AirWatch LLC

Patent Trials and Appeals Board

Jul 23, 2021

2020000572 (P.T.A.B. Jul. 23, 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.
14/498,115 09/26/2014 Pratik Jagad W037.02 (500102-1090) 7738
152577 7590 07/23/2021
Thomas | Horstemeyer, LLP (VMW)
3200 Windy Hill Road, SE
Suite 1600E
Atlanta, GA 30339
EXAMINER
WILCOX, JAMES J
ART UNIT PAPER NUMBER
2439
NOTIFICATION DATE DELIVERY MODE
07/23/2021 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):
docketing@thomashorstemeyer.com
ipadmin@vmware.com
uspatents@thomashorstemeyer.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PRATIK JAGAD and KRISHNA KUMAR BHAVESH
Appeal 2020-000572
Application 14/498,115
Technology Center 2400

Before RICHARD M. LEBOVITZ, JENNIFER MEYER CHAGNON, and
DAVID J. CUTITTA II, Administrative Patent Judges.

Opinion for the Board filed by Administrative Patent Judge CUTITTA.

Opinion Dissenting filed by Administrative Patent Judge CHAGNON.

CUTITTA, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–24, all of the claims under
consideration. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a).
Appellant identifies the real party in interest as AirWatch, LLC. Appeal
Brief filed April 8, 2019 (“Appeal Br.”) at 2.
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Application 14/498,115

2

CLAIMED SUBJECT MATTER
Summary
Appellant’s claimed subject matter relates to “assessing the risks of
applications that may be installed on one or more devices” by identifying a
usage category for the application. Spec. ¶ 8.2 According to Appellant, a
“profile assigned to a usage category for the application is obtained.” Spec.,
Abstract. “The number of times that at least one rule in the profile is
violated is determined. A remedial action is initiated in response to the
number of times that the at least one rule is violated exceeding a predefined
threshold.” Id.
Exemplary Claim
Claims 1, 6, and 15 are independent. Claim 1, reproduced below with
limitations at issue italicized, exemplifies the claimed subject matter:
1. A non-transitory computer-readable medium
embodying program code executable in a computing device, the
program code being configured to cause the computing device
to at least:
obtain a list identifying an application installed in a client
device;
decompile a copy of the application to identify a plurality
of operations to be performed by the application during
execution of the application;

