Ex Parte Cameros et al

Patent Trial and Appeal Board

Oct 24, 2014

11205237 (P.T.A.B. Oct. 24, 2014)

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.
11/205,237 08/15/2005 Brian Cameros 2222.775000B 4327
26111 7590 10/24/2014
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005
EXAMINER
PATEL, JIGAR P
ART UNIT PAPER NUMBER
2114
MAIL DATE DELIVERY MODE
10/24/2014 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 BRIAN CAMEROS and WADE ALBRIGHT
____________________

Appeal 2012–005149
Application 11/205,237
Technology Center 2100
____________________

Before CARLA M. KRIVAK, MICHAEL J. STRAUSS, and
JASON J. CHUNG, Administrative Patent Judges.

STRAUSS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-005149
Application 11/205,237

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1, 4–6, 10–13, 16–18, 22–30, 32–37, 39–44, and 46–51.1,2 Claim 38 is
objected to as being dependent upon a rejected base claim, but would be
allowable if rewritten in independent form. Claims 2, 3, 7–9, 14, 15, 19–21,
31, and 45 are canceled. We have jurisdiction over the pending claims under
35 U.S.C. § 6(b).
We reverse.
THE INVENTION
The claims are directed to client detection of an upstream data center
failure and recovery. Abst. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A tangible computer-readable medium having instructions
stored thereon, the instructions comprising:
instructions to identify, at a client, a first data center
among a plurality of data centers that is closest to the client, the
first data center being configured to receive content from at
least a first content provider;
instructions to receive, at the client, an application from
the first data center; and
instructions to determine, at the client, that a failure
occurred between the at least a first content provider and the
first data center if a status message, configured to be sent by the
at least a first content provider to the client at recurring
intervals, has not been received by the client within a specified
period of time,

1 Although included among the rejected claims, claims 7 and 45 were
canceled by the Amendment filed Dec. 2, 2010, and are, therefore, not
before us.
2 Appellants erroneously include substantively allowed claim 38 among the
list of rejected claims. App. Br. 6.
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Application 11/205,237

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wherein the application is configured to automatically
connect, at the client, to a second data center and to receive the
content from the second data center in response to the
determining that the failure occurred.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Wenocur US 2003/0041110 A1 Feb. 27, 2003
Jenkins US 6,728,747 B1 Apr. 27, 2004
Christodoulou US 2005/0027815 A1 Feb. 3, 2005
Vasudevan US 2005/0125557 A1 June 9, 2005
Rai US 7,159,034 B1 Jan. 2, 2007
Tuttle US 2007/0239822 A1 Oct. 11, 2007
(filed Mar. 30, 2006)
Lowery US 2009/0077173 A1 Mar. 19, 2009
(priority claimed to Feb. 7, 2000)

REJECTIONS
The Examiner made the following rejections:
Claim 1 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lowery, Vasudevan, and Jenkins. Ans. 4–7.
Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lowery, Vasudevan, Jenkins, and Rai. Ans. 7–8.
Claims 6, 12, 13, 17, 22, 30, 32–37, 39, and 40 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Lowery, Vasudevan, Jenkins,
and Wenocur. Ans. 8–16.3

3 Canceled claim 7 was mistakenly included in the listing of claims subject
to the indicated rejection.
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Application 11/205,237

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Claims 10, 11, 16, 18, and 23–25 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Lowery, Vasudevan, Jenkins, Wenocur,
and Rai. Ans. 16–18.
Claims 26 and 27 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jenkins and Vasudevan. Ans. 18–20.
Claims 28 and 29 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jenkins, Vasudevan, and Rai. Ans. 20–21.
Claims 41–44 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lowery, Vasudevan, Jenkins, and Christodoulou.
Ans. 21–25. 4
Claims 46–51 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lowery, Vasudevan, Jenkins, Wenocur, and Tuttle.
Ans. 26–28.

APPELLANTS’ CONTENTION5
“[I]t is the lack of response from the database server 206 that triggers
the failure detection in Jenkins not the lack of response from the database
214 [as required by claim 1].” App. Br. 23.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred in rejecting independent claim 1

4 Canceled claim 45 was mistakenly included in the listing of claims subject
to the indicated rejection.
5 We note Appellants raise additional contentions of error but we do not
reach them as our resolution of this contention is dispositive of the appealed
rejections under 35 U.S.C. § 103(a).
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Application 11/205,237

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under 35 U.S.C. § 103(a) over Lowery, Vasudevan, and Jenkins. We agree
with Appellants’ conclusions as to this rejection of the claims.
The Examiner finds:
Jenkins discloses [col. 04, lines 18–24] client driver interface detects a
failure of database session by maintaining a timer which times-out
when database server fails to respond within a specified amount of
time. The failure to respond from the database server is similar to the
status message not being received by the client within a specified
period of time. The specification discloses [0018] a status message
may be any message sent by content provider at a known interval.
Therefore, the failure to respond by the database server to the client
within a specified amount of time (Jenkins) is similar to a status
message not received by the client within a specified period of time.
Ans. 30. Appellants agree with the Examiner in finding Jenkins is
responsive to a database server 206 time-out but argue claim 1 requires
determining a failure if a status message sent by the content provider (i.e.,
Jenkins’s database 214) has not been received. App. Br. 22. Therefore,
Appellants argue, “the lack of response from the database server 206 is not
the same as ‘a status message, configured to be sent by the at least a first
content provider to the client at recurring intervals,’ as recited in claim 1.”
App. Br. 23. We agree with Appellants.
Although the Examiner finds any message sent by the content
provider (e.g., Jenkins’s database 214) at a known interval teaches a status
message (Ans. 30), the Examiner does not explain what messages sent by
Jenkins’s database constitute the claimed status messages including evidence
such messages are provided at “recurring intervals,” as required by claim 1.
Furthermore, the Examiner does not explain why the absence of messages
from Jenkins’s database (i.e., content provider) would result in a
determination at the client that a failure occurred between the content
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Application 11/205,237

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provider and data center (i.e., database server 206.) Therefore, in the
absence of sufficient evidence or line of reasoning explaining what specific
prior art messages teach or suggest the claimed status message, we are
constrained to reverse the rejection of independent claim 1 under 35 U.S.C.
§ 103(a) over Lowery, Vasudevan, and Jenkins.
Because the remaining independent claims require a similar status
message, on the record before us, we are further constrained to reverse the
rejections of independent claims 6, 13, 22, 26, 30 under 35 U.S.C. § 103(a)
over Lowery, Vasudevan, Jenkins, and Wenocur, and independent claim 41
over Lowery, Vasudevan, Jenkins, and Christodoulou as the Examiner’s
applications of Wenocur and Christodoulou fail to cure the deficiency
addressed supra. Furthermore, we do not sustain the rejections of dependent
claims 4, 5, 10–12, 16–18, 23–25, 27–29, 32–37, 39, 40, 42–44, and 46–51
under 35 U.S.C. § 103(a) as dependent from respective claims 1, 6, 22, 26,
and 41 and as the Examiner’s applications of Rai and Tuttle also fail to cure
the deficiency in the base rejections addressed supra.

DECISION
The Examiner’s decision to reject claims 1, 4–6, 10–13, 16–18, 22–
30, 32–37, 39–44, and 46–51 is reversed.

REVERSED
lv