Ex Parte Gross

Patent Trial and Appeal Board

Mar 18, 2013

11643145 (P.T.A.B. Mar. 18, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RENE GROSS
____________

Appeal 2010-011445
Application 11/643,145
Technology Center 2100
____________

Before JOHN A. JEFFERY, DENISE M. POTHIER, and
GREGG I. ANDERSON, Administrative Patent Judges.

ANDERSON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-16. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm.

STATEMENT OF THE CASE
Appellant’s claimed invention is directed to managing object
instantiation between a software application and a generic framework. In
certain implementations, this allows for the instantiation of objects with an
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extended set of attributes, rather than merely a basic set of attributes located
on the framework. See generally Spec. 5; Fig. 1. Claim 1 is illustrative:
1. An article comprising software for managing object instantiation
using a framework, the software embodied on tangible media and
comprising instructions that, when executed by a processor, cause a
computer to:
request the framework to instantiate a first object using a generic class
constructor;
transmit, from an application external to the framework, a first set of
additional attributes for the first object to the framework; and
receive, at the application, an instantiated first object from the
framework, the instantiated first object including the first set of additional
attributes.

THE REJECTIONS
1. The Examiner rejected claims 1-3, 5-7, and 9-16 under 35 U.S.C.
§ 103(a) as unpatentable over Branson (U.S. Patent No. 6,513,152 B1, Jan.
28, 2003) in view of Leite (U.S. Patent No. 6,961,684 B2, Nov. 1, 2005).
Ans. 3-8.1
2. The Examiner rejected claims 4 and 8 under 35 U.S.C. § 103(a) as
unpatentable over Branson in view of Leite and further in view of Fell (U.S.
Patent No. 6,014,637, Jan. 11, 2000). Ans. 8-9.

THE OBVIOUSNESS REJECTIONS OVER BRANSON AND LEITE
The Examiner finds the Branson reference teaches software for
managing object instantiation using a generic framework, the software
comprising computer readable instructions operable when executed to:

1 Throughout this opinion, we refer to (1) the Appeal Brief filed January 4,
2010, as supplemented on February 9, 2010 (“Br.”); and (2) the Examiner’s
Answer mailed May 13, 2010 (“Ans.”).
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request the framework to instantiate a first object using a generic class
constructor, transmit a first set of additional attributes for the first object to
the framework and receive an instantiated first object from the framework,
the instantiated first object including the first set of additional attributes.
The Examiner finds that Branson does not teach that the additional attributes
are transmitted from an application external to the framework and an
instantiated first object is received at the application but that Leite does. The
Examiner concludes the claim would have been obvious. Ans. 3-4, 9-10.
Appellant argues Branson does not show the claim 1 feature of
“transmit[ting], from an application external to the framework, a first set of
additional attributes for the first object to the framework.” Further,
Appellant argues Leite does not show the “transmitting” element from the
software application, but rather only access to and receipt of data and does
not send data, objects, or object attributes to the framework. Br. 14-15.
Additionally, Appellant argues it would be impossible to combine Branson
and Leite to meet the limitations of the rejected claims. Br. 16.

ISSUES
(1) Under § 103, has the Examiner erred in rejecting claim 1 by
finding that Branson and Leite collectively would have taught or suggested
“transmit[ting], from an application external to the framework, a first set of
additional attributes for the first object to the framework”?
(2) Under § 103, is combining the teachings of Branson and Leite
supported by articulated reasoning with some rational underpinning to
justify the Examiner’s obviousness conclusion?
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(3) Under § 103, has the Examiner erred in rejecting dependent claim
2 by finding that Branson and Leite collectively would have taught or
suggested the feature of “transmit[ting] a second set of additional attributes
for the second object to the framework”?
(4) Under § 103, has the Examiner erred in rejecting dependent claim
3 by finding that Branson and Leite collectively would have taught or
suggested that “the first set of additional attributes are static”?

