Thomas Millett et al.

Patent Trials and Appeals Board

Sep 7, 2021

2020002587 (P.T.A.B. Sep. 7, 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.
13/282,802 10/27/2011 Thomas W. Millett 14917.1918US01/333774USNP 7599
27488 7590 09/07/2021
MERCHANT & GOULD (MICROSOFT)
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903
EXAMINER
MINA, FATIMA P
ART UNIT PAPER NUMBER
2159
NOTIFICATION DATE DELIVERY MODE
09/07/2021 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):
USPTO27488@merchantgould.com
usdocket@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS W. MILLETT and JOSEPH T. FLINT

Appeal 2020-002587
Application 13/282,802
Technology Center 2100

Before MARC S. HOFF, LARRY J. HUME, and
JUSTIN BUSCH, Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1–8 and 10–20. We have jurisdiction over the
pending claims under 35 U.S.C. § 6.
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as
Microsoft Technology Licensing, LLC. Appeal Br. 3.
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STATEMENT OF THE CASE
INTRODUCTION
The invention relates generally to a database adaptor that intercepts
and processes database commands issued by an application on a database
other than the browser-hosted database targeted by the application. Spec.
¶ 3. Figure 2 is reproduced below:

Figure 2 depicts “an exemplary system that shows intercepting database
calls before they are executed against a database.” Spec. ¶ 5. Claims 1
(method), 10 (computer-readable storage device), and 16 (system) are
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independent claims. Claim 1, which is illustrative of the claimed subject
matter, is reproduced below:
1. A method for intercepting and processing database
commands, comprising:
detecting, by a device, a database command from a
caller that requests an operation to be performed on a
database, on a server, that follows an Application
Programming Interface (API) that is defined using a first
specification;
intercepting, by the device, the database command
before executing the database command against the
database, thereby preventing attempts to execute the
database command against the database according to the
first specification;
in response to intercepting the database command
and preventing attempts to execute the database command
against the database, identifying a different database,
stored on the device, to perform the database command
according to a different specification;
passing the processed intercepted database
command to a database engine to perform the requested
operation defined by the database command on the
different database according to the different specification;
receiving a result from performing the requested
operation defined by the database command on the
different database according to the different specification;
processing the result, from the different database, to
emulate a second result that would have been returned
from the database according to the first specification; and
providing the second return to the caller.
REFERENCES
Name Patent or Application # Date
Balin US 2005/0149537 A1 July 7, 2005
Estrada US 7,237,002 B1 June 26, 2007
Kryukov US 8,407,196 B1 Mar. 26, 2013

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THE PENDING REJECTIONS
Claims 1, 4–6, 10, 12, and 13 stand rejected under 35 U.S.C. § 103 as
obvious over Balin and Kryukov. Final Act. 2–7.
Claims 2, 3, 7, 8, 11, and 14–202 stand rejected under 35 U.S.C. § 103
as obvious over Balin, Kryukov, and Estrada. Final Act. 8–11.
ANALYSIS
We have reviewed the Examiner’s § 103 rejections in light of
Appellant’s arguments that the Examiner erred. In reaching this decision,
we have considered all evidence presented and all arguments Appellant
made. Arguments Appellant could have made, but chose not to make in the
Briefs, are deemed waived. See 37 C.F.R. § 41.37(c)(1)(iv).
CLAIMS 1, 4–6, 10, 12, AND 13
The Examiner finds that Balin teaches or suggests nearly every
element of independent claim 1. Final Act. 2–4. In part, the Examiner finds
Balin teaches “receiving a result from performing the requested operation

