Riverbed Technology, Inc.

Patent Trials and Appeals Board

Apr 28, 2021

2020000746 (P.T.A.B. Apr. 28, 2021)

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.
15/347,496 11/09/2016 John J. Delio JR. RIV-0946 6818
87555 7590 04/28/2021
Riverbed Technology Inc. - PVFD
c/o PARK, VAUGHAN, FLEMING & DOWLER LLP
2820 Fifth Street
Davis, CA 95618
EXAMINER
PAULINO, LENIN
ART UNIT PAPER NUMBER
2193
NOTIFICATION DATE DELIVERY MODE
04/28/2021 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):
uspto-incoming@parklegal.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOHN J. DELIO JR
___________

Appeal 2020-000746
Application 15/347,496
Technology Center 2100
____________

Before CARL W. WHITEHEAD JR., JASON V. MORGAN and
SCOTT RAEVSKY, Administrative Patent Judges.

WHITEHEAD JR., Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE1
Appellant is appealing the final rejection of claims 1–20 under
35 U.S.C. § 134(a).2 See Appeal Brief 14. Claims 1, 13 and 19 are
independent. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Rather than reiterate Appellant’s arguments and the Examiner’s
determinations, we refer to the Appeal Brief (filed May 20, 2019), the Reply
Brief (filed November 11, 2019), the Final Action (mailed December 31,
2018) and the Answer (mailed September 6, 2019), for the respective details.
2 Appellant to refer to “applicant” as defined in 37 C.F.R. 1.42(a). Appellant
identifies Riverbed Technology, Inc. as the real party in interest. Appeal
Brief 3.

Appeal 2020-000746
Application 15/347,496

2

Introduction
According to Appellant, “[t]he disclosed embodiments relate to
techniques for performing injection of a dynamic library into a target process
prior to execution of a marker library.” Specification ¶ 2.

Representative Claim (disputed limitations emphasized):3
1. A method, comprising:
during loading of a marker library by a target process in a
computer system, modifying import dependency data of the marker
library to include an injection library as a dependency of the marker
library; and
after the modified import dependency data is used to load the
injection library into the target process, executing the injection library
prior to execution of the marker library to:
revert the modified import dependency data to an
original state; and
modify execution of the target process.

3 Appellant’s arguments are directed towards independent claim 1. See e.g.
Appeal Brief 15, 17. We select independent claim 1 as the representative
claim focusing on subject matter common to independent claims 1, 13 and
19. See 37 C.F.R. § 41.37(c)(1)(iv).
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Application 15/347,496

3

References
Name4 Reference Date
Hunt US 6,499,137 B1 December 24, 2002
Yu US 2014/0304720 A1 October 9, 2014

Rejection on Appeal5
Claims 1–20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yu and Hunt. Final Action 3–9.

ANALYSIS
Appellant contends, “Paragraph [0033] of Yu states that the ‘operating
system of the computer system may load the first dll [dynamic link library
(“DLL”)] file and the exe file according to the import table. . . .’ However,
this is not a disclosure of “executing the injection library prior to execution
of the marker library.” Appeal Brief 15; see also Final Action 4. We do not
find Appellant’s arguments persuasive of Examiner error.
Appellant states, “[t]he term ‘marker library’ refers to a library and/or
software module that is loaded dynamically during execution of a target
process.” Appeal Brief 7; see also Specification ¶ 29. Yu discloses:
A method and a computer system are provided for starting a
process of an application. When starting the application, the
computer system may load a second dll [DLL] file by default.
However, in instances when a first dynamic link library file is to
be injected into the process, a driving module adds information
about the first dynamic link library file into an import table of the
second dynamic link library file.

