Ex Parte Peterson et al

Patent Trial and Appeal Board

Jun 15, 2016

13020959 (P.T.A.B. Jun. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/020,959 02/04/2011
63652 7590 06/17/2016
DISNEY ENTERPRISES, INC
c/o Marsh Fischmann & Breyfogle LLP
8055 East Tufts A venue
Suite 450
Denver, CO 80237
FIRST NAMED INVENTOR
KELLY PETERSON
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.
10-DIS-233-DIMG-US-UTL 3509
EXAMINER
PAN, HANG
ART UNIT PAPER NUMBER
2197
NOTIFICATION DATE DELIVERY MODE
06/17/2016 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):
PTOMail@mfblaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KELLY PETERSON, SETH BEHUNIN,
and FRASER GRAHAM
Appeal2014-006005
Application 13/020,959 1
Technology Center 2100
Before JOHN P. PINKERTON, CARLL. SILVERMAN, and SCOTT B.
HOWARD, 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 1-10, 12-18, and 20, the only claims currently
pending. Final Act. 2. Claims 11 and 19 are cancelled. Ans. 2. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
STATEMENT OF THE CASE
The claimed invention relates to performing external and automated
testing of video game software. Abstract.
1 Appellants identify the real party in interest as Disney Enterprises, Inc. (a
wholly owned subsidiary of The Walt Disney Company). App. Br. 1.
Appeal2014-006005
Application 13/020,959
Claim 1, reproduced below, is exemplary of the subject matter on
appeal:
1. A video game testing system for externally testing game software,
compnsmg:
a testing farm comprising a plurality of game platforms adapted
to run a video game;
a communications hub communicatively linked with the game
plat forms;
a set of test scripts stored in memory, each of the test scripts
defining a number of test functions to be performed on the game
platforms; and
a testing framework running on a computer system
communicatively linked with the communications hub, the testing
framework selecting one of the test scripts and transmitting test
messages to a subset of the game platforms, wherein the test messages
are configured based on a client-side communications library
providing communication protocols for the communications hub
module and wherein the communications hub module receives the test
messages and generates game platform test messages from the
received messages based on communication libraries for the game
plat forms.
App. Br. 15. (Claims App.).
THE REJECTION
Claims 1-10, 12-18, and 20 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Bhowmik et al. (US 2004/0260982 Al; pub. Dec.
23, 2004) ("Bhowmik") in view of Zalewski (US 7 ,657,879B1; iss. Feb. 2,
2010). Final Act. 6-16.
ANALYSIS
Appellants argue Bhowmik does not teach "a communications hub
between the game platforms and the computer system running the testing
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framework" as required by independent claim 1. App. Br. 5, 6. According
to Appellants, Bhowmik's "controller 130 communicates directly with nodes
1 lOA-1 lOC (of a distributed system 100)" and "[t]here is no component
such as a hub between the controllers 130 and the nodes llOA-llOC in
Bhowmik." Id. at 6. Appellants further argue each of the drivers on each of
Bhowmik's agents of Figure 1 cannot be the communication hub of claim 1
because "[c]laim 1 calls for a single communications hub." Id. at 6.
Appellants also argue Bhowmik does not teach "the command
messages are first generated (as testing messages) using 'communication
protocols for the communication hub module' and then later (by the
communication hub module) generated (as platform test messages) 'based
on communication libraries for the platforms."' App. Br. 8. Instead,
according to Appellants, Bhowmik "simply states that unit operations are
communicated by the core controller 160 to the nodes 11 OA-C - apparently
as a single set of messages and using a single protocol." Id. Appellants then
argue the Examiner provides no basis to support the finding "the messages
are sent so they are understood by agents on each node." Id.
We are not persuaded by Appellants' argument Bhowmik does not
teach "a communication hub ... "and, instead, agree with the Examiner's
finding Bhowmik's agent:
acts as a communication hub (it communicatively links the script
controller with the various resources), the drivers of the agent are the
client side communication libraries; the agent receives platform
independent test commands (first test messages) from the central
controller, and translates them into resource (platform) specific test
commands (second test messages) using the drivers.
Ans. 14 (citing Bhowmik Figs. 1, 3; i-fi-f 19, 30, 42--45).
