Ex Parte Mockford

Patent Trial and Appeal Board

May 18, 2017

11977124 (P.T.A.B. May. 18, 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.
11/977,124 10/23/2007 Kieran P. Mockford 321214.01 1106
69316 7590 05/22/2017
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
EXAMINER
VU, TUAN A
ART UNIT PAPER NUMBER
2193
NOTIFICATION DATE DELIVERY MODE
05/22/2017 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):
u sdocket @ micro soft .com
chriochs @microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KIERMAN P. MOCKFORD
Appeal 2016-000871
Application 11/977,124
Technology Center 2100
Before THU A. DANG, CARL L. SILVERMAN, and
NORMAN H. BEAMER, Administrative Patent Judges.
DANG, Administrative Patent Judge.
DECISION ON APPEAL
I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
second non-final rejection of claims 21—25, 28—32, 35, and 36. The
Examiner indicates that claims 26, 27, 33, 34, and 37-40 contain allowable
subject matter. Final. Act. 26. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
A. INVENTION
According to Appellant, the invention relates to “predicting costs of
build phases and using the predicted costs to improve distributed build
scheduling” (Spec. 13).
Appeal 2016-000871
Application 11/977,124
B. CONTESTED CLAIM
Independent claim 21 is reproduced below:
21. A method implemented on a computer having at least one
processor, the method comprising:
obtaining build data including a plurality of build phases
of a distributed build process and components built in each
build phase, the distributed build process distributed onto a
plurality of build machines, the build process generating a
software application for distribution to end users, each build
phase creating one or more components; and
for at least one build phase of the distributed build
process:
calculating a predicted cost for creating each
component built in a later build phase of the distributed build
process, each predicted cost calculated during execution of a
previous build phase of the distributed build process, wherein
each predicted cost estimates an amount of resources needed to
create a specific component of the later build phase, and
scheduling creation of the components of the later
build phase onto a plurality of build machines in a load
balanced manner using the predicted costs.
C. REFERENCES AND REJECTION1
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Leonard US 5,729,746 Mar. 17, 1998
Wolff US 2003/0126200 A1 July 3, 2003
Corral US 2003/0188290 A1 Oct. 2, 2003
1 In the event of further prosecution, we leave it to the Examiner to also
consider if the claims (reciting the steps of “obtaining data,” “calculating” a
cost, and “scheduling” creation) are directed to a patent-ineligible abstract
idea and whether the claims have an “inventive concept” beyond the abstract
idea under the Supreme Court’s Alice test. Alice Corp. Pty. Ltd. v. CLS
BankInt7, 134 S. Ct. 2347 (2014).
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Application 11/977,124
Guheen US 2004/0107125 A1 June 3, 2004
Anant US 2004/0204972 A1 Oct. 14, 2004
Robin US 2005/0114829 A1 May 26, 2005
Abu el Ata US 7,035,786 B1 Apr. 25, 2006
Davies US 2007/0088740 A1 Apr. 19, 2007
Bahrs US 2007/0180115 A1 Aug. 2, 2007
Pabalate US 2008/0016490 A1 Jan. 17, 2008
Islam US 7,519,964 B1 Apr. 14, 2009
Gilpin US 7,571,082 B2 Aug. 4, 2009
Zaumen US 7,689,714 B1 Mar. 30, 2010
Cassone ’663 (“Cassone2”) US 7,949,663 B1 May 24, 2011
Cassone ’238 (“Cassone”) US 8,108,238 B1 Jan. 31,2012
Claims 21, 24, 28, and 31 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Cassone, Cassone2, and/or Anant, and/or Leonard,
Abu El Ata, Guheen, and/or Admitted Prior Art (APA), and/or Robin,
Zaumen, and/or Islam, and Wolff.
Claims 22 and 29 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cassone, Cassone2, and/or Anant, and/or Leonard, Abu El
Ata, Guheen, and/or Admitted Prior Art (APA), and/or Robin, Zaumen,
and/or Islam, and Wolff.
Claims 23 and 30 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cassone, Cassone2, and/or Anant, and/or Leonard, Abu El
Ata, Guheen, and/or Admitted Prior Art (APA), and/or Robin, Zaumen,
and/or Islam, Davies, and Bahrs.
Claims 25 and 32 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cassone, Cassone2, and/or Anant, and/or Leonard, Abu El
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Appeal 2016-000871
Application 11/977,124
Ata, Guheen, and/or Admitted Prior Art (APA), and/or Robin, Zaumen,
and/or Islam, Pabalate, and/or Corral.
