Ex Parte Bilogrevic et al

Patent Trial and Appeal Board

Mar 8, 2017

13673410 (P.T.A.B. Mar. 8, 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.
13/673,410 11/09/2012 Igor BILOGREVIC P6775US00 4502
11764 7590
Ditthavong & Steiner, P.C.
44 Canal Center Plaza
Suite 322
Alexandria, VA 22314
EXAMINER
ZARRINEH, SHAHRIAR
ART UNIT PAPER NUMBER
2497
NOTIFICATION DATE DELIVERY MODE
03/10/2017 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):
docket@dcpatent.com
Nokia. IPR @ nokia. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte IGOR BILOGREVIC and KEVIN HUGUENIN
Appeal 2016-005998
Application 13/673,410
Technology Center 2400
Before THU A. DANG, TERRENCE W. McMILLIN, and
SCOTT B. HOWARD, Administrative Patent Judges.
DANG, Administrative Patent Judge.
DECISION ON APPEAL
I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—20. Claims 21—48 have been canceled. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2016-005998
Application 13/673,410
A. INVENTION
According to Appellants, the invention relates to “an approach for
automatically optimizing application program code for minimized access to
privacy data” (Spec. 12).
B. REPRESENTATIVE CLAIM
Claim 1 is exemplary:
1. A method facilitating a processing of and/or processing (1) data
and/or (2) information and/or (3) at least one signal, the (1) data and/or (2)
information and/or (3) at least one signal based, at least in part, on the
following:
a processing of one or more code segments, one or more execution
logs associated with the one or more code segments, or a combination
thereof to determine at least one privacy intrusion signature associated with
the one or more code segments; and
at least one determination of one or more recommendations for one or
more alternate code segments based, at least in part, on the at least one
privacy intrusion signature.
C. REJECTIONS
1. Claims 1 and 11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Bennett (US 5,579,520, iss. Nov. 26,
1996) (“Bennett”), and Chen et al. (US 2008/0086657 Al, pub. Apr. 10,
2008) (“Chen”).
2. Claims 2, 3, 6, 12, 13, and 16 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over the teachings of Bennett, Chen, Fox et al. (US
2006/0230449 Al, pub. Oct. 12, 2006) (“Fox”), and Wu et al. (US 7,424,744
Bl, iss. Sept. 9, 2008) (“Wu ’744”).
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3. Claims 4 and 14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Bennett, Chen, and Kim et al. (US
2013/0122861 Al, pub. May 16, 2013) (“Kim”).
4. Claims 5 and 15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Bennett, Chen, and Wu et al. (US
7,493,659 Bl, iss. Feb. 17, 2009) (“Wu ’659”).
5. Claims 7 and 17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Bennett, Chen, and Hu et al. (US
2010/0235877 Al, pub. Sept. 16. 2010) (“Hu”).
6. Claims 8 and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Bennett, Chen, and Wu ’744.
7. Claims 9 and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Bennett, Chen, Wu ’744, and Linhardt
(US 8,572,742 Bl, iss. Oct. 29, 2013).
8. Claims 10 and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Bennett, Chen, and Sinha et al. (US
2011/0167474 Al, pub. July 7, 2011) (“Sinha”).
9. Claims 1 and 11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Malyshev et al. (US 2010/0180344 Al,
pub. July 15, 2010) (“Malyshev”), Phillips et al. (US 2005/0182967 Al,
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Application 13/673,410
pub. Aug. 18, 2005) (“Phillips”), and Wootton et al. (US 2012/0110174 Al,
pub. May 3, 2012) (“Wootton”).
10. Claims 2 and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Malyshev, Phillips, Wootton, and Zaitsev
et al. (US 2012/0167219 Al, pub. June 28, 2012) (“Zaitsev”).
11. Claims 3 and 13 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Malyshev, Phillips, Wootton, Zaitsev, and
Wu ’744.
12. Claims 8 and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Malyshev, Phillips, Wootton, and Wu
’744.
13. Claims 4 and 14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Malyshev, Phillips, Wootton, and Kim.
14. Claims 5 and 15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Malyshev, Phillips, Wootton, and Wu
’659.
15. Claims 6 and 16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Malyshev, Phillips, Wootton, Wu ’659,
and Fox.
