Ex Parte Lennon et al

Patent Trial and Appeal Board

Oct 31, 2012

11203689 (P.T.A.B. Oct. 31, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/203,689 08/15/2005 William Lennon 9314-128 / PU05 0329US 1254
54414 7590 11/01/2012
MYERS BIGEL SIBLEY & SAJOVEC, P.A.
P.O. BOX 37428
RALEIGH, NC 27627
EXAMINER
YUN, CARINA
ART UNIT PAPER NUMBER
2194
MAIL DATE DELIVERY MODE
11/01/2012 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 WILLIAM LENNON and OYSTEIN DAHLSVEEN
____________________

Appeal 2010-003956
Application 11/203,689
Technology Center 2100
____________________

Before DEBRA K. STEPHENS, KALYAN K. DESHPANDE, and JUSTIN
BUSCH, Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-003956
Application 11/203,689

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Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-26.1 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

Introduction
According to Appellants, the “invention relates to data processing
systems, methods and computer program products, and more particularly to
systems, methods and computer program products for developing and
executing an application program for a central processing unit of a computer
module.” Spec. ¶ 1.

STATEMENT OF THE CASE

Exemplary Claim
Claims 1, 9, and 12, reproduced below, are illustrative of the claimed
subject matter:
1. A computer-implemented method of developing an
application program for a central processing unit of a computer
module comprising:
loading a compiled and assembled executable application
program into the computer module;
inserting safety check executable code into the
executable application program that is loaded into the computer
module to control reading, writing and/or jumping by the

1 Claims 10, 11, 17, 18, 22, and 26 were cancelled in an Amendment after
the Final Office Action mailed on March 31, 2009 as acknowledged by the
Examiner. Ans. 10. Therefore, only claims 1-9, 12-16, 19-21, and 23-25 are
before us on appeal.
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executable application program outside a designated memory
area of the computer module; and
storing the executable application program with the
safety check code inserted therein in the computer module.

9. A method according to claim 1 wherein the computer
module includes a radio frequency section that is controlled by
the central processing unit and wherein the executable
application program is configured to provide functionality for
the radio frequency section.

12. A computer-implemented method of executing a machine
code application program directly on a central processing unit
of a computer module comprising:
read, write and/or jump checking the machine code
application program as it executes directly on the central
processing unit to control reading, writing and/or jumping by
the machine code application program outside a designated
memory area of the computer module.

References
Wahbe 6,151,618 Nov. 21, 2000
Aho “Compilers Principles, Techniques, and Tools”, March 1988, Addison
Wesley Longman, pg. 4-5
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Application 11/203,689

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Rejections2
Claims 1, 5-9, 12, 13, 15, 16, 19-21, and 23-25 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Wahbe.
Claim 2 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wahbe.
Claims 3, 4, and 14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wahbe in view of Aho.

ISSUES
35 U.S.C. § 102(b) (Wahbe): claims 1, 9, 12, 16, 19, 21, 23, and 25
Appellants argue that their invention is not anticipated by Wahbe.
App. Br. 5-10; Reply Br. 2-5. Specifically, Appellants argue that Wahbe
does not disclose adding safety check code into a compiled and assembled
application, as recited in independent claim 1. App. Br. 5-7; Reply Br. 2-3.
Appellants also argue that Wahbe does not disclose checking machine code
that is executed directly on a CPU. App. Br. 7-9; Reply Br. 3-4. Finally,
Appellants argue that Wahbe does not disclose a “radio frequency section.”
App. Br. 9-10; Reply Br. 4-5.

Issue 1: Has the Examiner erred in finding that Wahbe discloses
“loading a compiled and assembled executable application program into the

2 Dependent claims 2-8, 13-15, 20, and 24 have not been separately
addressed by Appellants in the Appeal Brief and will therefore stand or fall
with the claims from which they depend. Claims 10, 11, 17, 18, 22, and 26
have been cancelled and are not before us.
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computer module” and “inserting safety check executable code into the
executable application program” as recited in claim 1?

Issue 2: Has the Examiner erred in finding that Wahbe discloses
“read, write and/or jump checking the machine code application program as
it executes directly on the central processing unit” as recited in claims 12,
19, and 23?

Issue 3: Has the Examiner erred in finding that Wahbe discloses a
“radio frequency section” as recited in claims 9, 16, 21, and 25?

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions that the Examiner has erred. Further, we have reviewed the
Examiner’s response to each of the arguments and the Appellants’
arguments in the Reply Brief.

