Ex Parte Malyshev et alDownload PDFPatent Trial and Appeal BoardAug 31, 201813974026 (P.T.A.B. Aug. 31, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. 13/974,026 112025 7590 CRGOLAW 7900 Glades Road Suite 520 FILING DATE 08/22/2013 09/05/2018 Boca Raton, FL 33434 FIRST NAMED INVENTOR Stanislav Malyshev 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. 1301-009CIPCON 5250 EXAMINER VU,TUANA ART UNIT PAPER NUMBER 2193 NOTIFICATION DATE DELIVERY MODE 09/05/2018 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@crgolaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte STANISLA V MAL YSHEV, LILA TRETIKOV, and CLINT ORAM Appeal 2016-006692 Application 13/974,026 1 Technology Center 2100 Before HUNG H. BUI, IRVINE. BRANCH, and JOHN R. KENNY, Administrative Patent Judges. BUI, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner's Final Office Action rejecting claims 1-3, 5-11, and 13-15, which are all the claims pending on appeal. Claims 4 and 12 have been canceled. Claims App'x. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 2 1 According to Appellants, the real party in interest is SugarCRM Incorporated. App. Br. 2. 2 Our Decision refers to Appellants' Appeal Brief filed August 4, 2015 ("App. Br."); Supplemental Appeal Brief filed November 16, 2015 (Supp. App. Br.); Reply Brief filed June 20, 2016 ("Reply Br."); Examiner's Answer mailed April 20, 2016 ("Ans."); Final Office Action mailed March 4, 2015 ("Final Act."); and original Specification filed August 22, 2013 ("Spec."). Appeal2016-006692 Application 13/974,026 STATEMENT OF THE CASE Appellants 'Invention Appellants' invention relates to a "customer relationship management [CRM] software system" with "generalized cloud architectures" designed to "allow [a] provider to run multiple instances of the computer software" in order to "reduce their marginal cost of creating a copy of the software for each additional user, while still allowing to customize it independently from other copies according to user requirements." Spec. 3:14--18, 4:6-7 ( emphasis added). According to Appellants, The system designates two sets of application code files - "template" and "instance." The template code . . . is the code that is shared between all the copies (i.e. instances) of the application variant and the instance is the code specific to one specific copy of the application with a unique set of functional variation. Spec. 13:29-14:4 (emphasis added). The system includes [a] module that uses the API [ application programming interface] ... to intercept calls for files made by the PHP scripts and reroute calls accessing multiple 'virtual copies' of the file to address the single actual file on disk. This way, the single file on the operating system storage can be used to represent an unlimited number of copies of the same file in separate installs of the application, without incurring additional costs in terms both storage space and caching mechanisms' memory and processing. Spec. 12:7-12 (emphasis added). 2 Appeal2016-006692 Application 13/974,026 Claims on Appeal Claims 1-3, 5-11, and 13-15 are pending on appeal. Claims 1, 9, and 15 are independent. Claim 1 is illustrative of the claimed subject matter, as reproduced below: 1. A generalized multi-instance computer application system compnsmg: a computer system having at least one computer with at least one processor and memory; a data store associated with the computer system that stores separate instances of program code of an application and corresponding template code common to all instances of the application; and, a language runtime engine executing in the memory of the computer system, the engine [i] determining, from a file access request to the application, a specific one of the instances of the application for which the file access request is directed and corresponding template code to be linked to the specific one of the instances of the application and [ii] linking the specific one of the instances of the application to the corresponding template code for a duration of a session associated with the file access request, [iii] so that subsequent file access requests for a same file are processed in the specific one of the instances of the application rather than in the template code common to all instances of the application. App. Br. 14 (Claims App'x) (bracketing added). EXAMINER'S REJECTIONS & REFERENCES (1) Claims 1-3, 5-11, 13, and 14 stand rejected under 35 U.S.C. § I03(a) as being unpatentable over Hipp et al. (US 2005/0198647 Al; published September 8, 2005; "Hipp"), Ginter et al. (US 8,543,842 B2; issued September 24, 2013; "Ginter"), Tran et al. (US 2006/0117136 Al; 3 Appeal2016-006692 Application 13/974,026 published June 1, 2006; "Tran") and/ or Pedersen et al. (US 2007 /0244987 Al; published October 18, 2007), Hossain (US 5,671,415; issued September 23, 1997), Cowsar et al. (US 5,615,400; issued March 25, 1997; "Cowsar"), Lee et al. (US 2002/0147763 Al; published October 10, 2002; "Lee"), and Smith et al. (US 4,868,770; issued September 19, 1989). Final Act. 2-17. (2) Claim 15 stands rejected under 35 U.S.C. § I03(a) as being unpatentable over Hipp, Ginter, Smith, Hossain, and Cowsar. Final Act. 17- 20. (3) Claims 1-3, 5, 7-11, 13, and 14 stand provisionally rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claims 1-3, 5, and 7-13 of US Patent No. 8,539,480. DISCUSSION At the outset, we note Appellants do not address the non-statutory obviousness-type double patenting rejection of claims 1-3, 5, 7-11, 13, and 14 based on claims 1-3, 5, and 7-13 of US Patent No. 8,539,480. Ans. 20. As such, the provisional rejection of these claims on the ground of non- statutory obviousness-type double patenting is sustained proforma. However, a terminal disclaimer can still be filed to overcome this rejection. 