Claim 35 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cassone, Cassone2, and/or Anant, and/or Leonard, Abu El
Ata, Guheen, and/or Admitted Prior Art (APA), and/or Robin, Zaumen,
and/or Islam, and Gilpin.
Claim 36 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cassone, Cassone2, and/or Anant, and/or Leonard, Abu El
Ata, Guheen, and/or Admitted Prior Art (APA), and/or Robin, Zaumen,
and/or Islam, Gilpin, and Pabalate, and/or Corral.
II. ISSUES
The principal issues before us are whether the Examiner erred in
finding that Cassone, in combination with the other applied references,
teaches or suggests 1) “obtaining build data” which includes a plurality of
“build phases of a distributed build process and components built in each
build phase,” the build process “generating a software application for
distribution to end users . . . and 2) for at least one build phase,
“calculating a predicted cost for creating each component built in a later
build phase . . . during execution of a previous build phase . . .” (claim 21).
III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Cassone
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Appeal 2016-000871
Application 11/977,124
1. Cassone discloses project governance based on predictive analysis
(Abst.). According to Cassone, a project development project is a temporary
endeavor to develop a new product or service, wherein a project
development pipeline is used to organize and optimize the allocation of
resources for a stream of development projects, with the resources including
time, money, people, materials, and the like (col. 1,11. 20—26). The project
development pipeline consists of a chain of process phases and resources
arranged so that the output of each element of the chain flows into the input
of the next element, wherein the projects in the project development pipeline
are governed to insure that the project is completed on time and within
budget (col.l, 11. 26—36). In Cassone, the project development pipeline may
be a software development pipeline, wherein project information is reviewed
at each gate to determine whether development of the corresponding project
is ready to proceed to the next phase (col. 3,11. 27-42).
2. Figure 4 is reproduced below:
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Appeal 2016-000871
Application 11/977,124
Figure 4 shows a user interface for flexible project governance based
on predictive analysis. The user interface 402 enables a user to enter data
for project complexity factors and project governance factors (col. 6,11. 45—
46). As shown in Figure 4, a table 200 of project complexity factors is
provided, wherein the table 200 includes total project cost 228 column for
both forecast and actual values, and a projected project length 230 column
for predicted and actual values (col. 3,11. 52—65).
3. Project governance factors are periodically analyzed to determine a
project governance index (col. 8,11. 6—8), wherein cost performance index
(CPI) and schedule performance index (SPI) factors are included in project
management processes (col. 8,11. 38-41). The project complexity factors
are analyzed to determine a revised project complexity index (col. 9,11. 20-
29). For example, if the number of vendors increases, the number of
applications impacted increases, and the total project cost also increases, and
thus the revised project complexity index increases relative to the previously
generated project complexity index (col. 9,11. 35—39). The builder analyzes
the construction costs and other requirements, and the parties review the
analysis and costs, and determine whether to proceed (col. 9,11. 56—66).
Once completed, the product is provided to the buyer (i.e., for home
building, the homeowners move into the house)(col. 10,11. 4—9).
IV. ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. We do not consider arguments that
Appellant could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
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Application 11/977,124
With respect to claim 21, Appellant contends “[t]he Examiner is
broadly construing the term ‘build phase’ in claim 21 to read on the concept,
analysis, design, development, test, and launch phases” which “conflicts
with Appellant’s specification which clearly defines the term ‘build phase’ .
. . to include a clearly distinguishable period or stage in an overall process.”
App. Br. 12. According to Appellant, “[a]s is well-known in the art, the
build process is specific to the process of generating binary files that are
distributed.” Id. Accordingly, Appellant contends the claimed “build
process differs from the development process of Cassone,” wherein, in the
Office Actions, “the Examiner combines various unrelated to a build
process” and “impermissibly misconstrues the cited references in a manner
that entirely ignore the context of the claim language” (id. at 14).
Appellant contends Cassone’s “phases in building a house,. . . differ
from the build process of claim 21” because “claim 21 also recites ‘the build
process generating a software application for distribution to end users.’” Id.
at 15. Further, Appellant contends “Cassone does not teach the ‘build
process’” that is “distributed onto a plurality of gates” as the Examiner finds,
because Cassone’s gates “are used to pause a development project after the
completion of certain phases to provide governance — that is, check if the
development project is going to be completed on time and within budget
before continuing to the next phase” wherein “[t]he build process of the
claimed invention has no governance” (id. at 16).
Appellant also contends Cassone does not teach the “predicted cost”
of the independent claims “since the project complexity index and the
project governance index are not used for ‘creating each component built in
a later build phase of the distributed build process” (id. at 18).
