Ex Parte Valeva et al

Patent Trial and Appeal Board

Nov 15, 2018

13930275 (P.T.A.B. Nov. 15, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/930,275
152606 7590
VMWare-OPW
P.O. Box 4277
Seattle, WA 98194
FILING DATE FIRST NAMED INVENTOR
06/28/2013 Mariana Valeva
11/15/2018
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.
Bll4 5316
EXAMINER
KRAFT, SHIH-WEI
ART UNIT PAPER NUMBER
2194
MAIL DATE DELIVERY MODE
11/15/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARIANA VALEVA and KIRIL KARAATANASSOV
Appeal2017-009092
Application 13/930,275 1
Technology Center 2100
Before MICHAEL J. STRAUSS, BETH Z. SHAW, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's decision rejecting claims 1-20, which are all the claims pending
in the application. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 VMWARE, INC. ("Appellant"), Mariana Valev, and Kiril Karaatanassov
are the applicants, as provided for under 37 C.F.R. § 1.46. The Brief
identifies VMWARE, INC. as the real party in interest. See Appeal Br. 1.
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Application 13/930,275
STATEMENT OF THE CASE
Invention
Appellant's invention relates to "the use of additional links, or
hyperlinks, in the body of responses to GET requests [to] inform clients
ofRESTful API extensions." Spec. ,r 41. 2
Exemplary Claims
Claims 1 and 13 are independent. Claims 1, 3, 12, and 13 are
exemplary and are reproduced below.
1. A link registry comprising:
a link-registry application programming interface;
a set of one or more link-registry entries, stored in a
physical data-storage device or medium, that each includes one
or more hyperlinks to add to response messages returned in
response to request messages that represent a method applied to
a resource or resources specified by one of a resource identifier
and a representation of a resource identifier that is also included
in the link-registry entry; and
a control component that is invoked, by a call to the link-
registry application programming interface by a processor-
controlled device, during processing of a request message by
the processor-controlled device, to add hyperlinks encoded in
link-registry entries to a corresponding response message.
2 Throughout this Decision, we refer to: (1) Appellant's Specification filed
June 28, 2013 ("Spec."); (2) the Final Office Action ("Final Act."), mailed
March 10, 2016; (3) the Appeal Brief filed October 18, 2016 and
Supplemental Appeal Brief filed December 13, 2016 ("Appeal Br."); (4) the
Examiner's Answer ("Ans."), mailed March 24, 2017; and (5) the Reply
Brief filed May 30, 2017 ("Reply Br.").
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3. The link registry of claim 1 wherein the control
component identifies one or more link-registry entries that are
applicable to the request message and corresponding response
message as those link-registry entries containing the resource
identifier that occurs in the request message.
12. The link registry of claim 11 wherein the
processor-controlled device is of:
a server computer that provides a web service to client
computers; and
a processor-controlled client device that uses a web
service provided by one or more server computers.
13. A method for extending an application
programming interface that defines a service provided by one or
more server computers, the method comprising:
providing a link-registry application programming
interface;
providing a physical data-storage device or medium in
which link-registry entries are stored, each link-registry entry
including one or more hyperlinks to add to response messages
returned by the service in response to request messages
transmitted from client devices to the service as well as one of a
resource identifier and a representation of a resource identifier;
and
during generation of a response message corresponding
to a request message received by the service,
identifying one or more link-registry entries that
are applicable to the request message and corresponding
response message, and
adding hyperlinks encoded in the identified one or
more link-registry entries to the corresponding response
message.
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Application 13/930,275
Appeal Br. 36-38.
REFERENCES AND REJECTIONS
Claims 1-20 stand rejected under 35 U.S.C. § 112(a), as failing to
comply with the written description requirement. Final Act. 5-16.
Claims 3, 5, and 13-20 stand rejected under 35 U.S.C. § 112(b) as
being indefinite. Final Act. 16-18.
Claims 1-20 stand rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter. Final Act. 18-20.
