Ex Parte Chandra

Board of Patent Appeals and Interferences

Jun 24, 2009

10776100 (B.P.A.I. Jun. 24, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROHIT CHANDRA
____________

Appeal 2008-004040
Application 10/776,100
Technology Center 2400
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Decided:1 June 24, 2009
____________

Before JAMES D. THOMAS, ST. JOHN COURTENAY III, and
CAROLYN D. THOMAS, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Data (electronic delivery).
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STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 12-27, 38-41, 43, and 48, which are all of the claims
remaining in this application. Claims 1-11, 28-37, 42, and 44-47 are
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

Invention
Appellant’s invention relates to search technology. The invention
more particularly relates to monitoring and analyzing network traffic for use
in ranking the search results returned by a search engine. (Spec. Para.
[0001]).

Claims 12 and 38 are illustrative:
12. A search system for ranking Internet search results based
upon popularity of web pages on a network, the search system
comprising:

a plurality of monitoring devices placed in the network,
the monitoring devices monitoring packets traversing the
network and extracting information on the packets;

a processing module coupled to the monitoring devices
and receiving the exacted information from the monitoring
devices, the processing module analyzing the extracted
information and determining the popularity of the web pages
based upon the extracted information, the popularity of the web
pages being proportionate to actual number of visits to the web
pages as indicated by the extracted information; and

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a search engine for receiving search terms and retrieving
web pages containing the search terms, the search engine
ranking the web pages at least in part based upon the popularity
of the retrieved web pages.

38. A method for ranking Internet search results based upon
popularity of web pages, the method comprising:
receiving a search term;
performing search of web pages on the Internet based upon the
received search term;
retrieving a plurality of web pages containing the search term;
and
ranking the web pages at least in part based upon the popularity
of the retrieved web pages, the popularity of the retrieved web pages
being determined based upon information extracted from packets
traversing the Internet and being proportionate to actual number of
visits to the web pages as indicated by the extracted information.

THE REFERENCES
Tams US 6,279,037 B1 Aug. 21, 2001
Pulley US 2002/0087679 A1 Jul. 4, 2002
Bharat US 6,526,440 B1 Feb. 25, 2003
Vo US 2003/0229692 A1 Dec. 11, 2003
McKeeth US 6,763,362 B2 Jul. 13, 2004
Sehm US 2005/0021731 A1 Jan. 27, 2005
Matsliach US 6,879,994 B1 Apr. 12, 2005

THE REJECTIONS
I. Claims 12, 22, 26, 27, 38, 43, and 48 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over McKeeth in view of
Tams.
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II. Claims 13-15 and 39-41 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over McKeeth in view of Tams
and Bharat.
III. Claims 16 and 17 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over McKeeth in view of Tams and Vo.
IV. Claims 18-20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over McKeeth in view of Tams and Pulley.
V. Claim 23 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over McKeeth in view of Tams and Matsliach.
VI. Claim 24 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over McKeeth in view of Tams, Matsliach, and
Pulley.
VII. Claims 21 and 25 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over McKeeth in view of Tams, Matsliach
and Sehm.

APPELLANT’S CONTENTIONS
Appellant contends that the cited references fail to teach the limitation
of “determining the popularity of the web pages based upon or as indicated
by information extracted from the packets actually traversing the network.”
(App. Br. 11, emphasis and underlining in original).

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ISSUE
Has Appellant shown the Examiner erred in finding that the cited
references teach or suggest the limitation of determining the popularity of
web pages based upon information extracted from packets traversing the
network?
PRINCIPLES OF LAW
Obviousness
“What matters is the objective reach of the claim. If the claim extends
to what is obvious, it is invalid under § 103.” KSR Int’l Co. v. Teleflex, Inc.,
550 U.S. 398, 419 (2007). What a reference teaches is a question of fact.
In re Baird, 16 F.3d 380, 382 (Fed. Cir. 1994); In re Beattie, 974 F.2d 1309,
1311 (Fed. Cir. 1992).
Appellants have the burden on appeal to the Board to demonstrate
error in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86
(Fed. Cir. 2006). Therefore, we look to Appellant’s Brief to show error in
the proffered prima facie case.

FINDINGS OF FACT
In our analysis infra, we rely on the following findings of fact (FF)
that are supported by a preponderance of the evidence:

1. McKeeth discloses that determining popularity is based at least
in part on the search results generated by the search engine in
response to user queries. (Abst. and Col. 7, ll. 41-47).

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2. Tams discloses remote probes that forward information on
packets being passed over a network segment being monitored.
The information is used for monitoring network traffic activity
during a specific time interval (col. 1, ll. 6-9; col. 2, ll. 13-16
and 16-21; col. 10, ll. 19-22).

ANALYSIS
As noted above, Appellant contends that the cited references fail to
teach the limitation of determining the popularity of the web pages based
upon information extracted from packets traversing the network. More
particularly, Appellant contends that Tams fails to cure the deficiencies of
McKeeth. We agree for the reasons discussed infra.
McKeeth discloses determining the popularity of web pages based, at
least in part, upon search results generated by the search engine in response
to user queries. (FF. 1). In contrast, Tams discloses monitoring devices
(i.e., probes) that forward information regarding network packets. (FF. 2).
The Examiner relied on Tams to teach monitoring packets traversing the
network and extracting information from the monitored packets. (Ans. 4).
Based upon our review of the evidence before us, we find the cited
combination of references does not reasonably teach nor fairly suggest
determining the popularity of the web pages based upon the extracted
information, as required by the equivalent language of each independent
claim before us on appeal. While the Examiner relies upon Tams to cure the
deficiencies of McKeeth, we find Tams uses the extracted information in the
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context of monitoring overall network traffic data during a specific time
interval (FF 2), instead of using the extracted information to determine the
popularity of a web page.
Thus, we agree with Appellant that the Examiner’s proffered
combination of McKeeth and Tams does not teach or fairly suggest all of the
claim limitations, since according to Tams, the information extracted from
(or about) the network packets is not used to monitor a particular set of
communications directed to a specific destination (e.g., a particular web site)
so as to determine frequency of use (i.e., popularity, or number of hits).
We find that a gap exists in the combined teachings because
McKeeth’s search engine results have no direct nexus or reasonable
inference to Tams’ teaching of extracting overall information about network
traffic data during a specific time interval, where the network packet data is
not extracted and examined for a specific destination (See FF 2). Therefore,
we conclude that the differences between the claimed invention and
proffered combination of McKeeth and Tams are too great to reasonably
render claim 1 obvious to an artisan not having the benefit of the claimed
subject matter.

CONCLUSION
Appellant has shown the Examiner erred in determining that the cited
references teach or suggest the limitation of determining the popularity of
web pages based upon information extracted from packets traversing the
network, as claimed in commensurate language by each of independent
claims 12, 38, 43, and 48.
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Accordingly, we reverse the Examiner’s obviousness rejection of each
independent claim on appeal. Because we have reversed the Examiner’s
rejection of each independent claim on appeal, we also reverse the
Examiner’s obviousness rejections of the associated dependent claims on
appeal.

DECISION
We reverse the Examiner’s rejections of claims 12-27, 38-41, 43, and
48 under 35 U.S.C. 103(a).

REVERSED

pgc

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