Ex Parte Tripp

Patent Trial and Appeal Board

Feb 9, 2017

13972391 (P.T.A.B. Feb. 9, 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.
13/972,391 08/21/2013 Omer Tripp IL920120061US2_8150-0439 1385
73109 7590 02/13/2017
Cuenot, Forsythe & Kim, LLC
20283 State Road 7
Ste. 300
Boca Raton, EL 33498
EXAMINER
GYORFI, THOMAS A
ART UNIT PAPER NUMBER
2435
NOTIFICATION DATE DELIVERY MODE
02/13/2017 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):
ibmptomail@iplawpro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OMER TRIPP
Appeal 2016-005104
Application 13/972,3911
Technology Center 2400
Before ERIC S. FRAHM, JOHNNY A. KUMAR, and JOYCE CRAIG,
Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
1 As noted by Appellant in the Appeal Brief (App. Br. 3), this application is
the child application of, and is related to, U.S. Patent Application Serial No.
13/628,392.
Appeal 2016-005104
Application 13/972,391
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—10. We have jurisdiction under 35 U.S.C.
§ 6(b).
Because we affirm at least one ground of rejection with respect to
each claim on appeal, the Examiner’s decision rejecting claims 1—10 is
affirmed. See 37 C.F.R. § 41.50(a)(1).
Disclosed Invention and Illustrative Claim
The disclosed invention relates a system, method, and computer
program product for customizing a security report (Spec, H 1—3; Claims 1
and 10; Abs.). Website security protects against cyber-attacks, and is
implemented using a form of static analysis called taint analysis which
searches for paths such as paths in a control flow graph (see Fig. 1, control
flow graph 100) representing a model of data flow of a computer program
(Spec. H2-4). Claim 1, reproduced below with emphases added, is
illustrative of the claimed subject matter:
1. A method of customizing a security report, the method
comprising:
performing, by a security analysis application executed
by a processor, a static analysis of a computer program and,
during the static analysis, generating, by the security
analysis application, a control flow graph representing a model
of data flow of the computer program and assigning respective
edge weights to edges of a plurality of paths in the control flow
graph;
limiting an amount of processing resources allocated to
processing a uniform-cost search method by dynamically
configuring. by the security analysis application, a size of
the uniform-cost search method based on a size of the control
flow graph, dynamically configuring the size of the uniform-
cost search method based on the size of the control flow
graph comprising identifying edges assigned greatest edge
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Application 13/972,391
weights and limiting the uniform-cost search method to
consider only those paths that include the edges assigned the
greatest edge weights',
determining, using the uniform-cost search method
executed by the processor, a total edge weight for the
considered paths, the total edge weight for a considered path
being a sum of the edge weights assigned to the respective
edges of the considered path;
identifying at least one path of the considered paths in the
control flow graph whose total edge weight satisfies a particular
total edge weight criteria;
updating the control flow graph to indicate to the user the
at least one path in the control flow graph whose total edge
weight satisfies the particular total edge weight criteria;
and presenting, on a display, the updated control flow graph to
the user as a customized security report that facilitates
identification of security vulnerabilities in the computer
program.
REJECTIONS
The Examiner made the following rejections in the final rejection:
(1) Claims 1—10 stand provisionally rejected based on the judicially
created doctrine of non-statutory obviousness-type double patenting, over
claims 11—25 ofU.S. Patent Application No. 13/628,392.2 Final Rej. 4;
Ans. 2.
2 Appellant does not present separate patentability arguments for claims 1—
10 provisionally rejected based on the judicially created doctrine of non-
statutory obviousness-type double patenting, or otherwise rebut the
Examiner’sprima facie case in regards to the provisional obviousness-type
double patenting rejection of claims 1—10 {see generally App. Br. 7—22;
Reply Br. 2—14). Thus, no issue is presented by Appellant as to this
rejection, and we sustain the provisional obviousness-type double patenting
rejection of claims 1—10 pro forma.
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Application 13/972,391
(2) Claims 1—10 stand rejected under 35U.S.C§ 101 as being directed
to non-statutory subject matter. Final Act. 5—6; Ans. 3—12.
(3) Claims 1—10 were also rejected under 35 U.S.C § 103(a) as being
unpatentable over Chilimbi (US 2008/022614 Al; published Sept. 11, 2008)
and Zhou (US 2008/0143723 Al; published Jun. 19, 2008). Final Act. 6—9.
The Examiner has now withdrawn this obviousness rejection (Advisory
Action mailed April 16, 2015, p. 2).
ANALYSIS
The Provisional Double Patenting Rejection
Appellant has not presented any argument or evidence regarding the
Examiner’s provisional obviousness-type double patenting rejection.
