Ex Parte Selep et al

Patent Trial and Appeal Board

Mar 11, 2013

10942207 (P.T.A.B. Mar. 11, 2013)

MOD PTOL-90A (Rev.06/08)

APPLICATION NO. FILING DATE FIRST NAMED INVENTOR

ATTORNEY DOCKET NO.
10/942,227 09/16/2004 Matthew Eldridge C013-C-1

EXAMINER
H. C. Chan
T-RAM Semiconductor, Inc.
620 N. McCarthy Blvd.
Milpitas CA 95035-5124
LUU, PHO
ART UNIT PAPER NUMBER
2824
MAIL DATE DELIVERY MODE

03/13/2013 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.

UNITED STATES DEPARTMENT OF COMMERCE
U.S. Patent and Trademark Office
Address : COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________________________________________________________________________________

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_____________

Ex parte JOHN SELEP and MAURICIO SANCHEZ
_____________

Appeal 2010-009325
Application 10/942,227
Technology Center 2400
______________

Before ROBERT E. NAPPI, TREVOR M. JEFFERSON, and
MIRIAM L. QUINN, Administrative Patent Judges.

NAPPI, Administrative Patent Judge

DECISION ON APPEAL
Appeal 2010-009325
Application 10/942,227

2

This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1, 2, 4 through 26.

We affirm.
INVENTION
The invention is directed a method of proactive containment of
network security attacks. See pages 2, and 3 of Appellants’ Specification.
Claim 1 is representative of the invention and reproduced below:
1. A method of proactive containment of network security
attacks, the method comprising:
determining filtering parameters corresponding to a
specific system vulnerability; and
distributing said parameters to network infrastructure
components,
wherein the network infrastructure components are
configured to examine packets using said parameters to detect
occurrence of an attack against the specific system
vulnerability; and
wherein the network infrastructure components are
further configured to take action to inhibit the detected attack,
wherein the action to inhibit the attack comprises
terminating a connection or session through a network port.

REJECTIONS AT ISSUE
The Examiner has rejected claims 2, 4, and 5 under 35 U.S.C. § 112
second paragraph as being indefinite. Answer 3.1

1 Throughout this opinion we refer to Appellants’ Appeal Brief dated August
6, 2008, Reply Brief dated December 29, 2008 and the Examiner’s Answer
dated October 29, 2008.
Appeal 2010-009325
Application 10/942,227

3

The Examiner has rejected claims 1, 2, 6 through 12, 15, 18, and 26
under 35 U.S.C. § 102(b) as being anticipated by Coss (US 6,098,172; Aug.
1, 2000). Answer 3-7.
The Examiner has rejected claims 4, 13, 14, 19 through 23 and 25
under 35 U.S.C. § 103(a) as being unpatentable over Coss. Answer 8-11.
The Examiner has rejected claims 16, 17 and 24 under 35 U.S.C.
§ 103(a) as being unpatentable over Coss and Antur (US 6,243,815; Jun. 5,
2001). Answer 11.

ISSUES
Rejection under 35 U.S.C. § 112
Appellants argue on pages 6-7 of the Appeal Brief that the Examiner’s
rejection under 35 U.S.C. § 112 is error. These arguments present us with
the issue: did the Examiner err in finding that claims 2, 4 and 5 are
indefinite?
Rejection under 35 U.S.C. § 102 (b)
Appellants argue on pages 7-9 of the Appeal Brief that the Examiner’s
rejection under 35 U.S.C. § 102 is error. These arguments present us with
the issue: did the Examiner err in finding that Coss’s teaching of dropping
all of the packets associated with a session meets the claimed step of
terminating a session?
Rejections under 35 U.S.C. § 103 (a)
Appellants argue on pages 10-11 of the Appeal Brief that the
Examiner’s rejection of claims 4 and 19 under 35 U.S.C. § 103 is error.
These arguments present us with the issue: did the Examiner show that it
Appeal 2010-009325
Application 10/942,227

4

was known to limit the number of packets transmitted through a network
port to inhibit the attack?
ANALYSIS
We have reviewed Appellants’ arguments in the Briefs, the
Examiner’s rejection and the Examiner’s response to the Appellants’
arguments. We agree with Appellants’ conclusion that the Examiner erred
in rejecting claims 2, 4 and 5 under 35 U.S.C. § 112, however, we disagree
with Appellants conclusions’ directed to error in the Examiner’s rejections
based upon prior art.
Rejection under 35 U.S.C. § 112
The Examiner has rejected claims 2, 4, and 5 because each of these
claims depend upon claim 1, and each recites an action to inhibit the attack
by acting on packets transmitted through the network. The Examiner
reasons that since claim 1 recites that the action to inhibit the attack is to
terminate a connection or session, there are no packets on which to perform
the actions recited in claim 2, 4, and 5. Answer 11-12. Appellants, in
response, argue that the claims are definite as the Specification makes clear
that one or more of the actions to inhibit the attack can be performed. Brief
3 (citing Specification 5). Further, Appellants argue, that claim 1 recites
terminating a connection or session and not all of the connections or
sessions, thus other connection or sessions may not be terminated. Brief 3.
We concur with Appellants that claim 1 does not recite all connections or
sessions are terminated. Thus, the recitation in claims 2, 4, and 5 of
performing other actions on packets does not render those claims indefinite.
Accordingly, we will not sustain the Examiners’ rejection based upon 35
U.S.C. § 112.
Appeal 2010-009325
Application 10/942,227

