Ex Parte RABIN

Patent Trial and Appeal Board

Apr 12, 2016

12533845 (P.T.A.B. Apr. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/533,845 07/31/2009
27562 7590 04/14/2016
NIXON & V ANDERHYE, P,C
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Steve RABIN
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.
LB-723-2582 8364
EXAMINER
MAMO, ELIAS
ART UNIT PAPER NUMBER
2184
NOTIFICATION DATE DELIVERY MODE
04/14/2016 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@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITEn STATES PATENT ANn TRA.nEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVE RABIN
Appeal2014-004701
Application 12/533,845
Technology Center 2100
Before DANIEL N. FISHMAN, KEVIN C. TROCK, and
ADAM J. PYONIN, Administrative Patent Judges.
PYONIN, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from a rejection
of claims 1--4, and 13-16, which are all pending claims. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
STATEMENT OF THE CASE
Introduction
Appellant's disclosure is directed to a method and apparatus for
efficient statistical profiling of video game and simulation software. Title.
Appeal2014-004701
Application 12/533,845
Claims 1 and 13 are independent. Claim 1 is reproduced below for
reference:
1. A computing system for monitoring and testing executing
software of the type that generates moving image frames on a
display device at a predetermined refresh rate, the computing
system comprising; 1
a computer processor that executes code to provide a
display on said display device;
a statistical sampler section, which performs statistical
sampling of the code being executed to provide profiling data,
wherein at least the first sampling point in each frame has a
random temporal offset relative to the refresh rate; and
an analyzer section that receives the profiling data from
the statistical sampler section and provides information about the
dynamic operation of the executing code.
References and Rejections
Claims 1--4 stand rejected under 35 U.S.C. § 112 (pre-AIA), second
paragraph, as being indefinite. Final Act. 2.
Claims 1--4 and 13-16 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Chilimbi (US 2006/0242636 Al; Oct. 26, 2006) and
Pettis (US 5,212,794; May 18, 1993). Final Act. 4.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments that the Examiner has erred. We agree with Appellant's
conclusion that the Examiner erred in rejecting independent claims 1 and 13
as unpatentable in view of Chilimbi and Pettis; however, we disagree with
1 We note claims 1 and 13 both include a semi-colon after the term
"comprising." For purposes of this Decision, we treat the semi-colon as a
colon.
2
Appeal2014-004701
Application 12/533,845
Appellant's conclusion with respect to the Examiner's indefiniteness
rejection of claims 1--4.
A. Indefiniteness Rejection
Appellant argues the Examiner's indefiniteness rejection is in error,
because "the term 'statistical sampler section' is an art-recognized term,"
and "the meaning of the term 'analyzer section' is clear to one of ordinary
skill in the art." App. Br. 9 (referring to patent US 6,718,286). Appellant
further contends "the written description of the present specification does
disclose the corresponding structure of the above terms. For example,
paragraphs [0023], [0029], [0033]-[0036] of the specification disclose how
the statistical sampler section and the analyzer section work." App. Br. 10
(emphasis added).
The Examiner finds "statistical sampler section" and "analyzer
section" recited in claim 1 invoke 35 U.S.C. 112, sixth paragraph. See Final
Act. 2-3. The Examiner further finds these terms are not recognized in the
art to have, nor does the Specification provide, sufficient structure to render
the terms definite. See Ans. 2-3.
We are not persuaded the Examiner's rejection is in error. See
Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015) ("The
standard [for identifying means-plus-function limitations] is whether the
words of the claim are understood by persons of ordinary skill in the art to
have a sufficiently definite meaning as the name for structure.").
Appellant's arguments are directed to the function of the "section"
recitations (see, e.g., Reply Br. 3--4); however, regardless of whether the
function was known in the prior art, Appellant does not persuasively show
3
Appeal2014-004701
Application 12/533,845
that a person of ordinary skill in the art would be able to recognize the terms
as anything other than a black box for performing these functions. See Spec.
i-fi-13, 23. Rather, we find the recited statistical sampler section and the
analyzer section serve as nonce words that invoke 35 U.S.C. 112, sixth
paragraph.
Further, Appellant fails to adequately describe sufficient structure
(such as an algorithm recited in the Specification) for performing the
functions recited in the means elements contained in claim 1, so as to render
the claim definite. See Ex parte Rodriguez, 92 USPQ2d 1395 (BPAI 2009)
(precedential) (discussing functional claiming and claim definiteness); see
also Aristocrat Technologies Australia Pty Ltd. v. International Game
Technology, 521F.3d1328, 1333 (Fed. Cir. 2008). Accordingly, we do not
find the Examiner erred in rejecting, as indefinite claim 1 and claims 2--4
which depend therefrom.
B. Obviousness Rejection
The Examiner determines independent claim 1 is obvious in view of
Chilimbi and Pettis because Chilimbi teaches the required first sampling
point in each frame has a random temporal offset relative to the refresh rate:
Chilimbi teaches a sampling technique called bursty tracing
which enables periodic sampling intervals where the sampling
sizes and rate of samples can be tuned . . . . [and a] statistical
analysis method comprised of a base timing (i.e.-first sampling
point) and adding a delta (i.e.-an offset) which is respective
timing sample from its base time (i.e.-the first sampling point).
Ans. 6 (citing Chilimbi i-fi-f l 0, 26, Fig. 3).
Appellant argues the Examiner erred, because Chilimbi does not teach
"that the offset value of the first sampling point relative to the refresh rate
4
Appeal2014-004701
Application 12/533,845
changes in a random manner. The distance n between sampling points may
change ... but Chilimbi is silent as to where the first sampling point is
relative to the beginning of the frame." Reply Br. 5; see also App. Br. 12.
Appellant further contends "the histogram of time deltas shown in Fig. 3 [of
Chilimbi] has nothing to do with showing a first sampling point and where it
is located along the frame time interval .... Instead, the x-origin in Fig. 3 is
the shortest time sample of a path, not the first sampling point." Id. at 6; see
also App. Br. 12-13.
We are persuaded by Appellant's arguments. Chilimbi teaches
calculating the variation, or delta, of times of different execution paths (see
Chilimbi i-f 10) and that the "rate of sampling and size of samples can be
tuned" (see Chilimbi i-f 26); however, the reference is silent regarding the
sample beginning at a "random temporal offset," as claimed. Further, the
Examiner has not provided any reason to modify Chilimbi with such an
offset, and does not rely on Pettis for this limitation. See Ans. 6. Thus, we
agree with Appellant that the cited references fail to teach or suggest a first
sampling point having a random temporal offset relative to the refresh rate,
as recited by independent claim 1. Independent claim 13 recites
commensurate limitations, which we find similarly not taught or suggested
by the combination of Chilimbi and Pettis. See App. Br. 13.
Accordingly, we do not sustain the Examiner's 35 U.S.C. § 103(a)
rejection of independent claims 1 and 13, or claims 2--4 and 14--16, which
depend therefrom. 2
2 We do not reach Appellant's additional arguments regarding the
obviousness rejection of dependent claims 2, 3, 14, and 15 (see App. Br. 14--
15) because the identified issue is dispositive.
5
Appeal2014-004701
Application 12/533,845
DECISION
We affirm the rejection of claims 1--4 under 35 U.S.C. § 112 (pre-
AIA), second paragraph, as being indefinite.
We reverse the rejection of claims 1--4 and 13-16 under 35 U.S.C.
§ 103(a).
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-IN-PART
6