Ex Parte Maher

Patent Trial and Appeal Board

Jun 21, 2016

11920903 (P.T.A.B. Jun. 21, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111920,903 11/21/2007
25223 7590 06/23/2016
WHITEFORD, TAYLOR & PRESTON, LLP
ATTN: GREGORY M STONE
SEVEN SAINT PAUL STREET
BALTIMORE, MD 21202-1626
FIRST NAMED INVENTOR
Thomas Maher
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.
081196/00004 9299
EXAMINER
LE,CANH
ART UNIT PAPER NUMBER
2439
NOTIFICATION DATE DELIVERY MODE
06/23/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
patents@wtplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS MAHER
Appeal2015-000369
Application 11/920,903
Technology Center 2400
Before JOHN A. EV ANS, MIRIAM L. QUINN, and ALEX S. YAP,
Administrative Patent Judges.
YAP, Administrative Patent Judge.
DECISION ON APPEAL
Appellant 1 appeals under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claims 1--4, 6-8, 10, 13, 15-19, 21-23, 25, and 28-30. 2
We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 According to Appellant, the real party in interest is Asavie R&D Limited
of Dublin, Ireland. (App. Br. 1.)
2 Claims 5, 9, 11, 12, 14, 20, 24, 26, and 27 were previously canceled. (App.
Br. 12-17.)
Appeal2015-000369
Application 11/920,903
STATEivIENT OF THE CASE
Introduction
Appellant's invention relates to "a communication system and method
to enable secure clients to obtain secure and transparent access to a remote
server over an insecure network." (Spec. 1.) Claim 1 is illustrative of
Appellant's invention, and is reproduced below:
1. A data transmission system for secure data
exchange using transmission control protocol between a client
and a server, the system comprising:
a broker connected to a client;
an agent connected to a server; and
an unsecured network link between the broker and agent,
wherein
the agent and broker are connected through at least
a firewall device to exchange data over the unsecured
network link, in which:
the agent establishes a secure control session with
the broker using a secure transport over the unsecured network
link;
upon receipt of a TCP SYN packet from the client
over a secure network, the broker is operative to capture the
TCP SYN packet and send a modified control packet to the
agent using the secure control session;
the agent is operative to receive the modified
control packet from the broker and to generate its own TCP
SYN packet and to send its own TCP SYN packet to the server;
upon receipt of a response packet from the server,
the agent is operative to send a response packet to the
broker using the secure control session; and
upon receipt of a response packet from the agent,
the broker is operative to send a response packet to the
client;
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Application 11/920,903
wherein in the case that an exchange of TCP
control packets between the agent and the server indicates
establishment of a TCP session, the agent is operative to
establish a data channel between the agent and the broker to
create a transparent TCP channel between the client and the
server and in the case that an exchange of TCP control packets
between the agent and the server indicates failure to establish a
TCP session, the response packet forwarded by the broker to
the client indicates that the connection has failed.
Rejections on Appeal
Claims 1-3, 10, 13, 15-18, 25, and 28-30 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Shukla (US 2002/0042875
Al; pub. Apr. 11, 2002) ("Shukla") in view of Demmer et al.
(US 2004/0243703 Al; pub. Dec. 2, 2004) ("Demmer"), and further in view
of Xie et al. (US 7,107,612 Bl; iss. Sept. 12, 2006) ("Xie"). (See Final
Office Action (mailed October 3, 2013) ("Final Act.") 6-12.)
Claims 4 and 19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentabie over Shukia in view of Demmer and Xie, and further in view of
Shaw et al. (US 7,661,131 Bl; iss. Feb. 9, 2010) ("Shaw"). (See Final Act.
12-13.)
Claims 6, 7, 21, and 22 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Shukla in view of Demmer, Xie, and Shaw, and
further in view ofBavadekar (US 2003/0009571 Al; pub. Jan. 9, 2003)
("Bavadekar"). (See Final Act. 13-14.)
Claims 8 and 23 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shukla in view of Demmer and Xie, and further in view of
Hughes et al. (US 2002/0064128 Al; pub. May 30, 2002) ("Hughes").
(See Final Act. 14--15.)
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Application 11/920,903
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments that the Examiner has erred. We are not persuaded by
Appellant's arguments.
Argument One
Shukla Does not Perform its Operations on Layer 5
The Examiner finds that "Shukla teaches [a] data transmission method
for secure data exchange using transmission control protocol ... between a
client ... and a server ... using a broker [(gateway GA)] and an agent
[(gateway GB)]." (Final Act. 7 (internal citations omitted).) Appellant
argues that Shukla fails to disclose that "the agent establishes a secure
control session with the broker using a secure transport over the unsecured
network link," as recited in independent claims 1 and 16. (App. Br. 6.)
