Ex Parte Radzykewycz et al

Patent Trial and Appeal Board

Nov 24, 2014

11361806 (P.T.A.B. Nov. 24, 2014)

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.
11/361,806 02/24/2006 Tim O. Radzykewycz 40101/12501 (2006.016) 3367
30636 7590 11/24/2014
FAY KAPLUN & MARCIN, LLP
150 BROADWAY, SUITE 702
NEW YORK, NY 10038
EXAMINER
ANYA, CHARLES E
ART UNIT PAPER NUMBER
2194
MAIL DATE DELIVERY MODE
11/24/2014 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte TIM O. RADZYKEWYCZ and TADAYUKI OKADA
____________________

Appeal 2012-004173
Application 11/361,806
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

I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1–5, 7–10, and 13–20. Claims 6, 11, and 12 have been canceled. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

A. INVENTION
According to Appellants, the invention relates to identification of a
driver method, and searching instantiated drivers for the identification of the
driver method (Abst.).

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B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary:
1. A method, comprising:

determining a driver method including an identification of the driver
method, the driver method relating to a service offered to a client by a driver
corresponding to the driver method and relating to a device associated with
the driver;

searching a plurality of instantiated drivers for the identification of the
driver method, wherein each of the instantiated drivers publish methods
offered by the instantiated driver, each method including the identification
and an entry point for the method, a value of the identification corresponding
to the entry point; and

accessing the driver method from one of the instantiated drivers
including the searched for identification of the driver method, wherein the
method is performed by one of a driver, a middleware module and a kernel
module.

C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Backman US 7,035,916 B1 Apr. 25, 2006
(filed Apr. 27, 2000)
Ruget US 7,096,473 B2 Aug. 22, 2006
(filed June 13, 2002)
Andjelic US 7,451,456 B2 Nov. 11, 2008
(filed June 19, 2002)

Claims 1–5, 7–10, 13–17, 19, and 20 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Backman and Ruget.
Claim 18 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Backman, Ruget, and Andjelic.
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II. ISSUES
The main issues before us are whether the Examiner erred in finding
that the combination of Backman and Ruget teaches or would have
suggested “determining a driver method . . . relating to a service offered to
a client” wherein “each method including the identification and an entry
point for the method, a value of the identification corresponding to the entry
point” (claim 1, emphases added). In particular, the issues turn on whether
the cited prior art would have suggested a driver method relating to a service
offered “to a client.”
III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Backman
1. Backman discloses network driver space that comprises a
network table which includes identifiers (e.g., addresses) of one or more
functions of a network driver that can be called by other device drivers or
components to handle various events while the network driver is operational
(col. 7, ll. 30–34).
Ruget
2. Ruget discloses that when a driver client wishes to access a
particular leaf device to perform a given operation on it, the device is
searched for in device registry, the record is found and pointer
“DevRegEntry” points to driver operations which are made available to the
device (col. 6, ll. 38–45).

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IV. ANALYSIS
Appellants contend Ruget’s driver operations are “operations that are
made available to the device that is being accessed, and not to a client that is
accessing the device” (App. Br. 5). According to Appellants, “[t]he fact that
the driver operations are made available to the device as part of the process
by which a client accesses the device is irrelevant…, because the driver
operations are made available to the device and not to the client” (App. Br.
6).
However, the Examiner finds, in Ruget, “the driver operations are
made available to the device in order to provide driver operation services to
the driver client” (Ans. 20). The Examiner finds “[t]he driver client is the
client (claimed client) because it requests/accesses and consumes the
services provided or offered by the driver operations” (Ans. 21).
Thus, the Examiner finds the combined teachings would have at least
suggested the claimed features (Ans. 7–8).
For the reasons discussed below, we find no error with the Examiner’s
underlying factual findings and ultimate legal conclusion of obviousness.
To determine whether the combination of Backman and Ruget
discloses or would have suggested the claimed invention, we give the claims
their broadest reasonable interpretation consistent with the Specification.
See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
As an initial matter, we note that claim 1 does not define a “client,”
and Appellants have not pointed to a limiting definition for “client” in the
Specification. Although Appellants contend Ruget’s driver operations are
“operations that are made available to the device that is being accessed, and
not to a client that is accessing the device” (App. Br. 5), the plain language
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of claim 1 does not preclude the Examiner’s broader interpretation. (Ans.
21).
Thus, we give “client” its broadest reasonable interpretation as any
software/hardware entity/device that is offered or requests a service. We
find no error with Examiner’s broad but reasonable interpretation, i.e., “[t]he
driver client is the client (claimed client) because it requests/accesses and
consumes the services provided or offered by the driver operations”
(Ans. 21). That is, on this record, we are not persuaded the Examiner’s
claim interpretation is overly broad or unreasonable.
1