2 We note that, in the Final Rejection, the Examiner does not expressly reject
claim 17. See Final Act. 2–11. However, in the Non-Final Rejection,
mailed May 29, 2018, we note the Examiner rejects claim 17 on the same
basis as claim 3. See Non-Final Act. 9. Appellant treats claim 17 as rejected
and does not argue claims 3 and/or 17 separately with particularity. See
Appeal Br. 9. The Examiner rejects claim 18 as obvious over only Balin and
Kryukov as well as obvious over Balin, Kryukov, and Estrada. See Final
Act. 2–11. Claim 18 depends from claim 16, which stands rejected over
Balin, Kryukov, and Estrada. Therefore, claim 18 is not properly rejected as
obvious over Balin and Kryukov (without Estrada). Appellant, however was
not prejudiced due to either the error by the Examiner in accidentally
omitting the rejection of claim 17 when copying claims to the new
obviousness rejection introducing Estrada in the Final Action or the error in
including claim 18 as rejected as obvious over only Balin and Kryukov.
Accordingly, we treat the Examiner’s typographical error as a harmless.
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defined by the database command on the different database according to the
different specification” and “processing the result, from the different
database, to [generate] a second result that would have been returned from
the database according to the first specification.” Final Act. 4 (citing Balin
¶¶ 66, 67, 70, 94). The Examiner finds “Balin does not explicitly teach
emulating a result,” but then finds “Kryukov teaches emulating a result.”
Final Act. 4 (citing Kryukov 6:1–5).
The Examiner determines it would have been obvious to modify
Balin’s teaching of redirecting database commands to a different database
and returning the results to the user to include Kryukov’s feature of
emulating results because it provides predictable results such as performing
changes in a different database and returning those results to “save space of
the original database.” Ans. 6; Final Act. 4–5 (finding incorporating
Kryukov’s teachings also adds scalability). Accordingly, and of particular
relevance to this Appeal, the Examiner finds the combination of Balin and
Kryukov teaches or suggests the disputed limitation: “processing the result,
from the different database, to emulate a second result that would have been
returned from the database according to the first specification”. See Final
Act. 4–5.
We begin with a brief overview of the prior art. Balin generally
relates to database migration from one platform to another. Balin, Abstract.
“The target and source databases can be any relational databases including,
without limitation, Oracle, SQL Server (Microsoft), DB2 UDE (IBM),
Sybase, MySQL, PostgreSQL, and the like.” Balin, Abstract. “A feature of
the invention is the provision of a virtual engine enabling the running of an
original application on a migrated database.” Balin, Abstract. Figure 12,
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which shows how an application accesses a different database than the
application was written for without changing the application code, is
reproduced below.

