Ex Parte Sluiman

Board of Patent Appeals and Interferences

Apr 29, 2009

10285990 (B.P.A.I. Apr. 29, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte HARM SLUIMAN
____________________

Appeal 2008-4204
Application 10/285,990
Technology Center 2100
____________________

Decided:1 April 29, 2009
____________________

Before JAMES D. THOMAS, HOWARD B. BLANKENSHIP, and
THU A. DANG, Administrative Patent Judges.

DANG, Administrative Patent Judge.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Data (electronic delivery).

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DECISION ON APPEAL
Appellant appeals the Examiner’s final rejection of claims 1-9 under
35 U.S.C. § 134 (2002). We have jurisdiction under 35 U.S.C. § 6(b)
(2002).
We affirm.
I. STATEMENT OF THE CASE
A. INVENTION
According to Appellant:
[A]n aspect of the invention is a computer readable medium
containing computer executable instructions for parsing
program statements which when executed by a processor, cause
the processor to instantiate a root object having a list of all
permissible initial tokens for a program statement and, where
an initial token in the program statement is represented in the
list, instantiate a subsequent object having a list of all
permissible subsequent tokens which may follow the initial
token.

(Spec. 26, ll. 4-13.)

B. ILLUSTRATIVE CLAIM
Claims 1 and 9 are the only independent claims under appeal.
Appellant does not provide separate arguments for claims 1 and 9 (App. Br.
5-7) or dispute the Examiner’s finding that “[c]laim 9 … recites the same
limitations as those of the computer readable storage medium claim 1” (Ex.
Ans. 4-5). We therefore conclude that claims 1 and 9 are argued as group by
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Appellant and select claim 1 to decide this appeal with respect to those
claims. See 37 C.F.R. 41.37(c)(1)(vii). Claim 1 is reproduced below.

1. A computer readable storage medium containing
computer executable instructions for parsing program
statements which when executed by a processor, cause said
processor to:

receive a program statement in a first programming
language by a parser and create a tokenized program statement
having an ordered sequence of tokens;

examine said tokenized program statement and associate
objects with selected ones of said tokens, said selected ones of
said tokens identified as root tokens and said objects
embodying a subset of a complete grammar of a domain;

instantiate an object having a first list of all permissible
initial tokens for the program statement upon detection of a
selected one of said root tokens; and

where an initial token in said program statement is
represented in said first list as another root token, instantiate a
subsequent object having a second list of all permissible
subsequent tokens which may follow said initial token where
said subsequent object causes said first list to be reinitialised.

C. REJECTIONS
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Davidson US 6,083,276 Jul. 4, 2000
Osborne US 2002/0026308 A1 Feb. 28, 2002
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Saulpaugh US 6,598,052 B1 Jul. 22, 2003
Bhatt US 6,799,184 B2 Sep. 28, 2004

Claims 1-4, 8, and 9 stand rejected under 35 U.S.C. § 102(e) as
anticipated by Osborne.
Claims 1-9 stand rejected under 35 U.S.C. § 102(e) as anticipated by
Saulpaugh.
Claim 5 stands rejected under 35 U.S .C. § 103(a) as unpatentable
over Osborne in view of Bhatt.
Claims 6 and 7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Osborne in view of Bhatt and further in view of Davidson.

II. ISSUES
Has Appellant shown the Examiner erred in finding:
1) Osborne discloses the limitation of “examine said tokenized
program statement and associate objects with selected ones of said tokens”
(claim 1)?
2) Saulpaugh discloses the limitation of “examine said tokenized
program statement and associate objects with selected ones of said tokens”
(claim 1)?

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
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Osborne
1) Osborne compares the tokens of a parsed statement against the
nodes of a syntax tree representing all possible syntax options (Abstract).
2) The syntax tree nodes represent arguments and operations of a
computer program (p. 1, ¶ 4) and are “implemented as objects” (p. 2, ¶ 25).
3) The parsed statement is validated by selecting nodes which
match the tokens and provide the shortest route between the root and end
nodes of the syntax tree (p. 3, ¶¶ 42-43).