Accordingly, we find no error with the Examiner’s finding Backman
teaches or would have suggested a driver method relating to a service
offered to a client (Ans. 6; FF1). We also agree with the Examiner’s finding
“Ruget teaches an entry point for the method and a value of the
identification corresponding to the entry point” (Ans. 7; FF2). Thus, we find
no error with the Examiner’s finding the combination of Backman and Ruget
discloses or would have suggested the claimed invention (Ans. 7).
Moreover, we note the test for obviousness is whether the combined
teachings would at least have suggested that the services offered to a device
would also be available to a “client” accessing the client device to one of

1
Our reviewing court guides: “[A]lthough the specification often describes
very specific embodiments of the invention, we have repeatedly warned
against confining the claims to those embodiments. . . . [C]laims may
embrace ‘different subject matter than is illustrated in the specific
embodiments in the specification.’” Phillips v. AWH Corp., 415 F.3d 1303,
1323 (Fed. Cir. 2005) (en banc) (citations omitted). Because “applicants
may amend claims to narrow their scope, a broad construction during
prosecution creates no unfairness to the applicant or patentee.” In re ICON
Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citation
omitted).
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ordinary skill in the art. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir.
1986). We conclude that it would have been well within the level of skill of
one skilled in the art that services provided to a device would also be
provided to the client accessing the device.
The Supreme Court has determined 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 Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The skilled
artisan is “a person of ordinary creativity, not an automaton.” Id. at 421.
We are not persuaded, and Appellants have presented no persuasive
evidence that providing services to a client accessing the device would have
been “uniquely challenging or difficult for one of ordinary skill in the art.”
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007) (citing KSR, 550 U.S. at 418). Accordingly, we agree with the
Examiner’s finding the combination of Backman and Ruget teaches or
would have suggested a “determining a driver method . . . relating to a
service offered to a client” wherein “each method including the
identification and an entry point for the method, a value of the identification
corresponding to the entry point” as required by claim 1.
Accordingly, we find Appellants have not shown the Examiner erred
in rejecting claim 1, and claims 2–5, 7, and 8 falling therewith (App. Br. 6),
over Backman and Ruget.
Appellants do not provide substantive arguments for claims 9, 10, and
19 separate from those of claim 1 other than repeating the language of the
claims (App. Br. 6–7). However, a statement which merely points out what
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a claim recites will not be considered an argument for separate patentability
of the claim. 37 C.F.R. § 41.37(c)(vii). Thus, claims 9, 10, and 19 fall with
claim 1.
As for claim 18, Appellants merely contend “Andjelic fails to cure the
deficiencies of Backman and Ruget” (App. Br. 8). However, as discussed
above, we find no deficiencies in the Examiner’s reliance on Backman and
Ruget. Accordingly, we also find Appellants have not shown the Examiner
erred in rejecting claim 18 over Backman and Ruget in further view of
Andjelic.
V. CONCLUSION AND DECISION
The Examiner’s rejection of claims 1–5, 7–10, and 13–20 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

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