Ex Parte Srivastava et al

Patent Trial and Appeal Board

Nov 16, 2017

13368107 (P.T.A.B. Nov. 16, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/368,107 02/07/2012 Manu Srivastava 335099.01 1083
69316 7590 11/20/2017
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
EXAMINER
CELANI, NICHOLAS P
ART UNIT PAPER NUMBER
2449
NOTIFICATION DATE DELIVERY MODE
11/20/2017 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):
u sdocket @ micro soft .com
chriochs @microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MANU SRIVASTAVA, KARTIK PARAMASIVAM, and
MURALI KRISHNAPRASAD
Appeal 2017-000577
Application 13/368,107
Technology Center 2400
Before ALLEN R. MacDONALD, ROBERT E. NAPPI, and
KEVIN C. TROCK, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-000577
Application 13/368,107
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection
of claims 1—7, 9—11, and 13—22. Claims 8 and 12 have been cancelled.
App. Br. A3—A4. We have jurisdiction under 35 U.S.C. § 6(b).
Representative Claim
Representative claim 1 under appeal reads as follows (emphasis
added):
1. A method performed by a messaging host in a
distributed messaging system, comprising:
receiving a request from a gateway for any available
message or set of related messages contained in any of a
plurality of messaging entities hosted by the messaging host;
identifying a subset of the plurality of messaging entities
that contain at least one available message or set of related
messages;
assembling an ordered list of the messaging entities in the
subset of the plurality of messaging entities;
determining a particular messaging entity in the subset
that is at the beginning of the ordered list;
servicing the request from the particular messaging
entity;
locking a particular message or set of related messages
contained by the particular messaging entity until expiration of
a time period; and
sending, to the gateway, a response that indicates that the
particular message or set of related messages can be accessed
by a client that caused the request to be issued, the response
being cached by the gateway and then expired therefrom upon
expiration of the same time period.
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Appeal 2017-000577
Application 13/368,107
Rejections on Appeal
The Examiner rejected claims 1—4, 21, and 22 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Dar et al. (US
2010/0100890 Al, issued Apr. 22, 2010), Hamilton et al. (US 2003/0182464
Al, issued Sept. 25, 2003), Clohset et al. (US 6,629,217 Bl, issued Sept. 30,
2003), and Paramasivam et al. (US 2010/0318654 Al, published Dec. 16,
2010).1
The Examiner rejected claims 5—7, 9—11, and 13—20 under 35 U.S.C.
§ 103(a) as being unpatentable over Dar, Hamilton, Clohset, and
Paramasivam in various combinations with other references.2
Issues on Appeal
Did the Examiner err in rejecting claim 1 as being obvious?
1 We select claim 1 as representative. Separate patentability is not argued
for claims 2-4, 21, and 22. Therefore, our decision as to claim 1 is
determinative as to the rejection of these claims. Except for our ultimate
decision, these claims are not discussed further herein.
2 Independent claims 9 and 14 recite similar limitations, from the perspective
of the gateway instead of the host as in claim 1. The rejections of
independent claims 9 and 14 are argued by reference to the reasons
Appellants set forth with respect to independent claim 1. App. Br. 21—22.
The rejections of dependent claims 5—7, 10, 11, 13, and 15—20 are argued by
reference to their dependency from their base claims. Id. Therefore, our
decision as to claim 1 is determinative as to the rejections of these claims.
Except for our ultimate decision, these claims are not discussed further
herein.
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Appeal 2017-000577
Application 13/368,107
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred.
Examiner finds Dar teaches:
sending, to the gateway, a response that indicates that the
particular message or set of related messages can be accessed by
a client that caused the request to be issued (See also
Paramasivam paras. 26-28. paras. 32, 39, 44; peek-lock.)
Final Act. 4 (emphasis omitted). Examiner also finds:
Dar para. 33 is an example of a client performing a peek-lock
command. But, as stated above, it would be obvious to structure
the system such that the client issues a command to the proxy, and
the proxy issues the peek-lock request to the queue. A standard