35 USC§ 103(a): Claims 1-3, 5-11, 13, and 14 Turning now to the obviousness rejection of independent claim 1 and similarly claim 9, the Examiner finds Hipp teaches most aspects of Appellants' claimed "generalized multi-instance computer application system" including, for example: 4 Appeal2016-006692 Application 13/974,026 "a computer system having at least one computer with at least one processor and memory" (see Hipp Figure 2); "a data store associated with the computer system that stores separate instances of program code of an application and corresponding template code common to all instances of the application; and a language runtime engine executing in the memory of the computer system, the engine [i] determining, from a [resource (i.e., file)] access request to the application, a specific one of the instances of the application for which the file access request is directed and corresponding template code to be linked to the specific one of the instances of the application and [ii] [iii] so that subsequent file access requests for a same file are processed in the specific one of the instances of the application rather than in the template code common to all instances of the application." Final Act. 2-3 (citing Hipp ,r,r 26-27, 35, 37). The Examiner also finds Hipp teaches that ( 1) the resource requested can be "a file" and (2) the access request can be a "file opening, file move, file renaming or deleting" and, as such, suggests the resource access request can be Appellants' claimed "file access request." Final Act. 4 (citing Hipp ,r,r 27-28, 35); also see Hipp ,r 43 ("as the application runs, every request for a new operating system resource (file, memory, semaphore, etc.) is checked for an existing rule. . . The rule will state the type of resource, the type of access (i.e., create, read, write, destroy, etc), and the action to be taken"). While not necessary, the Examiner finds the use of the claimed "file access request" to an application is well known, as implicitly suggested by Hipp (see Hipp ,r,r 27-28, 35, 43), or alternatively, as expressly disclosed by 5 Appeal2016-006692 Application 13/974,026 Pedersen and Tran. Final Act. 4--5 (citing Pedersen ,r,r 15, 278, 299, 300, 304--305; Tran's Figs. 2-3, Abstract). The Examiner acknowledges, however, Hipp does not expressly teach Appellants' claimed "engine [ii] linking the specific one of the instances of the application to the corresponding template code for a duration of a session associated with the file access request" (hereinafter referred as the "linking" feature) recited in claim 1. Final Act. 4. Nevertheless, the Examiner finds this "linking" feature is suggested by Hipp when requests (API calls) for resources are intercepted and routed internally so that "multiple application instances ... [ can be] forged from the same virtual template" (Final Act. 3 ( citing Hipp ,r,r 35, 37)), or alternatively, is well-known by those skilled in the art, as evidenced by ( 1) Ginter in the context of "correlating a code implementation based on available instances supplied from of library support and associating therewith a template" (see Ginter 7:24--54, 237:21- 38, 244:46-58) as well as (2) Smith in the context of its template code and its augmentation based on user specifications (see Smith 3 :26-35, 5:51-65, Fig. 1 ); (3) Cowsar in the context of a template code and its extension (see Cowsar 279:28-50); (4) Hossain in the context of its template code and its augmentation (see Hossain 3:15--4:59, Figs. 1-7); and (5) Lee in the context of using a template code to generate an instance during a session (see Lee ,r,r 193,196,213). Final Act. 5---6, 8-9. Appellants contend the prior art references (including Hipp, Ginter, Tran, Pedersen, Hossain, Cowsar, Lee, and Smith) do not teach or suggest the disputed limitation: "language runtime engine ... [i] determining, from a file access request to the application, a specific one of the instances of the application for which the file access request is directed and 6 Appeal2016-006692 Application 13/974,026 corresponding template code to be linked to the specific one of the instances of the application and [ii] linking the specific one of the instances of the application to the corresponding template code for a duration of a session associated with the file access request," as recited in claim 1. App. Br. 6-8. In particular, Appellants argue the "Examiner has simply attempted to locate piecemeal terms in eight different cited references without actually locating the fully claimed teaching in the combination of those eight references" and "does not seek to map any portion of any of the eight Hipp, Ginter, Tran, Pedersen, Hossain, Cowsar, Lee and Smith reference" to the disputed limitation of claim 1, as required by MPEP § 1207.02(A)(1)(9)(e). App. 