Ex Parte Yang-Huffman et al

Board of Patent Appeals and Interferences

May 30, 2012

10649303 (B.P.A.I. May. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte SIEW-HONG YANG-HUFFMAN and
MAURICE LABONTE
____________________

Appeal 2009-011878
Application 10/649,303
Technology Center 2400
____________________

Before JOHN A. JEFFERY, THOMAS S. HAHN, and JUSTIN T. ARBES,
Administrative Patent Judges.

ARBES, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-30, the only claims pending in the application on appeal. We have
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).1
We affirm.
The claims are directed to a system and method for monitoring a
network. Claim 1 is exemplary:
1. A system for monitoring network condition,
comprising:
a policy server operable to generate collection
configuration information based on network topology
information and at least one collection policy; and
at least one collector operable to access the collection
configuration information and operable to poll a subset of
network nodes requiring monitoring according to the collection
configuration information.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Fairchild

See

US 6,343,320 B1

US 2004/0008727 A1

Jan. 29, 2002

Jan. 15, 2004
(filed June 25, 2003)

1 Our decision will make reference to Appellants’ Appeal Brief (“App. Br.,”
filed March 17, 2008 and supplemented May 28, 2008 and September 22,
2008) and Reply Brief (“Reply Br.,” filed February 11, 2009), and the
Examiner’s Answer (“Ans.,” mailed December 11, 2008) and Final
Rejection (“Final Rej.,” mailed January 2, 2008).
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Conrad

US 7,302,478 B2

Nov. 27, 2007
(filed Mar. 2, 2001)

REJECTIONS
Claims 1-9 and 20-23 stand rejected under 35 U.S.C. § 102(e) as
being anticipated by See. Ans. 5-7.
Claims 10, 11, and 15-19 stand rejected under 35 U.S.C. § 102(a)2 as
being anticipated by Conrad. Ans. 8-9.
Claims 24-30 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Fairchild. Ans. 9-10.
Claims 12-14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Conrad in view of Fairchild. Ans. 10-12.3

2 Although the Examiner rejected these claims under 35 U.S.C. § 102(a),
Conrad actually qualifies as prior art under 35 U.S.C. § 102(e) because it
issued after Appellants’ filing date, but was filed before that date. We
nevertheless deem this error harmless for it does not affect our assessment of
the merits of the Examiner’s anticipation rejection.
3 The Examiner also included in the “Grounds of Rejection” section of the
Answer rejections of claim 24 under 35 U.S.C. §§ 101 and 112. Ans. 4-5.
The Examiner, however, agreed with Appellants’ statement that the only
grounds of rejection to be reviewed on appeal are those under 35 U.S.C. §§
102 and 103. See Ans. 2; App. Br. 3-4. Also, the Examiner withdrew
identical 35 U.S.C. §§ 101 and 112 rejections after the Final Rejection and
amendments to claim 24. See Advisory Action mailed September 23, 2008.
Thus, we presume that including these rejections in the Answer was merely
a clerical error and not meant to constitute new grounds of rejection, and do
not address them in this decision.
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ISSUES
Appellants argue on pages 5-13 of the Appeal Brief and pages 4-7 of
the Reply Brief that the Examiner’s rejections of independent claims 1, 10,
20, and 24 are in error. These arguments present us with the following
issues:
(1) Did the Examiner err in finding that See discloses at least
one collector operable to “poll a subset of network
nodes,” as recited in claim 1 and similarly recited in
claim 20?
(2) Did the Examiner err in finding that See discloses a
policy server operable to “generate collection
configuration information based on network topology
information and at least one collection policy,” as recited
in claim 1 and similarly recited in claim 20?
(3) Did the Examiner err in finding that Conrad discloses
receiving a definition of a “subset of the list of network
nodes,” as recited in claim 10?
(4) Did the Examiner err in finding that Conrad discloses
“generating collection configuration information in
response to the network topology information,” as recited
in claim 10?
(5) Did the Examiner err in finding that Fairchild discloses
filtering a plurality of network nodes to determine a
subset of the network nodes “for fault monitoring,” as
recited in claim 24?
(6) Did the Examiner err in finding that Fairchild discloses
accessing a collection policy specifying criteria “for
collecting data” from a plurality of network nodes, as
recited in claim 24?