Figure 12 of Balin “is a block diagram of a database conversion with
source application running on a target database according to an embodiment
of the invention.” Balin ¶ 33; see also Balin¶¶ 66–79 (describing Figure
12). As shown in Figure 12, Balin creates Target Database on Platform Y,
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which uses SQL dialect Y, having equivalent or translated semantics,
schema, and migrated data. Balin ¶ 66, Fig. 12. Once Balin migrates the
database to Target Database, the system enables “a source application to run
on a target database.” Balin ¶ 66. Thus, when application 1225 makes a
SQL dialect X call to the Source Database (on Platform X), SQL Converter
Wrapper 1280 intercepts and translates the database command to a
command using SQL dialect Y for ultimate execution on Target Database.
Balin ¶ 67, Fig. 12; see also Balin ¶¶ 70 (“The wrapper intercepts a database
connection call which was suppose[d] to open connection to the database on
Platform X. Seamlessly to the application, the wrapper redirects the call to
the target database on Platform Y.”), 73 (“The wrapper uses the translated
target SQL statement to run on the target database platform.”). “In this
manner, a user can use source application 1225 to run queries on target
database without having to migrate to target application 1275.” Balin ¶ 67.
Balin’s Figures 16–17 depict additional examples with further
abstraction of the converter functions in order “to implement a middleware
layer that provides a full abstraction above databases of different vendors.”
Balin ¶ 84; see Balin ¶¶ 85–89. The middleware “emulates the database
relative to client applications” in order to receive “incoming SQL queries
from multiple clients,” query the appropriate physical database, “and
return[] the dataset to the original application.” Balin ¶ 88. “The primary
benefit of this architecture is that it allows truly consolidating databases of
multiple database vendors entirely seamless for a client application.” Balin
¶ 88.
Kryukov generally relates to a “database architecture that supports
functionality of an emulator” to emulate and test malware components.
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Kryukov, Abstract; see also Kryukov 3:26–29 (“The object-oriented
database, in accordance with an exemplary embodiment, supports an
emulator and provides for effective recovery of a database fragments after
multiple modifications of the fragments by a malware component”).
Kryukov tests malware components using a system that makes a backup
copy of a database, then modifies the emulated database, generates and
records emulation results, then restores the database using the backup copy.
Kryukov 5:55–6:27.
Appellant’s arguments generally assert that neither Balin nor Kryukov
teaches “processing the result, from the different database, to emulate a
second result that would have been returned from the database according to
the first specification” and that there is insufficient rationale to combine
Balin and Kryukov. See Appeal Br. 10–15; Reply Br. 2–9. In part,
Appellant argues that the Examiner’s construction is inconsistent with the
ordinary usage of the term, which Appellant asserts is “imitate” or “imitate
by means of an emulator.” Reply Br. 3 (citing MERRIAM WEBSTER’S
COLLEGIATE DICTIONARY, 379 (10 ed. 1995). Appellant contends “the
Examiner believes the claim term only means ‘return a result.’” Reply Br. 7
(citing Ans. 4).
However, as Appellant noted, Reply Br. 3 (citing Ans. 3, the
Examiner construes emulate to mean copy, match, or reproduce, Ans. 3, not
as “return a result.” The Examiner’s finding that Kryukov returns a result
follows the Examiner’s finding that Kryukov teaches using an emulator to
emulate actions taken “in a separate database than the actual database.”
Ans. 4. We understand the Examiner’s finding regarding Kryukov returning
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a result to merely explain that Kryukov emulates and processes a “result that
would have been returned,” as recited in claim 1.
Regarding the construction of “emulate,” the Examiner finds the
Specification’s limited description of emulating results and the lack of
clarity in the claim language results in a broadest reasonable interpretation of
“emulat[ing] a second result” that encompasses Kryukov’s disclosed
emulation. Ans. 3–4 (citing Spec. ¶¶ 26, 35); Kryukov 1:54–58 (describing
using the “functionality of an emulator”), 3:25–30 (describing using an
emulator to recover database fragments modified by a malware component),
5:65–67 (describing performing the emulation using portions of the original
database loaded into memory for use by the emulator)). Thus, the Examiner
applies the broadest reasonable interpretation and construes emulating as
“copying the results, matching the results or reproducing the results.”
Ans. 3. Copying or matching results is effectively synonymous with
imitating results. Accordingly, we fail to see how the Examiner’s
interpretation of “emulate” as meaning copy, match, or reproduce is
materially different than the cited definition of emulate as “imitate” (“by
means of an emulator”).
Appellant notes the Examiner’s finding that “Balin does not
‘explicitly teach’ the post-processing of the results from the second database
to emulate a return from a first database,” and Appellant asserts the cited
sections of Balin do not describe processing the results returned from the
second database. Appeal Br. 11–12; id. (arguing “Balin describes little
about what happens to the result of calls to the target database”). Appellant
further argues Kryukov describes a database system with an emulator that
generates results emulating a malware infection of the database, but
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Kryukov does not relate to returning results that emulate a result from
another database. Appeal Br. 13–14.