16. Claims 7 and 17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Malyshev, Phillips, Wootton, and Hu.
17. Claims 9 and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Malyshev, Phillips, Wootton, Wu ’744,
and Linhardt.
18. Claims 10 and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Malyshev, Phillips, Wootton, and Sinha.
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II. ISSUES
The principal issues before us are whether the Examiner erred in
finding that 1) the combination of Bennett and Chen or 2) the combination
of Malyshev, Phillips, and Wootton teaches or would have suggested: a
“processing of one or more code segments, one or more execution logs
associated with the one or more code segments, or a combination thereof’ to
“determine at least one privacy intrusion signature associated with the one
or more code segments” (claim 1, emphasis added).
III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Bennett
1. Bennett discloses generating a profile bitmap for a program of
interest, to identify related code objects based on clustering of activity bit
signatures, so that related ones may be packed together in the executable
program (Abstract). Each program code is organized into discrete blocks of
executable code or code segments (col. 3,11. 4—6). A bit signature is
generated for each code object indicating which activities the code object
has participated in so that the patterns are ordered for identifying code
objects of the program which should be clustered together (Abstract). Thus,
procedures which share a particular signature (pattern) are candidates for
clustering together (col. 13,11. 41—43).
Chen
2. Chen discloses software security in a secure communication system
which includes verifying downloaded code by comparing the signature of
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the downloaded code to a private key (Abstract), wherein when a signature
check of a second stage code fails as being corrupted, the first stage code is
reloaded and the corrupted code is forbidden from being reloaded (1 52).
Malyshev
3. Malyshev discloses detection, classification and reporting of
malicious software, wherein the software code and its activity log are
analyzed for presence of malware, and the execution flow graph is parsed to
identify malicious behavior patterns to classify the software code into
classes of malware based on computed similarity indexes (Abstract).
Phillips
4. Phillips discloses identifying a pattern, or “signature,” by which the
anti-virus may recognize a computer exploit to determine whether the
operating system must be patched to protect it from computer exploit,
wherein the anti-virus software provider releases an update which addresses
the computer exploit (121).
Wootton
5. Wootton disclose a malware signature that is used to identify
malicious application code, wherein a security analyzer scans an app and
compares code in the app against the malware signature to determine
whether the pattern found in the code matches a pattern in the malware
signature indicating that the app includes malware (1284). The signature
may be updated, a new signature may be created, or both as new malware is
discovered. Id.
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IV. ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. We do not consider arguments that
Appellants could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
Claim Group I (Bennett and Chen)
According to Appellants, although “[t]he Examiner relies upon the
disclosure of bit code signatures in Bennett as allegedly teaching or
suggesting a privacy intrusion signature,” Appellants contend “a bit code
signature may not be reasonably interpreted as teaching or suggesting a
privacy intrusion signature” (App. Br. 6). In particular, Appellants contend,
“a broadest reasonable interpretation of a claim feature must be reasonable
so as not to disregard the plain language of the words,” wherein, “there is no
reference, or even a suggestion, of privacy, privacy intrusion or a privacy
intrusion signature associated with a code segment in Bennet[t\” (id.).
Appellants then contend “Chen fails to cure the deficiencies of Bennett” (id.
at 7).
We have considered all of Appellants’ arguments and evidence
presented. However, we disagree with Appellants’ contentions regarding the
Examiner’s rejections of the claims over Bennett and Chen. We agree with
the Examiner’s findings, and find no error with the Examiner’s conclusion
that the claims would have been obvious over the combined teachings.
As a preliminary matter of claim construction, we give the claims
their broadest reasonable interpretation consistent with the Specification.
See In re Morris, 111 F.3d 1048, 1054 (Fed. Cir. 1997). While we interpret
claims broadly but reasonably in light of the Specification, we nonetheless
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must not import limitations from the Specification into the claims. See
Phillips v. AWHCorp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc).
