ENTIT Software LLC

Patent Trials and Appeals BoardMay 13, 2021

2020001149 (P.T.A.B. May. 13, 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. 15/575,404 11/20/2017 Olga Kogan 92001844 4394 146568 7590 05/13/2021 MICRO FOCUS LLC 500 Westover Drive #12603 Sanford, NC 27330 EXAMINER SALVUCCI, MATTHEW D ART UNIT PAPER NUMBER 2613 NOTIFICATION DATE DELIVERY MODE 05/13/2021 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): software.ip.mail@microfocus.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte OLGA KOGAN and YANIV SAYERS Appeal 2020-001149 Application 15/575,404 Technology Center 2600 Before JEAN R. HOMERE, JASON V. MORGAN, and IRVIN E. BRANCH, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL I. STATEMENT OF THE CASE1 Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s rejection of claims 1–15, all of the claims pending.2 Claims App. (Appeal Br. 21–26). We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We refer to the Specification filed Nov. 20, 2017 (“Spec.”); the Final Office Action, mailed May 23, 2019 (“Final Act.”); the Appeal Brief, filed Sept. 11, 2019 (“Appeal Br.”); the Examiner’s Answer, mailed Oct. 3, 2019 (“Ans.”); and the Reply Brief, filed Nov. 27, 2019. 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Micro Focus LLC, as the real party in interest. Appeal Br. 3. Appeal 2020-001149 Application 15/575,404 2 II. CLAIMED SUBJECT MATTER The claimed subject matter relates to virtual reality (VR) device (230) for testing an application (e.g., UI 236) running in user device (234) by displaying user interface (UI 236) of application under test (AUT-220) within viewable portion (232) of the VR device (230). Spec. ¶¶ 8–10. Figure 2, reproduced below, is useful for understanding the claimed subject matter: Figure 2 above illustrates VR device (230) using testing device (210) to test AUT (220) by displaying user interface (236) within viewable portion of VR device (230). Id. ¶¶ 30–32. Claims 1, 8, and 12 are independent. Claim 1, reproduced below with disputed limitations emphasized, is illustrative: 1. A non-transitory machine-readable storage medium encoded with instructions executable by a hardware processor of a virtual reality (VR) device for testing applications using virtual reality, the machine-readable storage medium comprising instructions to cause the hardware processor to: Appeal 2020-001149 Application 15/575,404 3 cause display of a viewable portion of a virtual environment on a VR display of the VR device; cause display of a virtual user device within the viewable portion of the virtual environment, the virtual user device corresponding to a hardware device that is running an application under test (AUT); cause display, on the virtual user device, of a virtual user interface of the AUT; receive feedback data indicating i) a change in the virtual environment, ii) a change in a state of the AUT, or iii) an interaction with the virtual user device; and in response to receiving feedback data, cause display of an updated viewable portion of the virtual environment on the VR display. Appeal Br. 21 (Claims App.) (emphasis added). III. REFERENCES The Examiner relies upon the following references.3 Name Reference Date Gittelman US 2015/0089299 A1 Mar. 26, 2015 Bisanz Using a Virtual Reality Environment to Generate Test Specifications (published in Formal Approaches to Testing of Software (FATES ’02), a satellite workshop of CONCUR ’02, pp. 121–35 (Aug. 2002)). Aug. 2002 IV. REJECTION The Examiner rejects claims 1–15 as obvious under 35 U.S.C. § 103 over the combined teachings of Gittelman and Bisanz. Final Act. 3–34. 3 All reference citations are to the first named inventor only. Appeal 2020-001149 Application 15/575,404 4 V. ANALYSIS We consider Appellant’s arguments seriatim, as they are presented in the Appeal Brief, pages 8–21, and the Reply Brief, pages 1–4.4 We are unpersuaded by Appellant’s contentions. Except as otherwise indicated herein below, we adopt as our own the findings and reasons set forth in the Final Action, and the Examiner’s Answer in response to Appellant’s Appeal Brief. Final Act. 2–34; Ans. 3–11. However, we highlight and address specific arguments and findings for emphasis as follows. Appellant argues that the Examiner errs in finding that the combination of Gittelman and Bisanz teaches or suggests displaying a hardware device running an application under test (AUT) within the viewable portion of a virtual environment, as recited in independent claim 1. Appeal Br. 11. In particular, Appellant argues that Gittelman’s disclosure of incorporating into a VR an input/output device of a computing system executing an online AUT does not teach the disputed limitations because it does not display the computing device within a viewable portion of the VR. Id. at 11–12 (citing Gittelman ¶¶ 36, 39, 43, 49, 55, 89). Further, Appellant argues that Bisanz’s disclosure of various user controls (e.g., a 3D menu including a toggle switch, hand, time gesture, cursor) for controlling components of a system under test (SUT) executing or running an application does not teach or suggest displaying a hardware device running an AUT. Id. at 12–13 (citing Bisanz, Figs. 1–3). 