Ex Parte Marejka et al

Patent Trial and Appeal Board

May 14, 2014

11381917 (P.T.A.B. May. 14, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte RICHARD MAREJKA and DAVID HAYNES
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Appeal 2012-000802
Application 11/381,917
Technology Center 2100
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Before DONALD E. ADAMS, ERIC B. GRIMES, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal1 under 35 U.S.C. § 134 involving claims to a method
of generating provider data. The Examiner rejected the claims as non-
statutory and as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm-in-part.

1 Appellants identify the Real Party in Interest as Oracle
International Corporation (see App. Br. 1).
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Application 11/381,917

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Statement of the Case
Background
The Specification teaches “systems for delivering self-service
solutions to individual computer systems from a central service provider,
and more particularly, to methods and systems for ensuring compatability
amongst distributed software ensuring processes implementing remotely
provided services such as monitoring, trend reporting, asset tracking and
change over time services” (Spec. 1, ll. 16-23).
The Claims
Claims 1-14 are on appeal. Claims 1 and 6 are representative and read
as follows:
1. A method of generating provider data comprising the steps of:
first collecting system data from a customer system with a first
data provider process executing on a computer system within the
customer system;
first associating the system data from the customer system with
first version data of the first data provider process to form first
provider data associated with the computer system, wherein the first
version data of the first data provider process includes a type of the
first data provider process and a version of the first data provider
process;
second collecting system data from the customer system with a
second data provider process executing on a computer within the
customer system;
second associating the system data from the customer system
with second version data of the second data provider process to form
second provider data associated with the computer system, wherein
the second version data of the second data provider process includes a
type of the second data provider process and a version of the second
data provider process and wherein either or both the type and the
version of the second data provider process differs from the type and
version of the first data provider process; and
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transporting the first and second provider data to a service
provider system, wherein the service provider system includes
plurality of data loaders corresponding to version data of a plurality of
data provider processes, receivers for accepting system data collected
from the customer system and brokering the system data from the first
and second data provider processes to first and second ones of the data
loaders selected to load the system data based on the type and the
version of data provider process assigned during the first and second
associating, and a job queue for retaining provider data until it is
processed by the first or second data loader and wherein the data
loaders and receivers are provided by code executed by a processor of
the service provider system.

6. A computer readable medium and computer readable code
embodied on the computer readable medium for generating provider
data from a customer computer system to a remote services system,
the computer program product comprising:
first computer readable program code devices executable on a
customer computer system to cause the customer computer system to
effect collecting system data from the customer system;
second computer readable program code devices executable on
the customer computer system to cause the customer computer system
to effect binding the collected system data with provider metadata to
form a plurality of provider messages, wherein the provider metadata
identifies a type and a version of the first computer code devices,
wherein the first computer code devices include a plurality of
differing types of data providers and a plurality of differing versions
of data providers; and
third computer readable program code devices executable on
the remote services system to cause the remote services system to
effect receiving the plurality of provider messages and to call a
specific loader based on the type and the version of the first computer
code device bound to the collected, wherein each of the called specific
loaders process the system data in the provider message to generate
monitoring data for the customer computer system.

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The issues
A. The Examiner rejected claims 6-11 under 35 U.S.C. § 101 as directed
to non-statutory subject matter (Ans. 4-5).
B. The Examiner rejected claims 6, 7, and 11-13 under U.S.C. § 103(a)
as obvious over Barton2 and Hiller3 (Ans. 6-10).
C. The Examiner rejected claims 1-5 and 14 under U.S.C. § 103(a) as
obvious over Barton, Hiller, and Tyra4 (Ans. 10-13).
D. The Examiner rejected claims 8-10 under U.S.C. § 103(a) as obvious
over Barton, Hiller, and Nagae5 (Ans. 14-15).
A. 35 U.S.C. § 101
Appellants state, regarding the 35 U.S.C. § 101 rejection, that “[t]his
reason for rejecting claims 6-11 is not one of the grounds of rejection that is
being appealed” (App. Br. 7). Since Appellants have not appealed this
rejection, the rejection is summarily affirmed. See Manual of Patent
Examining Procedure § 1205.02 (“If a ground of rejection stated by the
examiner is not addressed in the appellant's brief, that ground of rejection
will be summarily sustained by the Board.”); see also In re Berger, 279 F.3d
975, 984 (Fed. Cir. 2002) (in which the Board affirmed an uncontested
rejection of claims under 35 U.S.C. 112, second paragraph, and on appeal
the Federal Circuit affirmed the Board's decision and found that the
appellant had waived his right to contest the indefiniteness rejection by not
presenting arguments as to error in the rejection on appeal to the Board).

