Ex Parte Boskovic

Patent Trials and Appeals Board

Jan 26, 2015

11644278 - (D) (P.T.A.B. Jan. 26, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte SRDJAN BOSKOVIC
____________________

Appeal 2012-010496
Application 11/644,278
Technology Center 2100
____________________

Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-010496
Application 11/644,278

2
I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1–21. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

A. INVENTION
According to Appellant, the invention relates to capturing information
on program flow and/or data associated with program execution, wherein
captured data that is not in XML format is serialized into XML and the
captured data is used to diagnose and analyze the system (Abst.).
B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary:
1. A method comprising:
incorporating a call trace with data into one or more
modules of a first processor-based system;
incorporating the call trace with data into one or more
modules of a second processor-based system;
generating output from the call trace with data on the first
processor-based system; and
generating output from the call trace with data on the
second processor-based system;
wherein the outputs of the call trace with data of the first
processor-based system and the second processor-based system
include XML information on one or more of program flow and
data associated with execution of the first and second
processor-based systems, and further comparing the output of
the call trace with data of the first processor-based system with
the output of the call trace with data of the second processor-
based system when the output of the call trace with data
comprises an XML format; and further
Appeal 2012-010496
Application 11/644,278

3
wherein the outputs of the call trace with data of the first
processor-based system and the second processor-based system
include non-XML information on one or more of program flow
and data associated with execution of the first and second
processor-based systems, and further comprising serializing the
non-XML information into an XML format and comparing the
serialized data.

C. REJECTION
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Birsan US 6,848,078 B1 Jan. 25, 2005
Nishanov US 2005/0097110 Al May 5, 2005
Keohane US 2005/0257263 Al Nov. 17, 2005
Semerdzhiev US 2005/0256864 Al Nov. 17, 2005

Claims 1, 7, 8, 14, 15, 20, and 21 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Keohane and Nishanov.
Claims 2, 3, 9, 10, 16, and 17 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Keohane, Nishanov, and Birsan.
Claims 4–6, 11–13, 18, and 19 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Keohane, Nishanov, and Semerdzhiev.
II. ISSUE
The main issue before us is whether the Examiner erred in finding the
combination of Keohane and Nishanov teaches or would have suggested
“serializing the non-XML information into an XML format and comparing
the serialized data,” as recited in claim 1.
Appeal 2012-010496
Application 11/644,278

4
III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Keohane
1. Keohane discloses tracing calls, which includes processing data
packets suspected of having a computer virus (Abst.), wherein traces are
compared with similar traces of a process that is immune to the computer
virus (para. 14).
Nishanov
2. Nishanov discloses serializing data in tracing program
execution (Abst.), wherein an XML serializer is used (para. 5) to structure
data in the log in a manner that is consistent and highly readable, which is
particularly beneficial with respect to tracing and debugging failure
exceptions (para. 12).
IV. ANALYSIS
As to independent claims 1, 8, 15, and 21, although Appellant
concedes Nishanov “relates to a system wherein a serializer processes an
object’s data and records that data in to structured format (e.g., XML),”
Appellant contends “Nishanov notes that there are a number of drawbacks
with standardized serializers” (App. Br. 12). Appellant then contends “there
is simply no need for serialization in Keohane” and thus it would not have
been obvious to one of skill in the art to combine Nishanov with Keohane
without hindsight (App. Br. 13–14).
However, the Examiner finds Nishanov discloses “XML serialization
can facilitate automated analysis of traced data as well as provide a highly
readable structure from the perspective of a human user” (Ans. 2–3). Thus,
Appeal 2012-010496
Application 11/644,278

5
the Examiner concludes it would have been obvious to combine Keohane
with Nishanov wherein “no impermissible hindsight was used” (id.).
We agree with the Examiner’s findings, and find no error with the
Examiner’s conclusion that the claims would have been obvious over the
combined teachings.
Keohane discloses analyzing traces for computer virus (FF 1). We
find no error with the Examiner’s reliance on Keohane to teach or suggest
performing “an analysis on trace data” (Final Act. 2).
Further, Nishanov discloses serializing data in tracing program
execution, which is particularly beneficial with respect to tracing and
debugging failure exceptions (FF 2). Appellant concedes Nishanov “relates
to a system wherein a serializer processes an object’s data and records that
data in to structured format (e.g., XML)” (App. Br. 12). We find no error
with the Examiner’s reliance on Nishanov to teach or suggest “XML
serialization” to “facilitate automated analysis of traced data as well as
provide a highly readable structure from the perspective of a human user”
(Ans. 2–3).
Although Appellant contends “Nishanov notes that there are a number
of drawbacks with standardized serializers” (App. Br. 12) and “there is
simply no need for serialization in Keohane” (App. Br. 13), the issue here is
whether the skilled artisan, upon reading Nishanov, would have found it
obvious to use a XML serializer in analyzing trace data.
We also find no error with the Examiner’s proffered rationale to
combine the Nishanov’s use of a serializer in analyzing trace data (FF 2) to
Keohane’s teaching of analyzing trace data (FF 1) to “facilitate automated
analysis of traced data as well as provide a highly readable structure from
Appeal 2012-010496
Application 11/644,278

6
the perspective of a human user” (Ans. 2–3). That is, we find the Examiner
has provided sufficient articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness (id.).
Although we are fully aware that hindsight bias often plagues
determinations of obviousness, Graham v. John Deere Co., 383 U.S. 1, 36
(1966), we are also mindful the Supreme Court has clearly stated the
“combination of familiar elements according to known methods is likely to
be obvious when it does no more than yield predictable results.” KSR Int’l
Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). “In determining whether the
subject matter of a patent claim is obvious, neither the particular motivation
nor the avowed purpose of the patentee controls.” Id. at 419.
Appellants have provided no evidence that combining the teachings of
an XML serializer in analyzing trace data, such as those of Nishanov, to
Keohane’s teaching of analyzing trace data, would have been “uniquely
challenging or difficult for one of ordinary skill in the art,” Leapfrog
Enterprises, Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007).
Appellants have not presented evidence showing the claimed combination of
familiar elements (acts) would have yielded unexpected results.
Rather, we find Appellants’ claimed invention is simply a
combination of known teachings that would have realized a predictable
result. The Supreme Court has determined that the conclusion of
obviousness can be based on the interrelated teachings of multiple patents,
the effects of demands known to the design community or present in the
marketplace, and the background knowledge possessed by a person having
ordinary skill in the art. KSR, 550 U.S. at 418. The skilled artisan would
“be able to fit the teachings of multiple patents together like pieces of a
Appeal 2012-010496
Application 11/644,278

7
puzzle” since the skilled artisan is “a person of ordinary creativity, not an
automaton.” Id. at 420–21.
Accordingly, on this record, we find no error in the Examiner’s
rejection of independent claims 1, 8, 15, and 21 over Keohane and
Nishanov. Appellants do not provide arguments for claims 2–7, 9–14, and
16–20. Thus, we also affirm the Examiner’s rejection of claims 7, 14, and
20 over Keohane and Nishanov; of claims 2, 3, 9, 10, 16, and 17 over
Keohane and Nishanov in further view of Birsan and of claims 4–6, 11–13,
18, and 19 over Keohane and Nishanov in further view of Semerdzhiev.

V. CONCLUSION AND DECISION
The Examiner’s rejections of claims 1–21 under 35 U.S.C. § 103(a) 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

msc