Saulpaugh
4) Saulpaugh compiles a series of grammatical-form tokens of an
object-oriented database into intermediate-form entries of that object-
oriented database (Abstract).
5) “[T]he intermediate form comprises an array of entry objects as
would be found in the object-oriented database. The entry objects are
intelligent: they encapsulate data with methods for manipulating that data.
The methods include creating a database entry, creating a property
associated with an entry, creating an attribute associated with an entry or
property, querying the last entry, property, or attribute created, and finalizing
entry storage.” (col. 2, ll. 53-61.)
6) “The tokens cause the compiler to recognize the grammatical
form and create StaticEntry, StaticProperty, and StaticAttribute objects that
together comprise the intermediate form of the database.” (col. 19, ll. 12-15.)
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7) “A StaticEntry object contains references to its parent, siblings,
and children, as well as its properties (StaticProperty instances) and
attributes (StaticAttribute instances).” (col. 18, ll. 30-34.)
8) “TREE” and “ENTRY” tokens of the grammatical form are
each compiled into a respective “StaticEntry” object (col. 19, l. 37 – col. 20,
l. 29) and define the tree root and tree sub-hierarchy of the database,
respectively, such that a “TREE” token has child tokens, e.g., ENTRY
child1-2 of FIG. 7, and an “ENTRY” token has grandchild tokens, e.g.,
ENTRY grandchild1-3 of FIG. 7 (col. 14, ll. 13-64).

IV. PRINCIPLES OF LAW
35 U.S.C. § 102
Under 35 U.S.C. § 102, “[a] single prior art reference that discloses,
either expressly or inherently, each limitation of a claim invalidates that
claim by anticipation.” Perricone v. Medicis Pharm.Corp., 432 F.3d 1368,
1375 (Fed. Cir. 2005) (citation omitted). “Anticipation of a patent claim
requires a finding that the claim at issue ‘reads on’ a prior art reference.”
Atlas Powder Co. v. IRECO, Inc., 190 F.3d 1342, 1346 (Fed Cir. 1999)
(citations omitted). “In other words, if granting patent protection on the
disputed claim would allow the patentee to exclude the public from
practicing the prior art, then that claim is anticipated, regardless of whether
it also covers subject matter not in the prior art.” Id. (citations omitted).
“[T]he PTO gives claims their ‘broadest reasonable interpretation.’”
In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004) (quoting In re Hyatt, 211
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F.3d 1367, 1372 (Fed. Cir. 2000)). “[L]imitations are not to be read into the
claims from the specification.” In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993) (citing In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989)). Our
reviewing court has repeatedly warned against confining the claims to
specific embodiments described in the specification. Phillips v. AWH Corp.,
415 F.3d 1303, 1323 (Fed. Cir. 2005). It is the Appellant’s burden to
precisely define the invention. See In re Morris 127 F.3d 1048, 1056 (Fed.
Cir. 1997).

