Ex Parte Droshev et al

Patent Trial and Appeal BoardApr 27, 2016

11193070 (P.T.A.B. Apr. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 111193,070 0712912005 50400 7590 04/29/2016 SCHWEGMAN LUNDBERG & WOESSNER/SAP P.O. BOX 2938 MINNEAPOLIS, MN 55402 Mladen I. Droshev 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 2058.403US 1 8322 EXAMINER LOUIE, JUE WANG ART UNIT PAPER NUMBER 2193 NOTIFICATION DATE DELIVERY MODE 04/29/2016 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): uspto@slwip.com SLW@blackhillsip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MLADEN I. DROSHEV, IVAN T. ATANASSOV, NIKOLAI W. NEICHEV, and GEORGI N. STANEV Appeal2014-004750 Application 11/193,070 Technology Center 2100 Before DEBRA K. STEPHENS, KARA L. SZPONDOWSKI, and JOHN R. KENNY, Administrative Patent Judges. KENNY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. Â§ 134(a) from the final rejection of claims 1, 7, 8, 15, 17, 21-24, 28, 29, 33, 34, and 36-42, which constitute all the claims pending in this application. (App. Br. 15; Final Act. 1.) We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. Appeal2014-004750 Application 11/193,070 fNVENTION Appellants' disclosed invention relates to a system and method for improving the efficiency of remote method invocations within a multi-tiered enterprise network and for generating and configuring dynamic proxies. (Spec. i-f 1.) Claim 1 is representative and, with bracketed annotations for disputed limitations, reads: 1. A method comprising: compiling source code to generate program code executable on an application server, the program code including a stub associated with a method call made by a first object and directed to a second object; deploying the program code onto a plurality of machines of the application server; [i] determining that the stub is an unnecessary stub, the determining that the stub is the unnecessary stub including analyzing the program code at run time; and [ii] deleting the stub from the program code based on the determining that the stub is the unnecessary stub. REFERENCES The Examiner relies on the following prior art references in rejecting the claims on appeal: Schmid US 2002/0174169 Al Nov. 21, 2002 Sexton et al. US 6,854,114 Bl Feb. 8,2005 Prem et al., BEA WebLogic Platform 7 (2003). 2 Appeal2014-004750 Application 11/193,070 REJECTIONS Claims 1, 8, 15, 17, 21-24, 28, 29, 33, 34, and 36-42 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of Prem and Schmid. (Ans. 2.) Claim 7 stands rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of Prem, Schmid, and Sexton. (Ans. 9.) ISSUES 1. Did the Examiner err in finding that Schmid teaches or suggests limitation [i] of claim 1? 2. Did the Examiner err in finding that Schmid teaches or suggests limitation [ii] of claim 1? 3. Did the Examiner err in finding that Prem and Schmid's teachings regarding local gates, proxies, and interfaces do not teach away from the claimed invention? 4. Did the Examiner err in finding that Prem and Schmid's teachings regarding pass-by-reference semantics and copier semantics do not teach away from the claimed invention? ANALYSIS Claims 1, 8, 15, 17, 21-24, 28, 29, 33, 34, and 36--42 In their Appeal Brief, Appellants argue that the Examiner erred in finding that Schmid teaches or suggests limitation [i] ("determining that the stub is an unnecessary stub .... including analyzing the program code at run time"). (App. Br. 9-10.) We are not persuaded by this argument because it 3 Appeal2014-004750 Application 11/193,070 does not address the actual bases of the Examiner's rejection. The Examiner did not find that Schmid teaches or suggests limitation [i]; the Examiner finds that Prem teaches that limitation. (Final Act. 2-3; Ans. 12.) Appellants first raised the argument that Prem does not teach the disputed limitation in their Reply Brief. (Reply Br. 2-5.) Appellants have not shown, and we are not aware of, any good cause for raising that argument for the first time on reply. Nor is it apparent that argument were necessitated by a new point in the Examiner's Answer. Accordingly, we will not consider it. See 37 C.F.R. Â§ 41.41(b)(2). Appellants argue that the Examiner erred in finding that Schmid teaches or suggests limitation [ii] ("deleting the stub from the program code.") (App. Br. 10; Reply Br. 5---6.) Specifically, Appellants argue that Schmid merely discusses omitting or abandoning gates and omitting