2 In addition to the Appeal Brief noted above, we refer to: (1) the originally
filed Specification filed September 26, 2014 (“Spec.”); (2) the Final Office
Action mailed December 12, 2018 (“Final Act.”); (3) the Examiner’s
Answer mailed September 4, 2019 (“Ans.”); and (4) the Reply Brief filed
November 1, 2019 (“Reply Br.”).
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identify a usage category for the application from a third
party application repository;
obtain a profile that is assigned to the usage category for
the application, the profile including at least one first rule that
specifies whether the plurality of operations are permitted to
perform at least one higher risk level operation according to
the usage category, at least one second rule that specifies
whether the plurality of operations are permitted to perform at
least one lower risk level operation according to the usage
category, and at least one predetermined threshold;
determine a first number of times that the plurality of
operations violate the at least one first rule;
determine a second number of times that the plurality of
operations violate the at least one second rule; and
in response to a total risk associated with the first number
of times and the second number of times exceeding the at least
one predetermined threshold, transmit a command to direct a
management component in the client device to uninstall and
replace the application with an alternate application compliant
with the profile.
Appeal Br. 18 (Claims App.).
REFERENCES
The Examiner relies on the following references:
Name Reference Date
Malloy US 2007/0067450 A1 Mar. 22, 2007
Yehuda US 7,934,248 B1 Apr. 26, 2011
Multer US 2011/0269424 A1 Nov. 3, 2011
DiCorpo US 2012/0150773 A1 June 14, 2012
Colbert US 2012/0297380 A1 Nov. 22, 2012
Zhu US 2013/0111592 A1 May 2, 2013
Bettini US 2013/0227683 A1 Aug. 29, 2013
Mowatt US 2013/0326499 A1 Dec. 5, 2013
Adam US 2015/0200959 A1 July 16, 2015
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REJECTIONS
The Examiner rejects the claims as follows under 35 U.S.C. § 103:
Claims References Final Act.
1, 4, 5, 15–18, 20, 21 Bettini, Zhu, Adam, Mowatt 9
2 Bettini, Zhu, Adam, Mowatt,
Yehuda
24
3, 19 Bettini, Zhu, Adam, Mowatt, Multer 26
6–11, 13, 14 Bettini, Zhu, Adam, Yehuda,
Mowatt
28
12 Bettini, Zhu, Adam, Yehuda,
Mowatt, Malloy
39
22 Bettini, Zhu, Adam, Mowatt,
Yehuda
40
23 Bettini, Zhu, Adam, Mowatt, Colbert 42
24 Bettini, Zhu, Adam, Mowatt,
DiCorpo
43
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of Appellant’s arguments and evidence.
Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2018).
We disagree with Appellant that the Examiner errs in rejecting claims 1–24,
and we adopt as our own the findings set forth by the Examiner for these
claims to the extent consistent with our analysis herein. Final Act. 4–14;
Ans. 3–17.
Appellant argues the claims as a group in that the rejections of claims
2–24, are not argued separately or are only nominally argued separately.
Appeal Br. 14–17. We, thus, select independent claim 1 as exemplary of the
group. See 37 C.F.R. § 41.37(c)(1)(iv) (2018).
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Independent claim 1 recites “identify a usage category for the
application from a third party application repository.” Appeal Br. 18.
The Examiner finds Bettini “describes a third party provider and
global app cache used for classifying usage as known bad or suspicious.”
Final Act. 10 (citing Bettini ¶¶ 12, 86, 96, 120, Fig. 1).
Appellant argues the “[t]he Specification of the instant application
provides several examples of different usage categories of applications . . .
including example ‘email client,’ ‘navigation,’ and ‘social networking’
categories” and that Bettini is silent as to identification of any such usage
category. Appeal Br. 8–9 (citing Spec. ¶¶ 9, 22).
The Examiner responds by finding that the Specification discloses
“[o]ne or more usage categories 146 may be associated with each application
129” and that “[a] usage category 146 may, for example, indicate the
intended use for an application 129.” Ans. 3 (citing Spec. ¶ 26). The
Examiner finds that Bettini’s disclosure of a computing device “with
collective app intelligence engine to provide an app reputation phase to
classifying usage as known bad or suspicious IP addresses” teaches an
intended use for the application and therefore a “usage category” as that
term would have been understood in light of the Specification. Id. at 6
(citing Bettini ¶¶ 120, 122, 124, Fig. 1).
Appellant’s argument that “Bettini is entirely silent as to the
identification of any ‘usage category’ for an application,” is unpersuasive.
Reply Br. 3; Appeal Br. 9. Appellant’s argument fails to address the
Examiner’s finding that Bettini’s usage categorized as known bad or