V. ANALYSIS
35 U.S.C. § 102
Claims 1-4, 8, and 9 as anticipated by Osborne
In the Appeal Brief, Appellant argues that Osborne does not disclose
“an examination of a tokenized program statement and associating objects
with selected ones of said tokens” and that “Osborne, in contrast, teaches
that nodes (i.e., junction and data nodes) are implemented as objects” (App.
Br. 5-6). However, the Examiner finds, “As acknowledged above by the
Appellant, Osborne at least explicitly teaches ‘nodes (i.e., junction and data
nodes) are implemented as objects ... ’” and “[p]er the plain language of
claim 1, lines 6-7, Osborne explicitly discloses ‘examine said tokenized
program statement and associate objects with selected ones of said tokens’”
(Ex. Ans. 9; Examiner’s emphasis). Accordingly, an issue we address on
this Appeal is whether Osborne’s use of syntax tree nodes (FF 1) discloses
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the limitation of “examine said tokenized program statement and associate
objects with selected ones of said tokens” (claim 1).
We begin our analysis by giving the claims their broadest reasonable
interpretation. See Bigio, 381 F.3d at 1324. Furthermore, our analysis will
not read limitations into the claims from the Specification. See Van Geuns,
988 F.2d at 1184. It is the Appellant’s burden to precisely define the
invention. See Morris, 127 F.3d at 1056.
Claim 1 does not define “objects.” Contrary to Appellant’s
contention, the plain meaning of “objects” does not exclude syntax tree
nodes. Further, even assuming arguendo the recited “objects” are “object[s]
of a class, where ‘object’ and ‘class’ have their ordinary meaning in the
object-oriented programming parlance” (Spec. 8, ll. 13-15), Appellant does
not show or even offer evidence that this technical meaning of “objects”
excludes syntax tree nodes. We, therefore, find Appellant’s argument
unpersuasive.
In addition, we agree with the Examiner’s finding that Osborne
discloses the limitation of “examine said tokenized program statement and
associate objects with selected ones of said tokens” (claim 1). Osborne
validates a syntactical statement by comparing the nodes, which represent
arguments and operations of a computer program (FF 2), against stored
tokens of the statement (FF 1). Thus, an artisan would have understood the
recited “objects” as reading on Osborne’s nodes (representing such
arguments and operations), and would have understood the recited
“associate objects with selected … tokens” (claim 1) as reading on
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Osborne’s comparison of the nodes and tokens. Further, Osborne’s nodes
are implemented as objects (FF 2). Thus, an artisan would also have
understood the recited “associate objects with selected … tokens” (claim 1)
as reading on the disclosed relationship between the objects and tokens,
which results because Osborne’s nodes are both implemented as objects and
compared against tokens.
For the above reasons, Appellant fails to show that the Examiner erred
in finding that Osborne discloses the limitation of “examine said tokenized
program statement and associate objects with selected ones of said tokens”
(claim 1).
Appellant further argues that “Osborne also failed to disclose objects
embodying a subset of a complete grammar of a domain. Applicant’s
invention is directed to a parser which supports multiple domains” (App. Br.
6). This argument is not commensurate with the scope of claim 1. That is,
claim 1 is neither directed to nor recites a “parser which supports multiple
domains,” as Appellant contends.2 Rather, claim 1 is directed to computer
instructions that cause a processor to “receive a program statement in a first
programming language by a parser” (claim 1). We therefore find this
argument unpersuasive.

2 We note that claim 9, which Appellant does not argue separately from
claim 1, and which falls with claim 1, is directed to a parser. However,
claim 9 does not recite a parser supporting multiple domains.

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In addition, we agree with the Examiner’s findings, which the Appeal
Brief does not dispute.3 The Examiner finds that Osborne discloses “said
objects embodying a subset of a complete grammar of a domain” (claim 1)
by way of the subtrees of FIG. 2A, and more particularly by way of nodes
“250-B-270-260- ... , or 250-E-270-260- ... , or 250-G-270-H-270-J-270-
260- ... , or 250-G-270-I-270-J-270-260- ... ” (Ex. Ans. 10). Each subtree of
Osborne embodies a portion of the syntax tree, and thereby embodies a
portion of all possible syntax options (FF 1). We find an artisan would have
understood the recited “said objects embodying a subset of a complete
grammar of a domain” (claim 1) as reading on the subtrees of Osborne’s
FIG. 2A.
Appellant lastly argues, “The Osborne reference also failed to disclose
. . . the instantiation of a subsequent object having a second list of all
permissible subsequent tokens where said subsequent object causes said first
list to be reinitialised.” (App. Br. 6.) This argument merely restates the
limitation of “instantiate a subsequent object having a second list of all
permissible subsequent tokens which may follow said initial token where
said subsequent object causes said first list [of all permissible initial tokens]

