Wind River Systems, Inc.

Patent Trials and Appeals Board

Oct 29, 2021

2020004093 (P.T.A.B. Oct. 29, 2021)

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.
14/869,495 09/29/2015 Assaf NAMER 40101/25001(2015.002) 9109
30636 7590 10/29/2021
FAY KAPLUN & MARCIN, LLP
150 BROADWAY, SUITE 702
NEW YORK, NY 10038
EXAMINER
ALHIJA, SAIF A
ART UNIT PAPER NUMBER
2147
NOTIFICATION DATE DELIVERY MODE
10/29/2021 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):
mmarcin@fkmiplaw.com
okaplun@fkmiplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ASSAF NAMER and ANTON LANGEBNER
____________________

Appeal 2020-004093
Application 14/869,495
Technology Center 2100
____________________

Before JOSEPH L. DIXON, DAVID M. KOHUT, and
JON M. JURGOVAN, Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.2

1 We use the word “Appellant” to refer to “applicant(s)” as defined in 37
C.F.R. § 1.42. The real party in interest is Wind River Systems Inc.
(Appeal Br. 2.)
2 Our Decision refers to the Specification (“Spec.”) filed September 29,
2015, the Final Office Action (“Final Act.”) mailed June 19, 2019, the
Appeal Brief (“Appeal Br.”) filed December 23, 2019, the Examiner’s
Answer (“Ans.”) mailed March 12, 2020, and the Reply Brief (“Reply Br.”)
filed May 12, 2020.
Appeal 2020-004093
Application 14/869,495

2
The claims are directed to a device, system, and method that
“perform[] an adaptive simulation” for a release that is to be incorporated
into a user device, the simulation being based upon a generated simulated
user device “corresponding to the user device, the simulated user device
having a simulated profile corresponding to the profile” of the user device.
(Spec. ¶ 4; Abstract.) Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A method, comprising:
at a simulator:
receiving a release to be incorporated into a user device,
the user device being deployed in a wireless network over a
previous time span;
receiving, from the user device, a profile of the user
device, the profile being indicative of settings used by the user
device over the previous time span and usage information of the
user device that includes at least an indication of characteristics
of the wireless network experienced by the user device when
deployed in the wireless network over the previous time span;
generating a simulated user device corresponding to the
user device; and
performing a simulation incorporating the release into the
simulated user device based on the settings used by the user
device over the previous time span and the characteristics of the
wireless network experienced by the user device when deployed
in the wireless network over the previous time span, as
indicated in the profile of the user device.
(Appeal Br. 12 (Claims App.).)

Appeal 2020-004093
Application 14/869,495

3
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Lin et al. US 6,389,379 B1 May 14, 2002
(“Lin”)
Conway US 2010/0232299 A1 Sept. 16, 2010
(“Conway”)

S. Biyani and P. Santhanam, Exploring Defect Data from Development and
Customer Usage on Software Modules over Multiple Releases, IEEE
Proceedings of the Ninth International Symposium on Software Reliability
Engineering 316–320 (1998) (“Biyani”)

C. Simache, M. Kaâniche, and A. Saidane, Event Log based Dependability
Analysis of Windows NT and 2K Systems, IEEE Proceedings of the 2002
Pacific Rim International Symposium on Dependable Computing 311–315
(2002) (“Simache”)

B. White, J. Lepreau, L. Stoller, R. Ricci, S. Guruprasad, M. Newbold, M.
Hibler, C. Barb, and A. Joglekar, An Integrated Experimental Environment
for Distributed Systems and Networks, ACM SIGOPS Operating Systems
Review, Vol. 36 255–270 (2002) (“White”)

REJECTIONS
The Examiner made the following rejections:
Claims 1–7, 10–17, and 20 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Lin in view of Biyani and White. (Final Act. 3–7.)
Claims 8 and 18 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Lin in view of Biyani, White, and Conway.3 (Final Act.
7–8.)

3 The White reference is not listed in the grounds of rejections of claims 8
and 18, but is necessary because the claims are dependent upon claims 1 and
11.
Appeal 2020-004093
Application 14/869,495

4
Claims 9 and 19 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Lin in view of Biyani, White, and Simache.4 (Final Act.
8.)

