Ex Parte Leithead et alDownload PDFPatent Trial and Appeal BoardJul 29, 201613658668 (P.T.A.B. Jul. 29, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/658,668 10/23/2012 47973 7590 08/02/2016 WORKMAN NYDEGGER/MICROSOFT 60 EAST SOUTH TEMPLE SUITE 1000 SALT LAKE CITY, UT 84111 FIRST NAMED INVENTOR Travis Leithead 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 13768.2825.1 1970 EXAMINER BOURZIK, BRAHIM ART UNIT PAPER NUMBER 2191 NOTIFICATION DATE DELIVERY MODE 08/02/2016 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@wnlaw.com usdocket@microsoft.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TRAVIS LEITHEAD, WSTIN E. ROGERS, MILADIN PAVLICIC, CURTIS CHENG-CHENG MAN, YONG QU, NATHAN J.E. FURTWANGLER, REZA A. NOURAI, and STEVEN EDWARD LUCCO Appeal2014-009986 Application 13/658,668 Technology Center 2100 Before LARRY J. HUME, JENNIFER L. McKEOWN, and JOHN D. HAMANN, Administrative Patent Judges. McKEOWN, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's decision to reject claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellants' disclosed and claimed invention relates to "an interface between a Web browser's layout engine and a scripting engine. The interface enables objects from the layout engine to be recognized by a memory manager in the scripting engine and interact in a streamlined, efficient manner." Abstract. Appeal2014-009986 Application 13/658,668 Claim 1 is illustrative of the claimed invention and reads as follows: 1. One or more computer readable storage memories comprising code configured to: enable one or more interface definition language (IDL) files to be created that describe one or more interfaces between a Web browser's layout engine and an associated scripting engine, the one or more IDL files being configured to include: one or more annotation/documentation attributes, one or more global object extension attributes, one or more code generation attributes, and one or more API availability attributes. THE REJECTIONS The Examiner rejected claims 1-20 under the judicially-created doctrine of non-statutory obviousness-type double patenting as being unpatentable over claims 1-20 of copending Application No. 13/149,645. Final Act. 9-12. 1 The Examiner rejected claims 1-16 under 35 U.S.C. § 101 because the claims encompass non-statutory subject matter. Final Act. 12-13. The Examiner rejected claims 1-3, 5-10, 12-14, and 17-19 under 35 U.S.C. § 103(a) as unpatentable over Wang et al. (US 2000313648 Al, published Dec. 18, 2008) and Fan (US 2009/0070663 Al, published Mar. 12, 2009). Final Act. 13-21. 1 Throughout this opinion, we also refer to ( 1) the Final Action, mailed June 18, 2013 ("Final Act."); (2) the Appeal Brief filed Feb. 14, 2014 ("App. Br."); (3) the Examiner's Answer mailed Aug. 1, 2014 ("Ans."); and (4) the Reply Brief filed Sept. 18, 2014 ("Reply Br."). 2 Appeal2014-009986 Application 13/658,668 The Examiner rejected claims 4 and 11 under 35 U.S.C. § 103(a) as unpatentable over Wang, Fan, and Kocyan et al. (US 2009/0217311 Al published Mar. 12, 2009). Final Act. 22-23. The Examiner rejected claims 15, 16, and 20 under 35 U.S.C. § 103(a) as unpatentable over Wang, Fan, and Cheng (US 2004/0205650 Al, published Oct. 14, 2004). Final Act. 23-24. ANALYSIS THE NON-STATUTORY OBVIOUSNESS-TYPE DOUBLE PATENTING REJECTION Appellants present no arguments pertaining to the Examiner's rejection of claims 1-20, and note that it is not the subject of this appeal. See App. Br. 11. Accordingly, we summarily sustain this rejection. See Manual of Patent Examining Procedure (MPEP) § 1205.02 (9th Edition, Rev. 07.2015, revised Nov. 2015) ("If a ground of rejection stated by the [E]xaminer is not addressed in the [A]ppellant's brief, [A]ppellant has waived any challenge to that ground of rejection and the Board may summarily sustain it"). THE REJECTION UNDER 35 U.S.C. § 101 Claims 1-16 We are persuaded that the Examiner erred in rejecting claims 1-16 as being directed to non-statutory subject matter. The Examiner in particular finds the recited computer readable storage media, in view of paragraph 215 of the Specification, would cover non-patentable transitory media. Final Act. 12-13. As Appellants point out, claims 1 and 12 are directed to a system with one or more processors and one or more storage media. App. 3 Appeal2014-009986 Application 13/658,668 Br. 20-21. In other words, the recited processors and computer readable storage media are part of the system and, as such, would not include transitory media. Accordingly, we