4 We have considered in this Decision only those arguments Appellant actually raised in the Briefs. Arguments not made are forfeited. See 37 C.F.R. § 41.37(c)(1)(iv) (2019). Appeal 2020-001149 Application 15/575,404 5 Appellant’s arguments are not persuasive of reversible Examiner error because they are tantamount to an individual attack against Gittelman and Bisanz, as opposed to addressing the combined teachings of cited references, as relied upon by the Examiner in the rejection of claim 1. One cannot show non-obviousness by attacking the references or the embodiments thereof individually where the rejections are based on the combined teachings of the references and/or embodiments. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller, 642 F.2d 413, 426 (CCPA 1981). The Examiner relies upon Gittelman’s disclosure of using a VR computing system to test applications running on a user device, and displaying the test results to teach the VR system displaying a hardware device running an application under test (AUT). Ans. 4; Final Act. 4–6 (citing Gittelman ¶¶ 31–33, 36, 39, 43, 46, 49, 55, Fig. 3). The Examiner further relies upon Bisanz’s disclosure of displaying in a virtual periphery the interface of a system under test (SUT) to teach the displaying a hardware device in a viewable portion of the VR system. Ans. 5 (citing Bisanz, sections 1 and 2, Fig. 3).5 We find the Examiner’s proposed combination of the cited teachings of Gittelman and Bisanz is no more than a simple arrangement of old elements with each performing the same function it had been known to perform, yielding no more than what one would expect from 5 “The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference . . . . Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” Keller, 642 F.2d at 425. “The obviousness analysis cannot be confined by [the] formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of . . . the explicit content of issued patents.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). Appeal 2020-001149 Application 15/575,404 6 such an arrangement. See KSR, 550 U.S. at 416. Therefore, the ordinarily skilled artisan, being “a person of ordinary creativity, not an automaton,” would have been able to fit the teachings of the cited references together like pieces of a puzzle to predictably result in computing system that displays in a viewable portion of a VR system the interface of a user device executing an application under test. Id. at 420–21. Because Appellant has not demonstrated that the Examiner’s proffered combination would have been “uniquely challenging or difficult for one of ordinary skill in the art,” we agree with the Examiner that the proposed modification would have been within the purview of the ordinarily skilled artisan. See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Consequently, we are satisfied that, on this record, the Examiner has established by a preponderance of the evidence that the combination of Gittelman and Bisanz teaches or suggests the disputed claim limitations. Because we are not persuaded of Examiner error, we sustain the Examiner’s rejection of claim 1 as unpatentable over the combination of Gittelman and Bisanz. Regarding the rejection of claims 2–15, to the extent that Appellant does not present separate patentability arguments or reiterates substantially the same arguments as those previously discussed for the patentability of claim 1 above, claims 2–15 fall therewith. See Appeal Br. 13–20; 37 C.F.R. § 41.37(c)(1)(iv). To the extent that Appellant argues claims 2–15 separately, we find the Examiner’s response to those arguments in the Answer constitutes, by a preponderance of the evidence, a full and complete rebuttal, which we adopt and incorporate herein by reference. Ans. 6–12. Consequently, we sustain the Examiner’s rejections of claims 2–15. Appeal 2020-001149 Application 15/575,404 7 VI. CONCLUSION For the above reasons, we affirm the Examiner’s rejections of claims 1–15. VII. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–15 103 Gittelman, Bisanz 1–15 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). AFFIRMED