Ex Parte Kirkpatrick

Patent Trial and Appeal Board

Dec 12, 2016

13250592 (P.T.A.B. Dec. 12, 2016)

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.
13/250,592 09/30/2011 Ficus Kirkpatrick 1133-075US02 9133
98449 7590 12/14/2016
Shumaker & Sieffert, P.A.
1625 Radio Drive, Suite 100
Woodbury, MN 55125
EXAMINER
PARK, GRACE A
ART UNIT PAPER NUMBER
2157
NOTIFICATION DATE DELIVERY MODE
12/14/2016 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):
pairdocketing @ ssiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FICUS KIRKPATRICK
Appeal 2015-004181
Application 13/250,592
Technology Center 2100
Before CAROLYN D. THOMAS, NABEEL U. KHAN, and
MICHAEL M. BARRY, Administrative Patent Judges.
KHAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies Google Inc. as the real party in interest. App. Br. 3.
Appeal 2015-004181
Application 13/250,592
THE INVENTION
Appellant’s invention relates to techniques for identifying similar
software applications based on programmed characteristics of the software
applications. Spec. 15.
Exemplary independent claim 1 is reproduced below.
1. A method comprising:
selecting for analysis, by a computing device, an
application, wherein the application is selected for analysis prior
to being made available for download from an online application
store that provides an interface for a plurality of mobile
computing devices to download applications executable by the
plurality of mobile computing devices;
identifying, based at least in part on executable code of the
application, a group of application programming interfaces
utilized by the application when the application is executed;
assigning a relatedness factor value to each application
programming interface of the group of application programming
interfaces, wherein the relatedness factor value is based at least
in part on a likelihood that different applications that each utilize
the respective application programming interface are related to
each other; and
identifying a group of related applications that are each
related to the application based at least in part on the relatedness
factor value assigned to each application programming interface
of the group of application programming interfaces utilized by
the application, wherein each related application of the group of
related applications utilizes one or more application
programming interfaces of the group of application
programming interfaces utilized by the application, and wherein
each application from the group of related applications is
available for download from the online application store.
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Appeal 2015-004181
Application 13/250,592
REFERENCES and REJECTIONS2
1. Claims 1, 2, 5, 14, 19, and 20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Thorkelsson et al. (US 2011/0208801 Al;
Aug. 25, 2011), Gharabally et al. (US 2010/0205274 Al; Aug. 12, 2010),
Branda et al. (US 2007/0226324 Al; Sept. 27, 2007) and Rubenczyk et al.
(US 2003/0217052 Al; Nov. 20, 2003).
2. Claims 3 and 4 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Thorkelsson, Gharabally, Branda, Rubenczyk, and Park et
al. (US 2011/0041078 Al; Feb. 17, 2011).
3. Claim 6 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Thorkelsson, Gharabally, Branda, Rubenczyk, and Haigh
et al. (US 2007/0112754 Al; May 17, 2007).
4. Claim 7 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Thorkelsson, Gharabally, Branda, Rubenczyk, and
Burdick et al. (US 7,185,001 Bl; Feb. 27, 2007).
5. Claims 8—13 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Thorkelsson, Gharabally, Branda, Rubenczyk, Burdick,
and Park.
6. Claims 15—17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Thorkelsson, Gharabally, Branda, Rubenczyk, and Repasi
et al. (US 2008/0086775 Al; Apr. 10, 2008).
2 Claim 19 is directed to a “computer-readable storage medium” but does not
specify that the storage medium is non-transitory. Should there be further
prosecution of this application (including any review for allowance), the
Examiner may wish to review claim 19 for compliance under 35 U.S.C.
§ 101 in light of the Federal Circuit’s decision in In re Nuijten, 500 F.3d
1346 (Fed. Cir. 2007) and the Board’s decision in Ex parte Mewherter, No.
2012-007692 (2013) (precedential).
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Application 13/250,592
7. Claim 18 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Thorkelsson, Gharabally, Branda, Rubenczyk, and Cisler
et al. (US 2008/0033922 Al; Feb. 7, 2008).
ANALYSIS
A. Claim 1
Appellant argues “Thorkelsson does not disclose or suggest
‘identifying ... a group of application programming interfaces utilized by the
application during execution,’ as recited by claim 1.” App. Br. 8.
According to Appellant, “Thorkelsson is silent as to ‘application
programming interfaces,’ which is explicitly recited by claim 1.” Id.