2 Barton et al., US 2002/0016959 A1, published Feb. 7, 2002.
3 Hiller et al., US 2003/0159135 A1, published Aug. 21, 2003.
4 Tyra et al., US 6,442,565 B1, issued Aug. 27, 2002.
5 Nagae, T., US 5,598,530, issued Jan. 28, 1997.
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B. 35 U.S.C. § 103(a) over Barton and Hiller
The Examiner finds that Barton teaches that a
client computer determines that the virus software is out of
date by comparing a local copy against a remote copy. This
comparison module constitutes the first computer code . . .
upon determining that the virus software is out of date, a
message is generated. The message specifies that the user’s
current version should be replaced with a current version of
the software. This message generation module constitutes
the second computer code . . . the comparison module is
executed upon a plurality of different data provider systems.
As the message is propagated to its final destination, the
comparison module on the local server (Figure 2, item 12)
and mail gateway (Figure 2, item 10) each determine
whether their current versions are up to date. If the version
of the local server and/or mail gateway are current, each of
these may serve[ ] as a source for obtaining the current
version of the software, thus making each of them possible
data providers . . . upon determining that an up to date
version of the virus software is available, each computer
executes a “pull” to obtain the updated software

(Ans. 6-7). The Examiner finds that “Barton fails to specifically disclose a
plurality of different types and a plurality of different versions, and calling a
specific data loader based on the type and the version of the computer code
device bound to the collected data” (Ans. 7). The Examiner finds that Hiller
teaches “a loader specifies one of a plurality of versions to be loaded onto a
computer. Additionally, the type of load to perform, implicit or explicit, is
determined and specified” (Ans. 7).
The Examiner finds it obvious “to have combined Hiller with Barton,
since it would have allowed a user to update a system through an implicit or
explicit use of a data loader” (Ans. 7-8).
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The issue with respect to this rejection is: Does the evidence of record
support the Examiner’s conclusion that the combination of Barton and Hiller
renders claim 6 obvious?
Findings of Fact
1. Figure 2 of Barton is reproduced below:

“FIG. 2 illustrates the start of the dissemination of an update” (Barton 2
¶ 0030).
2. Barton teaches that:
The anti-virus software within the workstation computer 16
tags the e-mail header of the e-mail message with the
version #3 of the computer virus definition data file that the
workstation computer 16 is currently using. This e-mail
message first passes through the local server 12 which is
also using this same version #3 and so leaves the tag
unaltered. When the e-mail message reaches the mail
gateway 10, the mail gateway checks the tag within the e-
mail message header and determines that it is itself using a
more up-to-date version of the computer file in question and
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so replaces the tag with one that indicates that version #4 has
been used and is available.

(Barton 2 ¶ 0030).
3. Barton teaches that each of “the mail gateway 18, the local
server 20 and the workstation computer 24 examines the tag within the e-
mail message header and determines that it indicates the existence of a more
up to date version of the computer virus definition data file than that which
they are currently using” (Barton 2 ¶ 0030).
4. Baron teaches that an
e-mail message also propagates via the local server 20, the
mail gateway 18 and the mail gateway 10 towards the other
target recipient that is the workstation computer 16. All of
these peer computers have already been updated, thus they
do not action version #4 tags and below. The first computer
reached in this transmission path that has not yet been
updated is the local server 12 and the second is the
workstation computer 16. Both of these computers also
detect that the tag shows a version level #4 higher than that
which they are currently using #3 and accordingly trigger
the download of an update from the FTP server 4.

(Barton 3 ¶ 0031).
5. Hiller teaches that to ensure “proper execution, the version
aware loader must be responsible for loading the proper versions of any
program modules named Q. Further, any program modules called by Q
during its execution must also be compatible with the loaded versions of Q
and with any other modules that might call it” (Hiller 4 ¶ 0041).
6. Hiller teaches that
An “explicit” load is one in which the loader is provided
with the name and version of a program to be loaded. An
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“implicit” load is one in which the loader determines the
name and version of a module to be loaded based on
unresolved references within a module being loaded. To
state this a different way, an explicit load may be defined as
a type of program load request in which the name, and
optionally the version number, of the program is provided to
the loader as part of the request. Implicit loading may be
defined as a type of program load request in which the name
of the program to load is determined internally by the loader
based on unresolved references in the program that is being
loaded.

(Hiller 4 ¶ 0042).
Principles of Law
“In proceedings before the Patent and Trademark Office, the
Examiner bears the burden of establishing a prima face case of obviousness
based upon the prior art.” In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir.
1992). Moreover, “obviousness requires a suggestion of all limitations in a
claim.” CFMT, Inc. v. Yieldup Int’l Corp., 349 F.3d 1333, 1342 (Fed. Cir.
2003).
Analysis
Appellants contend that
Hiller teaches that software modules may have varying
versions, but such teaching does not teach or even suggest
the limitation of claim 6 admittedly missing from Barton.
Specifically, this cited portion of Hiller fails to suggest that a
plurality of data providers are running to collect system data
and such providers are of differing type and version.