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In particular, the Examiner finds Bhowmik's central controller
retrieves and sends test scripts to an agent wherein the agent comprises a
core agent and various drivers. Ans. 14. Each driver corresponds to a
resource (which may be hardware) and the core agent communicates to each
driver through a generic driver interface, which is an API, and each driver
provides a translation for the agent by translating the script from generic API
into commands compatible with a resource. Id. When a new resource is
added, a corresponding driver is provided so the agent can communicate to
the new resource. Id.
We are not persuaded by Appellants' arguments and agree with the
Examiner's findings. Bhowmik's system teaches the functionality of the
claimed communications hub. The claim term "communication hub" is not
explicitly defined in the Specification, and Appellants present no persuasive
evidence why the Examiner's findings and interpretation are overly broad or
unreasonable. 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, our reviewing court cautions that 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).
We are also not persuaded by Appellants' argument Bhowmik does
not teach "a single communications hub." Instead, we agree with the
Examiner the claim recites "a communication hub," and Appellants present
no persuasive evidence to limit the claim to exclude the teaching of
Bhowmik. Ans. 14.
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In view of the above, we sustain the rejection of claim 1, and
dependent claims 2, 3, and 5-7 as these claims are not argued separately.
See 37 C.F.R. § 41.37(c)(l)(iv).
Regarding independent claim 9, Appellants argue Bhowmik does not
teach "provid[ing] crash data to a remote testing framework." App. Br. 11.
According to Appellants, Bhowmik does not teach what occurs upon a crash
of one of the nodes 11 OA-11 OC and the Examiner "is making impermissible
assumptions." Id. In particular, Appellants' argue Bhowmik "fails to
provide any teaching regarding crash data such as a crash stack in its test
results." Id. at 12 (citing Bhowmik i-fi-137-39). See also Spec. i-f 10.
We are not persuaded by Appellants' arguments and instead agree
with the Examiner's finding that "crash data" would be more broadly
interpreted by one of ordinary skill in the art than "crash stack." Ans. 16-
17. In particular, the Examiner finds "crash" in the context of computer
science can mean "to stop functioning due to a crash" or "a sudden failure of
a program or operating system (emphasis omitted)." Id. at 17 (citing The
American College Dictionary, fourth edition). Applying this broad, but
reasonable, interpretation, the Examiner finds Bhowmik teaches the result
analyzer receives test results and "checks for error[ s] and shutting down
information in the log." Id. (citing Bhowmik i-fi-137-39). The Examiner then
concludes a person of ordinary skill in the art "would recognize unexpected
errors and shutdowns ... may indicate occurrence of a crash." Id. See also
Final Act. 8, ("The Examiner interprets the information related to the server
shutting down as crash data.").
As stated by the Supreme Court, the Examiner's obviousness rejection
must be based on"' .... some articulated reasoning with some rational
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underpinning to support the legal conclusion of obviousness' ....
[H]owever, the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ." KSR Int'!. Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007)
(quoting In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006)). The Examiner's
findings are reasonable because the skilled artisan would "be able to fit the
teachings of multiple patents together like pieces of a puzzle" since the
skilled artisan is "a person of ordinary creativity, not an automaton." KSR,
550 U.S. at 421.
Here, the Examiner's findings and conclusions are reasonable and
Appellants' arguments are unpersuasive.
In view of the above, we sustain the rejection of claim 9, and
dependent claims 10 and 12-14 as these claims are not argued separately.
Regarding claim 4, Appellants argue the references do not teach the
script to include "a conditional including a parameter provided in the
received test data" and "wherein the testing framework issues an additional
test message in response to the parameter satisfying the conditional
requesting additional test data." App. Br. 8. According to Appellants,
"Bhowmik never discusses updating or changing the script or jumping to a
different portion of the script based on a pass or fail result and, specifically,
to request 'additional test data' be collected." Id. at 9 (citing Bhowmik i-fi-1
53, 54). Appellant further argues Bhowmik does not teach its "additional"
commands are to request "'additional test data from one of the game
platforms' as required by claim 4." Id.