suspicious teaches identifying a usage category by identifying a use that is
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intended to be bad or suspicious, consistent with Appellant’s Specification.
Ans. 3, 7.
According to the dissent, the Examiner’s interpretation of the term
“usage category” to include a use that is intended to be bad or suspicious is
inconsistent with the Specification’s non-limiting examples of a usage
category as navigation, social networking, music, and photography. Dissent
16 (citing Spec. ¶¶ 22, 26, Smith Int’l, Inc., 871 F.3d at 1382–83).
We disagree, because in addition to the examples noted by the dissent,
the Specification provides an additional example in which a usage category
may indicate “the intended use for an application.” Spec. ¶ 26. The
Specification does not limit a usage category to any particular type of
category but instead describes each of the categories listed as non-limiting
examples. Id. The Examiner’s interpretation that “a usage category 146
may indicate the intended use for an application 129” is consistent with the
example discussed above from Appellant’s Specification. Ans. 3 (citing
Spec. ¶ 26).
The dissent further disagrees with the majority view that Appellant
does not address “‘the Examiner’s finding that Bettini’s usage categorized as
known bad or suspicious teaches identifying a usage category by identifying
a use that is intended to be bad or suspicious.’” Dissent 17. According to
the dissent, Appellant’s argument that Bettini’s usage categorized as known
bad or suspicious is directed to known risks and not use categories or types
of applications, “distinguishes the Examiner’s reliance on ‘classifying usage
as known bad or suspicious’ from the Specification’s description of
‘categories or types of applications.’” Dissent 17 (citing Appeal Br. 9;
Reply Br. 3).
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In the majority view, however, Appellant’s argument based on the
non-limiting usage categories such as “‘email client,’ ‘navigation,’ and
‘social networking’” (Appeal Br. 8), misses the mark because the argument
does not address the Examiner’s determination that a usage category may
also indicate the intended use for an application and that Bettini’s classifying
application usage as known bad or suspicious teaches an intended use for the
application and therefore a usage category. Ans. 6. Accordingly, the
argument is not responsive to the Examiner’s findings. By classifying an
application according to its various risks based on its properties as being bad
or suspicious behaviors (Bettini, Abstract), a user can determine whether
they want to use or make the application available to their organization for
use (id. ¶ 41), and thus the classification specifies how the application is
used (for example, used with a certain risk or not used at all because of the
risk). Similarly, the Specification teaches that when an application is
classified as an “email client application,” the usage category may specify
that it “should not access the global positioning system (GPS) of the client
device.” Spec. ¶ 9. Thus, assigning a risk to an application, as in Bettini,
has the same functional significance as assigning an application to an email
or music usage category. To the extent risk assignment based on bad or
suspicious behavior of the application is different from email, music, etc.,
these difference are descriptive and not functional.
Appellant further argues that “Bettini is entirely silent as to using data
“‘from a third party application repository’” for the “identification of any
‘usage category.’” Appeal Br. 9.
Appellant’s argument is unpersuasive. Bettini describes URL and IP
reputation engine 110 that performs a comparison with collective app
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intelligence to classify a URL or IP address accessed by an app as bad or
suspicious, providing basis to assign a risk to the application. Bettini ¶ 86,
95. Bettini further discloses the “collective app intelligence can include
receiving third party analysis input.” Id. Appellant fails to explain why
Bettini’s identification of a usage category using third party analysis input
does not teach or suggest using a third party application repository, as
claimed.
Independent claim 1 further recites “obtain a profile that is assigned to
the usage category for the application.” Appeal Br. 18.
The Examiner finds Bettini discloses a risk profile that is assigned to a
usage of device features or functions. Final Act. 10 (citing Bettini Figs. 6, 7
and associated text); Ans. 9.
Appellant argues that Bettini discusses policies and not profiles, as
claimed. Appeal Br. 9. In particular, Appellant argues “[r]ather than a
profile, Bettini describes ‘policies 310 [on the platform 302] . . . for scanning
apps for risk assessment (e.g., security policies, privacy policies,
