Ex Parte Bonanno et al

Patent Trial and Appeal Board

Sep 8, 2016

14012619 (P.T.A.B. Sep. 8, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/012,619 08/28/2013 James M. Bonanno
73109 7590 09/12/2016
Cuenot, Forsythe & Kim, LLC
20283 State Road 7
Ste. 300
Boca Raton, FL 33498
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.
RSW920080175US2
8152-0231
CONFIRMATION NO.
5150
EXAMINER
MILLER, VIV AL
ART UNIT PAPER NUMBER
2197
NOTIFICATION DATE DELIVERY MODE
09/12/2016 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):
ibmptomail@iplawpro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES M. BONANNO, RONALD P. DOYLE,
MICHAEL L. FRAENKEL, and AARON J. TARTER 1
Appeal2015-006120
Application 14/012,619
Technology Center 2100
Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and
JAMES W. DEJMEK, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 26-30, 33-37, and 40-44. Claims 31, 32, 38, 39,
and 45--49 are indicated as allowable if rewritten in independent form.
Final Act. 7. We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b ).
We affirm-in-part.
1 Appellants identify IBM Corporation as the real party in interest.
App. Br. 1.
Appeal2015-006120
Application 14/012,619
STATEMENT OF THE CASE
Introduction
Appellants' invention is directed to a software build process using
build history information. Spec., Title.
Claim 26 is representative of the subject matter on appeal and is
reproduced below with the disputed limitations emphasized in italics:
26. A method for optimizing a build order of component source
modules, comprising:
creating a dependency graph based on dependency information;
calculating, using historical build information associated with
previous build failures, relative failure factors for paths of the
dependency graph; and
determining, using the relative failure factors, an order of
traversal of the dependency graph during a build process, wherein
component binary modules are built from the component source
modules during the build process.
The Examiner's References and Rejections2
Claims 26, 27, 33, 34, 40, and 41 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Rosen et al. (US 2009/0113396 Al;
Apr. 30, 2009 (filed Oct. 26, 2007)) ("Rosen") and Ousterhout et al.
(US 2004/0194060 Al; Sept. 30, 2004) ("Ousterhout"). Final Act. 7-11.
Claims 28-30, 35-37, and 42--44 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Rosen, Ousterhout, and Noel et al.
(US 2006/0085858 Al; Apr. 20, 2006) ("Noel"). Final Act. 12-15.
2 The rejection of claims 40--49 under 35 U.S.C. § 101 has been withdrawn.
Ans. 10.
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Application 14/012,619
ANALYSIS3
Claims 26, 28-30, 33, 35-37, 40, and 42--44
We have reviewed the Examiner's rejections in light of Appellants'
arguments the Examiner has erred. App. Br. 10-17. We disagree with
Appellants' conclusions. We adopt as our own: ( 1) the findings and reasons
set forth by the Examiner in the Action from which this appeal is taken
(Final Act. 2-15), and (2) the reasons set forth by the Examiner in the
Answer in response to arguments made in Appellants' Appeal Brief (Ans. 2-
17). We highlight and address specific findings and arguments below.
Appellants contend the Examiner erred in finding the combination of
Rosen and Ousterhout teaches or suggests calculating, using historical build
information associated with previous build failures, "relative failure factors"
for paths of a dependency graph, as recited in claim 26 and as similarly
recited in independent claims 33 and 40. App. Br. 10-17; Reply Br. 2---6.
In particular, Appellants argue Ousterhout's detected conflicts are not
calculated relative failure factors because "whether or not a conflict exists is
not a 'factor"' and"[ d]etecting something is not necessarily identical to
calculating something." App. Br. 12 (citing Ousterhout i-f 71). In support of
these contentions, Appellants direct us to paragraph 28 of the Specification
and assert a relative failure factor is "a relative value associated with the
failure of traversing a path" among multiple paths emanating from a node.
Id. at 13-14; see also Reply Br. 3.