3 Appellant repeatedly fails to specify the Examiner’s error. See 37 C.F.R. §
1.111(b) (2006) (“The reply … must be reduced to a writing which distinctly
and specifically points out the supposed errors in the examiner’s action[.]”).
Instead, Appellant merely summarizes Osborne (App. Br. 5-6) or Saulpaugh
(App. Br. 6-7) and alleges they do not disclose particular features of the
invention. Further, though several of Appellant’s arguments are addressed
by the Examiner’s Answer (Ex. Ans. 8-14), Appellant did not file a Reply
Brief.
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to be reinitialised” (claim 1). We, therefore, find this argument
unpersuasive.
In addition, we agree with the Examiner’s related findings, which the
Appeal Brief does not dispute. The Examiner finds that Osborne
“instantiate[s] a subsequent object having a second list of all permissible
subsequent tokens” by way of “instantiating a subsequent Subtree E having a
second list of all permissible subsequent tokens as (275-K-280) or (275-L-
280)” (Ex. Ans. 11); and finds that “said subsequent object causes said first
list [of all permissible initial tokens] to be reinitialized” (claim 1) because
Osborne’s “subtree or branches relink to (reinitialize) the main tree” (Ex.
Ans. 11). We similarly find an artisan would have understood the recited
“first list” as reading on respective nodes of Osborne’s subtrees B, E, F, and
G, the recited “second list” as reading on nodes K and L of subtree E, and
the recited “instantiate a subsequent object having a second list of all
permissible subsequent tokens which may follow said initial token where
said subsequent object causes said first list [of all permissible initial tokens]
to be reinitialised” (claim 1) as reading on selection of Osborne’s subtree E.
In view of the above, Appellant fails to show that the Examiner erred
in rejecting claims 1-4, 8, and 9 (claims 2-4, 8, and 9 falling with claim 1)
under 35 U.S.C. § 102(e) as anticipated by Osborne.

Claims 1-9 as anticipated by Saulpaugh
In the Appeal Brief, Appellant argues:
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Saulpaugh failed to disclose examining a tokenized program
statement and associating objects with selected ones of said
tokens as in Applicant’s invention. … Saulpaugh disclosed
that the textual form of [an object-oriented] database is parsed
into a series of tokens which are compiled into a plurality of
entries … expressed in intermediate form[,] which in one form
comprises an array of entry objects as found in the object-
oriented database . . .