device/network integrity policies, etc.).’” Id. (citing Bettini ¶ 120).
Appellant continues, “beyond the fact that the policies 310 described at
paragraph [0120] of Bettini are different than the ‘profile’ recited by claim 1
. . . Bettini is entirely silent as to any of those policies 310 being assigned to
( or connected in any way with) the ‘third party analysis input.’” Id.
Appellant’s arguments are unpersuasive because Appellant, while
addressing Bettini’s policies, fails to address the Examiner’s finding that
Bettini’s risk profile teaches or suggests the claimed profile. Final Act. 10.
In discussing Figure 6, Bettini discloses performing an “automated analysis
of the application based on a risk profile (e.g., using a cloud-based app risk
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assessment platform/service)” and “generating a risk score based on . . . the
risk profile.” Bettini ¶ 124. Thus, the Examiner’s finding that Bettini’s
application risk profile teaches the claimed profile that is assigned to a usage
category for the application is supported by the evidence before us. Final
Act. 10. Appellant, in turn, fails to specifically address that finding.
In the Reply Brief, Appellant argues for the first time that “[a] review
of Figures 6 and 7 and the related paragraphs [0124] and [0125] of Bettini
again confirm the lack of any profile assigned to a usage category in
Bettini.” We decline to consider such an argument raised for the first time in
the Reply Brief. Appellant’s arguments are deemed waived, in the absence
of a showing of good cause by Appellant, because the Examiner has not
been provided a chance to respond. See 37 C.F.R. § 41.41(b)(2) (2012); In
re Hyatt, 211 F.3d 1367, 1373 (Fed. Cir. 2000) (noting that an argument not
first raised in the brief to the Board is waived on appeal); Ex parte
Nakashima, 93 USPQ2d 1834, 1837 (BPAI 2010) (informative) (explaining
that arguments and evidence not timely presented in the principal Brief, will
not be considered when filed in a Reply Brief, absent a showing of good
cause). On this record, Appellant has provided no such showing of good
cause.
Independent claim 1 further recites:
the profile including at least one first rule that specifies whether
the plurality of operations are permitted to perform at least one
higher risk level operation according to the usage category, [and]
at least one second rule that specifies whether the plurality of
operations are permitted to perform at least one lower risk level
operation according to the usage category.
Appeal Br. 18.
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The Examiner finds Adam teaches or suggests the claimed first and
second rule. Final Act. 13 (citing Adam ¶ 40, Figs. 3, 6). Adam relates to a
method to determine whether a user is authorized to carry out an operation
on parallel devices, based on a profile or role of the user. Adam ¶ 4. Of
particular relevance, the Examiner finds Adam’s user profile 316 permits
certain users (e.g., administrators 318) to initiate certain high risk application
operations (e.g., reboot 330) while limiting other users to lower risk
application operations 334 such as emptying a recycle bin. Ans. 7–8.
Appellant argues that Adam “is not directed to the assessment of risk
associated with the operations of an application” because “Adam merely
describes characterizing the operations of a user as either ‘high risk (e.g.,
reboot) 330, medium risk (e.g., application update) 332, or low risk (e.g.,
empty recycle bin) 334’ types of ‘intrusive content 326.’” Appeal Br. 11
(citing Adam ¶ 27).
The Examiner responds by finding that:
Adam discloses “the profile (Adam, 316, Figure 3, profile)
including at least one first rule (Adam, 338, Figure 3, rules) that
specifies whether the plurality of operations (Adam, 330, FIG 3
(reboot operation), 332, (application update operation), 334
(empty recycle bin operation)) are permitted to perform at least
one higher risk level operation (Adam, 330, FIG 3, high risk
(reboot operation), [0040], allowed commands) according to the
usage category (Adam, FIG 6, execution pattern (usage
category)), at least one second rule (Adam, 338, Figure 3, rules)
that specifies whether the plurality of operations (Adam, 330,
FIG 3 (reboot operation), 332, (application update operation),
334 (empty recycle bin)) are permitted to perform at least one
lower risk level operation (Adam, 334, low risk (empty recycle
bin operation), [0040], allowed commands) according to the
usage category (Adam, FIG 6, execution pattern [where an
execution pattern reads on a usage category]).”
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Ans. 8 (citing Adam ¶ 40 Figs. 3, 6).
Appellant’s argument that “Adam does not describe or suggest rules
that specify whether or not operations of an application are permitted but
