valid at 220, a priorization session can be started at 260. ¶ 0022-25; Fig. 2.

ANALYSIS
Based on the record before us, we find no error in the Examiner’s
rejection of claim 9. The Examiner explains Jasen discusses that the coupon
is analyzed to determine if the coupon is valid. Ans. 8. That is, the
coupon’s validity or invalidity is state information, and such information is
examined to determine whether to select and grant priority (e.g., a second
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behavior set, where a first behavior set is normal processing). See FF 2. We
thus are not persuaded that Jasen fails to teach or suggest examining state
information and selecting a second behavior set based on state information.
See Br. 17. For the foregoing reasons, Appellants have not persuaded us of
error in the rejection of claim 9.

Claim 12
Claim 12 depends from claim 10, which in turn, depends from
claim 1. Claim 12 recites the determination of a first condition is made
external to the middleware and communicated to the middleware by the
trigger. The Examiner explains that Jasen teaches the condition is based on
existing network conditions before the coupon is applied. See Ans. 8.
Appellants argue that the coupon data used to determine whether the
NTM system should receive prioritization is internal to the NTM client and
that this determination is not made external to the middleware. Br. 17-18.

ISSUE
Under § 103, has the Examiner erred in rejecting claim 12 by finding
that Jasen and Benveniste collectively would have taught or suggested the
determination of a first condition is made external to the middleware?

ADDITIONAL FINDING OF FACT (FF)
3. Appellants state “the behavioural set selection function 240 may
determine whether a condition exists that causes it to change behavior sets in
the middleware client 16 based upon either one of or a combination of
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external triggers 242, state information 244 and remote triggers.” Spec.
6:16-19; see also Spec. 7:3-7; 8:6-8; 8:28–9:1.

ANALYSIS
Based on the record before us, we find no error in the Examiner’s
rejection of claim 12. First and notably, Appellants have not discussed how
the recited “first condition” differs from the recited mission criticality
condition in claim 1 describing the trigger. See generally Specification.
Also, beyond indicating that, when a condition exists, the condition can
cause a change in behavior sets (see FF 3), we are unclear how this condition
differs from the condition in claim 1. We therefore find, as broadly as
recited, a condition can include an event that creates the trigger, including an
emergency or deciding to take an action.
Given this understanding, we agree with the Examiner that Jasen and
Benveniste teach and suggest conditions external to the middleware. As
discussed above, the combination teaches conditions, such as an emergency
that triggers a 911 call or deciding to make a stock purchase that triggers
visiting a web site to make a trade, which are external to the middleware, as
taught by Jasen, and which are, in turn, used to select a second behavior set
(e.g., priority). We refer to our previous discussion of claim 1 for details.
For the foregoing reasons, Appellants have not persuaded us of error in the
rejection of claim 12.

Claim 13
Claim 13 depends from claim 12 and recites the determination of the
condition is made by a middleware running on second device. Appellants
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repeat the argument that Jasen’s coupon examination is performed internal
to the NTM client within one user’s device and therefore is not determined
by a second middleware on a second device second device. Br. 18. We
disagree for the reasons discussed above in connection with claims 1 and 12.
Additionally, this condition discussed in claim 12 is also made by or decided
by a user that uses a device external to the middleware when a user accesses
a URL, in which access triggers the NTM server (e.g., a separate entity from
the NTM client) to determine the prioritization eligibility. See Jasen ¶ 0018.
Appellants thus have not persuaded us of error in the rejection of claim 13.

Claim 14
Claim 14 depends from claim 12 and further recites the determination
is made manually. The Examiner finds that that Jasen teaches this
limitation. See Ans. 5, 9. Appellants argue that paragraph 0047 discusses
installing a NTM client while permitting the user to reject installation and
underline that Jasen fails to teach determining a first condition. Br. 19. As
discussed above, the Examiner relies on other teachings in Jasen to teach
determining a first condition. See Ans. 5, 8. We also explained above how
Jasen teaches and suggests such a limitation. The Examiner further
discusses how Jasen suggests including a manual selection into this process.
Ans. 8. Appellants have not adequately rebutted these findings and
conclusions and thus have not persuaded us of error in the rejection of claim
14.

CONCLUSION
The Examiner did not err in rejecting claims 1-20 under § 103.
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DECISION
The Examiner’s decision rejecting claims 1-20 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)(1)(iv).

AFFIRMED

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