Ex Parte Novak et al

Patent Trial and Appeal Board

May 25, 2016

12916445 (P.T.A.B. May. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/916,445 10/29/2010 Miroslav Novak
56436 7590 05/27/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82264382 9602
EXAMINER
GOORAY,MARKA
ART UNIT PAPER NUMBER
2199
NOTIFICATION DATE DELIVERY MODE
05/27/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MIROSLAV NOVAK, ALBERT REGNER, and
VLADIMIR DUBSKY
Appeal2014-005907
Application 12/916,445 1
Technology Center 2100
Before JOSEPH L. DIXON, NATHAN A. ENGELS, and
CARLL. SILVERMAN, Administrative Patent Judges.
SILVERMAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-12, 15, 17, 18, and 21-25, which are the only claims
pending. Final Act. 2-9. Claims 13, 14, 16, 19, and 20 have been cancelled.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 The real party in interest is identified as Hewlett-Packard Development
Company, LP. App. Br. 1.
Appeal2014-005907
Application 12/916,445
STATEMENT OF THE CASE
The invention relates to extracting requirement data from a software
development system. Abstract. Claim 1, reproduced below, is exemplary of
the subject matter on appeal:
1. A computer implemented method for reporting software
development, the method comprising:
extracting requirement data from a software development
system, the requirement data defining a software development
requirement during a predetermined period of time;
extracting from the software development system an indication
of a state of software development at the beginning of the
predetermined period of time;
extracting from the software development system an indication
of a state of software development at the end of the predetermined
period of time;
calculating a change in the state of software development
during the predetermined period of time; and
generating at least one report that enables comparing the
calculated change in the state of software development with the
software development requirement, and the at least one report further
identifying defects in developed software that is the subject of the
software development, and identifying priorities assigned to the
corresponding defects.
App. Br. 14 (Claims Appendix).
THE REJECTIONS
Claims 1-12, 15, 17, 18, 21, 23, and 25 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Kolawa et al. (US 2006/0123389 Al;
published June. 8, 2006) ("Kolawa"). Final Act. 2-8.
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Application 12/916,445
Claims 22 and 25 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kolawa in view of Puttaswamy2 et al. (US 2006/0070020
Al; published Mar. 30, 2006) ("Puttaswamy"). Final Act 8-9.
ANALYSIS
The 35 U.S.C. § 102(b) Rejection
Appellants and the Examiner dispute whether Kolawa discloses the
claim 1 limitation "identifying priorities assigned to the corresponding
defects." App. Br. 7-9; Ans. 4; Reply Br. 2-3.
The Examiner finds Kolawa discloses errors reported along with the
severity of defects, wherein severity is a form of priority. Final Act. 3
(citing Figs. 20, 25-28). In particular, the Examiner states:
The examiner agrees that severity of a defect refers to a degree of the
defect. The higher severity, the higher degree. More severe defects
have a higher degree. Therefore a degree for severity is a form of
priority. Defects with a higher degree have a higher priority than
defects with a lower degree. Thus, higher degree defects have a
higher importance. The specification teaches "Information directly
related to the defect may include an identification of the defect, the
type of defect, a severity of the defect, a priority for repair ... ". As
claimed the subject matter just states "identifying priorities assigned
to the corresponding defects" not priority for repair.
2 The rejection does not include a statement that Puttaswamy is the
secondary reference applied in the 35 U.S.C. § 103(a) but the context is clear
that the rejection is over Kolawa and Puttaswamy. Final Act. 8-9; App. Br.
11.
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Application 12/916,445
It would have been known to one or ordinary skill in the art that
severity degrees are a type of priority since they dictate the order in
handling the defect. Figures 27 and 28 of Kolawa et al. shows errors
by severity. Errors are grouped into different severity levels. Also see
paragraphs 128-120, these paragraphs state that the graphs show the
number of errors that belong to each severity level.
Ans. 3--4.
Appellants argue Kolawa's severity of defects is not the claimed
"priority." According to Appellants, one of ordinary skill in the art would
understand "priority" refers to "importance of a thing, in this case
importance of respective defects" whereas "'severity' of a defect refers to a
degree of the defect, which in Kolawa is represented by the number of
reported bugs ... " App. Br. 7 (citing Kolawa i-fi-185, 108 (describing a graph
of reported bugs as well as resolved bugs)). Appellants argue similarly that
Kolawa's disclosure of defect severity is represented by the number of
errors. App. Br. 7-8 (Figs. 20, 25-28; i-fi-f 115, 123, 124, 128, 129).
Appellants further argue use of priority and severity in the Specification
refer to different things "[i]nformation directly related to the defect may
include an identification of the defect, the type of defect, a severity of the
defect (e.g., related to impact on performance), a priority for repair, the
related component ... " App. Br. 8 (Spec. i156).
We are persuaded by Appellants' arguments as the Examiner does not
present sufficient evidence required for a finding of anticipation. In
particular, the Examiner presents insufficient evidence to support the finding
