Ex Parte Petersen et al

Patent Trial and Appeal Board

Jun 10, 2016

13175677 (P.T.A.B. Jun. 10, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/175,677 07 /01/2011
25231 7590 09/01/2016
MARSH, FISCHMANN & BREYFOGLE LLP
8055 East Tufts A venue
Suite 450
Denver, CO 80237
FIRST NAMED INVENTOR
Chris Petersen
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.
50259-00009 3030
EXAMINER
ALLEN,BRITTANYN
ART UNIT PAPER NUMBER
2169
NOTIFICATION DATE DELIVERY MODE
09/01/2016 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):
PTOMail@mfblaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRIS PETERSEN and PHILLIP VILLELLA
Appeal2014-008723
Application 13/175,677
Technology Center 2100
Before JEAN R. HOMERE, JOHN A. EV ANS, and
DANIEL J. GALLIGAN, Administrative Patent Judges.
EV ANS, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
INTRODUCTION
In a Request for Rehearing filed August 15, 2016 ("Request," "Req.
Reh'g."), Appellants request rehearing of the Decision of the Patent Trial
and Appeal Board ("Board") mailed June 14, 2016 ("Decision," "Op."), in
which we affirmed the final rejection of claims 11, 13, 18, 29, 31, 36, and 37
under 35 U.S.C. § 102(e) as being anticipated by Kienzle et al. (US
7,934,257 Bl; Apr. 26, 2011) and Claims 14--17, 28, 30, 32-35, and 38
under 35 U.S.C. § 103(a) as being obvious over Kienzle and additional
references.
The Request alleges that the Board misapprehended and overlooked a
number of points previously argued by Appellants in the Appeal Brief. Req.
Appeal2014-008723
Application 13/175,677
Reh' g. 1. We disagree.
ANALYSIS
CLAIM 11
First, Appellants contend the Board misapprehended the description in
Kienzle that the Examiner relied upon as the claimed "data management
setting." Req. Reh'g. 1. Appellants dispute the Board's characterization of
the Examiner's finding as the "configuration of the agent [in Kienzle] not
searching for supporting events to be forwarded to the agent manager," as
the data management setting. Req. Reh'g. 1 (quoting Op. 5). Appellants
assert the Examiner finds that when supporting events are searched and not
found, the data management setting specifies that action of forwarding the
events is not taken. Req. Reh'g. 1 (citing Ans. 4). The Examiner states:
The data management setting of Kienzle, the searching for
supporting events, does not find the supporting data upon first
attempt, so the data management setting specifies that the action
is not taken at this time.
Ans. 4 (citing Kienzle, col. 6, 11. 13-20). Contrary to Appellants' assertion,
the Examiner finds when supporting data, not supporting events, are not
found, no action is taken. Id. Appellants characterize the data management
setting the Examiner finds in Kienzle as specifying not to forward unfound
events. Req. Reh'g. 2. Kienzle states:
[I]f the triggering event includes unauthorized, repeated
network access by a remote machine, the agents may look for
any additional network access by the remote machine. If the
necessary supporting data is not found, the agent can establish a
temporary rule to immediately forward any supporting events
that comply with or potentially comply with the pattern.
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Appeal2014-008723
Application 13/175,677
Kienzle, col. 6, 11. 16-22. Kienzle further discloses: "Based on the
collection rules, the agents are configured to discard certain events and
report others." Id. at col. 3, 11. 34--35. Thus, these portions of Kienzle relied
upon by the Examiner disclose that, before the triggering event occurs, the
agent is configured based on the collection rules not to search for supporting
events related to the triggering event and not to forward such supporting
events. See(). This configuration of the agent is the data management
setting the Examiner finds in Kienzle. Ans. 4; Op. 5.
Second, Appellants argue the Board has overlooked that the recited
data management setting specifies one of taking and not taking an action in
relation to logs matching a log processing rule, and that the override setting
specifies the other of taking and not taking the action. Req. Reh'g. 2.
Appellants contend an agent in Kienzle does not search for supporting
events to be forwarded to the agent manager because of a data management
setting in Kienzle that specifies for an agent in Kienzle to not search for
supporting events to be forwarded to the agent manager. Id. We disagree.
As discussed above, the data management setting is disclosed by the