(App. Br. 7). However, the Examiner finds that Saulpaugh “associate[s]
objects with selected … tokens” (claim 1) in the decoding and compiling
steps 756, 758, 761, 762 of FIG. 10 (Ex. Ans. 5; citing col. 19, l. 37 – col.
20, l. 12). The Examiner also cites Saulpaugh’s “TREE” and “ENTRY”
tokens (Ex. Ans. 5), which are compiled into “StaticEntry” objects (FF 8).
Accordingly, an issue we address on this Appeal is whether Saulpaugh’s
compiling of “StaticEntry” objects discloses the limitation of “examine said
tokenized program statement and associate objects with selected ones of said
tokens” (claim 1).
As discussed above regarding Osborne, claim 1 does not define
“objects.” Contrary to Appellant’s contention, the plain meaning of
“objects” does not exclude the intermediate-form entries of Saulpaugh.
Further, even assuming arguendo the term “object” is given its “ordinary
meaning in the object-oriented programming parlance” (Spec. 8, ll. 13-15),
this technical meaning does not exclude Saulpaugh’s “StaticEntry” objects,
because they are “entry objects as would be found in the object-oriented
database” and “encapsulate data with methods for manipulating that data”
(FF 5). Moreover, “A StaticEntry object contains references to its parent,
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siblings, and children, as well as its properties (StaticProperty instances) and
attributes (StaticAttribute instances)” (FF 7). We, therefore, find
Appellant’s argument unpersuasive.
In addition, we agree with the Examiner’s finding that Saulpaugh
discloses the limitation of “examine said tokenized program statement and
associate objects with selected ones of said tokens” (claim 1). Saulpaugh
compiles a series of grammatical-form tokens into “StaticEntry” objects (FF
4, 6, and 8) having the above-noted qualities of an object (FF 5 and 7). We
find an artisan would have understood the recited “objects” as reading on
Saulpaugh’s “StaticEntry” objects. Further, we find an artisan would have
understood that Saulpaugh, by compiling the grammatical-form tokens into
“StaticEntry” objects, “examine[s a] tokenized program statement” and
“associates” those “StaticEntry” objects with tokens.
For the above reasons, Appellant fails to show that the Examiner erred
in finding that Saulpaugh discloses the limitation of “examine said tokenized
program statement and associate objects with selected ones of said tokens”
(claim 1).
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Appellant further argues, “Saulpaugh also failed to disclose
Applicant’s invention where selected ones of tokens are identified as root
tokens and said objects embody a subset of a complete grammar of a
domain.” (App. Br. 7.) This argument merely restates the limitation of “said
selected ones of said tokens identified as root tokens and said objects
embodying a subset of a complete grammar of a domain” (claim 1). We
therefore find this argument unpersuasive.
In addition, we agree with the Examiner’s related findings, which the
Appeal Brief does not dispute. The Examiner finds the recited “said selected
ones of said tokens identified as root tokens” is disclosed by block 602 of
FIG. 7 (Ex. Ans. 5). Further, the Examiner finds the recited “said objects
embodying a subset of a complete grammar of a domain” is disclosed by
Saulpaugh at col. 19, ll. 1-23 (Ex. Ans. 5).
In Saulpaugh, block 602 represents the “StaticEntry” object of a
compiled “TREE” token, which defines the tree root of the object-oriented
database (FF 8). The cited portion of Saulpaugh (col. 19, ll. 1-23) states the
“StaticEntry” objects are one three objects “that together comprise the
intermediate form of the [object-oriented] database” (FF 6). We find an
artisan would have understood the recited “said selected ones of said tokens
identified as root tokens” (claim 1) as reading on Saulpaugh’s “TREE”
tokens, and understood the recited “said objects embodying a subset of a
complete grammar of a domain” (claim 1) as reading on the “StaticEntry”
objects comprising part of the database’s intermediate form.
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Appellant lastly argues, “Saulpaugh also fails to show that the
instantiation of a subsequent object having a second list of all permissible
subsequent tokens where said subsequent object causes said first list to be
reinitialised. Saulpaugh stated that developers should design a plug-in when
grammar modifications are required” (App. Br. 7). The language of claim 1
does not preclude the use of a plug-in. We, therefore, find this argument
unpersuasive.
In addition, we agree with the Examiner’s related findings, which the
Appeal Brief does not dispute. The Examiner finds the limitation of
“instantiate a subsequent object having a second list of all permissible
subsequent tokens” (claim 1) is disclosed by Saulpaugh’s compiling of the
“ENTRY” token at step 756 (Ex. Ans. 5; citing col. 19, l. 46 – col. 20, l. 19).
Further, the Examiner finds the limitation of “said subsequent object causes
said first list [of all permissible initial tokens] to be reinitialized” (claim 1) is
disclosed by Saulpaugh’s compiling of properties and attributes at steps 762,
763 (Ex. Ans. 6). We find an artisan would have understood the
“StaticEntry” object of an “ENTRY” token as being associated with the
ENTRY grandchild1-3 tokens (FF 8), and as thereby disclosing the recited
“subsequent object having a second list of all permissible subsequent
tokens” (claim 1). Further, an artisan would have understood the
“StaticEntry” object of a “TREE” token as being associated with the
corresponding ENTRY child1-2 tokens (FF 8), and as thereby disclosing the
recited “object having a first list of all permissible initial tokens” (claim 1),
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where compilation of each ENTRY child1-2 token into a “subsequent object
causes said first list to be reinitialised.” (claim 1).
In view of the above, Appellant fails to show that the Examiner erred
in rejecting claims 1-9 (claims 2-8 falling with claim 1) under 35 U.S.C.
§ 102(e) as anticipated by Saulpaugh.