Issue 1: Claim 1
Appellants argue that Wahbe does not disclose “inserting safety check
executable code into the [compiled and assembled] executable application
program,” as claimed in independent claim 1. App. Br. 5-7; Reply Br. 2-3.
Appellants point out that the portion of Wahbe cited by the Examiner as
disclosing this portion of Appellants’ claims does not insert safety check
code into compiled and assembled executable code, but rather inserts code to
make the program safe while Wahbe’s program is “in a form resembling
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assembly language instructions.” App. Br. 6-7. Appellants also point out
that, in Wahbe, “the safety checks are inserted into the virtual machine
program,” and in a later step the “virtual machine program is converted from
assembly language type instructions into machine level instructions.” App.
Br. 6. The Examiner responds to Appellants’ arguments by finding that
Wahbe’s disclosure that the “safe general purpose virtual machine compiler
[operates] in a similar manner as a conventional prior art compiler” indicates
that “the foreign program is compiled and assembled via the general purpose
virtual machine compiler, much like an ordinary compiler.” Ans. 11. In
reply, Appellants argue that the broadest reasonable interpretation must still
be reasonable and consistent with the Specification. Reply Br. 2. Appellants
go on to assert that Wahbe does not indicate that the output of the virtual
machine compiler would be a compiled and assembled executable
application program, which is required by the claims. Reply Br. 3.
We agree with Appellants. As quoted by the Examiner on page 11 of
the Answer, Wahbe explicitly states that the “safe general purpose virtual
machine compiler” functions similarly to a “conventional prior art
compiler.” Wahbe col. 8 ll. 49-53. We find that one of ordinary skill in the
art would understand that the output of Wahbe’s compiler is compiled code,
which is not equivalent to “compiled and assembled” code, as claimed by
Appellants. Therefore, giving the claims the broadest reasonable
interpretation results in a finding that the claimed “compiled and assembled
executable application program” is different from both the “foreign
program” and the “virtual machine program” disclosed by Wahbe.
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The Examiner is correct that the claims do not recite inserting the
safety checks into “machine code.” However, the claims require that the
safety check code be inserted into “a complied and assembled executable
application program.” As pointed out by Appellants, safety check code is
inserted into Wahbe’s virtual machine program (in a form resembling
assembly language instructions), which is then later converted to machine
level instructions (i.e., compiled). See Wahbe col. 14 ll. 28-34; col. 13 ll. 3-
7; and Fig. 7, steps 718-748. Thus, we find that Wahbe does not disclose
“loading a compiled and assembled executable application program into the
computer module” and “inserting safety check executable code into the
executable application program.”
Dependent claims 2-9 each ultimately depend from claim 1 and
therefore include the same limitations as independent claim 1. Therefore, for
the same reasons as identified above with respect to claim 1, we agree with
Appellants that Wahbe does not disclose all of the limitations of dependent
claims 2-9.

Issue 2: Claims 12, 19, and 23
With respect to independent claims 12, 19, and 23, and the claims
which depend from them, Appellants argue that Wahbe does not disclose a
program that “execute[s] directly on the central processing unit.” App. Br. 7-
9. Appellants concede that application program instructions are ultimately
executed by a CPU, but argue that ultimately executing on the CPU is not
the same as executing directly on the CPU. App. Br. 8. Appellants assert
that, because Wahbe’s virtual machine program runs within an execution
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environment and is executed by a host program, Wahbe does not disclose
executing directly on the CPU. Appellants point to paragraph 21 of their
Specification, which explains that “directly coupled,” “directly connected,”
and “directly responsive” indicate that “‘there are no intervening elements
present.’” Id. Thus, Appellants argue, Wahbe does not disclose executing
directly on the CPU because the virtual machine of Wahbe “acts as an
intervening layer between the virtual machine program and the CPU.” App.
Br. 9.
While we agree with Appellants that their asserted construction of
executing “independently without relying on any other application program
to act as an intervening layer between the executing program and the CPU”
is consistent with Appellants’ other uses of “directly,” we do not find that
construction to be the broadest reasonable interpretation of “execut[ing]
‘directly on the central processing unit.’” App. Br. 8 (emphasis in original).
The broadest reasonable interpretation in light of Appellants’ Specification
would include a system where the program is executed on the CPU, without
the need for any additional hardware. As Appellants point out, their use of
the term “directly” indicates that no intervening “element” is present.
Moreover, in their Specification, one embodiment disclosed discusses that
developers may “write one or more embedded applications that run directly
on the module, so that a separate hardware controller may not need to be
used.” Spec. ¶ 42; See also Fig. 1, elements 110 and 130. Thus, the
Examiner’s interpretation is consistent with the Specification.
Therefore, because the system of Wahbe does not require any
additional hardware and the virtual program is executed on the CPU, we find
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that the Examiner was correct in relying on the identified disclosures in
Wahbe to reject Appellants’ claims.

Issue 3: Claims 9, 16, 21, and 25
With respect to dependent claims 9, 16, 21, and 25, Appellants assert
that Wahbe does not disclose a “radio frequency section,” as claimed in each
of these claims. App. Br. 9-10; Reply Br. 4-5. The Examiner has interpreted
the term “radio frequency section” to mean “capable of transmitting
signals.” Ans. 13-14. Appellants argue that a “radio frequency section” is a
term, commonly understood by one of skill in the art, as a component that
wirelessly transmits (or receives or otherwise manipulates) radio waves or
signals within a specified frequency. App. Br. 10. Appellants further ague
that Examiner’s construction reads the term “radio frequency” out of their
claims. App. Br. 4. We agree with Appellants. We do not find that the
Examiner has provided sufficient reasoning to equate the modem of Wahbe
with the Appellants’ claimed “radio frequency section,” because nothing in
Wahbe discloses wirelessly transmitting or receiving signals. Therefore, we
find that Wahbe does not anticipate claims 9, 16, 21, and 25.

Appellants make no additional arguments regarding dependent claims
13-15, 20, and 24 and therefore, these claims fall with independent claims
12, 19, and 23, from which they depend.

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Application 11/203,689

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CONCLUSION
Based on the analysis above, we conclude that the Examiner erred in
rejecting claims 1, 5-9, 16, 21, and 25 as anticipated under 35 U.S.C.
§ 102(b). We conclude that the Examiner did not err in rejecting claims 12,
13, 15, 19, 20, 23 and 24 under 35 U.S.C. § 102(b). We conclude that the
Examiner erred in rejecting claims 2-4 under 35 U.S.C. § 103(a), but that the
Examiner did not err in rejecting claim 14 under 35 U.S.C. § 103(a).

DECISION
The Examiner’s rejection of claims 1-9, 16, 21, and 25 is reversed.
The Examiner’s rejection of claims 12, 13-15, 19, 20, 23, and 24 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).

AFFIRMED-IN-PART
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