Claims 1-20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Johnston (US 2009/0187573 Al; July
23, 2009) and Pike (US 2007/0233580 Al; Oct. 4, 2007). Final Act. 20-39.
Our review in this appeal is limited only to the above rejections and
the issues raised by Appellant. Arguments not made are waived. See MPEP
§ 1205.02 (9th ed., rev. 7; Oct. 2015); 37 C.F.R. §§ 4I.37(c)(l)(iv) and
4I.39(a)(l) (2015).
CONTENTIONS AND ANALYSIS
Issue 1 - Written Description Rejection of Claims 1-11
Issue: Does the Examiner properly reject claim 1 under
35 U.S.C. § 112(a) as lacking support in the originally filed Specification for
the limitation "a method applied to a resource or resources specified by one
of a resource identifier and a representation of a resource identifier"?
Whether a specification complies with the written description
requirement of 35 U.S.C. § 112(a) is a question of fact and is assessed on a
case-by-case basis. See, e.g., Purdue Pharma L.P. v. Paulding, Inc., 230
F.3d 1320, 1323 (Fed. Cir. 2000) (citing Vas-Cath Inc. v. Mahurkar, 935
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F.2d 1555, 1561 (Fed. Cir. 1991)). The disclosure, as originally filed, need
not literally describe the claimed subject matter (i.e., using the same terms or
in haec verba) in order to satisfy the written description requirement. But
the Specification must convey with reasonable clarity to those skilled in the
art that, as of the filing date that Appellant was in possession of the claimed
invention. See id.
The Examiner finds:
the claim appears to imply that multiple "resources" can be
specified by a resource identifier and a representation of a
resource identifier, but paragraphs [0046] and [0048] disclose[]
that the resource identifier and symbol-string representation are
for a particular resource only.
Final Act. 7.
Appellant argues the requisite written description is provided in the
Specification at paragraphs 30 and 31. Appeal Br. 7-12. Appellant points
out "a resource can be multiple records, can be multiple people, or multiple
organizations." Appeal Br. 8-9 (citing Spec. ,r 30). Appellant likens the
claimed resource identifier to "path names [that] can specify directories
containing subdirectories, each of which contains multiple files," i.e.,
resources. Appeal Br. 8 ( citing Spec. ,r 32) ("In one sense, the URis bear
similarity to path names to files in file directories provided by computer
operating systems.").
We are persuaded the Specification conveys with reasonable clarity to
those skilled in the art that, as of the filing date, Appellant was in possession
of the claimed invention. Appellant's Specification discloses that "[a]
resource may be any logical entity, including people, digitally encoded
documents, organizations, and other such entities that can be described and
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characterized by digitally encoded information." Spec. ,r 30. In this light,
Appellant's Specification may be reasonably interpreted as disclosing a URI
points to a plurality of resources. Spec. ,r 31 ("All of the customer resources
314--318 are collectively named or specified by the single URI ... 320.").
Because Appellant has persuaded us of error in the written-description
rejection of independent claim 1, we do not sustain the Examiner's rejection
of claim 1 under 35 U.S.C. § 112(a). For the same reasons, we also do not
sustain the Examiner's rejection of claims 2-11 under 35 U.S.C. § 112(a).
Issue 2 - Written Description Rejection of Claim 12
Issue: Does the Examiner properly reject claim 12 under
35 U.S.C. § 112(a) as lacking support in the originally filed Specification for
the limitation "wherein the processor-controlled device is of: a server
computer that provides a web service to client computers; and a processor-
controlled client device"?
Claim 1 recites "a processor-controlled device" that invokes a control
component to "add hyperlinks" to a response message. Appeal Br. 3 6.
Claim 12 depends indirectly from claim 1 and further limits claim 1 's
"processor-controlled device" to be of "a server computer" "and a
processor-controlled client device." Appeal Br. 3 8 ( emphasis added). The
Examiner finds claim 12 's inclusion of "and" between server computer and
processor-controlled client device implies "that the processor-controlled
device is [both] a server computer and a client device, but paragraph [0026]
discloses two separate computers for a client and server." Final Act. 12.
