Ex Parte Ranous et al

Board of Patent Appeals and Interferences

Aug 21, 2012

10453068 (B.P.A.I. Aug. 21, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ALEXANDER CHARLES RANOUS,
MICHAEL JAMES BAUMANN, GLENNA G. MAYO,
JEFFREY DAVID MEYER, and JOAN SIMON RAVENTOS
____________________

Appeal 2011-003975
Application 10/453,068
Technology Center 3600
____________________

Before MURRIEL E. CRAWFORD, BIBHU R. MOHANTY, and NINA L.
MEDLOCK, Administrative Patent Judges.

MEDLOCK, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-003975
Application 10/453,068

2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 2, 4-10, 13-27, and 37-44. We have jurisdiction under
35 U.S.C. § 6(b).

STATEMENT OF THE DECISION
We REVERSE.1

BACKGROUND
Appellants’ invention is directed to a network subscriber usage data
recording system and method having an audit system. (Spec., para. [0012]).
Claim 1, reproduced below, is representative of the subject matter on
appeal:
1. A collector within a plurality of collectors in a network
subscriber usage recording system, said collector comprising:
an encapsulator for reading a plurality of network subscriber
metadata records from a network data source and converting the
network subscriber metadata records to a plurality of data normalized
metered events;
an aggregator for processing the data normalized metered
events to create aggregated normalized metered events;
a storage system; and
an auditor for collecting audit metadata from said collector and
generating audit normalized metered events based on the data
normalized metered events, wherein the auditor transfers the audit
normalized metered events from a volatile memory to a persistent
storage in the storage system periodically at a constant time interval.

1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed June 7, 2010) and Reply Brief (“Reply Br.,” filed October 19,
2010) and the Examiner’s Answer (“Ans.,” mailed August 19, 2010).
Appeal 2011-003975
Application 10/453,068

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THE REJECTIONS
The following rejections are before us for review:
Claims 1, 2, 4-10, 13-19, 21-27, and 37-44 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Bullard ‘251 (US 6,405,251 B1,
iss. Jun. 11, 2002) in view of Bullard ‘5145 (US 2003/0005145 A1, pub.
Jan. 2, 2003), Hind (US 7,206,791 B2, iss. Apr. 17, 2007), and Kanai (US
5,638,508, iss. Jun. 10, 1997).
Claim 20 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Bullard ‘251, Bullard ‘5145, Hind, Kanai, and further in view of
Examiner’s Official Notice.2

ISSUE
Did the Examiner err in rejecting the claims as unpatentable under 35
U.S.C. § 103? This issue turns principally on whether the cited prior art
teaches or suggests a collector comprising “an auditor for collecting audit
metadata from said collector.”

FINDINGS OF FACT
We find that the following enumerated findings of fact (FF) are
supported by at least a preponderance of the evidence. Ethicon, Inc. v.
Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general
evidentiary standard for proceedings before the Office). Additional facts
may appear in the Analysis section.

2 The Examiner expressly withdrew the rejection of claim 20 under 35
U.S.C. § 103(a) as unpatentable over Bullard ‘251, Bullard ‘5145, Hind, and
Kanai (Ans. 3).
Appeal 2011-003975
Application 10/453,068

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Bullard ‘251
FF1. Bullard ‘251 discloses a network accounting system, including a
plurality of data collectors, for collecting information regarding traffic flow
on the network (col. 1:5-8 and Fig. 1).
Bullard ‘5145
FF2. Bullard ‘5145 discloses a system for auditing a communication
session between a source connected to a first node of a service network and
a destination connected to a second node of the service network. At least
one of the source or destination is outside the service network and in
communication with an interface of the network. An internal flow collector
captures the traffic flow inside the service network and an external flow
collector captures the traffic flow outside the network at selected times
during the communication session (Abstract, para. [0023], and Fig. 1).
FF3. Paragraph [0005] of Bullard ‘5145 reads:
Conventional flow collectors and other types of traffic
monitoring devices provide many useful service auditing
functions. However, there are still many types of audit data that
are not available when using conventional flow collectors and
implementations thereof. The present invention uses novel
configurations of flow collectors to provide enhanced network
auditing functions.