rather the characterization of the operations of users” is unpersuasive of
reversible error. Appeal Br. 11. Appellant fails to sufficiently address the
Examiner’s reliance on rules 338 permitting performance of certain
management operations for intrusive content including high risk operations
such as reboot operations 330, medium risk operations 332 such as
application updates and low risk operations 334 such as emptying of a
recycle bin. Ans. 8 (citing Adam ¶ 40 Figs. 3, 6). Appellant does not
explain why these software-related operations fail to teach or suggest
operations of an application as claimed. Furthermore, although these
operations in Adam may be user initiated, they are still operations relating to
a software application.
The dissent agrees with Appellant that “‘Adam does not describe or
suggest rules that specify whether or not operations of an application are
permitted but rather the characterizations of the operations of users as high,
medium, or low risk.’” Dissent 19 (citing Appeal Br. 11; Ans. 6). We
believe, however, that Appellant’s focus on the user profile is misguided and
is not responsive to the Examiner’s findings. The Examiner finds, and we
agree, that Adam’s “policy and rules 338” relate to the operations
themselves. Ans. 8 (citing Adam Fig. 3; see also ¶ 27). For example, Adam
characterizes a reboot operation as high risk, an application update operation
as medium risk and emptying a recycle bin as low risk. Adam Fig. 3, ¶ 27.
That these operations may be initiated by a user or that a user profile may
prohibit certain users from initiating risky operations is beside the point
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because it is the operations themselves that are characterized as more or less
risky in Adam and that are not permitted in certain circumstances.
Independent claim 1 further recites “determine a first number of times
that the plurality of operations violate the at least one first rule; determine a
second number of times that the plurality of operations violate the at least
one second rule.” Appeal Br. 18.
The Examiner finds Zhu teaches or suggests this limitation. Final
Act. 11–12. Zhu relates to a system to allow a server to identify an
application, which is not authorized to be stored on a user device, based on a
user profile and the application profile. ¶ 14. Of particular relevance, the
Examiner finds Zhu discloses determining a “security score based on a first
and second number the rules are violated where the violations are different
based severity levels that exceed thresholds.” Final Act. 11 (citing Zhu
¶¶ 52–56, 58, 69).
Appellant argues that “Zhu does not determine a number of times that
application operations violate first and second rules” because Zhu instead
“merely describes assigning a ‘first ratings score (e.g., 0, 1, 2, etc.)’ or a
‘second ratings score (e.g., 4, 5, 6, etc.)’ when positive portions of ratings
are greater than ratings thresholds.” Appeal Br. 13. According to Appellant,
“Zhu describes that the profile server 140 assigns ratings scores of ‘(e.g., 0,
1, 2, etc.)’ and ‘(e.g., 4, 5, 6, etc.)’ but not that the profile server 140
determines a number of times that operations violate rules.” Id.
Appellant’s argument that Zhu does not teach or suggest determining
a number of times that application operations violate rules is unpersuasive.
Zhu discloses that profile server 140 uses a data structure including
application history field 620 to store information associated with a history of
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the particular application including identifying whether the particular
application is known to have been associated with a security incident. Zhu
¶¶ 42, 46. Zhu further discloses that “application history field 620 may store
a security value that corresponds to the severity and/or the quantity of
security incidents.” Id. ¶ 46. Accordingly, Appellant fails to show
reversible error in the Examiner’s finding that “[t]he application history field
may store a security value that corresponds to the severity and/or the
quantity of security incidents [0046].” Ans. 15 (citing Zhu ¶ 46). We agree
with the Examiner that “this reads on the limitation of ‘determine a first
number of times that the plurality of operations violate the at least one first
rule,’” as recited in claim. Ans. 15.
In view of our discussion above, Appellant does not persuade us of
reversible error in the Examiner’s obviousness rejection of independent
claim 1. We, therefore, affirm the Examiner’s rejection of that claim, as
well as the rejections of claims 2–24, which Appellant does not argue
separately with particularity. Appeal Br. 7–14.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 5, 15–
18, 20, 21
103 Bettini, Zhu,
Adam, Mowatt
1, 4, 5, 15–
18, 20, 21