ANALYSIS
Claims 1, 15, and 16-Does the Combination
of Branson and Leite Teach Every Feature?
Claims 1, 15, and 16 are all independent claims which are rejected by
the Examiner on the same basis, obviousness under § 103. Appellant does
not separately argue claims 1, 15, or 16, and adds independent claim 6 to the
argument for the claim group. The Examiner rejected claim 6 on the same
ground as dependent claim 2. Ans. 5. We therefore treat claim 6 in our
analysis of claim 2 but, for the foregoing reasons, treat claims 1, 15, and 16
as a group with claim 1 being representative.
On this record, we find no error in the Examiner’s obviousness
rejection of representative claim 1 which recites, in pertinent part, that the
application associated with the framework “transmit[s] . . . a first set of
additional attributes for the first object to the framework . . . .” The
Examiner cites Branson as showing all but this element of claim 1. Though
Appellant disagrees that Branson would be combined with Leite to show the
alleged invention, Appellant does not dispute that Branson shows all but the
element identified. Br. 14.
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An attribute is a changeable property or characteristic of some
component of a program that can be set to different values. See,
http://searchsoa.techtarget.com/definition/attribute. The Examiner cites to
the programming extensions of Leite as being the same as attributes. Ans. 3.
Appellant does not argue to the contrary. Further, Appellant does not
contest that the program 118 and application 122 of Leite include the
disclosure of object oriented programming, including attributes or features.
No issue is raised regarding whether the programs are using objects in the
sense used in the claim.
Our focus in determining whether the missing transmit element is
present will be on Leite, which the Examiner cites for the missing element.
Ans. 10. Appellant argues that Leite fails to show the missing element,
noting Leite is a Computer Aided Design (CAD) program that is not
combinable with Branson and, even if combinable, the external application
or program 122 of Leite does not “transmit” an object or attribute to the
framework program 118. Br. 14-15. We address the first point immediately
hereafter. As to the issue whether Leite shows the transmit feature of claim
1, we find it does for the following reasons.
Leite teaches that program 122 uses Application Programming
Interface (API) 120 to interface and use program 118. Leite, col. 3, ll. 7-8.
The program 118 includes the modeling framework, which in a preferred
embodiment is a CAD program. Leite, col. 3, ll. 3-4; Fig. 1. As the
Examiner specifically noted, other programs, like Application 1 122, can
“interface” with the program 118 through interface 120. Leite, col. 3,
ll. 7-10. The application or program 122 can “access” the program 118.
Leite, col. 3, ll. 9-10. The application 122 can also “utilize” the program
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118 to model a solid body, in the CAD embodiment, by providing design
features, like holes, extrusions or fillets. Leite, col. 4, ll. 1-41. The program
122 can “access” all levels of information in the framework of program 118.
Leite, col. 4, ll. 24-28. The Examiner found that access teaches the recited
transmit step. Ans. 4; Leite, col. 1, ll. 50-52. Further, the Examiner found
extensions, or attributes, are provided by the framework program. Ans. 3;
Branson, col. 2, l. 31.
Though not specifically articulated as such, Appellant’s argument that
Leite fails to show the omitted feature of the claim is understood to be based
on an interpretation of “transmission.” Appellant acknowledges that Leite
shows “access to” and “receive data from” the hierarchical framework 200,
which “allows different applications to access CAD drawing information at
different levels in a format that is not biased towards any of the potential
applications.” Br. 15, Leite, col. 4, ll. 24-28. As shown in Leite’s Figure 1,
the framework of program 118 is connected to the application 122 through
the hierarchical framework 200 of the API 120. Stated in the context of the
language from Leite, Appellant urges us to find “use” or “access” by the
Leite program 122 in conjunction with the framework of program 118 does
not equate to “transmit.”
The ordinarily understood meaning of “transmit” is to send from one
place to another. See http://www.merriam-webster.com/dictionary/transmit.
As noted above, the Leite disclosure is replete with references to the
interaction between program 118 and application 122, which require
“access,” “use,” and an “interface” 121. Figure 1 of Leite shows
communication between the program 118 and application 122 through the
API 120. It follows that one of ordinary skill would understand these terms
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at least suggest that at least data, objects, and attributes, would be
transmitted and received between the two programs, as claimed in claim 1.
We therefore find no error in the Examiner’s position that the “transmit”
feature of claim 1 is at least suggested by Leite.
Claims 1, 15, and 16-Would it Have
Been Obvious to Combine Branson and Leite?
The Examiner’s rejection under § 103 relies on the combination of
Branson in view of Leite. Ans. 3. Appellant argues that it would be
“impossible” to combine the two references as proposed. Br. 16. Appellant
argues there would be no reasonable expectation of success from the