3 In this Opinion, we refer to Appellants' Appeal Brief ("App. Br.," filed
January 14, 2015); Appellants' Reply Brief ("Reply Br.," filed June 2,
2015); the Final Office Action ("Final Act.," mailed August 14, 2014); and
the Examiner's Answer ("Ans.," mailed on April 2, 2015).
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Application 14/012,619
We are not persuaded of Examiner error. We agree with the
Examiner that "it is unclear what the relative failure factors are in [sic] based
on what is claimed in claim [26]" (Ans. 13), and "[t]hus, ... the broadest
reasonable interpretation is used" (id. at 14). "'[T]he PTO must apply the
broadest reasonable meaning to the claim language, taking into account any
definitions presented in the specification.'" In re Amer. Acad. of Sci. Tech
Ctr., 367 F. 3d 1359, 1364 (Fed. Cir. 2004).
Paragraph 80 of Ousterhout, as relied upon by the Examiner, teaches:
[T]he supplemental usage data is stored as a log file containing
a list of all of the missed dependencies at the end of each build.
The job scheduler 457 may then use both the Makefile and the
supplemental usage data to create a more precise, efficient job
ordering in subsequent builds (e.g., by first evaluating the
dependencies within the Makefile and then evaluating the
dependencies within the supplemental usage data prior to the
initiation of any of the jobs).
Ousterhout i-f 80. As the Examiner explains, "Ousterhout's uses [the
supplemental usage data's stored conflict information] to calculate relative
failure factors since it can evaluate the dependencies within the makefile
and then evaluate the dependencies within the supplemental usage data prior
to the initiation of any jobs." Ans. 15 (citing Ousterhout i-fi-1 77 and 87); see
also id. at 12 (citing Ousterhout i-fi-1 80 and 81 ). Given the lack of a relevant
limiting definition in Appellants' Specification, we agree the Examiner
broadly but reasonably construes "relative failure factors," consistent with
the Specification, to encompass Ousterhout' s list of missed dependencies for
jobs in the supplemental usage data. Id. at 15.
Appellants further contend the Examiner erred in finding Ousterhout
teaches or suggests calculating, using historical build information associated
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Application 14/012,619
with previous build failures, relative failure factors "for paths of a
dependency graph," as recited in claim 26, and as similarly recited in
independent claims 33 and 40. App. Br. 13 (citing Ousterhout i-f 80). In
particular, Appellants assert Ousterhout's "supplemental usage data is used
to generate job ordering in subsequent builds." Id. Appellants argue
Ousterhout's detected conflicts are not calculated relative failure factors
associated with a path of a dependency graph because Ousterhout's detected
conflicts identify missed dependencies, not calculated paths. Id. at 12.
Appellants further argue "a determination as to a conflict involves a job - not
a path" and "Ousterhout lacks even a single mention of the term 'path."'
Id. at 15 (citing Ousterhout i-f 72). Appellants still further argue Ousterhout
does not teach using the supplemental usage data to determine "an order of
traversal of the dependency graph during a build process," as recited in
claim 26. Id. at 16.
Appellants' contentions are not persuasive at least because Appellants
consider the teachings of Ousterhout in isolation and fail to specifically rebut
the Examiner's ultimate legal conclusion of obviousness that is based on the
combination of Rosen and Ousterhout. One cannot show nonobviousness by
attacking references individually where the rejections are based on
combinations of references. In re Merck & Co., Inc., 800 F .2d 1091, 1097
(Fed. Cir. 1986). The Examiner relies on Rosen for creating a dependency
graph based on dependency information of targets. Final Act. 8 (citing
Rosen i-f 18). Specifically, the Examiner finds Rosen teaches "[a]
dependency graph can be generated from the dependencies, and an execution
sequence for the targets can be determined so that an appropriate order of
execution respecting dependencies between targets can be obtained."