Appellant argues that "Shukla never establishes a separate secure control
session between gateways GA and GB" because the session created between
the gateways is not "a session layer 5 operation." (App. Br. 6-8.)
According to Appellant, Shukla teaches operating on session layer 3 instead.
(Id.) We are not persuaded by these arguments because Appellant does not
offer persuasive evidence or argument that the claims require the recited
operations to be performed on session level 5. Even assuming arguendo,
that the recited limitation must be performed at layer 5, we agree with the
Examiner's findings that Shukla teaches that control sessions between
gateways GA and GB can be performed on session layer 5 (e.g., Secure
Socket Layer (SSL)). (Ans. 3, 5---6; see also Shukla Figs. 2, 4, 5; i-fi-14, 9, 60,
61, 73.)
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Application 11/920,903
Appellant further argues that "the instant invention":
• "implements a proxy that operates at layer 5 (i.e., the
session layer), above both TCP and UDP" (App. Br. 7),
• "relies on the isolation of three networks - the client I
broker network, the broker I agent network, and the agent
I server network " (id. at 8),
• "recognizes that connections between the broker and
agent must be initiated by the agent in order to traverse
firewalls and NATs" (id.).
The argument is unpersuasive because it is not commensurate with
claim scope. For example, Appellant's argument suggests that claims 1 and
16 require, without support in the claim language, "a proxy" that operates at
layer 5. Further, Appellant has not offered persuasive argument that the
Examiner's interpretation is either overbroad or unreasonable. (Ans. 3, 6.)
See In re Zietz, 893 F.2d 319, 321 (Fed. Cir. 1989) (holding that although
the claims are interpreted in light of the specification, limitations from the
specification are not read into the claims). Thus, we are not persuaded that
the Examiner erred.
Argument Two
Shukla Does Not Teach or Suggest the Creation of a New Control Packet
Appellant contends that Shukla fails to disclose that "upon receipt of a
TCP SYN packet from the client over a secure network, the broker is
operative to capture the TCP SYN packet and send a modified control
packet to the agent using the secure control session," are recited in claims 1
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Application 11/920,903
and 16. (App. Br. 6-7.) 3 Specifically, Appellant argues that this limitation
"requires the creation of a separate control packet ... and Shukla never
suggests the creation of a new control packet at gateway GA, but merely
applies encryption methods and header manipulations to the original packet
received from end host A." (Id.) The argument is unpersuasive for two
reasons. First, we note that the claim language requires the broker to send "a
modified control packet" to the agent, and does not require "the creation of a
new control packet," as Appellant argues. Therefore, Appellant's argument
is not commensurate with the scope of the claim. Second, we agree with the
Examiner's finding that Shukla teaches this limitation. (Ans. 4; see Shukla
Figs. 5d, 5e; i-f 78.) Specifically, we agree that adding additional IP and
transport layer headers to a control packet and the subsequent encryption of
the packet teaches the "modified control packet" limitation in the claims.
(Ans. 4.)
Furthermore, we are not persuaded by Appellant's argument that
Shukla does not teach the "modified control packet." (See App. Br. 6-7.)
Specifically, Appellant has not provided persuasive evidence to support its
contention that "encryption methods and header manipulations to the
original packet" do not teach or suggest the "modified control packet," as
recited in the claim. (App. Br. 6---7.) Appellant's assertion in this regard is
mere attorney argument and a conclusory statement, which is unsupported
by factual evidence, and, thus is entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d
3 Appellant also contends that "Demmer fails to cure the above-described
shortfalls of Shukla." (App. Br. 8-9.) However, the Examiner is not relying
on Demmer for those limitations at issue. (Ans. 7 .)
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Application 11/920,903
699, 705 (Fed. Cir. 1984). Accordingly, we are not persuaded that the
Examiner erred.
Argument Three
Shukla Does Not Teach or Suggest the Creation of a New TCP SYN Packet
Appellant contends that Shukla fails to disclose that "the agent is
operative to receive the modified control packet from the broker and to
generate its own TCP SYN packet and to send its own TCP SYN packet to
the server," as recited in claims 1 and 16. (App. Br. 7 .) Specifically, similar
to the above argument, Appellant contends that this limitation
requires the creation of a separate TCP SYN packet by the
agent which is then sent to the server [and that] Shukla never
suggests the creation of another new control packet at gateway
GB, but merely applies encryption methods and header
manipulations to the original packet and sends that along to end
host B.
(App. Br. 7.)