peek-lock would thus “lock[] a particular message or set of related
messages contained by the particular messaging entity until
expiration of a time period.” Following standard peek-lock
procedure, the queue would then inform the requestor (the proxy)
that it has exclusive access for a period of time.
Final Act. 26.
Appellants contend3 that the Examiner erred in rejecting claim 1 under
35 U.S.C. § 103(a) because:
On page 26 of the Final Office Action, the Examiner asserts that
“Following standard peek-lock procedure, the queue would then
inform the requestor (the proxy) that it has exclusive access for
a period of time.” Appellants respectfully submit that this is not
standard peek-lock procedure. In fact, the peek-lock scheme of
Dar does not teach that a queue informs a requestor that it has
exclusive access for a period of time.
App. Br. 14—15.
3 This contention is determinative as to the rejections on appeal. Therefore,
Appellants’ other contentions are not discussed herein.
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Appeal 2017-000577
Application 13/368,107
Examiner responds:
Examiner made clear that the peek-lock was the “leased” peek
lock of Paramasivam, because that is the only peek-lock that had
a timer. That is, after all, Examiner’s explicit statement for
adding Paramasivam to the rejection (See Non-Final, pg. 22;
“Examiner cites Paramasivam to teach the amended limitation,
para. 28 teaches a lock of limited duration.”). So this argument
is an improper piecemeal view of the rejection. The combined
teachings of Dar and Paramasivam render a system that responds
with both the content of the message and the lease.
Ans. 18 (emphasis omitted).
In turn, Appellants argue:
[0]n page 18 of the Appeal Brief, the Examiner misconstrues
Appellants’ argument with regards to Dar (presented on page 15
of the Appeal Brief). Appellants did not argue that Dar does not
teach “a period of time.” Instead, Appellants argued the
following: “Dar does not teach that a queue informs a requestor
that it has exclusive access for a period of time” (emphasis
added). Thus, Appellants were pointing out Dar’s lack of
informing of exclusive access from a queue to a requestor.
Examiner argues that the message content that is sent after a
peek-lock request is sent is the response. Appellants disagree. A
response that indicates that something can access something for
a period of time is not the same as a message that provides the
requested content.
Reply Br. 5—6 (unnumbered).
We agree with Appellants’ argument that the Examiner is mistaken in
finding that Dar (and the peek-lock of Paramasivam) teaches “sending, to
the gateway, a response that indicates that the particular message or set of
related messages can be accessed by a client that caused the request to be
issued.” Final Act. 4. We conclude, consistent with Appellants’ argument,
there is ultimately insufficient articulated reasoning to support the
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Appeal 2017-000577
Application 13/368,107
Examiner’s final conclusion that claim 1 would have been obvious to one of
ordinary skill in the art at the time of Appellants’ invention.
As articulated by the Federal Circuit, the Examiner’s burden of
proving non-patentability is by a preponderance of the evidence. See In re
Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (“preponderance of the
evidence is the standard that must be met by the PTO in making rejections”).
“A rejection based on section 103 clearly must rest on a factual basis[.]” In
re Warner, 379 F.2d 1011, 1017 (CCPA 1967). “The Patent Office has the
initial duty of supplying the factual basis for its rejection. It may not. . .
resort to speculation, unfounded assumptions or hindsight reconstruction to
supply deficiencies in its factual basis.” Id. Here, the Examiner’s analysis
fails to meet this standard because it does not adequately explain why by
following standard peek-lock procedure, the queue would inform the
requestor that it has exclusive access for a period of time.
CONCEUSIONS
(1) Appellants have established that the Examiner erred in rejecting
claims 1—7, 9—11, and 13—22 as being unpatentable under 35 U.S.C.
§ 103(a).
(2) On this record, claims 1—7, 9—11, and 13—22 have not been shown
to be unpatentable.
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Appeal 2017-000577
Application 13/368,107
DECISION
The Examiner’s rejections of claims 1—7, 9—11, and 13—22 are
reversed.
REVERSED
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