Ex Parte Eliassaf et al

Patent Trial and Appeal Board

May 25, 2017

13459356 (P.T.A.B. May. 25, 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.
13/459,356 04/30/2012 OFER ELIAS SAF 82964550 4696
56436 7590 05/30/2017
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
EXAMINER
WHEATON, BRADFORD F
ART UNIT PAPER NUMBER
2197
NOTIFICATION DATE DELIVERY MODE
05/30/2017 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):
hpe.ip.mail@hpe.com
chris. mania @ hpe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OFER ELIAS SAF, MEIDAN ZEMER, and YAIR HOROVITZ
Appeal 2017-003536
Application 13/459,3561
Technology Center 2100
Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and
JOHN P. PINKERTON, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1, 3—11, 13—17, and 19-21, which constitute all the
claims pending in this application. Claims 2, 12, and 18 have been
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The real party in interest identified by Appellants is Hewlett Packard
Enterprise Development, LP, a wholly-owned affiliate of Hewlett Packard
Enterprise. Br. 1.
Appeal 2017-003536
Application 13/459,356
STATEMENT OF THE CASE
Introduction
Appellants’ described and claimed invention relates generally to
identifying dynamic data associated with multiple execution instances of an
application process, and using the identified dynamic data to produce a
script. See Spec. 17.2
Claim 1 is representative and reads as follows (with the disputed
limitation emphasized)'.
1. A method comprising:
receiving, by a system having a processor, a data structure
containing dynamic data of a plurality of different execution
instances of an application process on a server computer, where
the dynamic data includes:
correlation data for identifying a communication
between at least one client computer and the server computer,
and
asynchronous data provided by the plurality of
different execution instances of the application process to the at
least one client computer, the asynchronous data including
changing data that is continually updated; and
querying, by the system, the data structure to retrieve the
dynamic data of the plurality of different execution instances of
the application process; and
producing, by the system based on the retrieved dynamic
data including the correlation data and the asynchronous data
provided by the plurality of different execution instances of the
application process, a script that simulates behavior relating to
execution of the application process.
2 Our Decision refers to the Final Office Action mailed Aug. 26, 2015
(“Final Act.”), Appellants’ Appeal Brief filed Jan. 19, 2016 (“Br.”), the
Examiner’s Answer mailed Sept. 6, 2016 (“Ans.”), and the original
Specification filed Apr. 30, 2012 (“Spec.”).
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Application 13/459,356
Br. 18 (Claims App’x. i.).3
Rejections on Appeal
Claims 1, 3—5, 7, 16, and 19 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Schwarzbauer et al. (US 2004/0111727 Al;
published June 10, 2014) (“Schwarzbauer”), in view of Wenig et al.
(US 2008/0005793 Al; published Jan. 3, 2008) (“Wenig”).
Claims 10, 11, 13, 14, 20, and 21 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Schwarzbauer, in view of
Wenig, and further in view of Ueda et al. (US 8,549,620 B2; issued Oct. 1,
2013) (“Ueda”).
Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schwarzbauer, in view of Wenig, and further in view of
Millington et al. (US 2005/0256834 Al; published Nov. 17, 2005)
(“Millington”).
Claims 8 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schwarzbauer, in view of Wenig, and further in view of
Hill et al. (US 2010/0270374 Al; published Oct. 28, 2010) (“Hill”).
Claims 9 and 17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schwarzbauer, in view of Wenig, and further in view of
Weber et al. (US 2010/0211935 Al; published Aug. 19, 2010) (“Weber”).
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments in the Appeal Brief (see Br. 6—16) and are not persuaded the
3 The Claims Appendix of Appellants’ Appeal Brief is separately numbered
with respect to the remaining portion of the Appeal Brief.
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Application 13/459,356
Examiner has erred. Unless otherwise noted, we adopt as our own the
findings and reasons set forth by the Examiner in the Office Action from
which this appeal is taken (Final Act. 2—13) and in the Examiner’s Answer
(Ans. 2—5), and we concur with the conclusions reached by the Examiner.
For emphasis, we consider and highlight specific arguments as presented in
the Appeal Brief.
Rejection of Claims 1, 3—9, 16, 17, and 19 under § 103(a)
Appellants argue the combination of Schwarzbauer and Wenig fails to
teach or suggest the claimed “asynchronous data provided by the plurality of
different execution instances of the application process,” as recited in