that "severity degrees are a type of priority since they dictate the order in
handling the defect." Ans. 3--4. A claim is anticipated only if each and
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Application 12/916,445
every element as set forth in the claims is found, either expressly or
inherently described in a single prior art reference, and arranged as required
by the claim. Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987).
In view of the above, based on the record3 before us, we do not sustain
the rejection of claim 1, and independent claim 15, which recites the
disputed limitation. We also do not sustain the rejection of claims 2-7, and
17, 18, 21, 23, and 24 as these claims depend from claims 1 and 15. Cf In
re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) ("[D]ependent claims are
nonobvious if the independent claims from which they depend are
nonobvious. ").
Regarding independent claim 8, Appellants argue Kolawa does not
disclose the limitation
generating at least one report that enables comparing the calculated
change in the state of software development with the software
development requirement, the at least one report further indicating
that a first change has been made to developed software that is not
associated with the software development requirement, or that a
second change to the developed software has been made by a
developer who was not assigned to make the second change.
App. Br. 7-9; Ans. 4; Reply Br. 2-3.
3 This is an anticipation rejection; we do not have before us an obviousness
rejection in which the Examiner presents findings or references in which
defect severity includes a priority identification.
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Application 12/916,445
According to Appellants, 4 the Examiner errs by finding "an error is a
change made to the developed software that is not associated with the
software development requirement." App. Br. 9. (citing Final Act. 6).
Instead, according to Appellants:
An error indicates that operation of software has exhibited a fault.
An indication of an error, as made in Figs. 20 and 25-28 of Kolawa,
does not provide any teaching or hint of a report indicating that a first
change has been made to developed software that is not associated
with the software development requirement. An error results from
operation of the software; an error does not constitute a change to the
software.
App. Br. 9.
The Examiner finds:
there are many forms of errors in a system. Some are caused during
execution however some errors can be done by the user writing the
code. Figure 20 of Kolawa et al. shows coding standards violations.
Paragraph 0015 states that coding standards violations are violations
within lines of the code. Therefore as a developer submits code with
the violations within the lines of code they will be recorded and
shown in figure 20. Coding standards violations are not part of a
software development requirement. One would want code without any
coding standard violations. Kolawa teaches the recording of attributes
such as the developer that checked in code that caused a violation
(0058).
4 The Examiner considers the use of the term "or" in the disputed limitation
allows the interpretation to be where one or the other occurs and "[t]herefore
if one is taught the other does not have to be explicitly shown." Ans. 5. We
agree. The Examiner then finds Kolawa teaches the limitation "a first
change has been made to developed software that is not associated with the
software developments requirement." Id.
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Application 12/916,445
Ans. 5.
We are not persuaded by Appellants' arguments and instead agree
with the Examiner's findings above. In particular, we agree a coding
standard violation is a change and is not associated with the software
development requirement. Appellants present no persuasive basis to limit
the meaning of "change" to exclude the Kolawa's coding standard
violations. Claim terms in a patent application are given the broadest
reasonable interpretation consistent with the specification, as understood by
one of ordinary skill in the art. In re Crish, 393 F.3d 1253, 1256 (Fed. Cir.
2004 ). However, great care should be taken to avoid reading limitations of
the Specification into the claims. E-Pass Techs., Inc. v. 3Com Corp., 343
F.3d 1364, 1369 (Fed. Cir. 2003).
In view of the above, we sustain the rejection of claim 8, and
dependent claims 9-12 as these claims are not argued separately.
The 35 U.S.C. § 103(a) Rejections
Claim 22 (depends from claim 1) and claim 25 (depends from
claim 15) recite the limitation "wherein the at least one report further
indicates that a change to the developed software has been made by a
developer who was not assigned to make the change" and are subject to an
obviousness rejection over Kolawa and Puttaswamy wherein Puttaswamy is
cited for its teaching of project management system in which tasks are
assigned to team members. Final Act. (citing i-f 44). As discussed above,
claims 1 and 15 recite the limitation "identifying priorities assigned to the
corresponding defects" and we have found Kolawa does not disclose this
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limitation as required for anticipation. The Examiner does not assert this
limitation is suggested by Puttaswamy nor does the Examiner present any
additional findings regarding obviousness of claims 1 and 15. Therefore, on
the record before us, we do not sustain the rejection of claims 22 and 25.
DECISION
We reverse the Examiner's decision rejecting claims 1-7, 15, 17, 18,
and 21-25.
We sustain the Examiner's decision rejecting claims 8-12.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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