(App. Br. 11). Appellants also contend that
claim 6 calls for third computer code devices operating on
the remote services system “for receiving the plurality of
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provider messages and to call a specific loader based on the
type and the version of the first computer code devices
bound to the collected system data” so as to generate
monitoring data for the customer computer system. Barton
fails to show such computer code devices.

(App. Br. 12).
The Examiner finds that “[a]s the message is propagated along the
route from the first workstation to the destination workstation, each
computer acts as a provider. . . . For this reason, Barton discloses a plurality
of differing types of data providers and a single version of the data provider”
(Ans. 16). The Examiner further finds that “Hiller discloses that the loader
for loading data may be an implicit loader or an explicit loader” (Ans. 17).
The Examiner finds that “[b]oth of these explicit and implicit data loaders
respond to a load request. Both types of loaders process the data of the
request to determine the appropriate version of the program to be loaded
(paragraph 0042). For this reason, Hiller discloses differing loader types”
(Ans. 17). The Examiner also finds that “Hiller discloses differing versions
of computer code” (Ans. 17).
We find that Appellants have the better position. Claim 6 requires “a
plurality of differing types of data providers and a plurality of differing
versions of data providers”. We are not persuaded by the Examiner’s
argument that each computer along the chain propagating a particular
version of a virus definition file in Barton may reasonably be interpreted to
represent “a plurality of differing types of data providers” as required by
claim 6. Therefore, the Examiner has not established that either Barton or
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Hiller teach the use of “different types of data providers” as required by
claim 6.
We also agree with Appellants that the Examiner has not established
that either Barton or Hiller teach “to call a specific loader based on the type
and the version of the first computer code device” as required by claim 6.
While Hiller clearly teaches a “version aware loader” (FF 5-6), Hiller does
not clearly explain the use of different loaders. The “explicit” and “implicit”
load are handled by the same loader program, differing only in the process
by which the version aware loader operates (FF 6). The Examiner does not
establish the use of more than one loader in the context of claim 6. Even if
we treated these loaders as different, the Examiner does not establish that
Hiller teaches that these loaders are called based on the version of computer
code as required by claim 6.
Conclusion of Law
The evidence of record does not support the Examiner’s conclusion
that the combination of Barton and Hiller renders claim 6 obvious.
C. 35 U.S.C. § 103(a) over Barton, Hiller, and Tyra
Appellants contend that
claim 1 calls for “brokering the system data from the first
and second data provider processes to first and second ones
of the data loaders selected to load the system data based on
the type and version of the data provider processes
assigned during the first and second association.” Barton
and Hiller (and Tyra) fail to show selecting which of a
number of data loaders to process an incoming message
from its clients/computers based on the type and version [of]
information provided in the incoming message.

(App. Br. 16).
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The Examiner finds that
Hiller discloses receiving requests from various programs, P
and Q (paragraph 0041). Based upon the program issuing
the request, the loader will constrain the called modules to
versions compatible with the program issuing the request
(paragraph 0041). Barton discloses receiving requests from
various types of devices, including workstations, mail
gateways, and local servers (paragraph 0030).

(Ans. 19).
We find that Appellants have the better position. The Examiner has
not established how either Barton, Hiller, or Tyra “broker” system data to
two different loaders. We also agree with Appellants that the Examiner has
not explained how Barton, Hiller, and Tyra teach selecting data loaders “to
load the system data based on the type and version of the data provider
process”. Even if we agreed with the Examiner that Hiller teaches two types
of data loaders, treating the “explicit” and “implicit” components of the
“version aware loader” as two different data loaders, the Examiner does
establish where a “selection” or “brokering” step is disclosed in the prior art.
D. 35 U.S.C. § 103(a) over Barton, Hiller, and Nagae
This rejection relies upon the underlying obviousness rejection over
Barton and Hiller. Having reversed the Barton and Hiller obviousness
rejection for the reasons given above, we necessarily reverse the obviousness
rejection further including Nagae, since the Examiner does not rely upon
Nagae to address the elements absent in Barton and Hiller regarding claim 6.
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SUMMARY
In summary, we summarily affirm the rejection of claims 6-11 under
35 U.S.C. § 101 as directed to non-statutory subject matter.
We reverse the rejection of claims 6, 7, and 11-13 under U.S.C.
§ 103(a) as obvious over Barton and Hiller.
We reverse the rejection of claims 1-5 and 14 under U.S.C. § 103(a)
as obvious over Barton, Hiller, and Tyra.
We reverse the rejection of claims 8-10 under U.S.C. § 103(a) as
obvious over Barton, Hiller, and Nagae.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

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