Ex Parte Droshev et al

Patent Trial and Appeal Board

Apr 27, 2016

11193070 (P.T.A.B. Apr. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111193,070 0712912005
50400 7590 04/29/2016
SCHWEGMAN LUNDBERG & WOESSNER/SAP
P.O. BOX 2938
MINNEAPOLIS, MN 55402
Mladen I. Droshev
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.
2058.403US 1 8322
EXAMINER
LOUIE, JUE WANG
ART UNIT PAPER NUMBER
2193
NOTIFICATION DATE DELIVERY MODE
04/29/2016 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):
uspto@slwip.com
SLW@blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MLADEN I. DROSHEV, IVAN T. ATANASSOV,
NIKOLAI W. NEICHEV, and GEORGI N. STANEV
Appeal2014-004750
Application 11/193,070
Technology Center 2100
Before DEBRA K. STEPHENS, KARA L. SZPONDOWSKI, and
JOHN R. KENNY, Administrative Patent Judges.
KENNY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1, 7, 8, 15, 17, 21-24, 28, 29, 33, 34, and 36-42, which constitute all
the claims pending in this application. (App. Br. 15; Final Act. 1.) We have
jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
Appeal2014-004750
Application 11/193,070
fNVENTION
Appellants' disclosed invention relates to a system and method for
improving the efficiency of remote method invocations within a multi-tiered
enterprise network and for generating and configuring dynamic proxies.
(Spec. i-f 1.) Claim 1 is representative and, with bracketed annotations for
disputed limitations, reads:
1. A method comprising:
compiling source code to generate program code executable on an
application server, the program code including a stub associated
with a method call made by a first object and directed to a
second object;
deploying the program code onto a plurality of machines of the
application server;
[i] determining that the stub is an unnecessary stub, the determining
that the stub is the unnecessary stub including analyzing the
program code at run time; and
[ii] deleting the stub from the program code based on the determining
that the stub is the unnecessary stub.
REFERENCES
The Examiner relies on the following prior art references in rejecting
the claims on appeal:
Schmid US 2002/0174169 Al Nov. 21, 2002
Sexton et al. US 6,854,114 Bl Feb. 8,2005
Prem et al., BEA WebLogic Platform 7 (2003).
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Application 11/193,070
REJECTIONS
Claims 1, 8, 15, 17, 21-24, 28, 29, 33, 34, and 36-42 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over the combination of
Prem and Schmid. (Ans. 2.)
Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Prem, Schmid, and Sexton. (Ans. 9.)
ISSUES
1. Did the Examiner err in finding that Schmid teaches or suggests
limitation [i] of claim 1?
2. Did the Examiner err in finding that Schmid teaches or suggests
limitation [ii] of claim 1?
3. Did the Examiner err in finding that Prem and Schmid's
teachings regarding local gates, proxies, and interfaces do not teach away
from the claimed invention?
4. Did the Examiner err in finding that Prem and Schmid's
teachings regarding pass-by-reference semantics and copier semantics do not
teach away from the claimed invention?
ANALYSIS
Claims 1, 8, 15, 17, 21-24, 28, 29, 33, 34, and 36--42
In their Appeal Brief, Appellants argue that the Examiner erred in
finding that Schmid teaches or suggests limitation [i] ("determining that the
stub is an unnecessary stub .... including analyzing the program code at run
time"). (App. Br. 9-10.) We are not persuaded by this argument because it
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Application 11/193,070
does not address the actual bases of the Examiner's rejection. The Examiner
did not find that Schmid teaches or suggests limitation [i]; the Examiner
finds that Prem teaches that limitation. (Final Act. 2-3; Ans. 12.)
Appellants first raised the argument that Prem does not teach the disputed
limitation in their Reply Brief. (Reply Br. 2-5.) Appellants have not shown,
and we are not aware of, any good cause for raising that argument for the
first time on reply. Nor is it apparent that argument were necessitated by a
new point in the Examiner's Answer. Accordingly, we will not consider it.
See 37 C.F.R. § 41.41(b)(2).
Appellants argue that the Examiner erred in finding that Schmid
teaches or suggests limitation [ii] ("deleting the stub from the program
code.") (App. Br. 10; Reply Br. 5---6.) Specifically, Appellants argue that
Schmid merely discusses omitting or abandoning gates and omitting or
abandoning differs from deleting. (App. Br. 10; Reply Br. 5---6.) Appellants
