Ex Parte Conway et al

Patent Trial and Appeal BoardMay 15, 2013

11141359 (P.T.A.B. May. 15, 2013)

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. 11/141,359 05/31/2005 Christopher L. Conway 1-1-3 4219 7590 05/16/2013 Ryan, Mason & Lewis, LLP Suite 205 1300 Post Road Fairfield, CT 06824 EXAMINER WANG, JUE S ART UNIT PAPER NUMBER 2193 MAIL DATE DELIVERY MODE 05/16/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE _____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD _____________ Ex parte CHRISTOPHER L. CONWAY, DENNIS R. DAMS, and KEDAR S. NAMJOSHI _____________ Appeal 2010-005283 Application 11/141,359 Technology Center 2100 ______________ Before, DAVID M. KOHUT, BRYAN F. MOORE, and HUNG H. BUI, Administrative Patent Judges. KOHUT, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005283 Application 11/141,359 2 This is a decision on appeal under 35 U.S.C. § 134(a) of the Final Rejection of claims 1, 3, 10, 12, and 19.1,2 We have jurisdiction under 35 U.S.C. § 6(b). We affirm the Examiner’s rejection of these claims. INVENTION The invention is directed to a method, article of manufacture, and apparatus for evaluating a changed software program using nodes in a derivation graph. Spec. 2. Claim 1 is representative of the invention and is reproduced below: 1. A method for evaluating at least one property of a software program given one or more changes to said software program, said method comprising the steps of: identifying nodes in an automaton-based derivation graph corresponding to changed edges in a control flow graph representation of said software program, wherein said automaton-based derivation graph describes an earlier evaluation of said software program; and updating at least one of said identified nodes in said automaton-based derivation graph and traversing said automaton-based derivation graph outward from a location of change. REFERENCES Fleehart US 6,820,256 B2 Nov. 16, 2004 1 The Examiner has indicated claims 2 and 11 as containing allowable subject matter. Fin. Rej. 14. 2 Appellants indicate on page 4 of the Appeal Brief, that the obviousness rejections of claims 1, 3, 10, 12, and 19 are the subject of this appeal. Thus the rejections of claims 4-9, 13-18, and 20 are not before us and the Examiner should cancel the non-appealed claims. See Ex Parte Ghuman, 88 USPQ2d 1478 (BPAI 2008) (precedential). Appeal 2010-005283 Application 11/141,359 3 Sreedhar, “Incremental Computation of Dominator Trees,” ACM Transactions on Programming Languages and Systems, Volume 19, No. 2, pp. 239-252, March 1997. (Hereinafter referred to as “SGL”). Henzinger, “Extreme Model Checking,” Lecture Notes in Computer Science, 2772, 2004. (Hereinafter referred to as “EMC”). REJECTIONS AT ISSUE Claims 1 and 3 are rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of EMC and SGL. Ans. 3-7. Claims 10, 12, and 19 are rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of EMC, SGL, and Fleehart. Ans. 7-13. ISSUES Did the Examiner err in finding that the combination of EMC and SGL teaches or suggests “updating at least one of said identified nodes in said automaton-based derivation graph and traversing said automaton-based derivation graph outward from a location of change,” as recited in independent claim 1, and similarly recited in independent claims 10 and 19? Did the Examiner err in finding that the combination of EMC and SGL teaches or suggests “generating a revised automaton-based derivation graph describing an analysis of said software program incorporated with said given one or more changes,” as recited in dependent claim 3, and similarly recited in dependent claim 12? Appeal 2010-005283 Application 11/141,359 4 ANALYSIS Claim 1, 10, and 19 Claim 1 recites “updating at least one of said identified nodes in said automaton-based derivation graph and traversing said automaton-based derivation graph outward from a location of change.” Claims 10 and 19 contain a similar limitation. Appellants argue that neither EMC nor SGL teaches or suggests this limitation because SGL does not teach traversing the graph “outward from a location of a change,” as required by the claims. App. Br. 4; Reply Br. 4. Appellants further argue that since SGL teaches updating the descendants, as acknowledged by the Examiner, that SGL actually teaches away from the invention. App. Br. 4; Reply Br. 3. We are not persuaded by Appellants’ arguments. This is because as the affected node is changed the descendants of the affected node are updated, wherein the descendants are child nodes that are located outward from the affected node. Ans. 14-15. The Examiner admits that SGL does not specifically teach the traversal order, but finds that breadth-first searches are well known in the art wherein the search traverses on a level-by-level basis in proximity to a root node. Ans. 15-16. Appellants contend that a breadth-first search traverses from left to right, which could be toward the inside of a tree. Reply Br. 4. Even if this were so, we do not find this argument to be persuasive as it is not commensurate in scope with the claim. For the reasons discussed supra, we agree with the Examiner’s findings (Ans. 14-16) and sustain the Examiner’s rejection of claims 1, 10, and 19. Appeal 2010-005283 Application 11/141,359 5 Claims 3 and 12 Appellants argue that neither EMC nor SGL teaches or suggests generating “a revised automaton-based derivation graph describing an analysis of said software program incorporated with said given one or more changes,” as recited in claims 3 and 12. App. Br. 6; Reply Br. 5. Appellants merely argue that the portion of EMC cited by the Examiner does not teach that which is claimed. App. Br. 6; Reply Br. 5. As such, Appellants are merely restating what the claim requires and arguing that the reference fails to teach or suggest these requirements. App. Br. 6; Reply Br. 5. See 37 C.F.R. § 41.37(c)(1)(vii) (“A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.”); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Additionally, Appellants fail to address the Examiner’s specific findings as presented in the Answer on pages 16-17. Thus, we agree with the Examiner and sustain the Examiner’s rejection of claims 3 and 12. Appeal 2010-005283 Application 11/141,359 6 CONCLUSION3 The Examiner did not err in finding that the combination of EMC and SGL teaches or suggests “updating at least one of said identified nodes in said automaton-based derivation graph and traversing said automaton-based derivation graph outward from a location of change,” as recited in independent claim 1, and similarly recited in independent claims 10 and 19. The Examiner did not err in finding that the combination of EMC and SGL teaches or suggests “generating a revised automaton-based derivation graph describing an analysis of said software program incorporated with said given one or more changes,” as recited in dependent claim 3, and similarly recited in dependent claim 12. SUMMARY The Examiner’s decision to reject claims 1, 3, 10, 12, and 19 is affirmed. 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)(iv). 3 In the event of further prosecution of claims 1-9, 19, and 20, the Examiner’s attention is directed to 35 U.S.C. § 101 and U.S. Patent &Trademark Office, Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski v. Kappos, 75 Fed. Reg. 43,922 (July 27, 2010); and U.S. Patent & Trademark Office, Interim Examination Instructions for Evaluating Subject Matter Eligibility Under 35 U.S.C. § 101, Aug. 24, 2009, available at http://www.uspto.gov/web/offices/pac/dapp/opla/2009-08- 25_interim_101_instructions.pdf and the recent decision from the U.S. Supreme Court in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S.Ct. 1289 (2012). Appeal 2010-005283 Application 11/141,359 7 AFFIRMED msc