Ex Parte Steuer et al

Patent Trial and Appeal Board

Jun 29, 2018

13719284 (P.T.A.B. Jun. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
131719,284
146568 7590
Entit Software LLC
500 Westover Drive
#12603
Sanford, NC 27330
FILING DATE FIRST NAMED INVENTOR
12/19/2012 Rotem Steuer
07/03/2018
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.
83098521 2593
EXAMINER
SOW A, TIMOTHY JOHN
ART UNIT PAPER NUMBER
2448
NOTIFICATION DATE DELIVERY MODE
07 /03/2018 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):
software.ip.mail@microfocus.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROTEM STEUER, MICHAEL GOPSHTEIN, and
EY AL KENIGSBERG
Appeal2017-006108
Application 13/719,284 1
Technology Center 2400
Before ERIC B. CHEN, MATTHEW R. CLEMENTS, and
SCOTT E. BAIN, Administrative Patent Judges.
BAIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-20, which constitute all claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 Appellants identify the real party in interest as Hewlett Packard Enterprise
Development LP. App. Br. 1.
Appeal2017-006108
Application 13/719,284
STATEMENT OF THE CASE
The Invention
The invention relates to monitoring the continued availability of an
important client application, such as a web server through which products
are sold, in a computing system. Spec. i-f 1. According to the Specification,
the invention includes a "monitor system" that "detect[ s] a threshold
impairment of a client experience in relation to ... application
component( s )" and "trigger[ s] a high availability feature ... in response to"
the detection. Id. at i-f 11. "In some examples," the system may monitor
"interactions between the application component(s) and the client. .. by
accessing network traffic exchanged between [them] (e.g., via sniffing)."
Id. at i-f 21. "In other examples," the system "may monitor the interactions in
any other suitable manner." Id.
Claims 1, 9, and 13 are independent. Claim 1 is illustrative of the
invention and the subject matter of the appeal, and reads as follows:
1. A non-transitory machine-readable storage medium
encoded with instructions that are executable by a computing
device to:
monitor interactions between at least one application
component and a client that interacts over a network with the at
least one application component, the at least one application
component running on a system, the system and the client
separate from the computing device;
detect, based on content of the monitored interactions, a
threshold impairment in an experience of the client in relation to
the at least one application component; and
in response to the detection of the threshold impairment,
trigger a high availability feature implemented for the at least one
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Application 13/719,284
application component by a system infrastructure running the at
least one application component.
App. Br., Claims App. (p. i).
Rejections on Appeal
Claims 1-3, 5, 6, 8, 13-16, 18, and 20 stand rejected under pre-AIA
35 U.S.C. § 102(b) as being anticipated by Watson et al.
(US 2008/0046552 Al; Feb. 21, 2008) ("Watson"). Final Act. (Dec. 1,
2015) 4--11; Ans. 2.
Claim 4 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Watson and Bansod et al. (US 200710168496 A 1; July 19,
2007) ("Bansod"). Final Act. 12-13; Ans. 2.
Claim 7 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Watson and Buzato et al., Dynamic content web
applications: Crash,failover, and recovery analysis, 2009 IEEE/IFIP
International Conference on Dependable Systems & Networks, pp. 229-238
(2009) ("Buzato"). Final Act. 13-14; Ans. 2.
Claims 9 and 12 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Watson and Patel et al. (US 2010/0302940 Al; Dec.
2, 2010) ("Patel"). Final Act. 14--16; Ans. 2.
Claims 10 and 11 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Watson, Patel, and Bansod. Final Act. 16-17;
Ans. 3.
Claims 17 and 19 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Watson and Marsh et al. (US 7,552,365 Bl; June
23, 2009) ("Marsh"). Final Act. 18; Ans. 3.
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ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments presented in this appeal. Arguments which Appellants could
have made but did not make in the Briefs are deemed to be waived. See 37
C.F.R. § 41.37(c)(l)(iv). On this record, we are persuaded the Examiner
erred in rejecting claims 18-20. As to the remaining claims on appeal, we
are not persuaded of error, and we adopt as our own the findings and reasons
set forth in the rejections of those claims and in the Examiner's Answer. We
highlight the following for emphasis.
Claims 1-3, 5, 6, 8, and 13-16
Appellants argue the Examiner erred in finding Watson's monitoring
device 108 (i.e., the network device 1024 including the service monitoring
and failover mechanism 108) discloses a "computing device ...
monitor[ing] interactions between [an] application component and a client,"
as recited in claim 1. App. Br. 5-9 (emphasis added); Reply Br. 2-8.
Specifically, Appellants contend the monitoring device 108 engages an
application for monitoring (e.g., pings, tests, or requests monitoring data)
and thus does not itself monitor "interactions between" that application (or
any other) and a client, as required by claim 1. App. Br. 6-7; Reply Br. 4---6.
Appellants also argue that Watson's monitoring "involves" only the
monitoring device 108 and engaged application, whereas the monitoring
recited in claim 1 "involves" the monitoring device, application, and client.
App. Br. 7-8; Reply Br. 3--4. We, however, are not persuaded of error.
As the Examiner finds, Watson's monitoring device 108 monitors
server-client traffic between, i.e., "interactions between" (claim 1 ), an
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Application 13/719,284
application server 114 and client 102. Ans. 4 (citing Watson i-fi-12, 19--21,
26); Final Act. 4--5 (additionally citing Watson i-fi-f 16, 22-24); see also
Watson i-fi-1 20 ("monitors ... hosted Internet services ... to which a client
... is coupled and interacting"), 22 ("determine a service failure ... [via]