ANALYSIS
With respect to the rejection of claims 1–7, 10–17, and 20, Appellant
argues the claims with respect to independent method claim 1 as the
illustrative claim. (Appeal Br. 4.) Independent claims 11 and 20 contain
similar argued limitations. With respect to illustrative independent claim 1,
the Examiner finds Lin teaches “receiving a release to be incorporated into a
user device” and “performing a simulation incorporating the release into [a
generated] simulated user device” (as claimed) as it discloses “elements 240
and 250 [that] correspond to 2 different types of user devices and the
corresponding software and hardware are their releases and they are
both simulated by [Lin’s] element 210.” (Final Act. 3–4 (citing Lin 20:25–
63, cols. 27–28, Fig. 3).) The Examiner acknowledges “Lin does not
explicitly recite the user device being deployed in a wireless network” and

4 The White reference is not listed in the grounds of rejections of claims 9
and 19, but is necessary because the claims are dependent upon claims 1 and
11. We further note that the Examiner's rejections of independent claim 1
changed throughout the prosecution from an anticipation rejection of
independent claim 1 based upon Lin, then an obviousness rejection based
upon Lin, then an obviousness rejection based upon Lin in view of Biyani,
and finally to the current rejection Lin in view of Biyani and White. Each
modification of the rejection of independent claim 1 was followed by a
corresponding modification of the rejections of all dependent claims to
include the corresponding additional prior art reference until the Final
Action under review. We understand the omission of White from the current
rejections of claims 8, 18, 9, and 19 to be a harmless error by the Examiner.
Appeal 2020-004093
Application 14/869,495

5
“does not explicitly recite over a previous time span or using that time span
to influence the release.” (Id. at 4 (emphases removed).) The Examiner
then finds “Biyani recites over a previous time span or using that time span
to influence the release” and “White teaches when deployed in the wireless
network.” (Id. (citing Biyani § 1, Abstract; White § 4).) We do not agree.
We agree with Appellant that the Examiner has not shown that Lin,
Biyani, and White, alone or in combination, teach or suggest claim 1’s
“performing a simulation incorporating the release into the [generated]
simulated user device [corresponding to the user device] based on the
settings used by the user device . . . as indicated in the profile of the user
device.” (Appeal Br. 4–9; Reply Br. 3–4.) As Appellant explains, Lin’s
elements 240 and 250 are “irrelevant to the ‘user device’ recited in claim 1”
because element 240 is merely a “work station . . . equipped with software
configured to simulate circuit designs and a communication interface to
communicate with an external reconfigurable hardware board,” and element
250 is the “reconfigurable hardware board [that] contain[s] the user’s
emulated circuit design which is communicated to the work station for
simulation purposes.” (Appeal Br. 6–7 (citing Lin 20:25–63, 23:19–23,
27:34–28:57).) In particular, Lin provides that
[SEmulation] compiler 210 generates a software model for all
HDL components [of an HDL file in Verilog or VHDL that
contains the user’s circuit design]. The software model is cast in
code 215. Additionally, the SEmulation compiler 210 uses the
component type information of the HDL file, selects or generates
hardware logic blocks/elements from a library or module
generator, and generates a hardware model for certain HDL
components. The end result is a so-called “bitstream”
configuration file 220.
Appeal 2020-004093
Application 14/869,495

6
. . . This code [of the software model] is processed in the
general purpose processor or workstation 240. Substantially
concurrently, the configuration file 220 for the hardware model
is used to map the user circuit design into the reconfigurable
hardware boards 250. Here, those portions of the circuit design
that have been modeled in hardware are mapped and partitioned
into the FPGA chips in the reconfigurable hardware boards 250.
. . . [U]ser test-bench stimulus and test vector data as well
as other test-bench resources 235 are applied to the general
purpose processor or workstation 240 for simulation purposes.
Furthermore, the user can perform emulation of the circuit design
via software control. The reconfigurable hardware boards 250
contain the user’s emulated circuit design.

(See Lin 27:54–56, 28:10–45.) Thus, Lin is directed to the development and
design of electronic chips using Verilog or other hardware description
language, which is dissimilar and unrelated to a user interface simulator that
simulates user devices, as recited in claim 1. Contrary to the Examiner’s
assertions (see Final Act. 3–4), Lin’s workstation 240 and reconfigurable
hardware board 250 do not teach the claimed “user device” for which “a
simulated user device” is generated and “a simulation incorporating the
release into the simulated user device [is performed] based on the settings
used by the user device,” as claimed. (Appeal Br. 6–7; Reply Br. 3–4.) In
addition, Lin’s compiler 210 does not teach the claimed simulator (as
asserted by the Examiner, see Final Act. 3–4). The method recited in claim
1 uses the simulator to “perform[] a simulation incorporating the release into
the simulated user device based on the settings used by the user device”; in
contrast, Lin’s compiler 210 compiles a hardware description language
(HDL) file of an electronic chip to obtain configuration files for the chip
design. (Appeal Br. 6–7.)
Appeal 2020-004093
Application 14/869,495