independent claims 1 and 16, because Wenig merely teaches a replay based
on captured data for a single network session (i.e., a single execution
instance of an application on a server). See Br. 9-10. Appellants further
argue the combination of Schwarzbauer and Wenig also fails to teach the
claimed “producing,. . . based on the retrieved . . . asynchronous data
provided by the plurality of different execution instances of the application
process, a script that simulates behavior relating to execution of the
application process,” as recited in claims 1 and 16, because Schwarzbauer
merely teaches producing a script for a single network session. See Br. 10.
We are not persuaded that the Examiner erred. Regarding Appellants’
argument that Wenig fails to teach or suggest the claimed “asynchronous
data” because Wenig merely teaches captured data for a single session, we
do not find this argument persuasive because we agree with the Examiner
that Wenig teaches capturing data from multiple network sessions, where
each network session is a different execution instance of a web application.
See Ans. 2—3 (citing Wenig | 62); see also Wenig 115. Regarding
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Application 13/459,356
Appellants’ argument that Schwarzbauer fails to teach or suggest the
claimed “producing” because Schwarzbauer merely teaches producing a
script for a single network session, we do not find this argument persuasive
because the Examiner relied upon Wenig, rather than Schwarzbauer, to teach
multiple network sessions (i.e., multiple execution instances of an
application). See Ans. 4; see also Final Act. 3^4. It is well established that
one cannot show non-obviousness by attacking references individually
where the rejection is based upon the teachings of a combination of
references. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986);
see also In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Thus, we are not persuaded the Examiner erred in finding the
combination of Schwarzbauer and Wenig teaches or suggests the disputed
limitations of claims 1 and 16. Accordingly, we sustain the rejection of
claims 1 and 16 under 35 U.S.C. § 103(a), as well as dependent claims 3—9,
17, and 19, which are not argued separately.
Rejection of Claims 10, 11, and 13—15 under § 103(a)
In arguing that independent claim 10 is not obvious in light of the
combination of Schwarzbauer, Wenig, and Ueda, Appellants rely on their
arguments regarding claim 1. See Br. 12—13. We do not find these
arguments persuasive of Examiner error for the reasons previously described
above.
Appellants additionally argue, although Ueda refers to server
authentication data, there is nothing in Ueda that would have led a person of
ordinary skill in the art to build a script based on dynamic data that includes
the authentication data to simulate behavior relating to execution of the
application process. See Br. 13. This argument is not persuasive. We agree
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Application 13/459,356
with the Examiner that Ueda teaches server authentication data is received
from a server and stored in a local memory unit of a client. See Ans. 4
(citing Ueda 18:32—41). Further, Appellants’ argument attacks Ueda
individually for failing to teach a claimed feature (i.e., building a script
based on dynamic data that includes the authentication data), where the
Examiner relied upon the combination of Schwarzbauer and Wenig for
teaching the aforementioned feature. See Final Act. 6—7. Therefore,
Appellants’ argument does not address the actual rationale of the Examiner’s
rejection, as the argument attacks the references individually, rather than the
combination of references.
Thus, we are not persuaded the Examiner erred in finding the
combination of Schwarzbauer, Wenig, and Ueda teaches or suggests the
disputed limitations of claim 10. Accordingly, we sustain the rejection of
claim 10 under 35 U.S.C. § 103(a), as well as dependent claims 11 and IS­
IS, which are not argued separately.
Rejection of Claims 20 and 21 under § 103(a)
In regard to claims 20 and 21, Appellants merely repeat their
argument regarding claim 10 with respect to Ueda’s server authentication
data. See Br. 14. We do not find this argument persuasive, for the reasons
previously described above.
Thus, we are not persuaded the Examiner erred in finding the
combination of Schwarzbauer, Wenig, and Ueda teaches or suggests the
disputed limitations of claims 20 and 21. Accordingly, we sustain the
rejection of claims 20 and 21 under 35 U.S.C. § 103(a).
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DECISION
We affirm the Examiner’s rejection of claims 1, 3—11, 13—17, and 19—
21 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 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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