We do not agree with Appellant's contentions for the same reasons
stated with respect to Argument Two, above. We agree, instead, with the
Examiner's finding that Shukla teaches this limitation. (Ans. 4--5; see
Shukla i-f 79.) Specifically, we agree that Shukla's descriptions of the
"gateway GB 21, strip[ping] off the extra IP and transport layer headers [of
the new IP packet,] encrypt[ing] it, and send[ing] ... to the end host B26,"
teach this limitation. (Ans. 4--5.) Furthermore, we find that Appellant has
not provided persuasive evidence to support its contention that "merely
appl[ying] encryption methods and header manipulations to the original
packet" would not satisfy this limitation. (App. Br. 6-7.) As stated above,
the statement is conclusory, constitutes attorney argument, and is entitled to
little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997);
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In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Accordingly, we are
not persuaded that Appellant has shown the Examiner erred.
Argument Four
Xie Does Not Teach or Suggest a Firewall as Claimed
Claim 1 recites that "the agent and broker are connected through at
least a firewall device to exchange data over the unsecured network link."
Claim 16 recites a similar limitation. The Examiner states that while
"Shukla and Demmer disclose all limitations [they] do not disclose [a]
gateway [that] is connected through a firewall." (Ans. 7.) Nevertheless, the
Examiner finds that "Xie discloses [at] each gateway between a private 102
and public network 104 there is a firewall 110[, and that i]t is clear that the
combination of Shukla, Demmer, and Xie does disclose" the limitations as
recited in the claims. (Ans. 8; see Xie, Fig. 1; 1:61-2:6.) Appellant
contends that Xie "provides merely an informal definition of a firewall [and]
it does not provide any teaching or suggestion in relation to how to establish
communications" as claimed. (App. Br. 9.) We agree with the Examiner's
findings, and do not find Appellant's arguments persuasive.
First, Appellant has not provided persuasive evidence for its
contention that the Xie firewall is different from the recited firewall.
Specifically, Appellant argues that Xie
does not provide any teaching or suggestion in relation to how to
establish communications as claimed in the presence of such a
firewall, which blocks outside hosts from communicating
directly with inside hosts, thus preventing a client from
establishing a session with a server as set forth in Applicant's
claims
(See App. 9.) Claims 1 and 16, however, merely require that the firewall
device exchange data over the unsecured network link," which is consistent
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with Xie's teaching of a firewall coupled in-line between a public network
and a private network for screening packets received from the public
network. (See Xie, 1:59-61.) The screening in Xie is not "blocking" as
Appellant argues-as Xie discloses that the firewall processes the packets in
accordance with access control list rules before routing the packet to the
private network. (See Xie, 2: 14-19.) Therefore, arguing that Xie' s firewall
fails to establish communications because it prevents a client session with a
server is not persuasive.
In addition, firewalls are well-known in the art, and are known to be
used "to safeguard [] private networks against intrusions through the
gateway provided at the interface of the private and public networks." (Xie,
1 :23---61.) We agree, therefore, with the Examiner's findings that the
limitation at issue is taught in Xie, and that
it would have been obvious to one of ordinary skill in the art at
the time of the invention was make to modify the Shukla and
Demmer invention by including the teaching of Xie by further
including the agent is connected through at least a firewall to the
broker to exchange data over the unsecure network to provide the
flexibility of the system, and further to enhance end-to-end
secure data communication.
(Final Act. 9; Ans. 7-8.) Appellant has not shown that the implementation
of a firewall to provide enhanced security in the exchange of data as taught
in Shukla and Demmer would have been uniquely challenging or otherwise
beyond the level of ordinarily skilled artisans. See Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). Accordingly, we
are not persuaded by Appellant's argument that the Examiner erred.
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Argument Five
Combination of the Cited References
Appellant further contends that "no combination of the cited
references enables a person of ordinary skill in the art to arrive at this
combination of features." (App. Br. 10.) As discussed above with respect to
Argument Four, we do not find Appellant's arguments persuasive. We have
found that the Examiner's rejection articulates a reasoning with a rational
underpinning for why a person of ordinary skill in the art at the time of the
invention would combine Shukla, Demmer, and Xie. (Ans. 8-9; Final Act.
8-9.) See KSR Int 'l Co., v. Teleflex, Inc., 550 U.S. 398, 415, 418 (2007). In
contrast, Appellant provides attorney argument and a conclusory statement
that is unsupported by persuasive evidence. (See App. Br. 10.) Thus, we are
not persuaded that Appellant has shown the Examiner erred.
For the reasons discussed above, we are not persuaded by Appellant's
contentions with respect to claims 1 and 16. Thus, we sustain the
Examiner's rejection of these claims under 35 U.S.C. § 103(a). We also
sustain the 35 U.S.C. § 103(a) rejection of dependent claims 2--4, 6-8, 10,
13, 15, 17-19, 21-23, 25, and 28-30, which are not argued separately.
DECISION
The decision of the Examiner to reject claims 1--4, 6-8, 10, 13, 15-19,
21-23, 25, and 28-30 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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