35 U.S.C. § 103
Claim 5 as unpatentable over Osborne and Bhatt
As to claim 5, Appellant argues “the combination suggested by the
Examiner is not fairly suggested by the references;” “the references cannot
be combined to achieve Applicant’s invention;” and “the Examiner has
attempted to use hindsight reconstruction, given the Applicant’s disclosure,
to supply what the references neither teach nor suggest” (App. Br. 8).
However, the Examiner finds that an artisan would have been motivated to
combine Osborne with Bhatt “to provide a means to process/transform/map
the XML elements faster as suggested by Bhatt (e.g., column 6, lines 30-38;
column 13, line 60 - column 14, lines 11)” (Ex. Ans. 6). Appellant does not
specify the Examiner’s error in combining Osborne and Bhatt. We,
therefore, find these arguments unpersuasive.
Further, Appellant provides no argument that the added limitation of
claim 5 is not disclosed by Osborne and Bhatt. Rather, Appellant merely
repeats its arguments against the rejection of claim 1, as anticipated by
Osborne, stating that “[t]he combination of Osborne and Bhatt fails to
disclose Applicant’s invention which, examines a tokenized program
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statement and associates objects with selected ones of the tokens where
selected ones of said tokens are identified as root tokens and said objects
embodying a subset of a complete grammar of a domain;” and stating that
“[t]he combination of Osborne and Bhatt is incapable of supporting multiple
domains as disclosed in Applicant’s invention” (App. Br. 8). Like the
arguments addressed with respect to claim 1, these arguments are
incommensurate with the scope of the claimed invention and/or pertain to
limitations disclosed by Osborne. We, therefore, find these arguments
unpersuasive.
In view of the above, Appellant fails to show the Examiner erred in
rejecting claim 5 under 35 U.S.C. § 103(a) over Osborne in view of Bhatt.

Claims 6 and 7 as unpatentable over Osborne, Bhatt, and Davidson
As to claims 6 and 7, Appellant argues “the combination suggested by
the Examiner is not fairly suggested by the references;” “the references
cannot be combined to achieve Applicant’s invention;” and “the Examiner
has attempted to use hindsight reconstruction, given the Applicant’s
disclosure, to supply what the references neither teach nor suggest (App. Br.
9). However, the Examiner finds it would have been obvious “to combine
the teaching of Davidson (a class data structure with a list of classes,
element mapper, and mapping information) into that of Osborne and Bhatt
(list of unique identifiers associated with tokens) by having each class
associated with one unique identifier;” and further finds an artisan “would
have been motivated to do so to provide a means to process/transforrn/map
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the XML elements faster as suggested by Bhatt (e.g., column 6, lines 30-38;
column 13, line 60 – column 14, lines 11).” Appellant does not specify the
Examiner’s error in combining Osborne, Bhatt, and Davidson. We,
therefore, find these arguments unpersuasive.
Further, Appellant provides no argument that the added limitations of
claims 6 and 7 are not disclosed by Osborne, Bhatt, and Davidson. Rather,
Appellant merely repeats the arguments against the rejection of claim 1, as
anticipated by Osborne, stating the references do not disclose “examining a
tokenized program statement and associating objects with selected ones of
the tokens where selected ones of said tokens are identified as root tokens
and said objects embodying a subset of a complete grammar of a domain”
(App. Br. 9); and stating the combination “is incapable of supporting
multiple domains as disclosed in Applicant's invention” (App. Br. 10). Like
the arguments addressed with respect to claim 1, these arguments are
incommensurate with the scope of the claimed invention and/or pertain to
limitations disclosed by Osborne. We, therefore, find these arguments
unpersuasive.
In view of the above, Appellant fails to show that the Examiner erred
in rejecting claims 6 and 7 under 35 U.S.C. § 103(a).

CONCLUSIONS OF LAW
(1) Appellant has not shown that the Examiner erred in finding that
claims 1-4, 8, and 9 are anticipated by Osborne.
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(2) Appellant has not shown that the Examiner erred in finding that
claims 1-9 are anticipated by Saulpaugh.
(3) Appellant has not shown that the Examiner erred in finding that
claim 5 is unpatentable over Osborne and Bhatt.
(4) Appellant has not shown that the Examiner erred in finding that
claims 6 and 7 are unpatentable over Osborne, Bhatt, and Davidson.
(5) Claims 1-9 are not patentable.

DECISION
We affirm the Examiner’s decision rejecting claims 1-9 under
35 U.S.C. § 102(e) and the Examiner’s decision rejection claims 5-7 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)(1)(iv).

AFFIRMED
erc

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