Ex Parte Saxena et al

Patent Trial and Appeal Board

Apr 18, 2018

14523884 (P.T.A.B. Apr. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/523,884 10/25/2014
75343 7590 04/20/2018
Hanley, Flight & Zimmerman, LLC (Intel)
150 S. Wacker Dr. Suite 2200
Chicago, IL 60606
FIRST NAMED INVENTOR
Paritosh Saxena
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.
P65184 5511
EXAMINER
DO,KHANGD
ART UNIT PAPER NUMBER
2492
NOTIFICATION DATE DELIVERY MODE
04/20/2018 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):
jflight@hfzlaw.com
docketing@hfzlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte PARITOSH SAXENA, ADRIAN M.M.T. DUNBAR,
MICHAEL S. HUGHES, JOHN TEDDY, DAVID MICHAEL DURHAM,
BALAJI VEMBU, PRASHANT DEW AN, DEBRA CABLAO,
NICHOLAS D. TRIANTAFILLOU, and JASON M. SURPRISE
Appeal2017-010749
Application 14/523,884
Technology Center 2400
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
JOYCE CRAIG, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 83-106, which are all the claims pending in this
application. 1 Claims 1-82 are cancelled. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.
1 We refer herein to the Final Office Action ("Final Act."), mailed July 6,
2016; the Appeal Brief ("App. Br."), filed Jan. 20, 2017; the Examiner's
Answer ("Ans."), mailed June 5, 2017; and the Reply Brief ("Reply Br."),
filed Aug. 3, 2017.
Appeal2017-010749
Application 14/523,884
STATEMENT OF THE CASE
Invention
The disclosed and claimed invention on appeal relates to "Computing
Platform Security Methods and Apparatus." Spec. 1, Title.
Independent claim 83 is reproduced below:
83. A method, comprising:
establishing, by executing an instruction with a processor, a
trusted channel between a graphics driver and an application
driver via mutual authentication of the graphics driver and the
application driver;
in response to the mutual authentication of the graphics driver
and the application driver, offloading, via the trusted channel, a
computing task associated with the application driver from the
processor to a graphics processing unit; and
configuring, by executing an instruction with the processor, a
monitor to monitor memory associated with the computing task
offloaded via the trusted channel for an unauthorized access
attempt.
(Contested limitations emphasized in italics).
Rejections
A. Claims 83 and 85-106 are rejected under AIA 35 U.S.C. § 103(a)
as being obvious over the combination of Tormasov et al. (US 8,938,723 Bl,
iss. Jan. 20, 2015) (hereinafter "Tormasov"), Pham et al. (US 2005/0182966
Al, publ. Aug. 18, 2005) (hereinafter "Pham"), and Shanbhogue (US
2012/0222114 Al, publ. Aug. 30, 2012). (Final Act. 4, 9).
B. Claim 84 is rejected under AIA 35 U.S.C. § 103(a) as being
obvious over the combination of Tormasov, Pham, Shanbhogue, and Lee at
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al. (US 2010/0281273 Al, publ. Nov. 4, 2010) (hereinafter "Lee"). (Final
Act. 7).
ANALYSIS
Issue: Under AIA 35 U.S.C. § 103, did the Examiner err in finding
the cited Tormasov, Pham, and Shanbhogue references collectively teach or
suggest the contested limitation:
establishing, by executing an instruction with a processor, a
trusted channel between a graphics driver and an application
driver via mutual authentication of the graphics driver and the
application driver[,]
within the meaning of independent claim 83? 2 (emphasis added).
In reaching this decision, we consider all the evidence presented and
all arguments actually made by Appellants. We focus our analysis on the
contested language: "a graphics driver and an application driver" (App.
Br. 17, App'x A, Claim 1 (emphasis added)).
Appellants contest the recited limitations "an application driver" and
also a "graphics driver" in both the Appeal Brief (11-13), and the Reply
Brief (3--4), urging that the cited sections of the Tormasov reference do not
teach or suggest these elements of method claim 83. Independent claims 91
and 99 3 each recite the identical limitations having commensurate scope.
(App'x A).
2 We give the contested claim limitation the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997).
3 The preamble of independent claim 99 is directed to "[a] tangible
computer readable storage medium .... " We note paragraph 14 7 of the
Specification provides a limiting definition: "As used herein, the term
tangible computer readable storage medium is expressly defined to include
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Application 14/523,884
Appellants contend, inter alia:
[T]he Examiner equates the VM with an application driver (see
Final Office action page 4, emphasis added). A VM is a virtual
machine (see Column 1, line 20 ofTormasov). A virtual machine
is not an application driver. Instead, a virtual machine is "a type
of an isolated Virtual 25 Environment where multiple VMs can
run on the same physical machine simultaneously." (see Column
1, lines 25-27 ofTormasov). In addition, in the same statement.
the Examiner equates a GPU with a graphic driver. A Graphic
Processing Unit (GPU) is not a graphic driver. A GPU is a
hardware element with multiple processors (see Column 4, lines
8 - 18 of Tormasov).