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ANALYSIS
Anticipation Rejection of Claims 1-9 and 20-23 (See)
Appellants argue claims 1-9 as a group and claims 20-23 as a group.
App. Br. 5-9. We select claim 1 as representative, as Appellants make
substantially similar arguments with respect to independent claims 1 and 20.
See 37 C.F.R. § 41.37(c)(1)(vii).
First, Appellants argue that See does not disclose at least one collector
operable to “poll a subset of network nodes.” App. Br. 5-6; Reply Br. 4-5.
Appellants contend that the network management system (NMS) in See does
not poll any of the managed network devices (MNDs) for information, and
See teaches away from polling in general. App. Br. 5-6. Appellants also
argue that the local resource manager (LRM) in See does not poll multiple
network nodes for information because it is “internal” to one MND. Reply
Br. 4-5.
We begin by noting that the Examiner mapped the NMS in See to the
“policy server” of claim 1, and the LRM to the “collector.” Ans. 13. Thus,
Appellants’ argument that the NMS is not a collector that polls a subset of
network nodes is not persuasive. Also, Appellants’ argument that See
teaches away from polling is irrelevant to the Examiner’s anticipation
rejection. Celeritas Techs., Ltd. v. Rockwell Int’l Corp., 150 F.3d 1354,
1361 (Fed. Cir. 1998) (“the question whether a reference ‘teaches away’
from the invention is inapplicable to an anticipation analysis”).
We agree with the Examiner’s finding that the LRM is operable to
poll a subset of network nodes. See discloses that the LRM “periodically
poll[s]” the MND to determine current values of “one or more local resource
properties” (LRPs) and reports those values to the central data store (CDS);
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the NMS then retrieves the values from the CDS as necessary. See ¶¶ 12,
26-27; Ans. 12-13; see also See ¶ 43 (“[T]he LRM 210 polls 432 the
resources of the MND 203 for the status of the various LRPs at the elapse of
the polling interval or other trigger event.”). Further, while Appellants are
correct that each LRM is associated with one MND (Reply Br. 4), we see no
reason why the “subset” recited in claim 1 cannot be a single network node
given the term’s broadest reasonable interpretation in light of the
Specification. See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364
(Fed. Cir. 2004). To illustrate, the set of just MND 203 in Figure 2 of See
can be considered a subset of all of the MNDs in the system (MND 203,
MND 204, etc.). Claim 1 does not expressly state that the “subset” is a
plurality of network nodes, and Appellants do not point to any persuasive
evidence, such as an explicit definition in the Specification, indicating that
the “subset” must in all circumstances be a plurality. See therefore discloses
polling a “subset” of network nodes (i.e., one of the MNDs).
Second, Appellants argue that See does not disclose a policy server
operable to “generate collection configuration information based on network
topology information and at least one collection policy” because the LRPs in
See are defined by a network administrator. App. Br. 7 (citing See ¶ 32).
We disagree with Appellants.
As the Examiner found, the NMS in See “requires specific
information about the managed network devices” under its management.
Ans. 13 (citing See ¶ 26). For example, the NMS knows what MNDs are
under its management and what information about them may be retrieved
from the CDS. See ¶¶ 25-26. We further note that the NMS knows the
MNDs under its management because it is capable of “traditional” polling of
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those devices. See See ¶ 35. Thus, we agree with the Examiner that the
NMS in See is a policy server operable to “generate collection configuration
information based on network topology information and at least one
collection policy.”
Similar to claim 1, claim 20 recites a means for “polling the subset of
network nodes” and a means for “generating collection configuration
information in response to the network topology information, definition of
the subset of network nodes and definition of the type of data.” Appellants’
arguments with respect to these elements are unpersuasive for the reasons
stated above. Accordingly, we sustain the rejection of independent claims 1
and 20, and dependent claims 2-9 and 21-23, which are not separately
argued.