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Application 14/012,619
Final Act. 8 (quoting Rosen if 18). Further, the Examiner relies on Rosen,
not Ousterhout, for determining an order of traversal of the dependency
graph during a build process. Id. at 8-9 (citing Rosen iii! 13, 16, 19, 25, 26,
32). As discussed supra, the Examiner relies on Ousterhout for calculating
missed dependencies (the claimed "relative failure factor") for jobs.
Id. at 9-10 (citing Ousterhout iii! 80 and 21; Figure 7); see also Ans. 4---6, 12,
14--15.
Rosen further teaches "there may be more than one possible execution
sequence respecting each target's dependencies." Rosen if 27. Thus, we
agree with the Examiner in concluding the combination of Rosen and
Ousterhout teaches missed dependencies (the claimed "relative failure
factor") for multiple execution sequences (the claimed "paths") of Rosen's
dependency graph. We further agree with the Examiner in concluding the
combination of Rosen and Ousterhout teaches determining, using the
relative failure factors, an order of traversal of the dependency graph during
a build process. Final Act. 9-11.
Accordingly, we sustain the Examiner's rejection of independent
claim 26. Independent claims 33 and 40 are similar to independent claim 26
and are rejected for similar reasons as claim 26. Appellants do not argue
with particularity the rejection of independent claims 33 and 40 or dependent
claims 28-30, 35-37, and 42--44. App. Br. 21. Thus, for the same reasons
as claim 26, we are not persuaded the Examiner erred in rejecting claims 28-
30, 33, 35-37, 40, and 42--44 and we sustain the Examiner's rejections of
claims 26, 28-30, 33, 35-37, 40, and 42--44.
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Application 14/012,619
Claims 27, 34, and 41
Claim 27, which depends from claim 26, adds the limitation "wherein
the historical build information includes at least one of: ... a total number of
file changes since a last successful build." The Examiner relies on
Ousterhout's teaching that "the supplemental usage data is stored as a log
file containing a list of all of the missed dependencies at the end of each
build." Ans. 16-18 (quoting Ousterhout i-f 80). The Examiner explains
"[ s ]ince at the end of each build a different list of missed dependencies will
be noted, the log file notes each build[,] thus noting the changes from one
build to another." Id. at 17. In response, Appellants argue Ousterhout's
missed dependencies at the end of each build "do not inherently (i.e.,
necessarily) teach a total number of file changes. For example, some file
changes may (or may not) lead to missed dependencies. As such, a one-to-
one correspondence between missed dependencies and a total number of
files changes cannot be made." Reply Br. 7.
We agree with Appellants. The Examiner has not provided sufficient
evidence or technical reasoning explaining how Ousterhout's log file teaches
or suggests "a total number of file changes since a last successful build," as
claimed. In particular, although Ousterhout's log file contains a list of all
missed dependencies at the end of each build, the Examiner fails to
adequately explain how Ousterhout's missed dependencies teach a total
number of file changes since a last successful build.
Therefore, based on the record before us, and for the reasons
discussed supra, we do not sustain the Examiner's rejection of claim 27 or
the rejection of claims 34 and 41, which contain similar limitations.
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Appeal2015-006120
Application 14/012,619
DECISION4
We affirm the Examiner's decision to reject claims 26, 28-30, 33, 35-
37, 40, and 42--44.
We reverse the Examiner's decision to reject claims 27, 34, and 41.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(±).
AFFIRMED-IN-PART
4 In the event of further prosecution, we note that claim 46 is directed to "a
computer program product, comprising: a computer usable storage memory
having stored therein computer usable program instructions ... , which when
executed on a computer hardware system causes the computer hardware
system to perform" the method-steps as recited in claims 40--46. The
Examiner is invited to determine whether claims 40--46 comport with the
requirements 35 U.S.C. § 101. See Ex parte Mewherter, 107 USPQ2d 1857,
1862 (PTAB 2013) (precedential-in-part) (machine-readable storage
medium nonstatutory where Specification silent as to meaning).
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