reverse the Examiner's rejection of claims 1-16 under 35 U.S.C. § 101.2 THE § 103 REJECTION BASED ON WANG AND FAN Based on the record before us, we are not persuaded the Examiner erred in rejecting claims 1-3, 5-10, 12-14, and 17-19 as unpatentable over Wang and Fan. Appellants contend Wang fails to teach "[ o ]ne or more computer readable storage memories comprising code configured to: enable one or more interface definition language (IDL) files to be created that describe one or more interfaces between a Web browser's layout engine and an associated scripting engine" as recited in claim 1. Appellants, in particular, assert the Examiner mischaracterizes the claimed subject matter and that Wang's proxy is not an IDL. Reply Br. 3-5; see also App. Br. 25-26 (noting the cited portions of Wang and "Wang in its [sic] entirety" are not germane to the claimed subject matter); App. Br. 28 (presenting similar statements with respect to Fan); App, Br. 31-32. Appellants further support their argument by pointing out that "there is no mention whatsoever in Wang of an Interface Definition Language (IDL)." Reply Br. 3; see also App. Br. 31-33. 2 We also note that the Examiner at page 1 7 of the Answer states that he agrees with Appellant that the claims are statutory. However, the Examiner does not withdraw the rejection. See Ans. 2 (failing to identify any withdrawn rejections). 4 Appeal2014-009986 Application 13/658,668 The Examiner, however, points out that the Specification describes that "IDL is used to bridge functionality between layout and scripting engine[ s ]." Ans. 18; see also Spec. i-f 35 ("In some embodiments, the extended IDL can enable generation of code configured to bridge the layout engine and scripting engine."). Additionally, the Examiner defines IDL as "a specification language used to describe a software component's interface. IDLs describe an interface in a language-independent way, enabling communication between software components that do not share a language - for example, between components written in C++ and components written in Java." Ans. 18 (citing Wikipedia); see also Ans. 19-20 (citing Spec, i-f 180)("IDL code can be used to describe one or more interfaces between various software components, such as interfaces between a layout engine and a scripting engine."). The Examiner then explains that Wang's script engine proxy ("SEP") brides the functionality between the layout engine and script engine and that it would have been obvious to a skilled artisan at the time of the invention for Wang's proxy to be implemented with an IDL. Ans. 23-24 (citing a 1998 Microsoft journal articles for support). Appellants fail to persuasively respond to these findings and determinations. Instead, Appellants make general conclusory assertions and merely reiterate that "there is no mention whatsoever in Wang of an Interface Definition Language (IDL)." Reply Br. 3---6. Appellant's assertions amount to unsupported attorney argument, and therefore we give them little weight. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Huang, 100 F.3d 135, 139-140 (Fed. Cir. 1996). 5 Appeal2014-009986 Application 13/658,668 Further, there is no ipsissimis verbis test for determining whether a reference discloses a claim element, i.e., identity of terminology is not required. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990). Moreover, the Examiner determines the limitation is obvious. See, e.g., Ans. 223-24. As such, we are not persuaded that the Examiner erred in applying a broad, but reasonable interpretation of IDL, and find that Wang's teaching of SEP at least suggest the disputed IDL limitation. Appellants also contend that the recited IDL limitation requires "direct integration" and that Wang's and Fan's proxies are different from "the notion of 'direct integration' through use Appellant's inventive IDL extensions are different." Reply Br. 2-3. This notion of "direct integration," though, is notably absent from the claim. Nor do Appellants identify any disclosure of the Specification that suggest that IDL requires this direct integration. See, e.g., Reply Br 2 (citing the Specification for the premise that in some embodiments IDL extensions can enable direct integration). Therefore, we find this argument unavailing. Appellants also generally challenge the Examiner's findings of the recited attribute limitations. See App. Br. 25-28, 32-36. Apart from summarily asserting that the cited prior art allegedly fails to disclose the recited features, Appellants do not particularly