2 103 Bettini, Zhu,
Adam, Mowatt,
Yehuda
2
3, 19 103 Bettini, Zhu,
Adam, Mowatt,
Multer
3, 19
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6–11, 13,
14
103 Bettini, Zhu,
Adam, Yehuda,
Mowatt
6–11, 13,
14

12 103 Bettini, Zhu,
Adam, Yehuda,
Mowatt, Malloy
12
22 103 Bettini, Zhu,
Adam, Mowatt,
Yehuda
22
23 103 Bettini, Zhu,
Adam, Mowatt,
Colbert
23
24 103 Bettini, Zhu,
Adam, Mowatt,
DiCorpo
24
Overall
Outcome
1–24

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED

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CHAGNON, Administrative Patent Judge, dissenting.
I respectfully disagree with the majority opinion in affirming the
rejection of the pending claims. Based on the record before us, I am
persuaded the Examiner’s rejection contains reversible error.
Claim 1 recites, inter alia, “identify a usage category for the
application from a third party application repository.” Appeal Br. 18
(emphasis added). The Examiner relies on Bettini for this claim feature,
contending that Bettini “describes a third party provider and global app
cache used for classifying usage as known bad or suspicious.” Final Act. 10
(citing Bettini ¶¶ 86, 96, 120). Appellant argues that Bettini is silent as to
identification of any such usage category. Appeal Br. 8–9.
The portions of Bettini relied upon by the Examiner disclose an “app
reputation phase” in which “a comparison with collective app intelligence
phase is performed using a URL and IP reputation engine,” and which “can
include receiving third party analysis input, such as third party input
identifying known bad or suspicious IP addresses, URL addresses,” etc.
Bettini ¶ 86. As an example, Bettini describes that “whether the app
accesses websites/URLs that are unsafe or associated with malware impacts
the app risk assessment,” and that “the platform can apply its own URL
‘blacklists.’” Bettini ¶¶ 95–96.
The Specification describes that “[a] usage category 146 may, for
example, indicate the intended use for an application 129.” Spec. ¶ 26. As
noted by the majority, “[t]he Examiner finds that Bettini’s disclosure of a
computing device ‘with collective app intelligence engine to provide an app
reputation phase to classifying usage as known bad or suspicious IP
addresses’ teaches an intended use for the application and therefore a ‘usage
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category’ as that term would have been understood in light of the
Specification.” Maj. Op. 5 (citing Ans. 6).
Appellant argues that the “[t]he Specification of the instant
application provides several examples of different usage categories of
applications . . . , including example ‘email client,’ ‘navigation,’ and ‘social
networking’ categories.” Appeal Br. 8 (citing Spec. ¶¶ 9, 22). Indeed, the
Specification provides several examples of a “usage category.” See Spec.
¶ 9 (“email client”), ¶ 22 (“navigation,” “social networking”), ¶ 26 (“music,”
“photography”). Each of these categories relates to the actual intended
function (i.e., “the intended use”) of the application, rather than to the
relative suspiciousness level of the application (i.e., a characteristic of the
application). I do not agree that the Examiner’s broad interpretation of the
term “usage category” to include “classifying usage as known bad or
suspicious IP addresses” (Ans. 6) is reasonable in view of the Specification.
See In re Smith Int’l, Inc., 871 F.3d 1375, 1382–83 (Fed. Cir. 2017) (“The
correct inquiry in giving a claim term its broadest reasonable interpretation
in light of the specification is not whether the specification proscribes or
precludes some broad reading of the claim term adopted by the examiner.
And it is not simply an interpretation that is not inconsistent with the
specification. It is an interpretation that corresponds with what and how the
inventor describes his invention in the specification, i.e., an interpretation
that is consistent with the specification.” (citation and internal quotation
marks omitted)).
The majority contends that Appellant does not address “the
Examiner’s finding that Bettini’s usage categorized as known bad or
suspicious teaches identifying a usage category by identifying a use that is
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intended to be bad or suspicious.” Maj. Op. 5–6. I respectfully disagree. In
response to the Examiner’s assertions, Appellant contends that “none of the
‘third party analysis input’ described by Bettini amounts to a ‘usage
category’ for an application because it is directed to known risks and not use
categories or types of applications.” Appeal Br. 9 (emphasis added); see
also Reply Br. 3 (“A person of ordinary skill in the art would find it clear
that this ‘input’ of Bettini is related to known risks and is different than
usage categories or types of applications.”). Here, Appellant distinguishes
the Examiner’s reliance on “classifying usage as known bad or suspicious”
from the Specification’s description of “categories or types of applications.”
And, as discussed above, I do not find the Examiner’s interpretation of the
term “usage category” to be reasonable in view of the Specification. Thus, I
agree with Appellant that, contrary to the Examiner’s assertions, Bettini does
not disclose the claimed “usage category.”
Claim 1 also recites “obtain a profile that is assigned to the usage
category for the application, the profile including at least one first rule that
specifies whether the plurality of operations are permitted to perform at least
one higher risk level operation according to the usage category, at least one
second rule that specifies whether the plurality of operations are permitted to
perform at least one lower risk level operation according to the usage
