Ex Parte Broussard

Board of Patent Appeals and Interferences

Mar 31, 2008

09870624 (B.P.A.I. Mar. 31, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SCOTT J. BROUSSARD
____________

Appeal 2008-0463
Application 09/870,624
Technology Center 2100
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Decided: March 31, 2008
____________

Before JAMES D. THOMAS, JOSEPH L. DIXON, and
LANCE LEONARD BARRY, Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner's final rejection claims 1-20. We have jurisdiction under
35 U.S.C. § 6(b).

We AFFIRM-IN-PART.

Appeal 2008-0463
Application 09/870,624

BACKGROUND
Appellant’s invention relates to a system and method for reducing
memory use associated with the graphical representation of a list control.
The present invention remedies select situations in the Swing interface
which remedies situations in the Abstract Windowing Toolkit of Java.
Appellant's claimed subject matter includes a display system (reference
number 10) having a display (reference number 16), a graphical user
interface (GUI), and a processor (reference number 12). (Spec. p. 11, ll. 28-
30; FIG. 1). The processor is coupled between the display and the graphical
user interface and is adapted to operate from a windows-based operating
system (OS) for executing a software component (API) during runtime of an
application program (APP). (Spec. p. 12, ll. 1-3; FIGS. 1 and 2). The
executed software component (reference numerals 72 and 74) generates a
first image upon the display independent of code within the operating system
during a first time and, during a second time, emulates code that, when
executed by the processor, generates a second image upon the display
dependent on code within the operating system. (Spec. p. 12, ll. 6-10; p. 27,
l. 16 to p. 28, l. 16; FIG. 9). The generated first and second images are
substantially identical. (Spec. p. 13, ll. 7-8). (Corrected Supplemental Br. 2;
Summary of the Claimed Invention). An understanding of the invention can
be derived from a reading of exemplary claim 1, which is reproduced below:

1. A display system, comprising:
a display;
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a graphical user interface;

a processor coupled between the display and the graphical user
interface and adapted to operate from a windows-based operating
system for executing a software component during runtime of an
application program wherein the executed software component
generates a first image upon time display independent of code within
the operating system during a first time and, during a second time,
emulates code that, when executed by the processor, generates a
second image upon the display dependent on code within the
operating system, and wherein the first and second images are
substantially identical.

PRIOR ART
The prior art references of record relied upon by the Examiner in
rejecting the appealed claims are:
Nason US 6,727,918 B1 Apr. 27, 2004
Fowler, Mixing heavy and light components, 2/98, Vol. 3, No 4, all.

REJECTIONS
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Nason in view of Fowler.
Rather than reiterate the conflicting viewpoints advanced by the
Examiner and Appellant regarding the above-noted rejection, we make
reference to the Examiner's Answer (mailed March 7, 2006) for the
reasoning in support of the rejections, and to Appellant’s Brief (filed April
20, 2006) for the arguments thereagainst.

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OPINION
In reaching our decision in this appeal, we have given careful
consideration to Appellant’s Specification and claims, to the applied prior art
references, and to the respective positions articulated by Appellant and the
Examiner. As a consequence of our review, we make the determinations
that follow.

35 U.S.C. § 103
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966). “[T]he Examiner bears
the initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). Furthermore, “‘there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness’ . . . [H]owever, the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 127
S. Ct. 1727, 1741 (2007)(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006)).

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At the outset, we note that the scope of independent claims 1, 10, and
18 vary with their characterization of the first interface and the second
interface with respect to which is dependent and independent upon the
operating system. Furthermore, independent claims 1 and 10 recite different
times that code is executed and that second code when executed by the
processor emulates behavior of the other of the two interfaces while
independent claim 18 does not recite the limitation relating code, but
alternatively recites that the second image is adapted to overwrite the first
image upon a display screen during a second time.
With respect to independent claim 1, we note that independent claim 1
which recites:
executing a software component during runtime of an application
program wherein the executed software component generates a first
image upon the display independent of code within the operating
system during a first time and, during a second time, emulates code
that, when executed by the processor, generates a second image upon
the display dependent on code within the operating system, and
wherein the first and second images are substantially identical.

