Ex Parte Nachum et al

Patent Trial and Appeal Board

Nov 28, 2016

13537764 (P.T.A.B. Nov. 28, 2016)

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.
13/537,764 06/29/2012 GiliNACHUM IL920120024USl_8150-0289 9921
52021 7590 11/30/2016
Cuenot, Forsythe & Kim, LLC
20283 State Road 7
Ste. 300
Boca Raton, EL 33498
EXAMINER
PATEL, HIREN P
ART UNIT PAPER NUMBER
2196
NOTIFICATION DATE DELIVERY MODE
11/30/2016 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):
ibmptomail@iplawpro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GILINACHUM, VLADIMIR GAMALEY, and
GIL PERZY
Appeal 2016-001936
Application 13/537,764
Technology Center 2100
Before ERIC S. FRAHM, LINZY T. McCARTNEY, and
SCOTT B. HOWARD, Administrative Patent Judges.
MCCARTNEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1—6, 8, 9, and 19—24. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2016-001936
Application 13/537,764
STATEMENT OF THE CASE
The present patent application concerns “managing the execution of a
computer software application in general.” Spec. 12. Claim 1 illustrates the
claimed subject matter:
1. A system for managing the execution of a computer
software application, the system comprising:
a hardware processor including:
an execution manager configured to duplicate a primary
instance of a computer software application during its execution
in a primary execution context, thereby creating a plurality of
duplicate instances of the computer software application in a
corresponding plurality of duplicate execution contexts; and
a selector configured to effect a selection of a different
candidate subset of a plurality of predefined elements for each of
the duplicate instances, wherein one of the plurality of duplicate
instances is configured to self-terminate upon the one instance
determining that any other of the plurality of duplicate instances
successfully completes a predefined task.
REJECTIONS
Claims 1—6, 8, 9, and 19—24 stand provisionally rejected on the
ground of non-statutory obviousness-type double patenting as unpatentable
over claims 10-15, 17, and 18 of co-pending Application No. 13/910,464.1
Claims 1—4, 6, 8, 19—22, and 24 stand rejected under 35 U.SC.
§ 103(a) as unpatentable over Iorio (US 2013/0111501 Al; May 2, 2013),
1 Appellants have not appealed this rejection. App. Br. 3 n.l (“The claims
are subject to a provisional obviousness-type double patenting rejection
based upon related Patent Application No. 13/910,464. This rejection is not
the subject of the present appeal.”). We therefore summarily affirm this
rejection.
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Appeal 2016-001936
Application 13/537,764
Komerup et al. (US 2007 /0044073 Al; Feb. 22, 2007), and Ben-Shachar et
al. (US 6,208,996 Bl; March 27, 2001).
Claims 5, 9, and 23 stand rejected under 35 U.S.C. § 103(a) as
unpatentabe over Iorio, Komerup, Ben-Shachar, and Bowman et al. (US
2008/0163210 Al; July 3, 2008).
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellants’
arguments, and we disagree with Appellants that the Examiner erred. To the
extent consistent with the analysis below, we adopt the Examiner’s findings,
reasoning, and conclusions set forth in the Final Rejection, Advisory Action,
and Answer. Appellants have waived arguments Appellants failed to timely
raise or properly develop. See 37 C.F.R. §§ 41.37(c)(l)(iv), 41.41(b)(2); In
re Lovin, 652 F.3d 1349 (Fed. Cir. 2011).
Appellants argue the Examiner’s combination of Iorio, Komemp, and
Ben-Shachar “would impermissibly change [the] principle of operation of
Iorio.” App. Br. 9. Appellants assert “Iorio is directed to intentionally
opening up multiple instances of a computer program,” but “the teachings
within Ben-Shachar relied upon by the Examiner are to ‘substantially
alleviate [] any problems associated with mnning multiple instances of the
same application at the same time.” Id. According to Appellants, “if one
skilled in the art were to modify Iorio in view Komemp and Ben-Shachar,
the resultant combination would involve terminating all of the instances of
the computer program save one, which is contrary to the principle of
operation of Iorio.” Id. Appellants contend the Examiner erroneously
concluded otherwise because the Examiner improperly “focuse[d] solely on
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Appeal 2016-001936
Application 13/537,764
an isolated teaching without considering what Ben-Shachar, as a whole
would have suggested to one skilled in the art.” Reply Br. 3.
We find Appellants’ arguments unpersuasive. The Examiner found—
and Appellants do not persuasively dispute—that although Iorio discloses
creating multiple processes, Iorio also discloses terminating all but one of
the processes when certain conditions are satisfied. See Final Act. 15; Ans.
5—6; Iorio Tflf 24, 30, 37-41; Fig. 5. Accordingly, even if Appellants were
correct that the Examiner’s combination of the cited art “would involve
terminating all of the instances of the computer program save one,” App. Br.
9, this result is consistent with Iorio’s principle of operation, not contrary to
it.
Appellants also contend Komerup fails to teach or suggest “one of the
plurality of duplicate instances is configured to self-terminate upon the one
instance determining that any other of the plurality of duplicate instances
successfully completes a predefined task” as recited in claim 1. See App.
Br. 10—11. Appellants assert the Examiner relied on Komerup alone for this
limitation and argue the program described in the cited portions of Komemp
“is not configured to terminate itself or determine the completion of tasks of
others of the plurality of duplicate instances.” App. Br. 10-11; Reply Br. 7.
We find Appellants’ arguments unpersuasive. The Examiner found
Ben-Shachar teaches application instances configured to self-terminate and
Iorio and Komemp together suggest application instances that terminate
upon determining that another application instance has successfully
completed a predetermined task. See Final Act. 13—17; Ans. 8. Contrary to
Appellants’ arguments, the Examiner concluded a combination of these
teachings would have made the claimed subject matter obvious to one of
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Application 13/537,764
ordinary skill in the art. See Final Act. 13—17; Ans. 8. Appellants’ attacks
against Komerup individually have not persuaded us the Examiner erred.
“[0]ne cannot show non-obviousness by attacking references individually
where, as here, the rejections are based on combinations of references.” In
re Keller, 642 F.2d 413, 426 (CCPA 1981).
DECISION
For the above reasons, we affirm the Examiner’s (1) provisional
rejection of claims 1—6, 8, 9, and 19—24 on the ground of non-statutory
obviousness-type double patenting and (2) obviousness rejections of claims
1-6, 8, 9, and 19-24 under 35 U.S.C. § 103.
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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