The Examiner concludes that "there is no support for ... a processor-
controlled device that is both a server computer and a client device." Id.
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Appellant argues that an application programming interface based on
an HTTP RESTful protocol can be generally accessed by any type of
computing device that can issue HTTP requests via a RESTful protocol and
"[ s ]uch devices include server computers and processor-controlled client
devices." Appeal Br. 12 ( citing Spec. ,r 30).
We are unpersuaded of Examiner error. We agree with the Examiner
that the Specification describes the server computer adding hyperlinks
encoded in link-registry entries to a response message 452 in reply to a
request message 446 sent by a remote client. See Spec. Fig. 4b, ,r 3 6.
Appellant does not point out any portion of the Specification, including
paragraph 30, that describes a client device that invokes a control component
to add hyperlinks to a response message, as claimed.
We, therefore, sustain the Examiner's rejection of claim 12 under
35 U.S.C. § 112(a).
Issue 3 - Written Description Rejection of Claims 13-20
Issue: Does the Examiner properly reject claim 13 under
35 U.S.C. § 112(a) as lacking support in the originally filed Specification for
the limitation "each link-registry entry including one or more hyperlinks to
add to response messages returned by the service in response to request
messages transmitted from client devices to the service as well as one of a
resource identifier and a representation of a resource identifier"?
The Examiner finds "the originally filed specification does not
provide support for adding hyper links 'as well as one of a resource identifier
and a representation of a resource identifier' to response messages." Final
Act 8.
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Because Appellant presents no argument in response to the rejection
(see generally Appeal Br.), we summarily sustain this rejection. See MPEP
§ 1205.02 ("If a ground of rejection stated by the examiner is not addressed
in the appellant's brief, that ground of rejection will be summarily sustained
by the Board.).
We, therefore, sustain the Examiner's rejection of claim 13 under
35 U.S.C. § 112(a) and the rejection of claims 14--20 for similar reasons.
Issue 4 - Indefiniteness Rejection of Claims 3, 5 and 13-20
Issue: Does the Examiner properly reject claims 3, 5, 13, and 14
under 35 U.S.C. § 112(b) as indefinite?
The Examiner finds "the limitation 'containing the resource
identifier,"' as recited in claim 3, and similarly recited in claims 5 and 14,
render the claims indefinite under 35 U.S.C. 112(b ). Final Act. 16-18.
Claim 3 depends from claim 1. Specifically, the Examiner finds it is unclear
whether "'the resource identifier' [of claim 3] is referring to 'a resource
identifier' in line 6 of claim 1 or 'a resource identifier' in line 7 of claim 1."
Final Act. 16-17.
Appellant argues the Specification clearly informs one skilled in the
art of the boundaries of the claimed subject matter because in claim 1, "the
phrase 'request messages that represent a method applied to a resource or
resources specified by one of a resource identifier and a representation of a
resource identifier' refers to a request message ... that includes either a
resource identifier or a representation of a resource identifier." Appeal
Br. 13.
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"In the USPTO, an applicant's 'claim is, or is supposed to be,
examined, scrutinized, limited, and made to conform to what he is entitled
to."' In re Packard, 751 F.3d 1307, 1311 (Fed. Cir. 2014) (citation omitted).
"The legal standard for definiteness is whether a claim reasonably apprises
those of skill in the art of its scope." In re Warmerdam, 33 F.3d 1354, 1361
(Fed. Cir. 1994) (citation omitted). "'[A] claim is indefinite when it contains
words or phrases whose meaning is unclear."' Packard, 751 F.3d at 1310,
1314--15 ( citing Manual of Patent Examining Procedure (MPEP)
§ 2173.05(e)).