predefined thresholds ... for degraded service (e.g., a slow response/long
latency time, intermittent response and so forth)"). Further, we note that
claim 1 recites "the system [on which an application runs] and the client
separate from the computing device [i.e., monitoring device]," not separating
all monitoring activity from the application. App. Br. i (emphasis added). In
re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (claim
terms given their "their broadest reasonable interpretation consistent with the
specification"). We agree with the Examiner's conclusion that "the broadest
reasonable interpretation of 'separate' is not ... never interact[ing] with that
which is monitored ... , [but rather met] so long as a monitoring service
otherwise is separate and distinct from that which is monitored." Final
Act. 3. Thus, as the Examiner finds, Watson's monitoring device 108
discloses the disputed limitation despite the fact that monitoring device 108
engages the application server 114 to monitor server-client traffic.
We are also unpersuaded by Appellants' argument that the monitoring
disclosed in Watson fails to "involve" the client 102. The disputed
claim limitation ("computer device ... monitor[ s] interactions between [an]
application component and a client") does not recite the monitoring device
(computing device) as involving the client in the monitoring. Appellants
point to nothing in claim 1 or the Specification that compels such a
restriction. Further, the Specification confirms the invention may "monitor
the interactions between the application component(s) and the client"
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without their involvement, "e.g., via sniffing" their exchanged network
traffic or "in any other suitable manner." Spec. i-f 21; see also supra 2
(describing the invention).
For the foregoing reasons, we sustain the anticipation rejection of
claim 1, as well as claims 2, 3, 5, 6, 8, and 16 grouped therewith. App. Br.
5; 37 C.F.R. § 41.37(c)(iv). Appellants' arguments regarding claims 13-15
are redundant to those regarding claim 1, App. Br. 9-10, and for the same
reasons, we also sustain the anticipation rejection of claims 13-15.
Claims 4, 7, 9-12, and 17
Appellants' arguments regarding claims 4, 7, 9-12, and 17 are
redundant to those regarding claim 1. App. Br. 9-10, 12-15. For the
reasons set forth above in regard to claim 1, we sustain the obviousness
rejections of claims 4, 7, 9-12, and 17.
Claim 20
Independent claim 13 recites in pertinent part "detecting ... a
threshold impairment of an experience of the client in relation to the web
server application," and its dependent claim 20 further recites, "wherein the
detecting of the threshold impairment comprises detecting that a sequence of
actions with respect to a webpage did not successfully complete." App. Br.
iv-v (emphasis added). Appellants argue:
Although i-f [0022] of Watson refers to detecting that a service is
down (which was specifically relied upon by the final rejection
and also noted in the Examiner's Answer), Appellant
respectfully submits that detecting that a service is down does
not involve detecting that a sequence of actions with respect to
the webpage did not successfully complete.
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Reply Br. 10. The Examiner finds:
Watson discloses detecting that a service is down. (i-f [0022])
Detecting a sequence of actions with respect to a webpage not
completing successfully includes[,] within the scope of its
broadest reasonable interpretation[,] ... that web service failures
are detected. (i-f [0021 ]).
Ans. 6. On the record before us, Appellants' arguments persuade us the
Examiner erred.
Dependent claim 20 requires detecting a sequence of actions [for] a
webpage "did not successfully complete." The Examiner finds only that
Watson discloses detecting web service "impairment." See id. Although
this passage discloses the "impairment" feature recited in independent claim
13, dependent claim 20 recites additional limitations regarding a particular
kind of impairment, i.e., actions "did not successfully complete." The
Examiner's findings do not explain why a person of ordinary skill in the art
would understand the foregoing passage of Watson to disclose the further
limitation recited in dependent claim 20. See Contra, Free Motion Fitness,
Inc. v. Cybex Int'!, Inc., 423 F.3d 1343, 1351 (Fed. Cir. 2005) ("The doctrine
of claim differentiation creates a presumption that each claim in a patent has
a different scope.") (internal quotation marks and citations omitted).
Accordingly, we do not sustain the anticipation rejection of dependent
claim 20.
Claims 18 and 19
Appellants argue that the Examiner erred in rejecting dependent claim
18 as anticipated by Watson, because its base claim 9 is rejected as obvious
over Watson and Patel. Similarly, Appellants argue the Examiner erred in
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rejecting dependent claim 19 as obvious over Watson and Marsh, because
base claim 9 is rejected as obvious over Watson and Patel. App. Br. 10-11,
14--15. In other words, Appellants argue that without inclusion of Patel, the
rejections of claims 18 and 19 cannot stand. We agree.
The Examiner asserts this was a "typographical error," but does not
remedy the error. In the Answer, the Examiner still identifies the "Grounds
of Rejection to be Reviewed on Appeal" as including claim 18 "anticipated"
by "Watson" (omitting Patel) and claim 19 obvious over Watson and Marsh
(omitting Patel). Ans. 2,fns. 1-2; see also Ans. 5---6. The Examiner also
acknowledges Patel would be needed in the rejections of the dependent
claims. Id.
Because the Examiner has not remedied the admitted deficiencies in
the rejections of claims 18 and 19, we are persuaded of error. Accordingly,
we do not sustain the rejections of dependent claims 18 and 19.
DECISION
We affirm the Examiner's decision rejecting claims 1-1 7.
We reverse the Examiner's decision rejecting claims 18-20.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R.
§ 41.50(±).
AFFIRMED-IN-PART
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