8-10. According to Appellants, the Examiner has never attempted to prove that the single engine determines from the file access request both the instance and also the corresponding template code linked to the instance, and the lineage of the instance to the code for a particular duration so as to ensure that all subsequent file access requests for the same file are processed in the instance rather than in the template code. Reply Br. 8. Appellants' arguments are not persuasive to justify a reversal of the Examiner's rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). At the outset, we note the Examiner has made extensive specific fact findings with respect to each of the argued claims. See Final Act. 2-1 O; Ans. 22-31. In response thereto, Appellants do not dispute the Examiner's factual findings regarding Hipp and evidence of well-known features provided by the Examiner including ( 1) Appellants' claimed "file access request" from Pedersen and Tran and (2) Appellants' claimed "linking" feature from 7 Appeal2016-006692 Application 13/974,026 Ginter, Smith, Cowsar, and Hossain. Nor do Appellants present any arguments to (1) explain why the Examiner's factual findings regarding Hipp and its secondary references are in error, or even (2) address the combined teachings of these references. Instead, Appellants simply quote the language of claim 1 and then assert that the cited prior art (including Hipp, Ginter, Tran, Pedersen, Hossain, Cowsar, Lee, and Smith) fail to disclose a particular limitation. However, merely pointing out what a claim recites and then asserting that the cited prior art fails to teach a particular limitation is not considered a separate argument for patentability. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (explaining that "the Board reasonably interpreted Rule 41.3 7 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."). Thus, Appellants fail to specify the alleged error in the Examiner's rejection. Because Appellants do not contest the Examiner's factual findings regarding Hipp and its secondary references, we will not review those uncontested aspects of the rejection. See Ex Parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (the BPAI "reviews the obviousness rejection[s] for error based upon the issues identified by appellant, and in light of the arguments and evidence produced thereon," and treats arguments not made as waived). See, e.g., Ex parte Cabral, No. 2010-001572, 2012 WL 683718, at *3 (BPAI 2012) (non-precedential). Moreover, and contrary to Appellants' arguments, we agree with the Examiner's findings that the "linking" feature recited in Appellants' claim 1 is suggested by Hipp when requests (API calls) for resources are intercepted and routed internally so that "multiple instances of the same application 8 Appeal2016-006692 Application 13/974,026 [are] forged from the same virtual template" (see Hipp ,r 37 (emphasis added)) similarly to the "linking" described in Appellants' own Specification. Final Act. 3 ( citing Hipp ,r,r 35, 37); Ans. 22, 24; see also Spec. 12:7-12, 14:5-10. We also agree with the Examiner that the "linking" feature recited in Appellants' claim 1 is also well-known by those skilled in the art, as evidenced from Ginter, Smith, Cowsar, and Hossain. For example, Ginter teaches (1) API Service Manager 742, shown in Figure 12, provides a service instance [the claimed "instances of the application"] for each running user application 608 [ the claimed "corresponding template code common to all instances of the application"] and (2) API service 742 code may be shared ( e g, resident in a host environment like a Windows DLL), or may be directly linked [the claimed "linking"] with an application's code ["template code"]--depending on an application programmer's implementation decision. Ginter 98: 1-17. Based on this record, we are not persuaded of Examiner error. Accordingly, we sustain the Examiner's obviousness rejection of independent claim 1 and, similarly, independent claim 9 and respective claims 2, 3, 5-8, 10, 11, 13, and 14, which Appellants do not argue separately. With respect to independent claim 15, Appellants also reiterate the argument that the "Examiner did not directly map this claim limitation to any portion of any of the five references cited [including Hipp, Cowsar, Hossain, Smith, and Ginter]." App. Br. 11-12. This argument is not persuasive for the same reasons discussed relative to claims 1 and 9. However, we note claim 15 is significantly broader than claims 1 and 9 and does not recite the "linking" feature of claims 1 and 9. As such, claim 15 9 Appeal2016-006692 Application 13/974,026 does not distinguish over Hipp's teaching that "requests for non-shareable resources and duplicates ... [are directed] so that applications receive their own private copies and can co-exist transparently with multiple instances of the same application forged from the same virtual template." Hipp ,r,r 3 7, 41. For this reason, we also sustain the Examiner's obviousness rejection of independent claim 15. CONCLUSION On the record before us, we conclude Appellants have not demonstrated the Examiner erred in rejecting claims 1-3, 5-11, and 13-15 under 35 U.S.C. § 103. 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 10 Copy with citationCopy as parenthetical citation