Although Appellants contend Bennett’s “bit code signature may not
be reasonably interpreted as teaching or suggesting a privacy intrusion
signature” (App. Br. 6), we note Appellants do not direct attention to any
specific definition for “a privacy intrusion signature” in the Specification or
the claims. Instead, claim 1 merely recites a method facilitating a processing
and/or processing based on “a processing ... to determine at least one
privacy intrusion signature associated with the one or more code segments”
and “at least one determination of one or more recommendations . . . based,
at least in part, on the at least one privacy intrusion signature.”* 1
Further, the Specification does not provide any clear definition.
Instead, as the Examiner points out, paragraph 66 of the Specification
merely indicates that “privacy intrusion signatures may be determined for
the code or more code segments based, at least in part, on the functionality
1 We note claim 1 is amenable to two or more plausible claim constructions,
and thus, a question arises as to whether a person of ordinary skill in the art
would be able to determine the metes and bounds of the claimed invention.
In particular, claim 1 recites a method “facilitating a processing of and/or
processing (1) data and/or (2) information and/or (3) at least one signal, the
(1) data and/or (2) information and/or (3) at least one signal” based on “a
processing of one or more code segments, one or more execution logs . . ., or
a combination thereof’ (claim 1, emphasis added). In the event of further
prosecution, we leave it to the Examiner to consider the holding of Miyazaki
as applied to at least claim 1: “[I]f a claim is amenable to two or more
plausible claim constructions, the USPTO is justified in requiring the
applicant to more precisely define the metes and bounds of the claimed
invention by holding the claim . . . indefinite.” Ex parte Miyazaki, 89
USPQ2d 1207, 1211 (BPAI 2008) (precedential). See also In re Packard,
751 F.3d 1307, 1323 (Fed. Cir. 2014), (J. Plager concurring).
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Application 13/673,410
of the one or more code segments the accessing and/or the request for
accessing the privacy data” (Ans. 4, emphasis added). That is, nothing in the
claims precludes “a bit code signature” as a “privacy intrusion signature”
(App. Br. 6), wherein “each code has its own functionality with its own
signature, privacy signature,” as broadly but reasonable interpreted by the
Examiner (Ans. 4—5). That is, we are not persuaded of error in the
Examiner’s broad but reasonable interpretation that “privacy intrusion
signature” encompasses any signature that is unique, and thus “private” in
limiting access (id.)
Furthermore, the test for obviousness is what the combined teachings
of Bennett and Chen would have suggested to one of ordinary skill in the art.
See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Here, we are
unpersuaded that the Examiner erred in finding that the references at least
would have suggested a “privacy intrusion signature associated with the one
or more code segments” (claim 1).
Based on the broadest reasonable interpretation discussed above, we
find no error with the Examiner’s reliance on Bennett for disclosing and
suggesting “generating a profile bitmap for a program of interest, to identify
related code objects” based on “clustering of activity bit signatures (each
code has its own functionality with its own signature, privacy signature)” so
that related ones may be packed together “in the executable program” (Ans.
4, emphasis omitted; FF 1).
Furthermore, Chen discloses verifying downloaded code by
comparing the signature of the downloaded code to a private key to
determine whether a signature check of a second stage code is corrupted and
prevent the corrupted code from being reloaded (FF 2). That is, Chen also
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discloses the use of “private” signatures to prevent intrusion of corrupted
code (id.).
Based on this record, we find no error in the Examiner’s finding that
the combination of Bennett and Chen teaches or at least suggests
determining “at least one privacy intrusion signature associated with the one
or more code segments” as recited in claim 1 and similarly recited in claim
11. Accordingly, we affirm the rejection of independent claims 1 and 11 as
obvious over the combination of Bennett and Chen.
Claim Group II (Malyshev, Phillips, and Wootton)
Appellants contend “[t]he malware signature described in [ Wootton]
merely relates to identifying the presence or absence of malware code,” and
thus, Wootton “does not teach or suggest a privacy intrusion signature in a
code segment” (App. Br. 9). Appellants similarly contend “Malyshev is
utilizing signature matching, ... to identify a signature of a malware,” and
thus, Malyshev “does not teach or suggest a processing of one or more code
segments to determine a privacy intrusion signature associated with the one
or more code segments” (id. at 10). Appellants also contend “[a] patch in
Phillips is an executable program,” and thus, “[i]t is not a segment of code”
(id. at 8). Further, according to Appellants, “the patch in Phillips is not
recommended as an alternative code segment” (id.).