Appellant also asserts the rationale for combining Kryukov’s
teachings with Balin’s teachings is “nonsensical” because it is unclear why
adding Kryukov’s emulation of a malware-infected database helps with
scalability, why a person of ordinary skill in the art would have made the
combination, or how the teachings would have been combined because,
according to Appellant, there is no reason for Balin (which sends commands
to a target database) to send commands to Kryukov’s database that contains
malware. Appeal Br. 15. Appellant further contends Kryukov’s emulator
uses the same database (i.e., a database having the same specification)—just
a version infected with malware—whereas Balin relates to migrating a
database to a different type of database. Appeal Br. 15.
Appellant correctly summarizes Kryukov’s cited passages as relating
to emulating malware infections of a database to emulate and return results
from an infected database or portion thereof. Appellant’s definition of
emulate is “imitate by means of an emulator.” Reply Br. 3. Kryukov
explicitly teaches using an emulator to emulate and return results as if the
database were infected with certain malware components. E.g., Kryukov
3:26–29.
The Examiner relies on Kryukov merely to demonstrate that it was
known to emulate database query results. It is the combination of Balin,
which already teaches returning a result from a database having a different
specification than the database to which the command was initially directed
prior to being intercepted. Thus, we are not persuaded that Kryukov fails to
teach “emulating a result.”
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We understand the Examiner to determine that it would have been
obvious to implement Kryukov’s emulator to perform database queries in
Balin’s system because it uses known techniques in known systems that
results in predictable results. The Examiner does not propose implementing
Kryukov’s emulator to introduce malware in a database but rather to use an
emulator to generate and return emulated results. Accordingly, we agree
with the Examiner that the combination teaches or suggests the disputed
limitation.
An obviousness analysis “need not seek out precise teachings directed
to the specific subject matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). “A person of ordinary skill is also a person of ordinary creativity,
not an automaton.” KSR, 550 U.S. at 421. “The test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference; . . . [r]ather, the test is what the
combined teachings of those references would have suggested to those of
ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981)
(citations omitted). The operative question is “whether the improvement is
more than the predictable use of prior art elements according to their
established functions.” KSR, 550 U.S. at 417.
As noted above, the Examiner finds Balin teaches every limitation
recited in claim 1, including “processing a result, from the different
database” to provide “a second result that would have been returned from
the database according to the first specification,” but that “Balin does not
explicitly teach emulating a result.” Final Act. 3–4 (emphasis added). The
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Examiner’s finding that emulating a result is not explicitly taught appears to
be based on an interpretation, consistent with the Examiner’s reliance on
Kryukov, that the claim requires an emulator. See, e.g., Final Act. 4.
However, we do not interpret the disputed limitation to require that
the database commands are executed in an emulator or emulation
environment. Rather, consistent with Appellant’s Specification and
arguments, we determine that the recited “emulat[ing] a second result that
would have been returned from the database according to the first
specification” merely requires that the system processes the results from the
different database to ensure that the results returned to the calling application
are what the application expects and would have received if the database
command had not been intercepted. See Reply Br. 3–5 (“Results from the
different database must be processed for the application, which expects the
results to appear as having come from the database according to the first
specification.”); Spec. ¶¶ 26, 35. The point of this is to “allow[] an
‘application to be developed for use across platforms/devices without being
limited by the browser/device implementation [of the database].’” Reply
Br. 5 (quoting Spec. ¶ 26).
Notably, this is the same purpose as Balin’s SQL Converter Wrapper
1280 and middleware components 1660, 1700. See Balin ¶¶ 66–68, 84–89,
Figs. 12, 16–17. For example, Balin discloses that a “particular feature of
the inventive concept demonstrates how to run a client application that was
designed for a database platform A to run against a database platform B
without rewriting the application code.” Balin ¶ 17. Moreover, Balin
explicitly discloses that “middleware 1700 emulates the database relative to
client applications.” Balin ¶ 88. Appellant is correct that Balin does not
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explicitly disclose what happens to the results returned from the migrated
database. However, given that part of Balin’s purpose is to allow an
unmodified client application designed for one database platform to execute
queries against a different database platform, these disclosures at least
implicitly teach or suggest to a person of ordinary skill in the art that the
results are processed in order to return results that emulate (i.e., imitate,
copy, or reproduced) the results that would have been returned by the first
database platform. Otherwise, Balin’s application would not function
properly.
The Examiner’s rejection appears to recognize this because the
Examiner does not find Balin fails to suggest emulating a result, but instead
