Ex Parte Leithead et al

Patent Trial and Appeal Board

Jul 29, 2016

13149645 (P.T.A.B. Jul. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/149,645 05/31/2011
47973 7590 08/02/2016
WORKMAN NYDEGGER/MICROSOFT
60 EAST SOUTH TEMPLE
SUITE 1000
SALT LAKE CITY, UT 84111
FIRST NAMED INVENTOR
Travis Leithead
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.
332913.01 1831
EXAMINER
BOURZIK, BRAHIM
ART UNIT PAPER NUMBER
2191
NOTIFICATION DATE DELIVERY MODE
08/02/2016 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):
Docketing@wnlaw.com
usdocket@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TRAVIS LEITHEAD, WSTIN ROGERS, MILADIN PA VLICIC,
CURTIS CHENG-CHENG MAN, YONG QU, NATHAN J.E.
FURTWANGLER, REZA A. NOURAI, and STEVEN LUCCO
Appeal2014-009985
Application 13/149,645
Technology Center 2100
Before LARRY J. HUME, JENNIFER L. McKEOWN, and
JOHN D. HAMANN, Administrative Patent Judges.
McKEOWN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeals under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
Appellants' invention relates to "an interface between a Web
browser's layout engine and a scripting engine. The interface enables
objects from the layout engine to be recognized by a memory manager in the
scripting engine and interact in a streamlined, efficient manner." Abstract.
Claim 1 is illustrative of the claimed invention and reads as follows:
Appeal2014-009985
Application 13/149,645
1. One or more computer readable storage
memories comprising code configured to:
enable one or more interface definition language
(IDL) files to be created that describe one or more
interfaces between a Web browser's layout engine and an
associated scripting engine,
the one or more IDL files being configured to
include:
one or more annotation/documentation attributes,
one or more global object extension attributes,
one or more code generation attributes, and
one or more API availability attributes.
THE REJECTIONS
The Examiner rejected claims 1-3, 5-10, 12-14, and 17-19 under 35
U.S.C. § 103(a) as unpatentable over Wang et al. (US 2008/0313648 Al;
pub. Dec. 18, 2008) and Fan et al. (US 2009/0070663 Al; pub. Mar. 12,
2009). Final Act. 12-20. 1
The Examiner rejected claims 4 and 11 under 35 U.S.C. § 103(a) as
unpatentable over Wang, Fan, and Kocyan et al. (US 2009/0217311 Al;
pub. Aug. 27, 2009). Final Act. 20-22.
The Examiner rejected claims 15, 16, and 20 under 35 U.S.C. § 103(a)
as unpatentable over Wang, Fan, and Cheng (US 20094/025650 Al; pub.
Oct. 14, 2004). Final Act. 22.
The Examiner rejected claims 1-20 under the judicially created
doctrine of non-statutory obviousness-type double patenting as being
1 Throughout this opinion, we also refer to ( 1) the Final Action, mailed
June 20, 2013 ("Final Act."); (2) the Appeal Brief filed April 9, 2014 ("App.
Br."); (3) the Examiner's Answer mailed July 28, 2014 ("Ans."); and (4) the
Reply Brief filed September 12, 2014 ("Reply Br.").
2
Appeal2014-009985
Application 13/149,645
unpatentable over claims 1-20 of copending Application No. 13/658,668.
Final Act. 9-12.
ANALYSIS
THE OBVIOUSNESS REJECTION BASED ON WANG AND FAN
Based on the record before us, we are not persuaded the Examiner
erred in rejecting claims 1-3, 5-10, 12-14, and 17-19 as unpatentable over
Wang and Fan.
Appellants contend that Wang fails to teach "[o]ne or more computer
readable storage memories comprising code configured to: enable one or
more interface definition language (IDL) files to be created that describe one
or more interfaces between a Web browser's layout engine and an associated
scripting engine," as recited in claim 1. Appellants, in particular, assert that
the Examiner mischaracterizes the claimed subject matter and that Wang's
proxy is not an IDL. Reply Br. 3; see also App. Br. 22-23 (noting that the
cited portions of Wang and "Wang in its [sic] entirety" are not germane to
the claimed subject matter); App. Br. 22 (presenting similar statements with
respect to Fan). Appellants further point out that "there is no mention
whatsoever in Wang of an Interface Definition Language (IDL)." Reply
Br. 3; see also App. Br. 28.