7
We further note, the Examiner’s rebuttal of Appellant’s arguments
relies on remarks that appear to be beside the point, as the Examiner’s
remarks do not address the above-noted deficiencies of Lin. In particular,
the Examiner rebuts Appellant’s arguments on the basis that “under broadest
reasonable interpretation there is no rationale where a work station as
described in Lin would not read on the broadly recited ‘user device.’”
(Ans. 9.) The Examiner, however, does not address that Lin fails to teach
simulating its work station (or other generic device) and further fails to teach
simulating the effect of a release on a simulated user device (as recited in
claim 1).
The Examiner also has not shown that the additional teachings of
Biyani and White make up for the above-noted deficiencies of Lin. The
Examiner remarks that that Biyani’s “defect analysis in previous releases of
software” discloses “the claimed ‘over a previous time span or using that
time span to influence the release,’” and White’s virtual machine for
network experimentation uses “historical logs which would store historical
information regarding the network experimentation which reads on the
[claimed] ‘when deployed in a wireless network.’” (See Ans. 10–11; see
also Final Act. 4.) The Examiner’s remarks, however, do not explain how
Biyani or White make up for the deficiencies of Lin. Even though Biyani
analyzes faults of a software module over a previous time span and White
simulates a network, neither Biyani nor White describes simulating an
actual user device to obtain a simulated user device and simulating the effect
of a release on the simulated user device, as recited in claim 1. (Appeal Br.
8–9; Reply Br. 3–4.) As Appellant explains, “Biyani is entirely unrelated to
performing a simulation” as claimed, as Biyani merely describes statistical
Appeal 2020-004093
Application 14/869,495

8
analysis of defects associated with a software module during development
and defects associated with the software module in the field. (Appeal Br. 8
(citing Biyani § 7); see also Biyani § 1 (“In this paper, we examine the
relationship between (a) the faults discovered during development and those
discovered after a product is released, and (b) the relationship between faults
in the current release and faults in previous releases.”).) And White merely
discloses a “network simulator” and “emulator” which “acts as a virtual
machine for network experimentation.” (See White § 2, Abstract (emphasis
added); Appeal Br. 8–9.)
The Examiner also does not identify how the teachings of Conway
and Simache remedy the above-noted deficiencies of base combination. As
Appellant explains, Conway and Simache are similarly deficient, as they fail
to disclose simulating an actual user device to obtain a simulated user
device, and simulating the effect of a release on the simulated user device.
(Appeal Br. 9–10.) Rather, Conway merely describes “performing
simulations on network models, wherein failure rates of elements of the
network model are increased until path failures are observed within the
network model,” and Simache merely describes “analyzing error/failure
behavior of a computer system to identify system bottlenecks.” (Appeal Br.
9–10 (citing Conway ¶ 84; Simache § 1); see also Conway, Title
(“SIMULATION OF COMMUNICATION NETWORKS”); Simache,
Abstract (“This paper presents a measurement-based dependability study
using event logs collected during about 3 years from 133 Windows NT and
2K workstations and servers interconnected through a LAN.”).)
Because the Examiner has not made a showing of where the cited art
teaches or suggests the claimed “performing a simulation incorporating the
Appeal 2020-004093
Application 14/869,495

9
release into the simulated user device based on the settings used by the user
device,” we are constrained by the record to reverse the Examiner’s
obviousness rejections of illustrative independent claim 1, and claims 2–10
depending therefrom. For similar reasons, we do not sustain the Examiner’s
obviousness rejections of independent claims 11 and 20 (reciting limitations
similar to those of claim 1) and claims 12–19 depending from claim 11.

CONCLUSION
The Examiner erred in rejecting claims 1–20 based upon obviousness.

DECISION SUMMARY
For the above reasons, we REVERSE the Examiner’s obviousness
rejections of claims 1–20 under 35 U.S.C. § 103.
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7, 10–17,
20
103 Lin, Biyani, White 1–7, 10–17,
20
8, 18 103 Lin, Biyani, White,
Conway
8, 18
9, 19 103 Lin, Biyani, White,
Simache
9, 19
Overall
Outcome
1–20

REVERSED