collection rules configuring an agent not to search for supporting events
related to the triggering event and not to forward such supporting events.
Ans. 4; Op. 5; Kienzle, col. 3, 11. 34--35. Appellants assert that the agent in
Kienzle does not forward supporting events to the agent manager because
the agent searches and does not find them. Req. Reh'g. 3. However, as
mentioned above, Kienzle' s disclosure contradicts this assertion. Kienzle,
col. 3, 11. 34--35 ("[A]gents are configured to discard certain events."); see
also id. at col. 3, 11. 40-42 ("The agent manager may instruct the agents to
discard certain events."); (recognized by Appellants) Req. Reh'g 5.
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Appeal2014-008723
Application 13/175,677
Appellants argue an agent in Kienzle may not search for supporting events
to be forwarded to the agent manager in the absence of the temporary rule.
Req. Reh'g. 3 (citing Kienzle, col. 6, 11. 13-23). However, Kienzle
describes, before the agent establishes the temporary rule, as discussed
above, the agent is configured by a data management setting not to search
for supporting events to be forwarded to the agent manager. Ans. 4; Op. 5;
Kienzle, col. 3, 11. 34--35, 40-42. Kienzle further describes that, after the
triggering event occurs, the agent establishes a temporary rule to forward
any detected supporting events that comply or potentially comply with a
pattern. See Op. 5 (quoting_Kienzle, col. 6, 11. 20-22); (recognized by
Appellants) Req. Reh'g 5.
CLAIM29
Appellants argue the claim requires the same override setting to
process both the first and second logs, which are associated with different
data management settings. Req. Reh' g. 4. Appellants further contend
Kienzle does not describe a single override setting that is used to process
events from a first agent set to ignore an event of type A and forward an
event of type B and a second agent set to report an event of type A and
discard an event of type B. Appellants' arguments are raised for the first
time in Appellants' Request.
Requests for rehearing must comply with 37 C.F.R.
§ 41.52(a)(l), and "must state with particularity the points
believed to have been misapprehended or overlooked by the
Board." Moreover, requests must specifically recite "the points
of law or fact which [A ]ppellant[ s] feel[] were overlooked or
misapprehended by the Board." (MPEP § 1214.03.)
Arguments raised by Appellants for the first time in a Request
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Appeal2014-008723
Application 13/175,677
for Reconsideration are waived if the arguments were required
to have been made in the Briefs, unless good cause is shown.
Ex parte Quist, 95 USPQ2D 1140, 1141 (BPAI 2010) (precedential); cf
Hyattv. Dudas, 551F.3d1307, 1313-14 (Fed. Cir. 2008). Having not
shown "good cause," Appellants have waived these arguments.
CLAIM28
Appellants argue the claim requires a relationship between the
override setting and underlying data management setting. Req. Reh'g. 5
(citing Op. 10). Appellants note Kienzle states "how agents may 'discard
certain events, report other events, or aggregate similar, identical or other
events."' Id. (quoting Kienzle, col. 3, 11. 40-42). Appellants' further note
Kienzle further teaches "[an] agent can establish a temporary rule to
immediately forward any supporting events that comply with or potentially
comply with the pattern." Id. (quoting Kienzle, col. 6, 11. 20-22).
Appellants contend Kienzle does not teach "that the temporary rules to
forward support events of type A specifically override an underlying data
management setting that specifies [discarding] events of type A (or vice
versa)." Id. Appellants' arguments are raised for the first time in
Appellants' Request. Therefore, Appellants have waived these arguments.
See 37 C.F.R. § 41.52(a)(l).
We have considered the arguments properly raised by Appellants in
the Request, but Appellants have not persuaded us that the original decision
was m error.
Based on the record before us now and in the original appeal, we are
still of the view that the rejection of claims 11, 13-18, and 28-38 should be
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Appeal2014-008723
Application 13/175,677
sustained.
We have granted the Request to the extent that we have reconsidered
our Decision of June 14, 2016, but we deny the request with respect to
making any changes therein.
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).
REHEARING DENIED
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