The Examiner, however, points out that the Specification describes
that "IDL is used to bridge functionality between layout and scripting
engine[s]." Ans. 17; see also Spec. i-f 35 ("In some embodiments, the
extended IDL can enable generation of code configured to bridge the layout
engine and scripting engine."). Id. at 21.
Additionally, the Examiner defines IDL as "a specification language
used to describe a software component's interface. IDLs describe an
interface in a language-independent way, enabling communication between
3
Appeal2014-009985
Application 13/149,645
software components that do not share a language - for example, between
components written in C++ and components written in Java." Ans. 17
(citing Wikipedia); see also Ans. 18 (citing Spec. i-f 180) ("IDL code can be
used to describe one or more interfaces between various software
components, such as interfaces between a layout engine and a scripting
engine."). The Examiner then explains that Wang's script engine proxy
("SEP") bridges the functionality between the layout engine and script
engine and that it would have been obvious to a skilled artisan at the time of
the invention for Wang's proxy to be implemented with an IDL. Ans. 22
(citing a 1998 Microsoft journal article for support).
Appellants fail to persuasively respond to these findings and
determinations. Instead, Appellants make general conclusory assertions and
merely reiterate that "there is no mention whatsoever in Wang of an
Interface Definition Language (IDL)'' and "neither Wang nor Fan disclose
and describe Interface Definition Language .... " Reply Br. 3---6. We find
Appellant's assertions amount to unsupported attorney argument, and
therefore we give them little weight. See In re Geisler, 116 F .3d 1465, 14 70
(Fed. Cir. 1997); see also In re Huang, 100 F.3d 135, 139-140 (Fed. Cir.
1996). Furthermore, there is no ipsissimis verbis test for determining
whether a reference discloses a claim element, i.e., identity of terminology is
not required (In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990)). Moreover,
the Examiner determines the limitation is obvious. See, e.g., Ans. 22-23.
As such, we are not persuaded that the Examiner erred in applying a broad,
but reasonable interpretation ofIDL and find that Wang's teaching of SEP at
least suggests the disputed IDL limitation, nor do we find error in the
Examiner's reliance under§ 103 on the combined teachings and suggestions
of Wang and Fan.
4
Appeal2014-009985
Application 13/149,645
Appellants also contend that the recited IDL limitation requires
"direct integration" and that Wang's and Fan's proxies are different from
"the notion of 'direct integration' through use Appellants' inventive IDL
extensions are different." Reply Br. 2. This notion of "direct integration,"
though, is notably absent from the claim. Nor do Appellants identify any
disclosure of the Specification that suggests that IDL requires this direct
integration. See, e.g., Reply Br 2 (citing the Specification for the premise
that in some embodiments IDL extensions can enable direct integration).
Therefore, we find this argument unavailing.
Appellants also generally challenge the Examiner's findings of the
recited attribute limitations. See App. Br. 22-26, 29-33. Apart from
summarily asserting that the cited prior art allegedly fails to disclose the
recited features, Appellants do not particularly show error in the Examiner's
findings and conclusions in rejecting these claims. See 37 C.F.R.
§ 41.37(c)(l)(iv) (noting that an argument that merely points out what a
claim recites is unpersuasive). Accord In re Lovin, 652 F.3d 1349, 1357
(Fed. Cir. 2011) ("[T]he 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."). Appellants' blanket assertions are therefore
unpersuasive.
Appellants' assertion that the Examiner's reasons to combine the prior
art is "simply misplaced and inapplicable" is similarly unconvincing. App.