(App. Br. 11-12).
Appellants emphasize: "the Examiner makes no credible explanation
as to why the VM or the GPU can be considered as an application driver and
a graphics driver." (App. Br. 12).
Appellants further contend:
The Examiner is mistaken. First, a Virtual Machine with an
Anti-Virus module is not properly construed as an application.
The Virtual Machine described by Tormasov provides a virtual
operating system that can execute applications, for example the
Anti-Virus module (see column 1, lines 50-56 ofTormasov). As
such, the Anti-Virus module described by Tormasov is instead,
the application that is being executed by (e.g.[,] running on) the
Virtual Machine (e.g.[,] the virtual operating system). In the
originally filed application, an operating system is not an
any type of computer readable storage device and/or storage disk and to
exclude propagating signals and to exclude transmission media." (emphasis
added). However, the recited claim term "tangible" (claim 99) does not
have the same limiting scope as "non-transitory," so as to exclude non-
statutory propagating signals within the plain language of the claim. We
leave it to the Examiner to consider whether independent claim 99 should be
amended to include "non-transitory" to comply with the policy guidance
found in Subject Matter Eligibility of Computer Readable Media, 1351 Off.
Gaz. Pat. Office 212 (Feb. 23, 2010).
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Application 14/523,884
application driver. For example, figure 1 of the originally filed
application shows the operating system 102 and a separate and
distinct application driver 122. There is no teaching or
suggestion in Tormasov that the Anti-Virus module is associated
with an application driver separate and distinct from the Virtual
Machine (e.g.[,] the virtual operating system).
(Reply Br. 3, emphasis omitted).
Regarding the Examiner's use of dependent claim 88 to interpret
independent claim 83, Appellants note "[t]he Examiner alleges that an
application is equivalent to an application driver." (Reply Br. 3).
Appellants point to the Specification:
Figure 1 of the originally filed application clearly shows that the
application driver (122) is separate and distinct from the security
application (114). In fact, the security application and the
application driver have completely different functions as set forth
in the originally filed application. Paragraph [0034] of the
originally filed application describes the operation of the security
application and figure 7 and paragraphs [0103]-[0106] describe
the functioning of the application driver. As such, the security
application of claim 88 is separate and distinct from the
application driver of claim 83. Therefore, the Anti-Virus module
and the virtual machine described by Tormasov cannot
reasonably correspond to the application driver as set forth in
claim 88. In fact, Tormasov does not mention an application
driver anywhere in its specification.
(Reply Br. 3--4) (emphasis added).
In rejecting independent claim 83 under§ 103, the Examiner finds
Tormasov's VM [(Virtual Machine)] teaches "an application driver" and
Tormasov's GPU teaches "a graphics driver." (Final Act. 4, citing Tormasov
Fig. 3, step 360).
To support the obviousness rejection, the Examiner compares the
limiting language of dependent claim 88 to the broader language of
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independent claim 83: "Claim 88 recites that 'the application driver
corresponds to a security application,' and therefore the VM (application
with Anti-Virus module, i.e.[,] a security application) corresponds to the
claimed 'application driver."' (Ans. 4) (emphasis added).
See Final Act. 6-7, and Tormasov, col. 8, 11. 16-19, proffered by the
Examiner as evidence in support of the rejection of dependent claim 88: "a
Virtual Machine with [an] AV [(Anti-Virus)] module can be implemented
on the GPU for detecting and deleting malicious software from infected Host
OS."
Thus, the Examiner appears to be applying the doctrine of claim
differentiation in construing the language of dependent claim 88 ("wherein
the application driver corresponds to a security application") as further
limiting the "application driver" of independent claim 83, to be a security
application, according to a least one embodiment. (emphasis added).
Under the doctrine of claim differentiation, "dependent claims are
presumed to be of narrower scope than the independent claims from which
they depend." Howmedica Osteonics Corp. v. Zimmer, Inc., 822 F.3d 1312,
1323 (Fed. Cir. 2016). However, "claim differentiation is a rebuttable
presumption that may be overcome by a contrary construction dictated by
the written description or prosecution history." (Id.). Moreover, "[c]laim
differentiation is not conclusive; it is a guide, not a rigid rule." (Id.).
(citations omitted).
Here, Appellants point to a contrary construction dictated by the
written description: "In fact, the security application and the application
driver have completely different functions as set forth in the originally filed
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application." (Reply Br. 3; citing as evidence Spec. i-fi-134, 103-106, and
Fig. 7).
