Ex Parte Bernstein et al

Patent Trial and Appeal BoardOct 20, 2017

14610141 (P.T.A.B. Oct. 20, 2017)

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. 14/610,141 01/30/2015 Howard B. Bernstein CAM920130072US2_8150-0541 6566 73109 7590 10/24/2017 Cuenot, Forsythe & Kim, LLC 20283 State Road 7 Ste. 300 Boca Raton, EL 33498 EXAMINER MITCHELL, JASON D ART UNIT PAPER NUMBER 2199 NOTIFICATION DATE DELIVERY MODE 10/24/2017 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): ibmptomail@iplawpro.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HOWARD B. BERNSTEIN, SUJEET MISHRA, and ROHIT SHETTY1 Appeal 2017-005440 Application 14/610,141 Technology Center 2100 Before MARC S. HOFF, JOHNNY A. KUMAR, and TERRENCE W. McMILLIN KUMAR, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE Introduction Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection of claims 1—82. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 According to Appellants the Real Party in Interest is International Business Machines Corporation. 2 Claims 9—24 are under separate appeal 2017-005551, for copending application 14/173,167. Appeal 2017-005440 Application 14/610,141 Exemplary Claim Exemplary claim 1 under appeal reads as follows, with emphasis added to limitations under appeal: 1. A method, comprising: identifying at least a first merge conflict that prevents a plurality of blocks of program code from properly being merged; responsive to identifying the first merge conflict, using a processor, identifying a first pattern of a respective portion of at least one of the blocks of program code that cause the first merge conflict and determining whether the first pattern matches at least a first existing merge rule; responsive to determining that the first pattern matches the first existing merge rule, validating the first existing merge rule against a syntax of the portion of at least one of the blocks of program code that cause the first merge conflict; and responsive to the first existing merge rule successfully validating against the syntax of the portion of at least one of the blocks of program code that cause the first merge conflict, applying the first existing merge rule to resolve the first merge conflict. Rejections 1. Claims 1—5 and 8 are rejected under 35 U.S.C. § 102(a)(1) as being anticipated by "Mining of Model Repositories for Decision Support in Model Versioning" by Brosch et al. (Brosch). 2. Claim 6 is rejected under 35 U.S.C. § 103(a) as being unpatentable over "Mining of Model Repositories for Decision Support in Model Versioning" by Brosch et al. (Brosch) in view of "Towards End-User 2 Appeal 2017-005440 Application 14/610,141 Adaptable Model Versioning: The By-Example Operation Recorder" by Brosch et al. (Brosch II). 3. Claim 7 is rejected under 35 U.S.C. § 103(a) as being unpatentable over "Mining of Model Repositories for Decision Support in Model Versioning" by Brosch et al. (Brosch) in view of "Towards End-User Adaptable Model Versioning: The By-Example Operation Recorder" by Brosch et al. (Brosch II) in view of "Fast Algorithms for Mining Association Rules in Large Databases" by Agrawal et al. (Agrawal). Appellants ’ Contentions 1. Appellants contend that the Examiner erred in rejecting claim 1 because Brosch does not teach the claimed “identifying a first pattern of a respective portion of at least one of the blocks of program code that cause the first merge conflict and determining whether the first pattern matches at least a first existing merge rule;” and “validating the first existing merge rule against a syntax of the portion of at least one of the blocks of program code that cause the first merge conflict.” App. Br. 15—23; Reply Br. 2—10 (emphasis added). 2. Appellants contend that the Examiner also erred in rejecting claim 6 because Borsch does not teach the claimed “semantic construct.” App. Br. 24—32; Reply Br. 10-12 (emphasis added). 3. Appellants contend that the Examiner also erred in rejecting claim 7 because Borsch does not teach the claimed “attempting to match the inference to other stored inferences;” and “responsive to determining that 3 Appeal 2017-005440 Application 14/610,141 the inference matches a threshold number of other inferences, presenting the new merge rule to the user.” App. Br. 32—35; Reply Br. 12—15. Issues on Appeal 1. Did the Examiner err in rejecting claims 1—5, and 8 as being anticipated because Brosch fails to teach the argued limitations? 2. Did the Examiner err in rejecting claims 6 and 7 as being obvious over Brosch and Brosch II/Agarwal? ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments that the Examiner has erred. We disagree with Appellants’ above contentions 1—3. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief. We concur with the conclusions reached by the Examiner. We highlight and address specific findings and arguments for emphasis as follows. As to Appellants’ above contention 1, we agree with the Examiner’s findings in the Answer 12—21 because Appellants have not cited to explicit definitions of either "patterns" or "validation" in the Specification that would distinguish between these terms and preclude the Examiner's broader reading. "In the patentability context, claims are to be given their broadest reasonable interpretations . . . limitations are not to be read into the claims from the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 4 Appeal 2017-005440 Application 14/610,141 1993) (citations omitted). Any special meaning assigned to a term "must be sufficiently clear in the specification that any departure from common usage would be so understood by a person of experience in the field of the invention." Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) ("A patentee may act as its own lexicographer and assign to a term a unique definition that is different from its ordinary and customary meaning; however, a patentee must clearly express that intent in the written description."). Absent an express “intent to impart [a] novel meaning to a claim term, the words take on the ordinary and customary meanings attributed to them by those of ordinary skill in the art.” Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003) (citation omitted). As to Appellants’ contentions regarding claims 6 and 7 (App. Br. 24— 35), the Examiner has rebutted each of those arguments supported by sufficient evidence. (Ans. 22—29). Therefore, we adopt the Examiner’s findings and underlying reasoning, which are incorporated herein by reference. We have considered Appellants’ Reply Brief but find it unpersuasive in rebutting the Examiner’s responses. 5 Appeal 2017-005440 Application 14/610,141 DECISION We affirm the Examiner’s § 102(a)(1) rejections of claims 1—5 and 8 and the Examiner’s § 103(a) rejections of claims 6 and 7. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 6