5

Rejection under 35 U.S.C. § 102 (b)
As discussed above, claim 1 recites that an action to inhibit the attack
comprises terminating a connection or session through a network port. The
Examiner finds that Coss teaches dropping a packet based upon a processing
rule, and that this rule is applied to only the first packet of a session.
Answer 12. Thus, the Examiner concludes that since the packets from a
session are dropped, the session is terminated. Answer 12. Appellants argue
this is in error, as the term “terminating a session” has a specific meaning in
the network art, and provide two anecdotal examples. Answer 8. Based
upon these examples, Appellants conclude that dropping of the packets
meets the specific meaning of terminating a connection. Brief 8-9. We
concur with the Examiner’s findings and are not persuaded of error by
Appellants’ arguments, as Appellants’ anecdotal examples are not supported
by objective evidence or record. Accordingly, we sustain the Examiner’s
anticipation rejection of claims 1, 2, 6 through 12, 15, 18, and 26 under 35.

Rejections under 35 U.S.C. § 103 (a)
Claims 16, 17, and 24
Appellants did not provide arguments directed to claims 16, 17 and 24
under 35 U.S.C. § 103(a) as being unpatentable over Coss and Antur. As
these claims depend upon claim 1, we sustain the Examiner’s rejection of
these claims for the reasons discussed with respect to claim 1.
Claims 4, 13, 14, 19 through 23 and 25
Appellants argue that the Examiner relied upon official notice and did
not provide the evidence to support the finding that throttling a network port
Appeal 2010-009325
Application 10/942,227

6

was known. Brief 10. Further, Appellants argue that throttling does not
meet the claim 4 and 19 limitation of limiting the number of packets
transmitted thought the network port. Brief 11. The Examiner asserts that
the taking of official notice is proper as it was done in the both a non-final
and the final office action and that Appellants did not question the taking of
notice until the Appeal. Answer 13. Further the Examiner finds that
throttling pertains to the limiting of flow, and, as such, is limiting the
number of packets through the network port. We concur with the Examiner.
The Examiner identified the finding that it was well-known  that
throttling a network port is well-known in the art  in a Non Final Office
action dated October 4, 2007 at 6, Final Office action dated April 16, 2008,
at 7. Appellants did not demand the Examiner produce evidence in support
of this finding before this appeal, nor has Appellants provided a basis for
questioning the finding’s accuracy. See In re Chevenard, 139 F.2d 711,
712-13 (CCPA 1943) (declining to consider the belated challenge by an
appellant to an examiner’s assertion as to “common knowledge” in the art
“in the absence of any demand by appellant for the examiner to produce
authority for his statement”). Further, in the Appeal Brief, on pages 10 and
11, the Appellants offer only a bald challenge to the Examiner's findings
without presenting the requisite information or argument that creates, on its
face, a reasonable doubt regarding the validity of the Examiner's findings.
In re Boon, 439 F.2d 724, 727 (CCPA 1971). To adequately traverse
Official Notice, the Appellants must specifically point out the supposed
errors in the Examiner's assertions, which includes stating why the noticed
fact is not considered to be common knowledge or well-known in the art.
Compare In re Knapp-Monarch Co., 296 F.2d 230, 232 (CCPA 1961)
Appeal 2010-009325
Application 10/942,227

7

(considering challenge to taking of judicial notice by Trademark Trial and
Appeal Board), see also 37 C.F.R. § 1.111(b). Appellants merely request
the Examiner to provide a prior art reference without presenting any
arguments or evidence as to why the Examiner's Official Notice was
incorrect. Thus, we are not persuaded that the Examiner erred in not
providing evidence to support the noticed findings.
Further, we are not persuaded by Appellants’ argument that throttling
does not meet the claim 4 and 19 limitation directed to limiting the number
of packets. As found by the Examiner throttling relates adjusting or limiting
the flow, which in the case of a network port is the flow of data packets.
Additionally, we note that Coss’s teaching of dropping packets, which
relates to not passing the packets along the network, also seems to be a form
of limiting the number of packets (i.e. the number of packets transmitted
through the port is limited to be the number dropped, less than received.)
Accordingly, Appellants’ arguments have not persuaded us of error in the
Examiner’s rejection of claim 4 and 19. As Appellants have not presented
arguments directed to claims 13, 14, 20 through 23 and 25 which are
similarly rejected under 35 U.S.C. § 103(a), we sustain the rejection of these
claims also.

DECISION
The decision of the Examiner to reject claims 1, 2, 4 through 26 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)(1)(iv).

Appeal 2010-009325
Application 10/942,227

8

AFFIRMED

ke