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Application 11/977,124
Although Appellant concedes that Cassone2 discloses “historical
data,” Appellant contends “[t]he historical data of the past projects in
Cassone2 is used to generate sub-models” which are “used to predict a cycle
time or cost,” but the historical data itself is not used to predict the cycle
time or cost {id. at 20). According to Appellant, “[b]oth the cycle time and
the cost of Cassone2 differ from the predicted cost of claim 21 since the cost
of Cassone2 does not estimate the amount of resources needed in one or
more build phases” {id.). Appellant contends that “the Examiner is
impermissibly construing the past project of Cassone2 as a build phase”
{id.), because the costs in Cassone2 “are with respect to an entire
development project which differs from a specific component of a later build
phase” {id. at 24).
Appellant then contends Anant and Leonard do not teach “a predicted
cost calculated during execution of a previous build phase of a distributed
build process” {id. at 21). In particular, “Anant is concerned with finding
out the maximum return of an investment in a software verification and
validation activity based on these hypothetical network costs” while “the
predicted cost of Leonard is an estimation of the final size of a software
product in terms of the total number of lines of code” {id. at 25). Similarly,
“AbuAta does not utilize the predictive modeling engine until after a phase
finishes execution” {id. at 22) while Guheen’s scheduling of tasks is “not
based on a predicted cost” because “Guheen has no way to predict the
number of requests that the network service component may receive from
clients in advance” {id. at 26). Appellant also contends Zaumen and Islam
do not teach “load balancing” of claim 21 {id. at 27).
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Appeal 2016-000871
Application 11/977,124
Based on the record before us, we disagree with Appellant’s
contentions regarding the Examiner’s rejections of claim 21. Instead, we
agree with the Examiner’s findings, and find no error with the Examiner’s
conclusion that claim 21 would have been obvious over the combination of
the cited references.
As an initial matter of claim construction, we give claim 21 its
broadest reasonable interpretation consistent with the Specification. See In
re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). However, “limitations are
not to be read into the claims from the specification.” In re Van Geuns, 988
F.2d 1181, 1184 (Fed. Cir. 1993) (citations omitted).
We note that claim 21 merely defines “build phases” as “of a
distributed build process,” wherein, for at least one of the build phases, the
predicted cost is calculated and creation of the components of a later build
phase is scheduled (claim 21). Furthermore, we agree with the Examiner
that the Specification does not provide a clear definition for “build phase”
(Ans. 27). As Appellant points out, Appellant’s Specification merely
defines the term “‘build phase’ ... to include a clearly distinguishable
period or stage in an overall process” (App. Br. 12). We agree with the
Examiner that the Specification merely states that “the term ‘build process’
can be part of more processes, or stage of more stages, and can include one
or more functionalities or stages” (Ans. 27). Thus, nothing in the
Specification defines a “build process” as “specific to the process of
generating binary files that are distributed” and precludes it from the
development process of Cassone (App. Br. 12), as long as a “phase” is a
period or stage of the development/building process for generating a
software application. Absent definition in the Specification to the contrary,
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Application 11/977,124
we conclude a broad but reasonable interpretation of the contested claim
term covers obtaining data including a plurality of phases of a process for
developing/building/generating a software application for distribution.
Cassone discloses a project development project to develop a new
product or service using a project development pipeline, such as a software
development pipeline, wherein project information is reviewed at each gate
to determine whether development of the corresponding project is ready to
proceed to the next phase (FF 1), and once completed, the product is
provided to the buyer (FF 3). That is, Cassone teaches or at least suggests a
process for developing/building a software which comprises a plurality of
phases (FF 1) to be provided to the buyer/end user (FF 3). Thus, although
Appellant contends “Cassone does not teach the ‘build process’” of claim 21
(App. Br. 15—16), in view of the broadest reasonable interpretation of the
claims, we agree with the Examiner reliance on Cassone to at least suggests
a plurality of “build phases of a distributed build process” and “components
built in each build phase,” wherein Cassone’s development/build process
“generat[es] a software application for distribution to end users . . .,” as
recited in claim 1.
Further, we agree with the Examiner that “Cassone’s method is to
predict cost and determine what can be done for the remaining part of a
project” based on “analyzing or revising cost, resource expenditure (e.g.
costs performance...) and impact from gathered statistics and reports
descriptive of historical data and resource usage associated with previous
stages” (Ans. 34). Contrary to Appellant’s contention (App. Br. 18), we
agree that Cassone at least suggests an analysis “for predicting a cost” (Ans.