combination. Br. 13. Both of these arguments are largely conclusory,
devoid of factual support. To the extent Appellant makes a factual
argument, Appellant relies on the portion of Leite directed to CAD
programs. Br. 17. Though the preferred embodiment of program 118 is a
CAD program, “any program can implement the present invention.” Leite,
col. 3, ll. 4-5 (emphasis added). The Examiner cited this portion of Leite to
support the reason to combine Branson and Leite. Ans. 10. Appellant did
not contest the Examiner’s position and did not file a Reply Brief on the
point, instead responding to the Examiner’s prior position from the Final
Office Action. Br. 16-17. As noted above, Leite also includes disclosures
related to object oriented code, program frameworks, and features or
attributes, all of which are directly or indirectly related to the features of
claim 1. Leite, col. 3, l. 57 through col. 4, l. 5. Appellant does not contest
that Branson is relevant. See Br. 17. We therefore find that combining the
teachings of Branson and Leite, as proposed by the Examiner, is supported
by articulated reasoning with some rational underpinning to justify the
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Examiner’s obviousness conclusion. KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007).
Claims 2 and 6
The Examiner rejects claims 2 and 6 as obvious under § 103 over
Branson in view of Leite. Ans. 4-5. Claim 2 is dependent on claim 1 and
includes as additional features that the article is operable to request, transmit,
and receive a second object with additional attributes. Claim 2 is set out
below with emphasis added.
2. The article of Claim 1 further operable to:
request the framework to instantiate a second object with the generic
class constructor;
transmit a second set of additional attributes for the second object to
the framework; and
receive an instantiated second object from the framework, the
instantiated second object including the second set of additional attributes.
Claim 6 is an independent claim, which the Examiner rejected on the
same basis as claim 2, and whose limitations are not separately argued. See
Ans. 5; Br. 13-18.
The Examiner relies on Branson to find that once one object is
instantiated, additional objects beyond the “core functions” may be
instantiated. Ans. 5; see Branson, col. 2, l. 30-32. Appellant did not file a
Reply Brief and does not address Branson in this regard. Instead, Leite’s
alleged failure to show this feature is argued. Br. 18. The Examiner
presents a reasonable basis for the rejection in noting that multiple
“functions” may be instantiated and thus establishes a prima facie case of
obviousness. Appellant does not persuasively rebut the Examiner’s position.
Appellant has therefore not persuaded us of error in the Examiner’s
obviousness rejection of claims 2 and 6.
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Claim 3
Claim 3 is dependent on claim 1 and is rejected as obvious under
§ 103 over Branson in view of Leite. We previously found no distinction
between extensions and attributes. The Examiner found Branson further
teaches the first set of additional attributes are static because extensible
classes must be implemented in particular ways, thus they are static. Ans. 5;
Branson, col. 7, ll. 50-52. In particular, the extent of the customization is
governed by the requirements of the framework. Branson, col. 7, ll. 51-57.
Appellant acknowledges Branson is “directed to customizing object oriented
frameworks through a common programming interface for generating
different framework customization environments.” Br. 17. According to the
rationale of the Examiner, if the framework’s core function does not allow
for customization of a particular attribute, the attributes would have to be
static, i.e., set by the framework. Ans. 10-11.
Appellant disputes that Branson shows static objects, but agrees that
static classes are shown. Br. 18-19. Appellant did not file a Reply Brief and
does not address, let alone persuasively rebut, the specific position made by
the Examiner that the framework itself makes certain attributes static and it
is only in customizing the framework that attributes may not be static. Since
Appellant has not persuasively rebutted the Examiner’s findings in this
regard, plus the acknowledged fact that static classes are disclosed by
Branson, we are unpersuaded of error in the Examiner’s obviousness
rejection of claim 3. Accordingly, the weight of the evidence on this record
favors the Examiner’s position.
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Claims 4, 5, and 7-14
Claims 4 and 8 are not argued separately from claims 1 and 6 and
Appellant concedes that if the rejections of claims 1 and 6 are affirmed,
there are no separate grounds for their patentability. Br. 11; see also Br. 18
n.8 (noting that claim 8 is allowable for at least the same reasons as claim 2)
. Similarly, claims 5, 7, and 9-14 are not argued by Appellant as having any
separate basis for patentability. Claim 5 depends from rejected claim 1.
Claims 7 and 9-14 depend, directly or indirectly, from claim 6. Having
already affirmed the rejections of claims 1 and 6, the rejection of claims 5, 7,
and 9-14 is also affirmed.

CONCLUSION
The Examiner did not err in rejecting claims 1-16 under § 103.

ORDER
The Examiner’s decision rejecting claims 1-16 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

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