Appellants’ contentions are directed to what Wootton, Malyshev or
Phillips individually fails to disclose (See id. at 8—10). However, since the
claims are rejected under 35 U.S.C. § 103(a) over the combined teachings
and suggestions of Malyshev, Phillips and Wootton, the issue here is
whether the combination of references teaches or suggests the contested
limitations. See In re Merck, 800 F.2d at 1097.
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The Examiner finds, and we agree, that Malyshev discloses
processing of code segments, execution logs, or a combination thereof
wherein the software code and its activity log are analyzed for presence of
malware using signature matching (Final Act. 22; FF 3). That is, Malyshev
teaches and suggests processing code segments/execution logs to determine
a matching signature to determine intrusion of malware. Based on the
broadest reasonable interpretation discussed above, we agree with the
Examiner’s finding that Malyshev discloses the use of “privacy intrusion
signature.” Thus, we find no error with the Examiner’s reliance on
Malyshev for teaching and suggesting “processing of one or more code
segments, one or more execution logs associated with the one or more code
segments, or a combination thereof’ to “determine at least one privacy
intrusion signature associated with the one or more code segments,” as
recited in claim 1.
Additionally, we find no error with the Examiner’s finding that
Wootton also discloses determining a “privacy intrusion signature,” such as
“a malware signature” that “can be used to identify malicious application
code” (Final Act. 23; FF 5). In particular, as the Examiner finds, Wootton
discloses using a malware scanner to “compare code in the app against the
malware signature,” wherein a “string of bits or binary pattern (privacy
intrusion signature)” found in the code may “indicate that the app includes
malware” {id. (emphasis omitted)). That is, given the broadest reasonable
interpretation, Wootton also teaches and suggests processing the code
segments to determine a “privacy intrusion signature” (i.e., the private
signature for determining malware intrusion) associated with the code
segments {id.).
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Furthermore, we find no error with the Examiner’s reliance on
Phillips to teach and suggest “at least one determination of one or more
recommendations for one or more alternate code segments based, at least in
part, on the at least one privacy intrusion signature” (Final Act. 22; FF 4)
(emphasis omitted). In particular, as the Examiner finds, Phillips discloses
an “anti-virus software provider” that is provided “to identify a pattern, or
‘signature,’ by which the anti-virus software may recognize the computer
exploit” and “to analyze the computer exploit to determine whether the
operating system must be patched to protect it from the computer exploit,”
and thus “releases an update” (id. at 22—23). Similar to Malyshev and
Wootton, given the broadest reasonable interpretation of the claims, Phillips
also teaches and suggests “processing of one or more code segments, one or
more execution logs associated with the one or more code segments, or a
combination thereof’ to determine at least one “privacy intrusion signature”
(i.e., a pattern or “signature” used in determining privacy intrusion/exploit)
(Final Act. 22—23; FF 4). Since Phillips also discloses patching the
operating system and releasing an “update” {id.), we are unconvinced by
Appellants’ argument that Phillips does not recommend as “an alternative
code segment” (App. Br. 8). In fact, even Appellants concede that “the
patch in Phillips is recommended to address security breach [i.e., privacy
intrusion]” (id.).
We are also not persuaded by Appellants’ contention that “[a] patch in
Phillips is an executable program,” and thus, “[i]t is not a segment of code”
(id.). In particular, Appellants do not direct attention to any specific
definition for “code segments” and the Specification does not provide any
clear definition. Given the broadest reasonable interpretation, we find no
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error with the Examiner’s interpretation that Phillips’ “executable program”
comprises “a program code” that is “organized into discrete blocks of
executable code or ‘code segments’” (Ans. 4, citing Bennett).
Based on this record, we also find no error in the Examiner’s rejection
of independent claim 1 and independent claim 11 reciting similar limitations
as obvious over the combination of Malyshev, Phillips, and Wootton.
Appellants do not provide separate arguments for the dependent
claims, still pending. Accordingly, we also affirm the rejections of these
claims over Bennett and Chen, or Malyshev, Phillips, and Wootton, in
further view of the other cited references.
V. CONCLUSION AND DECISION
We affirm the Examiner’s rejections of claims 1—20 under 35 U.S.C.
§ 103(a).
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
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