After review of the respective positions provided by Appellant and the
Examiner, we agree with Appellant that in view of the cited paragraphs of
the Specification, the Examiner has not demonstrated that one skilled in the
art would not have understood whether "'the resource identifier' [ of claim 3]
is referring to 'a resource identifier' in line 6 of claim 1 or 'a resource
identifier' in line 7 of claim 1." Final Act. 16-17. Appellant's Specification
discloses that a resource and a representation of a resource are different
things:
A resource may be any logical entity, including people,
digitally encoded documents, organizations, and other such
entities that can be described and characterized by digitally
encoded information. A resource is thus a logical entity.
Digitally encoded information that describes the resource and
that can be accessed by a client computer from a server
computer is referred to as a "representation" of the
corresponding resource.
Spec. ,r 30. Thus, we agree that a resource identifier and a representation of
a resource identifier are different for the same reason that a resource and a
representation of a resource are different. For this reason, we agree with
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Appellant that those of skill in the art are reasonably apprised that claim 3 's
limitation "containing the resource identifier" refers to claim 1 's "resource
identifier" and not to claim 1 's "representation of a resource identifier."
We, thus, do not sustain the Examiner's rejection of claim 3 under 35
U.S.C. § 112, second paragraph. Claims 5 and 14 also include the disputed
limitation and so we do not sustain the Examiner's rejection of claims 5 and
14 for similar reasons.
The Examiner also finds independent claim 13 is indefinite under 3 5
U.S.C 112(b). Final Act. 17. The Examiner rejects dependent claims 14--20
using the same reasoning as claim 13. Id. Appellant responds that
"Appellants' representative is not able to parse the Examiner's statement"
and "claim 13 is clear as written." Ans. 13-14. We find Appellant's
argument persuasive because we also are unable to follow the Examiner's
rejection of claim 13. We, therefore, do not sustain the Examiner's
indefiniteness rejection of claim 13 and of dependent claims 14--20, which
are rejected with similar reasoning.
Accordingly, as discussed above, we do not sustain the Examiner's
rejection of claims 3, 5 and 13-20 under 35 U.S.C. § 112, second paragraph.
Issue 5 -Rejection of Claims 1-12 Under§ 101
Issue: Does the Examiner properly reject claim 1 under
35 U.S.C. § 101 as being directed to software alone and thus non-patentable
subject matter?
The Examiner determines that claim 1 is "directed to 'A link registry',
which appears to be software per [ se]. Since software is merely a set of
instructions capable of being executed by a computer, the software itself is
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non-statutory matter." Final Act. 18. Specifically, the Examiner finds the
"originally filed specification does not provide a definition for a 'medium',
and one of ordinary skill in the art would understand 'medium' to include
[transitory] carrier waves or signals."
Appellant argues the claim is not directed to computer instructions
alone but additionally includes "processors, and other electromechanical
devices that support the one or more processors [ and] are able to carry out a
process such as adding hyperlinks encoded in link-registry entries to a
corresponding response message" such as the control component recited in
claim 1. Reply Br. 11 ( citing Spec. ,r 24).
We find Appellant's argument persuasive. The Examiner improperly
construes the claim as being directed to software alone. Claim 1, in addition
to reciting software-embodied entries "stored in a physical data-storage
device or medium," also recites "a control component." See Appeal Br. 36.
As Appellant points out, the Specification describes the control components
as "tangible and physical" components. Spec. ,r 24 ("Computer-instruction-
implemented control components of modem processor-controlled devices
and systems are as tangible and physical as any other component of the
system, including power supplies, cooling fans, electronic memories and
processors, and other such physical components."). Also, claim 1 itself
recites that the control component is invoked "by a processor-controlled
device."
In determining the claim is limited to software per se, the Examiner
does not consider every limitation and thus does not show that the claim is
limited to software alone. Because we find the Examiner improperly
interprets claim 1 as being directed only to software without physical, non-
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transitory, structure, we do not sustain the Examiner's rejection of claim 1 as
being directed to patent ineligible subject matter. We also do not sustain the
rejection of dependent claims 2-12 under 35 U.S.C. § 101 for similar
reasons.