34).
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Application 11/977,124
In particular, Cassone discloses project governance based on
predictive analysis, wherein a project development pipeline organizes and
optimizes the allocation of resources for a stream of development projects,
the project development pipeline comprising a chain of process phases and
resources, with the output of each element of the chain flows into the input
of the next element, to insure that the project is completed on time and
within budget (FF 1). In Cassone, if the number of vendors increases, for
example, the total project cost also increases, and the builder analyzes the
construction costs and other requirements, and the parties review the
analysis and costs and determine whether to proceed (FF 3). Cassone’s
Figure 4, for example, illustrates a table used for flexible project governance
based on predictive analysis, wherein the total project cost is calculated from
forecast and actual values from each phase in the project (FF 2).
We find no error with the Examiner’s finding that Cassone discloses a
“predictive analysis” by which “an optimum number a project gates can be
allocated to carry out the project,” where “cost and past resources are
analyzed to predict what amount of resources that would be required and
suitable proactively for handling the project,” to “alleviate . . . too complex,
costly ... or too resource-intensive compared to prediction from the
previous stages,” whereby “a predicted cost governance index is founded on
observed costs” (Ans. 35, referencing Cassone Fig. 4). Thus, we agree that
Cassone at least suggests, for at least one build phase, “calculating a
predicted cost for creating each component built in a later build phase . . .
during execution of a previous build phase . . .” as required by claim 21.
Furthermore, as the Examiner points out, by arguing as to what
Cassone2, Anant, Leonard, Abu El Ata, Guheen, Zaumen, and/or Islam,
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Application 11/977,124
lack, Appellant appears to be arguing against the references individually
(App. Br. 19-28), when the rejections are based on a combination of
references (Ans. 35). That is, the test for obviousness is what the
combination of references cited by the Examiner teaches or suggests to one
of ordinary skill in the art. Id., citing In re Keller, 642 F. 2d 413, 208
(CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Based on the record before us, we are unpersuaded the Examiner erred in
finding the combination of Cassone, Cassone2, and/or Anant, and/or
Feonard, Abu El Ata, Guheen, and/or Admitted Prior Art (APA), and/or
Robin, Zaumen, and/or Islam, and Wolff teaches or at least suggests the
contested limitation.
We also find no error with the Examiner’s conclusion that it would
have been obvious to combine the references (Ans. 14—15). The Supreme
Court has clearly stated the “combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield
predictable results.” KSRInt’l Co. v. Teleflex, Inc., 550 U.S. 398, 416
(2007). The skilled artisan is “a person of ordinary creativity, not an
automaton.” Id. at 421. We conclude that it would have been well within
the skill of one skilled in the art to combine the references. Id. at 417. That
is, we find that Appellant’s invention is simply a modification of familiar
prior art teachings (as taught or suggested by the cited references) that would
have realized a predictable result. Id. at 421.
On this record, we are unconvinced of Examiner error in the rejection
of claim 21 over Cassone, Cassone2, and/or Anant, and/or Leonard, Abu El
Ata, Guheen, and/or Admitted Prior Art (APA), and/or Robin, Zaumen,
and/or Islam, and Wolff. Appellant does not provide substantive arguments
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Application 11/977,124
for claim 28 separate from claim 21 (App. Br. 28). Accordingly, claim 28
falls with claim 21.
Appellant does not provide substantive arguments for claim 35 but
instead merely repeats the claim language and then contends that the cited
references fail to “teach” the contested limitations (App. Br. 29—30). That
is, Appellant presents mere attorney arguments without any factual support.
Our reviewing court guides that such mere attorney conclusory statements
which are unsupported by factual evidence are entitled to little probative
value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De
Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); and Ex parte Belinne, 2009 WF
2477843, at *3^4 (BPAI Aug. 10, 2009) (informative). Thus, on this record
we are unconvinced the Examiner erred in also rejecting claim 35 over
Cassone, Cassone2, and/or Anant, and/or Leonard, Abu El Ata, Guheen,
and/or Admitted Prior Art (APA), and/or Robin, Zaumen, and/or Islam, and
Gilpin
Appellant does not provide separate arguments for claims 22—34 and
36 other than they “are allowable at least because they depend from and
provide further patentable limitations” to claims 21, 28, and 35 respectively
(App. Br. 30—31). On this record, we also affirm the rejections of these
claims respectively depending from claim 21, 28, and 35.
V. CONCLUSION AND DECISION
We affirm the Examiner’s rejection of claims 21—25, 28—32, 35, and
36 under 35 U.S.C. § 103(a).
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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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