Therefore, we affirm the provisional double patenting rejection of claims 1—
10 over claims 11—25 of U.S. Patent Application 13/628,392 pro forma.
The Non-Statutory Subject Matter Rejection under 35 U.S.C. §101
The Examiner finds claims 1—10 are directed to non-statutory subject
matter because they are drawn to the abstract idea of organizing human
activity, without an inventive concept sufficient to transform that abstract
idea into a patent eligible application (Final Act. 5—6; Ans. 3—12). Appellant
contends claims 1—10 are not directed to an abstract idea at ah, and instead
recite operations performed on a data structure and on a control flow graph
(App. Br. 16—17). Appellant also contends the various recited elements of
independent claims 1 and 10 transform the claimed elements into patent
eligible subject matter because the claims allocate an amount of processing
resources by performing a dynamic configuration — which in turn serves to
improve upon a technological process, reduces energy/power usage in a
system (App. Br. 17—18). We agree with Appellant.
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Application 13/972,391
Claims 1..10 are directed to a patent-eligible concept: limiting the
allocation of processing resources used for processing a uniform-cost search
method on a control flow graph used in the static analysis of a computer
program performing a security analysis application. Considering the
elements of independent claims 1 and 10 individually, and as an ordered
combination, we find the additional elements of dynamically configuring the
size of the uniform-cost search method based on the size of the control flow
graph by “identifying edges assigned greatest edge weights and limiting the
uniform-cost search method to consider only those paths that include the
edges assigned the greatest edge weights; [and] determining, using the
uniform-cost search method executed by the processor, a total edge weight
for the considered paths” transform the nature of the claimed system and
computer program product into a patent-eligible application.
Therefore, we find the Examiner erred in finding independent claims
1 and 10, and dependent claims 2—9 for similar reasons, to be directed to
non-statutory subject matter.
The Obviousness Rejection under 35 U.S.C. § 103(a)
The Examiner asserted that the combination of Chilimhi and Zhou
were evidence that using a uniform-cost search method on a control flow
graph to perform a. static security analysis of a computer program was well-
known, and that the combination of Chilimbi and Zhou discloses all the
limitations of claims 1—10 (Final Act. 6-9). Appellant presented arguments
in an after-final amendment filed March 23, 2015 (pp. 14—15), that the
combination of Chilimbi and Zhou did not disclose or suggest the limi tation
recited in claims 1 and 10 of “dynamically configuring the size of the
uniform-cost search method based on the size of the control flow
graph comprising identifying edges assigned greatest edge weights and
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Application 13/972,391
limiting the uniform-cost search method to consider only those paths that
include the edges assigned the greatest edge weights/’ Not only do we agree
with Appellant, but so did the Examiner. As a result of Appellant’s
arguments submitted in the after final amendment, the Examiner indicated in
the Advisory Action that followed (mailed May 16, 2015; see p. 2) that
“[t]he arguments traversing the rejection[] under 35 USC 103 have been
fully considered and are persuasive. Th[is] rejection[] ha[s] been
withdrawn.”
Accordingly, the Examiner has neither shown that (i) the limitations
of claims 1—10 would have been obvious based on the knowledge of one of
ordinary skill in the art; nor (ii) Chilimbi teaches or suggests the uniform
method-cost search method recited in independent claims 1 and 10. Asa
result, this bolsters our determination supra, that claims 1 10 are directed to
the patent-eligible concept of limiting the allocation of processing resources
used for processing a uniform-cost search method on a control flow graph
used in the static analysis of a computer program performing a security
analysis application.
CONCLUSIONS
Appellant has not presented any arguments regarding the provisional
obviousness-type double patenting rejection, so there is no issue presented
on appeal with respect to this rejection.
Under 35 U.S.C. § 101, the Examiner erred in rejecting claims 1—10
as being directed to non-statutory subject matter.
The Examiner’s rejection of claims 1—10 under 35 U.S.C. § 103(a)
was withdrawn.
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Application 13/972,391
DECISION
For the above reasons, the Examiner’s decision (i) provisionally
rejecting claims 1—10 based on the judicially created doctrine of non-
statutory obviousness-type double patenting is affirmed pro forma', and (ii)
rejecting claims 1—10 under 35 U.S.C. § 101 is reversed. Because we affirm
at least one ground of rejection with respect to each claim on appeal, the
Examiner’s decision rejecting claims 1—10 is affirmed. See 37 C.F.R. §
41.50(a)(1).
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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