also argue that deleting could have a different effect and require an entirely
different operation than omitting or abandoning. (App. Br. 11.) We are not
persuaded of error.
The Examiner has set forth evidence that omitting or abandoning
teaches or suggests the act of deletion. (Final Act. 11; Ans. 16-17.) For
example, the Examiner sets forth how Schmid distinguishes between
omitting and not implementing gates and how this distinction demonstrates
that the gates that Schmid omits originally existed in the code but are
subsequently left out. (Ans. 16.) Citing Morita, 1 the Examiner explains that
the art uses the terms "abandon" and "delete" as synonyms. (Id.) Citing a
1 US 2002/0194355 Al, published December 19, 2002.
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Application 11/193,070
thesaurus submitted by Appellants, the Examiner sets forth how in ordinary
usage the term "delete" is synonymous with "omit." (Id. at 16-17.) The
Examiner further explains why it would be obvious to delete Schmid's gates
and proxies even if one were to interpret the Schmid's abandonments or
omissions as leaving Schmid's gates and proxies in Schmid's code. (Id. at
17-18.) Citing Ryan2 and Gouge, 3 the Examiner explains that an ordinarily
skilled artisan would have known how to remove redundant proxies and
unnecessary stubs. (Id. at 18-19.) 4
On Reply, Appellants suggest that they acted as their own
lexicographer and defined the term "delete" to mean "remove." (Reply Br.
5, citing Spec. i-f 36.) However, Appellants did not define explicitly the term
"delete" in their Specification. Further, even if we were to construe the term
"delete" according to Appellants' proffered definition, that construction
would not undermine the Examiner's rejection because the Examiner found
that Schmid removes gates. (Ans. 20.) Further, Appellants do not address
the Examiner's additional findings that Schmid's omission would suggest
deletion even if Schmid were interpreted to merely not implement, rather
than to remove, gates. (Id. at 17-19.) Therefore, Appellants have not
persuaded us the Examiner's interpretation or findings are erroneous.
2 Ryan et al., "Application Adaptation Through Transparent and Portable
Object Mobility in Java," 2004, CoopIS/DOA/ODBASE 2004, LNCS 3291.
3 U.S. 6,931,429.
4 Appellants argue that the Examiner's reliance on Ryan and Gouge raises a
new ground of rejection. (Reply Br. 6.) The Board, however, cannot
consider that argument. 3 7 C.F .R. § 41.40( a).
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Application 11/193,070
Appellants argue that Prem and Schmid's teachings regarding local
gates, proxies, and interfaces teach away from combining the references.
(App. Br. 12; Reply Br. 7.) Appellants further argue that Prem and
Schmid's teachings regarding pass-by-reference and copier semantics also
teach away from combining the references. (App. Br. 13; Reply Br. 7.) We
are not persuaded by these arguments. Here, the Examiner does not propose
combining Schmid's (i) gates, proxies, and interfaces or (ii) pass-by-
reference and copier semantics, with Prem' s remote method invocation
mechanism. (Ans. 19-21.) Further, Appellants have not set forth how the
relied-upon teachings of Prem or Schmid criticize, discredit, or otherwise
discourage the combination of teachings made by the Examiner. (App. Br.
12-13; Reply Br. 7.) Nor have Appellants persuaded us the teachings of
Prem and Schmid, taken alone or in proper combination, criticize, discredit,
or otherwise discourage modifying either reference to arrive at the claimed
invention. Accordingly, we are not persuaded that any of the teachings in
Prem or Schmid, cited by Appellants, teach away from the claimed
invention. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004); In re
Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012); In re Keller, 642 F.2d 413,
425-26 (CCPA 1981 ).
Therefore, we sustain the rejection of claim 1 and of claims 8, 15, 17,
21-24, 28, 29, 33, 34, and 36-42, not separately argued.
Claim 7
Appellants argue that the Examiner made the same errors for claim 7
as for claim 1. (App. Br. 14.) Therefore, for the reasons set forth above, we
also sustain the Examiner's rejection of claim 7.
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DECISION
The decision of the Examiner to reject claims 1, 7, 8, 15, 17, 21-24,
28, 29, 33, 34, and 36-42 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)(l )(iv).
AFFIRMED
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