Apple Inc.

Patent Trials and Appeals BoardAug 6, 2020

14807609 - (D) (P.T.A.B. Aug. 6, 2020)

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. 14/807,609 07/23/2015 Gregory D. Hughes 8888-57000 9599 81310 7590 08/06/2020 Kowert Hood Munyon Rankin & Goetzel (Apple) 1120 S. Capital of Texas Hwy Building 2, Suite 300 Austin, TX 78746 EXAMINER WYSZYNSKI, AUBREY H ART UNIT PAPER NUMBER 2434 NOTIFICATION DATE DELIVERY MODE 08/06/2020 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): patent_docketing@intprop.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GREGORY D. HUGHES, CONRADO BLASCO, GERARD R. WILLIAMS III, JACQUES ANTHONY VIDRINE, JEFFRY E. GONION, TIMOTHY R. PAASKE, and TRISTAN F. SCHAAP Appeal 2019-002353 Application 14/807,609 Technology Center 2400 Before ALLEN R. MacDONALD, MELISSA A. HAAPALA, and DAVID J. CUTITTA II, Administrative Patent Judges. CUTITTA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–20, all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Apple Inc. as the real party in interest. Appeal Br. 2. Appeal 2019-002353 Application 14/807,609 2 CLAIMED SUBJECT MATTER Appellant’s claimed subject matter relates to marking valid return targets to thwart “unauthorized access to data” such as an “attempt to gain access to a computing device by employing a return oriented programming (ROP) exploit.” Spec. ¶ 2.2 According to Appellant, “to ensur[e] programs only return to instructions that are valid return targets . . . “landing pads are inserted as markers in an instruction stream. The presence of a landing pad corresponding to an address indicates that it is legal to return to that address. All other returns are considered suspicious.” Spec. ¶ 5. Claims 1, 8, and 15 are independent. Independent claim 1 is reproduced below, with limitations at issue emphasized, and is illustrative of the claimed subject matter: 1. A method comprising: analyzing instructions of an instruction stream; identifying a first instruction of said instructions as a valid return target, wherein identifying said first instruction as a valid return target comprises: detecting a return instruction; and determining the first instruction is a target of the return instruction; and inserting a landing pad corresponding to the first instruction in the instruction stream, wherein the landing 2 Throughout this Decision we refer to: (1) Appellant’s Specification filed July 23, 2015 (“Spec.”); (2) the Final Office Action (“Final Act.”) mailed January 26, 2018; (3) the Appeal Brief filed July 26, 2018 (“Appeal Br.”); and (4) the Examiner’s Answer (“Ans.”) mailed November 29, 2018; and (5) the Reply Brief filed January 29, 2018 (“Reply Br.”). Appeal 2019-002353 Application 14/807,609 3 pad indicates that the first instruction is a valid return target. Appeal Br. 18 (Claims Appendix). REFERENCES The references3 relied upon by the Examiner are: Name Reference Date Gutti et al. US 2008/0022065 A1 Jan. 24, 2008 Bhansali et al. US 8,910,124 B1 Dec. 9, 2014 Yamada et al. US 2016/0179546 A1 June 23, 2016 Momot US 2016/0328560 A1 Nov. 10, 2016 REJECTIONS The Examiner rejects claims 1–6, 8–13,4 and 15–19 under 35 U.S.C. § 103 as unpatentable over Momot, Yamada, and Bhansali. Final Act. 3–6. The Examiner rejects claims 7, 14, and 20 under 35 U.S.C. § 103 as unpatentable over Momot, Yamada, Bhansali, and Gutti. Id. at 6–7. OPINION We review the appealed rejections for error based upon the issues identified by Appellant and in light of Appellant’s arguments and evidence. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv)(2017). 3 All citations to the references use the first-named inventor or author only. 4 The Examiner does not include claim 13 in the rejection summary but does reject claim 13 later in the Action. Final Act. 3, 5. Accordingly, we treat the omission of claim 13 in the rejection summary as a clerical error. Appeal 2019-002353 Application 14/807,609 4 Independent claim 1 recites, in part, “inserting a landing pad corresponding to the first instruction in the instruction stream, wherein the landing pad indicates that the first instruction is a valid return target.” The Examiner relies on Bhansali to teach the limitation at issue. Final Act. 4 (citing Bhansali 3:65–4:10). The portion of Bhansali cited by the Examiner describes inserting a one-cycle NOP instruction “at the beginning of every function of a function call.” Bhansali 4:3–4:7. The Examiner finds Bhansali teaches the disputed limitation because Bhansali describes, inserting “no operation” (NOP) instructions into desired locations of a function call source code during compilation. Bhansali also teaches a NOP instruction is inserted at the beginning of every function of a function call. The specification of the present invention, see paragraph 0006, recites “For each valid return target found by the complier [sic], the complier [sic] may insert a landing pad that corresponds to the valid return target. In one embodiment, the landing pad may be a nop instruction.” Ans. 6. Appellant acknowledges that Bhansali discloses the insertion of NOP instructions. Reply Br. 2. Appellant, however, argues that “these inserted NOP instructions do not indicate ‘that the first instruction is a valid return target’ as recited [in claim 1]. On the contrary, the inserted NOP instructions of Bhansali indicate locations where profiling instructions are to be inserted.” Reply Br. 2 (emphasis omitted). Appellant’s arguments are persuasive. Claim 1 requires that the inserted “landing pad indicates that the first instruction is a valid return target.” Even assuming that Bhansali’s inserted NOP instructions teach the claimed inserting of a landing pad, the Examiner does not sufficiently show Appeal 2019-002353 Application 14/807,609 5 where Bhansali, or any of the other cited references, teaches that the inserted NOP instructions indicate that the first instruction is a valid return target. For example, in the Answer, the Examiner appears to revise the rejection, stating the “examiner relies on the Momot references to teach ‘identifying a first instruction of said instructions as a valid return target.’” Ans. 6 (citing Momot ¶ 27). The Examiner, however, does not sufficiently show how Momot’s discussion of “setting a value in a register,” alone, or in combination with Bhansali’s discussion of inserting NOP instructions, teaches that the landing pad indicates that the first instruction is a valid return target. See Momot ¶ 27. Accordingly, we find persuasive Appellant’s argument that the Examiner has not shown the cited combination teaches “inserting a landing pad corresponding to the first instruction in the instruction stream, wherein the landing pad indicates that the first instruction is a valid return target,” as recited in claim 1. 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. Accordingly, based on the record before us, we do not sustain the Examiner’s 35 U.S.C. § 103 rejection of independent claim 1. We also reverse the rejection of independent claims 8 and 15, which recite commensurate limitations, and of dependent claims 2–6, 9–13, and 16–19, for similar reasons. With respect to the remaining obviousness rejection of claim 7, 14, and 20, the Examiner does not rely on the additionally cited reference, Gutti, to cure the deficiency noted for claim 1. Final Act. 6. Accordingly, we do not sustain this obviousness rejection for the reasons set forth above for claim 1. Appeal 2019-002353 Application 14/807,609 6 CONCLUSION We reverse the Examiner’s rejections of claims 1–20 under 35 U.S.C. § 103. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § References/Basis Affirmed Reversed 1–6, 8–13, 15–19 103 Momot, Yamada, Bhansali 1–6, 8–13, 15–19 7, 14, 20 103 Momot, Yamada, Bhansali, Gutti 7, 14, 20 Overall Outcome 1–20 REVERSED