Ex Parte Barrat et al

Patent Trial and Appeal Board

Mar 6, 2017

13766754 (P.T.A.B. Mar. 6, 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.
13/766,754 02/13/2013 Frederic Barrat AUS920120311US2 1023
77351 7590 03/07/2017
IBM CORP. (AUS)
C/O THE LAW OFFICE OF JAMES BAUDINO, PLLC
2313 ROOSEVELT DRIVE
SUITE A
ARLINGTON, TX 76016
EXAMINER
BULLOCK, JOSHUA
ART UNIT PAPER NUMBER
2153
MAIL DATE DELIVERY MODE
03/07/2017 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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte FREDERIC BARRAT, KHALID FILALI‒ADIB,
PERINKULAM I. GANESH, and JOHN M. MCCONAUGHY
____________

Appeal 2016-008626
Application 13/766,7541
Technology Center 2100
____________

Before JOHNNY A. KUMAR, JOHN P. PINKERTON, and
MATTHEW J. McNEILL, Administrative Patent Judges.

McNEILL, Administrative Patent Judge.

DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1‒5, 7, and 9‒12, which are all the claims pending in this
application.2 We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 According to Appellants, the real party in interest is International Business
Machines Corporation. App. Br. 2.
2 Claims 6 and 8 are canceled. Final Act. 2.
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Application 13/766,754

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STATEMENT OF THE CASE
Introduction
Appellants’ application relates to verifying data structure consistency
across computing environments. Abstract. Claims 1 and 7 are illustrative of
the appealed subject matter and read as follows:
1. A method, comprising:
computing and generating a first signature from a data
structure corresponding to a first computing environment, the
first computing environment associated with a first version of
an operating system;
computing and generating a second signature from the
data structure corresponding to a second computing
environment, the second computing environment associated
with a second version of the operating system different than the
first version;
comparing the first and second signatures; and
responsive to a disparity between the first and second
signatures, indicating an inconsistency of the data structure
between the first and second computing environments.
7. A method, comprising:
generating first debug data for a data structure
corresponding to a first computing environment by compiling
the data structure;
generating second debug data for the data structure
corresponding to a second computing environment by
compiling the data structure;
generating a first expanded data structure based on the
first debug data;
generating a second expanded data structure based on the
second debug data;
computing and generating a first signature based on the
first expanded data structure;
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Application 13/766,754

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computing and generating a second signature based on
the second expanded data structure; and
comparing the first and second signatures to verify
consistency of the data structure between the first and second
computing environments.

The Examiner’s Rejections
Claims 1‒5 stand provisionally rejected on the ground of non-
statutory double patenting over claims 7‒17 of co-pending Application No.
13/670,392. Final Act. 3‒4.
Claims 1‒5, 7, and 9‒12 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Kiselev et al. (US 7,809,898 B1; Oct. 5, 2010). Final Act. 7‒
13.
ANALYSIS
We have reviewed the Examiner’s rejections in consideration of
Appellants’ contentions and the evidence of record. Appellants persuade us
the Examiner fails to establish the claims are unpatentable over the cited
prior art.
Anticipation – Claim 1
The Examiner finds Kiselev discloses a “first computing environment
associated with a first version of an operating system” and a “second
computing environment associated with a second version of the operating
system different than the first version,” as recited in claim 1. Final Act. 7‒8;
Ans. 2‒3. In particular, the Examiner finds an operating system includes
process and memory management, a file system, drivers, and networking.
Ans. 2. The Examiner finds Kiselev discloses two storage devices that
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Application 13/766,754

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include these components and, therefore, discloses two computing
environments, each with a separate version of operating systems. Id.
Appellants argue the Examiner erred because Kiselev does not
disclose two separate versions of an operating system. App. Br. 5‒6.
Specifically, Appellants argue the Examiner’s definition of operating system
is inconsistent with the ordinary meaning of the term, system software that
manages computer hardware and software resources. App. Br. 5.
Appellants argue Kiselev does not disclose the two storage devices have two
different operating systems under this ordinary meaning of the term. Id.
As a matter of claim construction, we apply the broadest reasonable
interpretation of claim terms, consistent with the specification, as would be
understood by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted). “Above all,
the broadest reasonable interpretation must be reasonable in light of the
claims and specification.” PPC Broadband, Inc. v. Corning Optical
Commc’ns RF, LLC, 815 F.3d 747, 755 (Fed. Cir. 2016) (emphasis in
original).
We agree with Appellants that the Examiner’s definition of “operating
system” is overly broad. As argued by Appellants, the Specification uses
“operating system” to refer to system software that manages computer
hardware and software resources. See, e.g., Spec. ¶ 1. We are persuaded by
Appellants’ arguments because the Examiner has not identified sufficient
evidence or provided sufficient explanation as to how Kiselev discloses two
different versions of an “operating system” under the ordinary meaning of
the term.
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Accordingly, on this record, Appellants have persuaded us the
Examiner has failed to establish claim 1 is anticipated by Kiselev. We,
therefore, do not sustain the rejection of claim 1. We also do not sustain the
rejections of claims 2‒5, which depend therefrom.
Anticipation – Claim 7
The Examiner finds Kiselev discloses “comparing the first and second
signatures to verify consistency of the data structure between the first and
second computing environments,” as disclosed in claim 7. Final Act. 11;
Ans. 3‒4. In particular, the Examiner finds Kiselev discloses comparing
checksums (the claimed signatures) of two storage devices to identify
inconsistencies. Final Act. 11.
Appellants argue the Examiner erred because the Examiner has failed
to identify or explain how Kiselev discloses first and second “debug data,”
first and second “expanded data structure[s],” and first and second
“signature[s].” App. Br. 7‒11. Appellants argue the Examiner mapped
checksums to “debug data,” and, therefore, the checksum cannot also be the
signature that is generated using expanded data, which itself is generated
using debug data. App. Br. 10‒11.
We are persuaded by Appellants’ arguments because the Examiner
has not identified sufficient evidence or provided sufficient explanation as to
how Kiselev teaches “computing and generating a first signature based on
the first expanded data structure” or “computing and generating a second
signature based on the second expanded data structure.” The Examiner finds
Kiselev’s “checksum is a mechanism to identify or generate debug data.”
Ans. 3. The Examiner also finds Kiselev compares checksums to identify
inconsistencies between the data in storage devices. Id. at 4. However,
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claim 1 recites “comparing the first and second signatures.” Accordingly,
the Examiner has mapped Kiselev’s checksum to the claimed signature,
which is generated from expanded data, which itself is generated from debug
data. The Examiner also finds the checksum generates the debug data,
which leads to the inconsistent finding that Kiselev’s checksum generates
the data that generates Kiselev’s checksum.
Accordingly, on this record, Appellants have persuaded us the
Examiner has failed to establish claim 7 is anticipated by Kiselev. We,
therefore, do not sustain the rejection of claim 7. We also do not sustain the
rejections of claims 9‒12, which depend therefrom.
Provisional Double Patenting
Claims 1‒5 stand provisionally rejected on the ground of non-
statutory double patenting. Final Act. 3‒4. We decline to reach the
provisional rejection as the issues are not ripe for decision. See Ex parte
Moncla, 95 USPQ2d 1884, 1885 (BPAI 2010) (precedential).

DECISION
We reverse the Examiner’s decision rejecting claims 1‒5, 7, and 9‒12.

REVERSED