FF4. Bullard at Fig. 1 and paragraph [0005] does not
specifically disclose that the collector includes an auditor for
collecting metadata from the collector.
FF5. Hind at col. 7:23-34 does not specifically disclose that the
collector includes an auditor for collecting metadata from the
collector.
Appeal 2011-003975
Application 10/453,068

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ANALYSIS
Independent Claim 1
Appellants argue that the rejection of claim 1 under 35 U.S.C. § 103 is
improper because neither Bullard ‘251 nor any of Bullard ‘5145, Hind, and
Kanai teaches or suggests a collector comprising “an auditor for collecting
audit metadata from said collector,” as recited in the claim (App. Br. 10-11
and Reply Br. 4). The Examiner acknowledges that Bullard ‘251 fails to
teach a controller comprising an auditor, and points to paragraph [0005] and
Fig. 1 of Bullard ‘5145 as providing the necessary teaching. The Examiner
thus maintains that the rejection is proper because it would have been
obvious to one of ordinary skill in the art in view of Bullard ‘5145 to modify
the collector disclosed in Bullard ‘251 to include an auditor within the
collector to collect audit data and obvious, in view of Hind, to further
modify the auditor to collect metadata from the collector (Ans. 15-16).
In rejecting claims under 35 U.S.C. § 103(a), the examiner bears the
initial burden of establishing a prima facie case of obviousness. In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Only if this initial burden is
met does the burden of coming forward with evidence or argument shift to
the appellant. Id. at 1445.
We agree with Appellants that Bullard ‘5145 does not teach or
suggest a collector that includes an auditor. The Examiner relies on Fig. 1
and paragraph [0005] of Bullard ‘5145 as support (Ans. 15-16). But Bullard
‘5145 neither teaches nor suggests that the internal collector 22 or the
external collector 24 in Fig. 1 includes an auditor for collecting data from
the collector (FF4).
Appeal 2011-003975
Application 10/453,068

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Paragraph [0005] of Bullard ‘5145 likewise fails to specifically teach
a collector including an auditor in the manner recited in the disputed claim
limitation (FF4). Paragraph [0005] only discloses that conventional flow
collectors provide “useful service auditing functions.” It does not describe
that the auditing function is performed within the conventional flow
collector, i.e., that conventional flow collectors themselves include auditors.
Instead, paragraph [0005] can reasonably be interpreted in context of the
specification to merely indicate that conventional flow collectors (and in
particular, the data collected from conventional flow collectors) can be used
in performing auditing functions.
The Examiner cites Hind at col. 7:23-34 as disclosing the
ability to collect metadata; we do not disagree. However, Hind in this
section fails to disclose that the collector includes “an auditor for
collecting metadata from said collector” (FF5), and the Examiner has
also not relied on Kanai to teach this claim limitation.
Here, the cited prior art references, Bullard ‘5145 and Hind, fail to
specifically disclose that the collector includes “an auditor for collecting
metadata from said collector” individually, and we see no articulated
reasoning with rational underpinnings for modifying the cited prior art
references to meet the claim limitation without hindsight. The Examiner
has, thus, failed to establish a prima facie case of obviousness with respect to
claim 1. Therefore, we do not sustain the rejection of claim 1 under 35
U.S.C. § 103.

Appeal 2011-003975
Application 10/453,068

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Independent Claims 14, 21, and 37
Claims 14, 21, and 37 include language similar to that in claim 1.
Accordingly, we do not sustain the rejection of these claims under § 103 for
the same reasons as set forth above with respect to claim 1.

Dependent Claims 2, 4-10, 13, 15-20, 22-27, and 38-44
Each of claims 2, 4-10, 13, 15-20, 22-27, and 38-44 depends from one
of claims 1, 14, 21, and 37. We do not sustain the rejection of dependent
claims 2, 4-10, 13, 15-20, 22-27, and 38-44 under § 103 for the same reasons
as set forth above with respect to claims 1, 14, 21, and 37. Cf. In re Fritch,
972 F.2d 1260, 1266 (Fed. Cir. 1992) (“[D]ependent claims are nonobvious
if the independent claims from which they depend are nonobvious.”).

DECISION
The Examiner’s rejection of claims 1, 2, 4-10, 13-27, and 37-44 under
35 U.S.C. § 103(a) is reversed.

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) (2011).

REVERSED

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