Ex Parte BoskovicDownload PDFPatent Trials and Appeals BoardJan 26, 201511644278 - (D) (P.T.A.B. Jan. 26, 2015) Copy Citation 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 Copy with citationCopy as parenthetical citation