Issue 6 - Rejection of Claims 13-20 Under§ 101
Issue: Does the Examiner properly reject claim 13 under
35 U.S.C. § 101 as being directed to non-patentable subject matter?
The Examiner determines that claim 13 "is directed towards human
activities, which can be done by hand with pen and paper," and thus, recites
an abstract idea. Ans. 17; see Final Act. 19-20. The Examiner also
determines "the claims are ineligible because they do not amount to
significantly more than the abstract idea." Ans. 17.
Appellant argues the claims are not directed to human activities but
rather are directed to a process driven improvement to computer-related
technology by more efficiently adding hyperlinks encoded in link-registry
entries to the corresponding response message. Appeal Br. 19-22; Reply
Br. 12-15. Specifically, Appellant argues the "claimed method extends an
application programming interface, using a link-registry application
programming interface, to add hyperlinks to response messages returned in
response to requests received through the application programming
interface" (Appeal Br. 20) "without incurring significant computational and
development overheads" (Appeal Br. 21 citing Spec. ,r 46).
The Supreme Court has set forth "a framework for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts." Alice
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Corp. Pty. v. CLS Bank Int 'l, 134 S. Ct. 2347, 2355 (2014) (citing Mayo
Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 75-76 (2012)).
According to the Supreme Court's framework, we must first determine
whether the claims at issue are directed to one of those concepts (i.e., laws of
nature, natural phenomena, and abstract ideas). Id. If so, we must secondly
"consider the elements of each claim both individually and 'as an ordered
combination' to determine whether the additional elements 'transform the
nature of the claim' into a patent-eligible application." Id. (internal citation
omitted). The Supreme Court characterizes the second step of the analysis
as "a search for an 'inventive concept' - i.e., an element or combination of
elements that is 'sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the [ineligible concept] itself."' Id.
(internal citation omitted).
With respect to step one of Alice, the "Supreme Court has suggested
that claims 'purport[ing] to improve the functioning of the computer itself,'
or 'improv[ing] an existing technological process' might not succumb to the
abstract idea exception." Enfish, LLC v. Microsoft Corp., 822 F.3d 1327,
1335 (Fed. Cir. 2016) (citing Alice, 134 S. Ct. at 2358-59). Thus, our
reviewing court guides that the first step in the Alice inquiry asks whether
the focus of the claims is on a specific asserted improvement in computer
capabilities or an existing technological process, or, instead, on a process
that qualifies as an "abstract idea" for which computers are invoked merely
as a tool. Enfzsh, 822 F.3d at 1335-36. Accord McRO, Inc. v. Bandai
Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed. Cir. 2016) ("We
therefore look to whether the claims in these patents focus on a specific
means or method that improves the relevant technology or are instead
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directed to a result or effect that itself is the abstract idea and merely invoke
generic processes and machinery.").
Applying step one of the Alice analysis, we agree with Appellant that
by extending functionality of an application programming interface by
adding hyperlinks encoded in link-registry entries to a response message, the
claim improves a "computer-related technology." See Appeal Br. 20-22;
Ans. 14--17.
Moreover, our conclusion that the claim is directed to a specific
improvement of an existing technology is supported by the Specification's
disclosure that the claimed invention achieves benefits over conventional
servers using RESTful APis, by "extending RESTful APis without incurring
significant computational and development overheads." Spec. ,r 46.
Viewing the claims as a whole and in light of the Specification, we
find them similar, from a patent eligibility perspective, to the claims
approved in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed.
Cir. 2014). The DDR claims were held eligible because they recited a
"solution ... necessarily rooted in computer technology in order to
overcome a problem specifically arising in the realm of computer networks."
773 F.3d at 1257. Appellant's claimed invention similarly provides a new
way to overcome a problem (the inability to "develop[] and deploy[]
practical extensible services and APis" that are computationally efficient)
specifically arising in the realm of client-server systems. Spec. ,r,r 10, 46.