category, and at least one predetermined threshold.” Appeal Br. 18.
The Examiner admits that Bettini (and Zhu) do not disclose “the
profile including at least one first rule that specifies whether the plurality of
operations are permitted to perform at least one higher risk level operation
according to the usage category, at least one second rule that specifies
whether the plurality of operations are permitted to perform at least one
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lower risk level operation according to the usage category, and at least one
predetermined threshold.” Final Act. 12–13. The Examiner contends that
Adam discloses these limitations. Id. at 13. The Examiner finds that:
Adam discloses “the profile (Adam, 316, Figure 3, profile)
including at least one first rule (Adam, 338, Figure 3, rules) that
specifies whether the plurality of operations (Adam, 330, FIG 3
(reboot operation), 332, (application update operation), 334
(empty recycle bin operation)) are permitted to perform at least
one higher risk level operation (Adam, 330, FIG 3, high risk
(reboot operation), [0040], allowed commands) according to the
usage category (Adam, FIG 6, execution pattern (usage
category)), at least one second rule (Adam, 338, Figure 3, rules)
that specifies whether the plurality of operations (Adam, 330,
FIG 3 (reboot operation), 332, (application update operation),
334 (empty recycle bin)) are permitted to perform at least one
lower risk level operation (Adam, 334, low risk (empty recycle
bin operation), [0040], allowed commands) according to the
usage category (Adam, FIG 6, execution pattern [where an
execution pattern reads on a usage category]).”
Ans. 8 (citing Adam ¶ 40, Figs. 3, 6); Final Act. 13. The Examiner contends
that “each one of the[] risks [described in Adam] corresponds to a different
operation.” Ans. 7.
Appellant argues that “Adam . . . is not directed to the assessment of
risk associated with the operations of an application.” Appeal Br. 11.
Appellant continues, “[i]n contrast, Adam merely describes characterizing
the operations of a user either as ‘high risk (e.g., reboot) 330, medium risk
(e.g., application update) 332, or low risk (e.g., empty recycle bin) 334.’”
Id. (citing Adam ¶ 27).
The majority states that “Appellant does not explain why these
software-related operations [(i.e., reboot, applications updates, emptying the
recycle bin)] fail to teach or suggest operations of an application as
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claimed.” Maj. Op. 11. Respectfully, the claim does not simply require
operations of an application. Claim 1 requires a profile that includes rules
(i.e., the first rule) which specify whether the application (i.e., the plurality
of operations) is permitted to perform a particular operation (i.e., at least one
higher risk level operation). The profiles/rules of Adam, on the other hand,
specify whether a particular user is permitted to perform certain operations,
based on the risk level thereof. Adam ¶ 4 (“method includes the step of
determining whether a user is authorized to carry out a management
operation”), ¶ 27 (“user/role profiles 316 . . . [are] characterized as one of an
administrator 318, a Super User 320 or a regular user 322”; “management
operations are, for example, characterized as either intrusive content 326
[such as high risk (e.g., reboot) 330, medium risk (e.g., application update)
332, or low risk (e.g., empty recycle bin) 334] or non-intrusive content
328”); see Appeal Br. 10–11.
This distinction is recognized and argued by Appellant: “Adam does
not describe or suggest rules that specify whether or not operations of an
application are permitted but rather the characterizations of the operations
of users as high, medium, or low risk.” Appeal Br. 11; Ans. 6. I agree with
Appellant that “[t]he characterization of [the risk of] user operations . . .
does not amount to first and second rules . . . which specify whether
application operations are permitted to perform ‘higher risk level’ and
‘lower risk level’ operations, respectively,” as claimed. Appeal Br. 11
(emphasis added). Thus, I agree with Appellant that, contrary to the
Examiner’s assertions, Adam does not disclose the claimed “profile
including at least one first rule that specifies whether the plurality of
operations are permitted to perform at least one higher risk level operation
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. . . , [and] at least one second rule that specifies whether the plurality of
operations are permitted to perform at least one lower risk level operation.”
Independent claim 6 also recites “usage category” and a “profile
including at least one first rule that specifies whether the plurality of
operations are permitted to perform at least one higher risk level operation
. . . , [and] at least one second rule that specifies whether the plurality of
operations are permitted to perform at least one lower risk level operation.”
Appeal Br. 20. Independent claim 15 does not recite a “usage category,” but
does recite a “profile including at least one first rule that specifies whether
the plurality of operations are permitted to perform at least one higher risk
level operation, at least one second rule that specifies whether the plurality
of operations are permitted to perform at least one lower risk level
operation.” Id. at 22.
For these reasons, I am persuaded the Examiner errs in finding that
the cited combination of Bettini, Zhu, Adams, and Mowatt teaches or
suggests all elements of the independent claims. Accordingly, I respectfully
dissent from the majority’s opinion affirming the Examiner’s rejections of
claims 1–24.