show error in the Examiner's findings and conclusions in rejecting these claims. See 37 C.F.R. § 41.37(c)(l)(iv) (noting that an argument that merely points out what a claim recites is unpersuasive). Accord In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[T]he Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were 6 Appeal2014-009986 Application 13/658,668 not found in the prior art."). Appellants' blanket assertions are therefore not persuasive. Appellants' assertion that the Examiner's reasons to combine the prior are is "simply misplaced and inapplicable" is similarly unconvincing. App. Br. 3 6. Contrary to Appellants unsupported assertions, the Examiner explains that both Wang and Fan are directed to interfacing functionality between the browser layout engine and the script engine through use of a proxy. Final Act. 6. It would have been obvious to a skilled artisan at the time of the invention to modify Wang's proxy, in view of Fan's teaching where unwanted scripts from outside providers are not allowed to be executed, to protect Wang's user/enterprise from malicious code. See Ans. 14--15; see also Ans. 33-34 (describing that Wang also discloses some selective restrictions to service to enhance security). As such, we are not persuaded of error in the Examiner's determination. Appellants present similar arguments for independent claims 12 and 17. For example, we respect to claim 12, Appellants contend: Applicant has reviewed these excerpts and can find no discussion whatsoever that pertains to "receive one or more Property Description Language (PDL) files that define one or more layout engine programming objects and associated APis and one or more files that define one or more scripting language objects" as recited in this claim and described in Applicant's Specification. Moreover and respectfully, the Office's reasoning does not appear to be on point. Accordingly, for at least this reason, Applicant requests that the rejection be reversed. App. Br. 52; see also App. Br. 49-54; App. Br. 56-57 (asserting that the rejection of claim 1 7 should be reversed because "none of the excerpts describe or suggest the features appearing in this claim."). 7 Appeal2014-009986 Application 13/658,668 The Examiner, though, interprets the recited PDL page as Fan's one or more markup language documents, e.g., HTML page. See Final Act. 7-8 (citing Fan i-fi-133-34) (noting that one or more markup language documents include content to be processed by the layout engine and also describing that script content may also be included). Appellants' conclusory assertions that there is no discussion of the recited limitation fail to persuasively identify error in the Examiner's findings. Further, while Appellants raised additional arguments for patentability of dependent claims 2, 3, 5-10, 13-14, and 18-19, rejected on the same basis as claims 1, 12, and 17 (App. Br. 36-57), we find that the Examiner has rebutted each of those arguments in the Answer by a preponderance of the evidence. Final Act. 15-20, 22-24; Ans. 7-16, 32--46. Therefore, we adopt the Examiner's findings, legal conclusions, and underlying reasoning, which we incorporate herein by reference. Consequently, we find no reversible error in the Examiner's rejections of claims 2, 3, 5-10, 13-14, and 18-19. Accordingly, for the reasons discussed above and by the Examiner, claims 1-3, 5-10, 12-14, and 17-19 are unpatentable over Wang and Fan. THE REMAINING OBVIOUSNESS REJECTIONS Claims 4, 11, 15, 16, and 20 Appellants do not separately argue patentability for dependent claims 4, 11, 15, 16, and 20, but instead rely on the arguments presented for claims 1, 12, and 17. See App. Br. 42, 49, and 55. As discussed above, we find the Examiner has rebutted each of those arguments in the Answer by a preponderance of the evidence. See, e.g., Ans. 43--47. Therefore, we adopt 8 Appeal2014-009986 Application 13/658,668 the Examiner's findings, legal conclusions, and underlying reasoning, which we incorporate herein by reference. Consequently, we find no reversible error in the Examiner's rejections of claims 4, 11, 15, 16, and 20. CONCLUSION The Examiner did not err in rejecting claims 1-20 under 35 U.S.C. § 103, or as being unpatentable under the doctrine of obviousness-type double patenting, but the Examiner did err in rejecting claims 1-16 under 35 U.S.C. § 101. DECISION We affirm the Examiner's decision to reject claims 1-20. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 9 Copy with citationCopy as parenthetical citation