We agree with the Examiner's rejection of independent claim 1
wherein the Examiner relies upon the teachings of Nason to teach and fairly
suggest the use of two separate GUIs. Additionally, we find that while the
images from the GUIs may be on the screen at the same time and coexist,
these images are not necessarily generated on the display simultaneously.
Therefore, we find that it would have been obvious to one of ordinary skill
in the art at the time of the invention that first and second images from the
GUIs are generated sequentially or at dissimilar times. (Ans. 3-4 and
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10-13). Therefore, we do not find Appellant's arguments with respect to the
similar time or coexisting images to be persuasive. (Br. 5-7). Additionally,
Appellant argues that the system of Nason displays substantially different
images at the same time. Here, we do not find the argument to different
images or the placement of an image on the GUI to be persuasive since we
do not find any express limitations as to the image or its layout in the
language of independent claim 1. We find the language of independent
claim 1 to be broad enough to merely include a singular image that is similar
yet in a different physical location on the screen and Nason teaches and
fairly suggests parallel GUIs from operating system dependent and operating
system independent code. We find that Nason teaches the use of two images
that may be substantially similar from dependent operating system code and
independent operating system code.
Appellant argues that Nason cannot be modified to include the
limitations of independent claim 1, since Nason fails to even suggest the
desirability of doing so. (Br. 7). Appellant argues that there are three
examples where Nason fails to suggest the desirability for the three
scenarios. (Br. 7). We do not find the argued scenarios persuasive wherein
the first and second scenarios are directed to specific images not recited in
independent claim 1. Therefore, these arguments are not persuasive. With
respect to the third scenario, we have addressed it above, and we do not find
it persuasive of error.
Appellant argues that the Examiner's conclusion that lightweight and
heavyweight components looks substantially identical cannot be surmised
from the teachings actually provided by Fowler. (Br. 8-9). We disagree
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with Appellant since we do not find any express limitations in the language
of independent claim 1 which would limit the claimed invention to the
specific situations discussed in Fowler where problems between lightweight
and heavyweight components may exist. While we do agree that Fowler
identifies situations of concern and provides warnings with respect to those
problems, we agree with the Examiner that there are situations where an
image generated by a heavyweight component would be strikingly similar to
an image generated by a lightweight component. Therefore, we agree with
the Examiner's combination of Nason and Fowler. While there are
recognized circumstances or situations where they may not be similar due to
the limitations of each component, we find no express limitations in the
language of independent claim 1. Therefore, Appellant’s argument is not
persuasive.
With respect to Appellant's arguments concerning mixing lightweight
and heavyweight components and that Fowler teaches away from mixing the
two types of components, we disagree with Appellant's sweeping
conclusion. (Br. 10). Rather, we find that Fowler suggests to be careful in
the use of the two types of components together. Therefore, we do not find
Appellant's argument persuasive.
With respect to Appellant's argument concerning the Examiner's
additional reliance upon the teachings of Nason regarding displaying the
same or similar image with a first and second application program interface
(Br. 10-11), we find no express limitation as to the extent or type of the
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images, as discussed above. Therefore, we do not find Appellant's argument
persuasive of error in the Examiner's initial showing, and we will sustain the
rejection of independent claim 1 and its dependent claims 2-9.
With respect to independent claim 10, the Examiner essentially
repeats the rejection set forth with respect to independent claim 1 in the
statement of the rejection. In response to Appellant's argument concerning
the specific steps recited in independent claim 10, the Examiner maintains
that the determination by the controller in Nason determines where to send
the command for display. (Ans. 20). The Examiner maintains that when
using two different APIs, the original interface will be replaced as the
destination interface by a different interface for processing for the display.
The Examiner maintains that the second image that is to be "re-displayed" is
nothing more than another image that can be displayed in conjunction with
the first image, but that it was generated using a different API. (Ans. 20-21).
We disagree with the Examiner's interpretation of the selection of either
interface for the display as teaching or suggesting replacing the interface and
re-running the application program and re-display of a second image. We
cannot agree with the Examiner's reliance upon the second application
program interface as meeting the specific sequence of steps as recited in
independent claim 10. Therefore, we do not find that the Examiner has set
forth the requisite initial showing of obviousness of independent claim 10
nor has the Examiner set forth a convincing line of reasoning based upon the
teachings of Nason and Fowler to show obviousness of independent claim
10. Therefore, we cannot sustain the rejection of independent claim 10 and
its respective dependent claims 11-17.
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With respect to independent claim 18, Appellant argues that Nason
fails to disclose that during a second time, the second image which is
operating system independent, is adapted to overwrite the first image, which
is operating system dependent, upon a display screen. While Appellant
acknowledges that Nason does teach one image overwriting another when a
secondary image overlaps or overwrites a portion of the desktop, Nason does
not recognize, teach or fairly suggest that the native and secondary GUIs
could produce substantially identical images. (Br. 16-17). We agree with
Appellant that the teachings of Nason are very general and not specific to
certain implementations for various identical images. With that said, we
agree with the Examiner that Nason does teach overlapping or overwriting a
portion of a desktop which would be an image as recited in independent
claim 18. Furthermore, the teachings of Fowler do teach and suggest the use
of both heavyweight and lightweight components and some of the respective
limitations thereto. Yet, we find no express limitations in the language of
independent claim 18 which would limit the claimed invention beyond the
combination as taught and fairly suggested by Nason and Fowler.
Therefore, we do not find Appellant's argument to be persuasive of error in
the Examiner's initial showing.
Appellant argues that Fowler fails to teach that an operating system
independent image could be used to overwrite an operating system-
dependent image upon a display screen. (Br. 18). We disagree with
Appellant since the teachings of Fowler concern the z-order of the two
components with respect to labels. Here, the claim language does not recite
"labels," but rather merely images. Therefore, we do not find Appellant's
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argument persuasive of error in the Examiner’s initial showing, and we will
sustain the rejection of independent claim 18 and its respective dependent
claims 19 and 20.

CONCLUSION
To summarize, we have sustained the rejection of claims 1-9 and
18-20 under 35 U.S.C. § 103(a), and we have reversed the rejection of
claims 10-17 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 CFR § 1.136(a).

AFFIRMED-IN-PART

pgc

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