Anticipation Rejection of Claims 10, 11, and 15-19 (Conrad)
Appellants argue claims 10, 11, and 15-19 as a group. App. Br. 9-10;
Reply Br. 5-6. We select claim 10 as representative.
First, Appellants argue that Conrad does not disclose receiving a
definition of a “subset of the list of network nodes.” App. Br. 9-10.
According to Appellants, data collection module 230 in Conrad “appears to
collect user-specified information from any remote device on the list,” rather
than just a subset. App. Br. 9. We disagree with Appellants. Each remote
device in Conrad is polled only at certain times based on a designated
polling interval. Ans. 13-14 (citing Conrad, col. 5, l. 55-col. 6, l. 7).
Specifically, as shown in Figure 3, configuration file 325 provides to
scheduler module 320 a list of “remote devices to be polled” and the
devices’ corresponding polling intervals. Conrad, col. 5, ll. 62-65.
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Scheduler module 320 then develops a schedule for data collection and
sends “data collection module 310 a list of remote devices to be polled for a
scheduled time, i.e., a data collection event.” Conrad, col. 6, ll. 4-7
(emphasis added); col. 6, ll. 55-59 (providing a list of remote devices to be
queried “at a scheduled time”); Ans. 8, 13-14. The list of only those remote
devices to be polled at a particular time is a subset of the list of all remote
devices.
Second, Appellants argue that Conrad does not disclose “generating
collection configuration information in response to the network topology
information” because the user specifies what data to collect. App. Br. 10.
Again, we disagree with Appellants. Based on the list of remote devices,
data collection module 230 generates and stores data regarding what remote
devices to poll and when, which is used to maintain operation of the
network. Conrad, col. 5, l. 55-col. 6, l. 7; Ans. 8, 14. The list of remote
devices constitutes “network topology information,” which claim 10
describes as “indicating a list of network nodes to monitor.”
Because we concur with the Examiner that Conrad discloses the
disputed claim elements, we sustain the rejection of independent claim 10
and dependent claims 11 and 15-19, which are not separately argued.

Anticipation Rejection of Claims 24-30 (Fairchild)
Appellants argue claims 24-30 as a group. App. Br. 10-12; Reply Br.
6. We select claim 24 as representative.
Appellants argue that Fairchild does not disclose filtering a plurality
of network nodes to determine a subset of the network nodes “for fault
monitoring,” or accessing a collection policy specifying criteria “for
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collecting data” from a plurality of network nodes. App. Br. 10-12.
Specifically, Appellants contend that the grouping of network participating
devices (NPDs) in Fairchild is performed simply based on a “logical
criterion,” such as ranges of Internet Protocol (IP) addresses, and is not for
fault monitoring or determining criteria for collecting certain data. App. Br.
10-12 (citing Fairchild, col. 10, ll. 3-13). We disagree with Appellants.
As the Examiner found, and as shown in Figure 3 of Fairchild,
Fairchild organizes the NPDs in the network into groups by IP
address/subnet so that the management server may collect “status
information” (i.e., data) from the NPD groups (via one of the NPDs in each
group designated as the “master” for that group). Ans. 9, 14 (citing
Fairchild, col. 10, ll. 3-40; col. 11, ll. 3-10, 30-59). The status information
may be used by the management server for “hardware fault detection.” Ans.
14 (citing Fairchild, col. 7, ll. 20-22). Fairchild therefore has a collection
policy specifying criteria “for collecting data” from a plurality of network
nodes, and filters the plurality of network nodes to determine a subset “for
fault monitoring.”
Because we concur with the Examiner that Fairchild discloses the
disputed claim elements, we sustain the rejection of independent claim 24
and dependent claims 25-30, which are not separately argued.

Obviousness Rejection of Claims 12-14 (Conrad/Fairchild)
We also sustain the Examiner’s obviousness rejection of claims 12-14
(Ans. 10-12, 14-15) because Appellants do not particularly identify errors in
the Examiner’s reasoning to overcome the Examiner’s obviousness
conclusion for these claims apart from previously-made arguments. See
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App. Br. 12. For the reasons previously discussed, we are not persuaded by
these arguments.

CONCLUSION
Appellants have not persuaded us of error in the Examiner’s rejections
of claims 1-30.

DECISION
For the above reasons, the Examiner’s decision to reject claims 1-30 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).

AFFIRMED

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