Based upon our review of the portions of the Specification cited by
Appellants (id.), we find the Examiner's claim interpretation misconstrues
the limiting language of claim 88 ("wherein the application driver
corresponds to a security application") to mean "the application driver [is] a
security application" (according to at least one embodiment).
It is our view that the Examiner's interpretation is: (1) contrary to the
plain meaning of the claim terms "application driver" and "security
application" and, (2) is inconsistent with Appellants' Specification. See
Appellants' Figures 1 and 5, which depict the security application (114) and
the application driver (122), as separate, discrete elements. Accordingly,
we conclude the claim term "corresponds to," as recited in dependent claim
88, should be correctly interpreted as meaning "associated with" under a
broad but reasonable interpretation consistent with the Specification.
As recently emphasized by our reviewing court in Smith:
Even when giving claim terms their broadest reasonable
interpretation, the Board cannot construe the claims "so broadly
that its constructions are unreasonable under general claim
construction principles." Microsoft Corp. v. Proxyconn, Inc.,
789 F.3d 1292, 1298 (Fed. Cir. 2015). "[T]he protocol of giving
claims their broadest reasonable interpretation ... does not
include giving claims a legally incorrect interpretation"
"divorced from the specification and the record evidence." Id.
(citations and internal quotation marks omitted); see P PC
Broadband, Inc. v. Corning Optical Commc 'ns RF, LLC, 815
F.3d 747, 751-53 (Fed. Cir. 2016).
The correct inquiry in giving a claim term its broadest reasonable
interpretation in light of the specification is not whether the
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specification proscribes or precludes some broad reading of the
claim term adopted by the examiner. And it is not simply an
interpretation that is not inconsistent with the specification. It is
an interpretation that corresponds with what and how the
inventor describes his invention in the specification, i.e., an
interpretation that is "consistent with the specification." In re
Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997) (citation and
internal quotation marks omitted); see also In re Suitco Surface,
603 F.3d 1255, 1259-60 (Fed. Cir. 2010).
In re Smith Int'!, Inc., 871F.3d1375, 1382-83 (Fed. Cir. 2017).
Applying our reviewing court's guidance here (id.), we broadly but
reasonably interpret the disputed claim language in a manner consistent with
the Specification. See e.g., Spec. Figures 1, 5 and 7, in which application
driver 122 is depicted as a separate and distinct element from security
application 114. We further note graphics driver 116 is similarly depicted as
being separate and distinct from GPU 106. (Id.).
Given this context (id.), we are of the view that the Examiner's claim
interpretation of "a graphics driver and an application driver," as recited in
each independent claim on appeal, is overly broad, unreasonable, and
inconsistent with the Specification. (emphasis added). See Spec. Figs. 1, 5
and 7.
After reviewing the evidence cited by the Examiner (Final Act. 4--5,
Ans. 2-5), we do not find the Examiner has identified in the combination of
Tormasov, Pham, and Shanbhogue a teaching or suggestion of "a graphics
driver and an application driver," as required by the commensurate
language of each independent claim on appeal. (Emphasis added).
The Examiner also finds Tormasov's Virtual Machine Monitor
(VMM) that establishes a channel between the VM and the GPU, inherently
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requires a necessary software component. Ans. 4. The Examiner finds such
software component teaches the disputed limitation "graphics driver." Id.
We find the contested limitations are not reasonably taught or
suggested by the VM with the anti-virus module, nor GPU, as shown and
described in Tormasov (Col. 2, 11. 55-58, Col. 8, 11. 16-19, Fig. 2, 3),
considered in combination with Pham, and Shanbhogue, without more.
For essentially the same reasons argued by Appellants, we are
constrained on this record to find a preponderance of the evidence supports
Appellants' contention the Examiner has failed to establish a prima facie
case of obviousness for independent claim 83. (App. Br. 10).
Because Appellants have persuaded us the Examiner erred, we reverse
Rejection A under§ 103 of method claim 83. For the same reasons, we also
reverse Rejection A of independent apparatus claim 91, and independent
"computer-readable storage medium" claim 99, which identically recite the
contested limitations.
Because we have reversed Rejection A of each independent claim 83,
91, and 99, we also reverse rejection A of the respective associated
dependent claims, 85-90, 92-98, and 100-106.
Regarding remaining dependent claim 84, rejected under § 103
Rejection B, the Examiner has cited one additional reference -Lee, in
addition to the same three references cited as evidence in support of
Rejection A. In reviewing the record, we find the Examiner has not shown
how Lee overcomes the deficiencies of the Tormasov, Pham, and
Shanbhogue references, as discussed above regarding Rejection A of
independent claims 83, 91, and 99. Therefore, we are constrained on this
record to also reverse§ 103 Rejection B of dependent claim 84.
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DECISION
We reverse the Examiner's decision rejecting claims 83-106 under
AIA 35 U.S.C. § 103.
REVERSED
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