Appellant further argues Rubenczyk is also “silent as to ‘application
programming interfaces.’” App. Br. 10. Further, Appellant argues that in
Rubenczyk, “[mjerely describing how the ‘rank should reflect the likelihood
that the ranked item may satisfy the user, by measuring the strength of the
match between the request and that particular item’ cannot properly be
considered as disclosing or suggesting ‘wherein the relatedness factor value
is based at least in part on a likelihood that different applications that each
utilize the respective application programming interface are related to each
other,’ as recited in claim 1.” App. Br. 10 (quoting Rubenczyk | 598).
We are unpersuaded by Appellant’s argument. The Examiner finds
Branda teaches or suggests “‘application programming interfaces’ by
disclosing an application inspection unit that introspects the byte code of an
application to determine which APIs (i.e., application programming
interfaces) are being used [par. 8].” Ans. 4. The Examiner further finds that
“[i]t would have been obvious to one of ordinary skill in the art at the time
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Application 13/250,592
of invention to modify the identifying of application functions taught by
Thorkelsson so that the functions are identified by inspecting the byte code
of the application as taught by Branda. The motivation for doing so would
have been to identify the functions without having to install and execute the
application, thereby saving time and resources.” Id.
Appellant does not rebut the Examiner’s findings regarding Branda,
and instead argues that the Examiner’s reliance on Branda “appears to be a
new ground of rejection.” Reply Br. 7—8. The Board only considers matters
affecting the merits of the invention, i.e., rejections of claims. See 37 C.F.R.
§ 41.31(c) (2011). Matters not affecting the merits of the invention, such as
procedural errors by the Examiner, are to be raised by petition to the
Director or to the USPTO official to whom the Director has delegated the
authority to determine the petition. See 37 C.F.R. §§ 1.181—183. Thus,
Appellants’ objection that the Examiner raises a new ground of rejection is
not within the jurisdiction of the Board.
Because Appellant does not rebut the Examiner’s findings regarding
Branda, we are unpersuaded of Examiner error. Accordingly, we sustain the
Examiner’s rejection of claim 1 and of claims 2, 5, 14, 19, and 20 which
argued together with claim 1.
B. Claim 6
Appellant argues “[t]he cited portion of Haigh is silent as to
‘application programming interfaces,’ ‘threshold value,’ ‘filters,’ and many
other features specifically recited by claim 6.” App. Br. 14.
We are unpersuaded by Appellant’s argument. Haigh teaches “it is
already common practice to remove very common ‘stop’ words,” (Haigh
| 64) and further teaches the removal of “noise” from a numerical template,
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Application 13/250,592
(Haigh | 65). We find Haigh’s disclosure of removing very common
keywords and noise when conducting a search so as to avoid irrelevant
matches, along with the disclosures of Thorkelsson, Gharbally, Rubencyk,
and the unrebutted findings related to Branda, would teach one of ordinary
skill in the art to remove any API used by more than a first threshold number
or less than a second threshold number of applications to also avoid
irrelevant matches. We accordingly sustain the rejection of claim 6.
C. Claims 3, 4, 7, 15—18
Although Appellant separately argues dependent claims 3, 4, 7, and
15—18, Appellant reiterates the same arguments made for independent claim
1, adding only a recitation of the respective limitations of each of the
aforementioned claims and asserting, without any reasoning or analysis, that
the cited references fail to disclose or suggest these limitations. See App.
Br. 13, 15—18. We find these arguments to be conclusory and unpersuasive.
See 37 C.F.R. § 41.37(c)(l)(iv) (“A statement which merely points out what
a claim recites will not be considered an argument for separate patentability
of the claim.”); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)
(“[W]e hold that the Board reasonably interpreted Rule 41.37 to require
more substantive arguments in an appeal brief than a mere recitation of the
claim elements and a naked assertion that the corresponding elements were
not found in the prior art.”).
Accordingly, we sustain the Examiner’s rejections of claims 3, 4, 7,
and 15—18.
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Application 13/250,592
D. Claims 8—13
Appellant does not present any separate arguments for patentability of
claims 8—13 and thus, we sustain the Examiner’s rejections of these claims.
DECISION
The Examiner’s rejections of claims 1—20 are affirmed.
AFFIRMED
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