Br. 33; see also Reply Br. 8. Contrary to Appellants' assertions, the
Examiner explains that both Wang and Fan are directed to interfacing
functionality between the browser layout engine and the script engine
through use of a proxy. Final Act. 6. It would have been obvious to a
5
Appeal2014-009985
Application 13/149,645
skilled artisan at the time of the invention to modify Wang's proxy, in view
of Fan's teaching where unwanted scripts from outside providers are not
allowed to be executed, to protect Wang's user/enterprise from malicious
code. See Ans. 13-14; see also Ans. 30-31 (describing that Wang also
discloses some selective restrictions to service to enhance security). As
such, we are not persuaded of error in the Examiner's determination.
Appellants present similar arguments for independent claims 12 and
17. For example, we respect to claim 12, Appellants contend:
Applicant has reviewed these excerpts and can find no
discussion whatsoever that pertains to "receive one or more
Property Description Language (PDL) files that define one or
more layout engine programming objects and associated APis
and one or more files that define one or more scripting language
objects" as recited in this claim and described in Applicant's
Specification. Moreover and respectfully, the Office's reasoning
does not appear to be on point.
Accordingly, for at least this reason, Applicant requests
that the rejection be reversed.
App. Br. 48; see also App. Br. 53-54 (asserting that the rejection of claim 17
should be reversed because "none of the excerpts describe or suggest the
features appearing in this claim.").
The Examiner, though, interprets the recited PDL page as Fan's one
or more markup language documents, e.g. HTML page. See Final Act. 7-8
(citing Fan i-fi-133-34) (noting that one or more markup language documents
include content to be processed by the layout engine and also describing that
script content may also be included). Appellants' conclusory assertions that
there is no discussion of the recited limitation fails to persuasively identify
error in the Examiner's findings.
6
Appeal2014-009985
Application 13/149,645
Further, while Appellants raised additional arguments for patentability
of dependent claims 2, 3, 5-10, 13-14, and 18-19, rejected on the same
basis as claims 1, 12, and 17 (App. Br. 33-54), we find that the Examiner
has rebutted each of those arguments in the Answer by a preponderance of
the evidence. Final Act. 14-20; Ans. 7-13, 31--46. Therefore, we adopt the
Examiner's findings, legal conclusions, and underlying reasoning, which we
incorporate herein by reference. Consequently, we have found no reversible
error in the Examiner's rejections of claims 2, 3, 5-10, 13-14, and 18-19.
Accordingly, for the reasons discussed above and by the Examiner,
claims 1-3, 5-10, 12-14, and 17-19 are unpatentable over Wang and Fan.
THE REMAINING OBVIOUSNESS REJECTIONS
Claims 4, 11, 15, 16, and 20
Appellants do not separately argue patentability for dependent
claims 4, 11, 15, 16, and 20, but instead rely on the arguments presented for
claims 1, 12, and 17. See App. Br. 39, 46, and 53-54. As discussed above,
we find that the Examiner has rebutted each of those arguments in the
Answer by a preponderance of the evidence. Ans.14-16. Therefore, we
adopt the Examiner's findings, legal conclusions, and underlying reasoning,
which we incorporate herein by reference. Consequently, we have found no
reversible error in the Examiner's rejections of claims 4, 11, 15, 16, and 20.
THE OBVIOUSNESS-TYPE DOUBLE PATENTING REJECTION
Appellants present no arguments pertaining to the Examiner's
limitations of the claimed subject matter rejection of claims 1-20 and
erroneously assert that it is not the subject of this appeal. See App. Br. 11.
7
Appeal2014-009985
Application 13/149,645
Accordingly, we summarily sustain this rejection. See Manual of Patent
Examining Procedure (MPEP) § 1205.02 (9th Edition, Rev. 07.2015,
revised Nov. 2015) ("If a ground of rejection stated by the [E]xaminer is not
addressed in the [A]ppellant's brief, [A]ppellant has waived any challenge to
that ground of rejection and the Board may summarily sustain it").
CONCLUSION
The Examiner did not err in rejecting claims 1-20 under 35 U.S.C.
§ 103, or in rejecting these claims under the doctrine of obviousness-type
double patenting.
DECISION
We affirm the Examiner's decision to reject claims 1-20.
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
8