or abandoning differs from deleting. (App. Br. 10; Reply Br. 5---6.) Appellants also argue that deleting could have a different effect and require an entirely different operation than omitting or abandoning. (App. Br. 11.) We are not persuaded of error. The Examiner has set forth evidence that omitting or abandoning teaches or suggests the act of deletion. (Final Act. 11; Ans. 16-17.) For example, the Examiner sets forth how Schmid distinguishes between omitting and not implementing gates and how this distinction demonstrates that the gates that Schmid omits originally existed in the code but are subsequently left out. (Ans. 16.) Citing Morita, 1 the Examiner explains that the art uses the terms "abandon" and "delete" as synonyms. (Id.) Citing a 1 US 2002/0194355 Al, published December 19, 2002. 4 Appeal2014-004750 Application 11/193,070 thesaurus submitted by Appellants, the Examiner sets forth how in ordinary usage the term "delete" is synonymous with "omit." (Id. at 16-17.) The Examiner further explains why it would be obvious to delete Schmid's gates and proxies even if one were to interpret the Schmid's abandonments or omissions as leaving Schmid's gates and proxies in Schmid's code. (Id. at 17-18.) Citing Ryan2 and Gouge, 3 the Examiner explains that an ordinarily skilled artisan would have known how to remove redundant proxies and unnecessary stubs. (Id. at 18-19.) 4 On Reply, Appellants suggest that they acted as their own lexicographer and defined the term "delete" to mean "remove." (Reply Br. 5, citing Spec. i-f 36.) However, Appellants did not define explicitly the term "delete" in their Specification. Further, even if we were to construe the term "delete" according to Appellants' proffered definition, that construction would not undermine the Examiner's rejection because the Examiner found that Schmid removes gates. (Ans. 20.) Further, Appellants do not address the Examiner's additional findings that Schmid's omission would suggest deletion even if Schmid were interpreted to merely not implement, rather than to remove, gates. (Id. at 17-19.) Therefore, Appellants have not persuaded us the Examiner's interpretation or findings are erroneous. 2 Ryan et al., "Application Adaptation Through Transparent and Portable Object Mobility in Java," 2004, CoopIS/DOA/ODBASE 2004, LNCS 3291. 3 U.S. 6,931,429. 4 Appellants argue that the Examiner's reliance on Ryan and Gouge raises a new ground of rejection. (Reply Br. 6.) The Board, however, cannot consider that argument. 3 7 C.F .R. Â§ 41.40( a). 5 Appeal2014-004750 Application 11/193,070 Appellants argue that Prem and Schmid's teachings regarding local gates, proxies, and interfaces teach away from combining the references. (App. Br. 12; Reply Br. 7.) Appellants further argue that Prem and Schmid's teachings regarding pass-by-reference and copier semantics also teach away from combining the references. (App. Br. 13; Reply Br. 7.) We are not persuaded by these arguments. Here, the Examiner does not propose combining Schmid's (i) gates, proxies, and interfaces or (ii) pass-by- reference and copier semantics, with Prem' s remote method invocation mechanism. (Ans. 19-21.) Further, Appellants have not set forth how the relied-upon teachings of Prem or Schmid criticize, discredit, or otherwise discourage the combination of teachings made by the Examiner. (App. Br. 12-13; Reply Br. 7.) Nor have Appellants persuaded us the teachings of Prem and Schmid, taken alone or in proper combination, criticize, discredit, or otherwise discourage modifying either reference to arrive at the claimed invention. Accordingly, we are not persuaded that any of the teachings in Prem or Schmid, cited by Appellants, teach away from the claimed invention. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004); In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012); In re Keller, 642 F.2d 413, 425-26 (CCPA 1981 ). Therefore, we sustain the rejection of claim 1 and of claims 8, 15, 17, 21-24, 28, 29, 33, 34, and 36-42, not separately argued. Claim 7 Appellants argue that the Examiner made the same errors for claim 7 as for claim 1. (App. Br. 14.) Therefore, for the reasons set forth above, we also sustain the Examiner's rejection of claim 7. 6 Appeal2014-004750 Application 11/193,070 DECISION The decision of the Examiner to reject claims 1, 7, 8, 15, 17, 21-24, 28, 29, 33, 34, and 36-42 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 7