4 All reference citations are to the first named inventor only.
5 The Examiner withdraws the 35 U.S.C. § 112(a), 112(b) rejections. See
Ans. 3.
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Yu, Abstract.
Accordingly, Yu discloses an injection library (the first DLL file) and
a marker library (the second DLL file) wherein the marker library (the
second DLL file) is loaded dynamically during the execution of the target
process as disclosed by the Specification and required by claim 1. See Yu
Abstract; see also Appeal Brief 7; Specification ¶ 29.
Appellant argues that the independent claims use the terms “loading”
and “executing” and that they have different meanings. Appeal Brief 16.
We agree. Appellant further argues that Yu fails to disclose, “executing the
injection library prior to execution of the marker library.” Appeal Brief 16.
We disagree. Yu discloses that the injection library is injected into the
marker library prior to the execution of the marker library. See Yu Abstract
(“In this manner, the default-loading mechanism of the system is bypassed,
and the first [DLL] file is injected by modifying the import table of the
second [DLL] file before it is loaded into memory.”). Once the marker
library is loaded into the memory, it is accessible to be executed. See Yu,
Figure 2 (“Add information of the first dynamic link library file into an
import table of a second dynamic link library file” at step 202 and then
“Load the second dynamic link library file called by the executable file that
corresponds to the process of the application” at step 203.); see also Final
Action 4; Appeal Brief 8 (“It is important for the injection library to be
loaded and executed before the marker library is loaded and executed.”).
The Examiner further finds that:
Yu does not teach the following limitation. However Hunt
teaches revert the modified import dependency data to an
original state (“When the reference to the selected library is
added to the list of external libraries, the pointer references the
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modified list. By archiving the state of the pointer before adding
the selected library to the list the original state of the list can be
restored at a later time,” see Hunt [column 5, lines 17-21]).
Final Action 4.
Hunt further discloses that because the original state of the list can be
restored at a later time, “the process of linking the application to the selected
library is made reversible. The application can be re-linked to add or
remove a selected library.” Hunt, 5:20–24. Appellant argues that, “Hunt
merely discloses the possibility that the original state can be restored ‘at a
later time’” and therefore “[a] disclosure of the merely possibility that the
original state can be restored is not enough. The import dependency data
needs to be reverted back before executing the marker library so that the
system can proceed executing the marker library without any problems.”
Appeal Brief 17. We find that Appellant does not provide sufficient support
for this argument. See Appeal Brief 17, 18. It is well settled that mere
attorney arguments and conclusory statements, which are unsupported by
factual evidence, are entitled to little probative value. See In re Geisler,
116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494 F.2d
1399, 1405 (CCPA 1974) (attorney argument is not evidence). Thus,
Appellant’s argument cannot take the place of factually supported objective
evidence. See In re Huang, 100 F.3d 135, 139–40 (Fed. Cir. 1996).
Furthermore, we find that Hunt does not disclose that it is merely a
possibility that the original state may be restored. Hunt affirmatively
provides an option or embodiment wherein the original state can be restored.
See Hunt, 5:17–21; see also Final Action 4. Accordingly, we sustain the
obviousness rejection of claim 1, as well as, independent claims 13 and 19
commensurate in scope. We also sustain the obviousness rejection of
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dependent claims 2–5, 7–12, 14–18 and 20 not argued separately. See
Appeal Brief 20.
Claim 6 recites a method, “wherein modifying the import dependency
data of the marker library to include the injection library as the dependency
of the marker library comprises: replacing an original dependency of the
marker library in the import dependency data with the dependency on the
injection library.”
Appellant argues in regard to dependent claim 6 that “Yu does not
‘replace an original dependency.’ Instead, Yu constructs a new import table
and adds new path information to the new import table,” and “what is being
modified in Yu is the pointer to the import table; Yu does not disclose
modifying a dependency in the original import table.” Appeal Brief 19–20
(emphasis added); see Final Action 6, 7 (citing Yu ¶ 34). We do not find
Appellant’s argument persuasive of Examiner error.
The Specification discloses in paragraph 32 (emphasis added),
“import dependency data 108 in a Windows operating system 126 may
reside within a Portable Executable (PE) data structure that stores references
to DLLs, import and export tables, resource management data, and/or thread
local storage data for use by a loader in a Windows operating system 126.”
See Appeal Brief 8. Whereas Yu discloses in paragraph 34 that:
the driving module may firstly construct a new import table, and
insert path information for the [DLL] file to be loaded (including
the first [DLL] file) into this new import table; and then modify
the pointer of the original import table of the second [DLL] file
to point the pointer of the original import table of the second
[DLL] file to the new import table inserted with the path
information.

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Accordingly, we agree with the Examiner’s determination that Yu
discloses the limitations recited in claim 6. See Final Act. 6, 7. We sustain
the obviousness rejection of dependent claim 6.

CONCLUSION

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 103 Yu, Hunt 1–20

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(v).

AFFIRMED