We also disagree with the Examiner's finding that Appellant's claim recites
"steps for providing, identifying, and adding [ data that] are similar to the
kind of human activity at issue in Alice." Final Act. 19. We do not agree
that adding hyperlinks to response messages may reasonably be interpreted
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as human activity. Regardless, Appellant's claim 13 as a whole, similar to
the claims in DDR, is directed to an improved technique for overcoming a
specific technological problem. Final Act. 19. Thus, according to step one
of the Alice test, we determine claim 13 is not directed to an abstract idea.
Because we find that claim 13 is not directed to ineligible subject matter, we
do not reach step two of the Alice test. Enfish, 822 F.3d at 1339. We,
therefore, do not sustain the Examiner's rejection of claim 13 as being
directed to patent ineligible subject matter. We also do not sustain the
rejection of dependent claims 14--20 under 35 U.S.C. § 101 for similar
reasons.
Issue 7 - Rejection of Claims 1-20 Under§ 103
Issue: Does the Examiner err in finding claim 1 is obvious over the
combination of Johnston and Pike?
In support of the rejection of claim 1, the Examiner finds Johnston's
discussion of a repository server teaches a link-registry and adding
hyperlinks encoded in link-registry entries to a corresponding response
message. See Appeal Br. 21-23.
Appellant disputes the Examiner's factual findings, arguing "[ c ]laim 1
is not directed to a repository server for managing a network of individual
resources" and "[ t ]here is no language in claim 1 related to the various
things mentioned in the ... rejection." Appellant further argues "Johnston is
an entirely unrelated reference" and so "Johnston clearly does not teach or
suggest a link registry or anything at all related to adding hyperlinks
encoded in link-registry entries to a corresponding response message."
Appeal Br. 25, 26.
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The Examiner responds to Appellant's arguments by concluding that
that Appellant argues "against the references individually" and "one cannot
show nonobviousness by attacking references individually where the
rejections are based on combinations of references." Ans. 20 (citing In re
Keller, 642 F.2d 413,425 (CCPA 1981); In re Merck & Co., 800 F.2d 1091,
1097 (Fed. Cir. 1986)). The Examiner, however, does not rely on Johnston
in combination with Pike to teach the limitations argued by Appellant, but
instead relies only on the teachings of Johnston. See Final Act. 20-23.
Therefore, the Examiner's response that Appellant argues the references
individually does not specifically address Appellant's arguments
distinguishing the teachings of Johnston. See Appeal Br. 22-35; Reply
Br. 15-23.
Accordingly, the Examiner does not, on the record before us, show
that Johnston teaches or suggests "a set of one or more link-registry entries,
stored in a physical data-storage device or medium, that each includes one or
more hyperlinks," "to request messages that represent a method." Final
Act. 22; see Ans. 18-24. Because we agree with at least one of the
dispositive arguments advanced by Appellant for claim 1, we need not reach
the merits of Appellant's other arguments. We, therefore, do not sustain the
Examiner's 35 U.S.C. § 103 rejection of claim 1. We also do not sustain the
rejection of independent claim 13, which recites limitations similar to the
disputed limitations of claim 1. We, likewise, do not sustain the rejections
of dependent claims 2-12 and 14--20.
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CONCLUSIONS
We do not affirm the Examiner's decision to reject claims 1-11 under
35 U.S.C. § 112(a).
We affirm the Examiner's decision to reject claims 12-20 under
35 U.S.C. § 112(a).
We do not affirm the Examiner's decision to reject claims 3, 5, and
13-20 under 35 U.S.C. § 112(b ).
We do not affirm the Examiner's decision to reject claims 1-20 under
35 U.S.C. § 101.
We do not affirm the Examiner's decision to reject claims 1-20 under
35 U.S.C. § 103.
DECISION
We affirm the Examiner's decision to reject claims 12-20.
We do not affirm the Examiner's decision to reject claims 1-11.
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-IN-PART
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