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We are not persuaded by Appellants' arguments and, instead, agree
with the Examiner's findings:
Bhowmik teaches (paragraph [0052]) a test script may specify a set of
events which may trigger additional platform independent commands
to be sent to agents. Thus, when the received test data indicates a
registered event occurred (a conditional parameter), one or more
additional commands are issued. And it would have been obvious to a
person skilled in the art to recognize when a script controller issues
platform independent commands, these commands are for performing
additional tests on resources (the purpose of Bhowmik's invention,
having a script controller issueing [sic] commands to resources, is to
test these resources). Thus, the examiner believes Bhowmik teaches
the above limitations.
Appellant also argued (page 9) Bhowmik does not teach "updating or
changing the script or jumping to a different portion of the script
based on a pass or fail result.["] However, these limitations are not
recited in claim 4.
Ans. 15.
In addition, claim 4 depends from claim 1, which is rejected over the
combination of Bhowmik and Zalewski wherein Zalewski is relied upon for
teaching testing video game platforms. Final Act. 6-7.
In view of the above, we sustain the rejection of claim 4. The skilled
artisan is "a person of ordinary creativity, not an automaton." KSR, 550 U.S.
at 21.
Regarding claim 8 (which depends from claim 6 which depends from
claim 1 ), Appellants argue Bhowmik does not teach the automated test to be
distributed over the platforms of a testing farm by causing "differing ones of
the test functions to be concurrently performed" by two or more platforms.
App. Br. 10. In particular, Appellants argue Bhowmik "does not teach
controller commands call for different nodes (and their resources) be used to
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perform differing ones of a test's functions as called for in claim 8." App.
Br. 10.
The Examiner finds:
Bhowmik teaches the resources may be hardware devices (paragraph
[0019]). Bhowmik also teaches (paragraphs [0018][0021]; Fig. 1) a
distributed computing system where computers performs one or more
functions in parallel; the script controller contains one or more test
scenarios to be performed in a distributed system. Thus, a test
scenario (paragraph [0022] [] comprises a plurality of test commands
to access one or more resources) is the automated test to be distributed
over two or more platforms (resources). Bhowmik also teaches
(paragraph [0044]) performing a test scenario by similar resources
(matching resources) on two platforms.
Therefore, it would have been obvious a test scenario (which
comprises a plurality of test commands) may be distributed to two
platforms of similar resources for parallel execution (each platform
receives a portion of the test scenario), since a major advantage of
distributed computing is to save time by parallel execution, if the test
scenario is executed in serial, that would negate the advantage of
distributed computing.
Ans. 16; see also Final Act. 10-11.
We agree with the Examiner's findings and conclusions and,
therefore, we sustain the rejection of claim 8. The skilled artisan is "a
person of ordinary creativity, not an automaton." KSR, 550 U.S. at 421.
Appellants argue independent claim 16 recites limitations "similar to
those found in claim 1 as modified by claim 8" and presents no additional
argument of nonobviousness. App. Br. 13. In view of our discussion above
sustaining the rejection of claims 1 and 8, we sustain the rejection of claim
16. We also sustain the rejection of dependent claims 17, 18, and 20 as
these claims are not argued separately.
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Regarding claim 15, Appellants argue Bhowmik does not teach
tracking the "timing of testing events including the message transmitting and
the receiving of the game data" because "Bhowmik uses time only as a
means to schedule tests - not as an attribute of the test result." App. Br. 13.
The Examiner finds:
Bhowmik teaches (paragraphs [0054] [0057] [0039]) sending out test
commands at a particular time; executing workload in event based or
time based manner; analyzing test results from a server log. Zalewski
also teaches one of the metric to measure the performance of a video
game platform is to measure the latency time between a controller
input and execution of an event responsive to the controller input
(column 3, line 20-45; measuring from the time an input command is
issued to the time a response event occurs, determining quality of
service by measuring various delays). Thus, it would have been
obvious to track the timings in the message transmitted and message
received to ensure quality of network service, an infinite delay would
indicate communication is interrupted. Thus, the examiner believes
Bhowmik and Zalewski teach above limitations.
Ans. 17-18; see also Final Act. 12-13.
We are not persuaded by Appellants' arguments and, instead, agree
with the Examiner's findings and conclusions. In particular, we agree the
combination of Bhowmik and Zalewski teaches the limitations of claim 15
and, therefore, we sustain the rejection of claim 15.
DECISION
We affirm the Examiner's decision rejecting claims 1-10, 12-18, and
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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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