finds only that Balin does not explicitly teach emulating a result. Final
Act. 4. Accordingly, we determine Kryukov is cumulative and we
alternatively sustain the rejection because Balin alone teaches or suggests
every limitation recited in claim 1. See In re Kronig, 539 F.2d 1300, 1303
(CCPA 1976) (explaining that limiting an affirmance of an obviousness
rejection to fewer than all of the references cited by the Examiner does not
constitute a new ground of rejection); In re Bush, 296 F.2d 491, 495–96
(CCPA 1961); see also MPEP § 1207.03(a)(II).
Appellant also contends the Examiner’s findings that the claim
limitations do not include certain argued features fail to properly interpret
the claims in light of the Specification. Reply Br. 4–5. Even accepting
Appellant’s assertions as true, this is not fatal to the Examiner’s rejection
because, as discussed herein, the Examiner finds the combination of Balin
and Kryukov teaches or suggests each of the limitations recited in claim 1
when construed in light of the Specification and consistent with Appellant’s
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assertions regarding the meaning of those limitations. See, e.g., Final
Act. 3–4.
Thus, we are not persuaded the Examiner erred in finding the
combination of Balin and Kryukov teaches or suggests the subject matter
recited in claim 1, including the disputed limitation. For the foregoing
reasons, we sustain the Examiner’s rejection of claim 1 under 35 U.S.C.
§ 103 as obvious over Balin and Kryukov.
With respect to independent claim 10, Appellant argues only that
claims 1 and 10 recite similar limitations and the rejection of claim 10
should be reversed for the same reasons asserted with respect to claim 1.
Regarding dependent claims 2–7 and 11–14, Appellant argues these claims
are allowable due to their dependency from one of claims 1 and 10.
Therefore, for the same reasons as discussed above, we also sustain the
Examiner’s rejection of claims 4–6, 12, and 13 under 35 U.S.C. § 103 as
obvious over Balin and Kryukov and the Examiner’s rejection of claim 2, 3,
7, 11, and 14 as obvious over Balin, Kryukov, and Estrada.
CLAIMS 16–19
With respect to independent claim 1, Appellant argues only that
claims 1 and 16 recite similar limitations and the rejection of claim 1 should
be reversed for the same reasons asserted with respect to claim 1. Regarding
dependent claims 17–19, Appellant argues these claims are allowable due to
their dependency from claim 16. Therefore, for the same reasons as
discussed above, we also sustain the Examiner’s rejection of claims 16–19
under 35 U.S.C. § 103 as obvious over Balin, Kryukov, and Estrada.
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CLAIMS 8, 15, AND 20
Claims 8, 15, and 20 directly depend from claims 1, 10, and 16,
respectively, and additionally recite “loading the different database before
the database associated with a database command is identified by a web
browser” (claim 8) or a limitation having commensurate scope. Appeal
Br. 19, 21–22. Appellant asserts that, in addition to being allowable due to
their dependency from claims 1, 10, and 16, Balin does not teach this
additional limitation because Balin’s cited passages do not even describe
loading the database, let alone loading the database in accordance with the
temporal restriction recited in these claims. Appeal Br. 16–17; Reply
Br. 8–9. Appellant also contends the Examiner’s finding that the claims are
different than the Specification is a conclusion “contrary to the legal
precedent provided above that the claim should be interpreted in light of the
Specification.” Reply Br. 5–6. Appellant asserts the Examiner, therefore
gave the claim limitation no weight. Reply Br. 6.
The Examiner’s statement that the claims were not the same as the
specific embodiment in the Specification was a finding, not a conclusion.
See Ans. 7. Moreover, the Examiner’s never stated that the proper
construction need not consider the Specification. Rather, the Examiner
merely explains that the broadest reasonable interpretation is not limited to
the described embodiment in the Specification. Ans. 7. The Examiner’s
implicit construction is consistent with the Specification. Thus, contrary to
Appellant’s implication, the Examiner’s finding of differences between the
claims and the Specification is not fatal to the Examiner’s rejection.
The Examiner finds Balin teaches the additional limitation recited in
claims 8, 15, and 20 because Balin discloses loading scripts and libraries to
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the target database platform to create the new database before any
commands are issued and, therefore, the combination of Balin and Estrada
teaches loading the database before a database command associated with a
different is identified by a web browser. Ans. 7.
As the Examiner finds, Balin teaches loading elements (e.g., scripts
and libraries) to the target database when creating the database and Estrada
teaches a web browser issuing commands. Balin ¶¶ 46, 56, 116; Estrada
14:35–36. Given the breadth of the limitation, which merely requires
loading a second database before a web browser identifies a first database
associated with a command, we agree with and adopt the Examiner’s
findings and conclusion that Balin, Kryukov, and, Estrada teach or suggest
the subject matter recited in claim 8 and commensurately recited in claims
15 and 20.
CONCLUSION
We affirm the Examiner’s decision to reject claims 1–8 and 10–20
under 35 U.S.C. § 103.

DECISION SUMMARY
Claims
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 4–6, 10, 12,
13 103 Balin, Kryukov
1, 4–6, 10, 12,
13
2, 3, 7, 8, 11,
14–20 103
Balin, Kryukov,
Estrada
2, 3, 7, 8, 11,
14–20
Overall
Outcome 1–8, 10–20
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TIME PERIOD FOR RESPONSE
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)(iv), 41.50(f).
AFFIRMED