Ex Parte Chen et al

Patent Trial and Appeal Board

Nov 14, 2017

13914355 (P.T.A.B. Nov. 14, 2017)

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.
13/914,355 06/10/2013 Liqun CHEN 83200323 6595
56436 7590 11/16/2017
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
EXAMINER
ZHU, ZHIMEI
ART UNIT PAPER NUMBER
2495
NOTIFICATION DATE DELIVERY MODE
11/16/2017 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):
hpe.ip.mail@hpe.com
chris. mania @ hpe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LIQUN CHEN and NIGEL EDWARDS
Appeal 2016-007732
Application 13/914,355
Technology Center 2400
Before MICHAEL J. STRAUSS, AARON W. MOORE, and
PHILLIP A. BENNETT, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-007732
Application 13/914,355
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1, 3—5, 7, and 9-19. Claims 2, 6, and 8 are canceled. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The claims are directed to estimating a quantity of exploitable security
vulnerabilities in a release of an application. Spec., Title. Claim 1,
reproduced below, is representative of the claimed subject matter:
1. A system comprising:
a source code engine to acquire, from a source code
analysis system, a source code analysis result representing a
number of source code issues identified by the source code
analysis system in a target release of an application;
an acquisition engine to acquire predictive information at
least partially representing a predictive function relating a
plurality of exploitable security vulnerability reporting rates for
a plurality of historic releases of the application predating the
target release, to a plurality of issue density values for the historic
releases of the application, wherein the issue density value for a
respective historic release of the historic releases is based on a
number of issues for the respective historic release relative to a
size of the respective historic release; and
an estimate engine to determine an estimate of an
exploitable security vulnerability reporting rate of the target
release of the application based on the source code analysis result
and the predictive information,
wherein the source code engine, the acquisition engine,
and the estimate engine comprise at least one hardware
processor.
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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Hall US 2005/0283834 A1 Dec. 22,2005
Sharma US 2013/0311968 A1 Nov. 21,2013
Huang US 2014/0201573 A1 July 17, 2014
Nachiappan Nagappan, Thomas Ball, and Andreas Zeller, Mining
Metrics to Predict Component Failures, in Proceedings of the
28th International Conference on Software Engineering (ICSE
’06) ACM, New York, NY, 452-461 (2006) (“Nagappan”).
REJECTIONS
The Examiner made the following rejections:
Claims 1, 3—5, 7, 9, 10, and 16—18 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Sharma and Hall. Ans. 2—6.
Claim 11 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Sharma, Hall, and Huang. Ans. 7—8.
Claims 12—15 and 19 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Sharma, Hall, and Nagappan. Ans. 8—11.
APPELLANTS’ CONTENTION
Sharma’s code complexity, code chum, and process metrics fail to
teach or suggest issue density values that are based on a number of issues for
a respective historic release relative to a size of the respective historic
release, as required by the independent claims. App. Br. 6—7.
ANALYSIS
Appellants’ arguments are unpersuasive of Examiner error. We adopt
as our own (1) the findings and reasons set forth by the Examiner in the
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Application 13/914,355
action from which this appeal is taken (Ans. 2—11) and (2) the reasons set
forth by the Examiner in the Examiner’s Answer in response to Appellants’
Appeal Brief (Ans. 11—18) and concur with the conclusions reached by the
Examiner. We highlight the following for emphasis.
The Examiner finds that, although Sharma discloses using “issue
count values instead of issue density values,” because the reference further
discloses that an increase in the number bugs in proportion to the size of the
software project does not necessarily signal “any significant problem with
the current software development,” the combination teaches or suggests the
disputed issue density values. Final Act. 4—5. In particular, the Examiner
explains:
[I]t would have been obvious to one of ordinary skill in the art to
convert the source code issue (e.g., global variable) count value
taught by Sharma into a source code issue density value, wherein
the issue density value for a respective historic release of the
historic releases is based on a number of issues for the respective
historic release relative to a size of the respective historic release,
as alluded by Sharma to predictably improve the estimation
accuracy by taking into account the “volume” or size of software
code being analyzed.
Final Act. 5.
Appellants contend the disputed issue density values are neither
disclosed (App. Br. 8—9) nor rendered obvious (App. Br. 9—11) by Sharma.
Appellants argue “[i]n Sharma, the statistical model correlates code
complexity, code chum, or process metrics (none of which constitutes issue
density values based on a number of issues for a respective historic release
relative to a size of the respective historic release) to reporting rates” and,
therefore, these metrics fail to teach or suggest the recited issue density
values. App. Br. 9. Appellants further argue the Examiner’s explanation for
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Application 13/914,355
why Sharma renders obvious the use of issue density values in place of issue
count values is inadequate because Sharma’s disclosed model does not
employ issue density values. App. Br. 10. Appellants conclude “a person of
ordinary skill in the art would have been led by Sharma to implement a
model that correlates code complexity, code chum, and process metrics (not
issue density values) to observed software defect rates.” Id.
The Examiner’s response substantially repeats the explanation
provided in the Final Action as described supra. Ans. 11—14. The Examiner
further disputes Appellants’ argument that, because Sharma’s model uses
issue count values, “a person of ordinary skill in the art would not have been
led to modify the model of Sharma [to instead use issue density values].”
Ans. 14—15 (addressing Appellants’argument at App. Br. 10). The
Examiner characterizes Appellants’ further argument as alleging a “teaching
away” which, in the absence of criticism, discrediting, or discouragement to
make the modification, is not persuasive. Ans. 15. The Examiner cites
MPEP § 2123: “[t]he prior art’s mere disclosure of more than one
alternative does not constitute a teaching away from any of these alternatives
because such disclosure does not criticize, discredit, or otherwise discourage
the solution claimed . . . .” Ans. 15, additionally citing In re Fulton, 391
F.3d 1195, 1201 (Fed. Cir. 2004).
Appellants’ contentions are unpersuasive of Examiner error. We agree
with the Examiner in finding Sharma’s global variables teach, or at least
suggest, a code issue count value. Ans. 2—3. We further agree Sharma’s
description of the relationship of the number of bugs being proportional to
software project size without signaling a commensurate increase in problems
(i.e., exploitable security vulnerabilities) teaches or suggests taking into
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Application 13/914,355
account the volume or size of a software application with respect to a code
issue count value and, accordingly, use of a problem or issue density value
(i.e., relative value) instead of an absolute count value regardless of project
size. Ans. 4, 11—13. We still further agree with the Examiner in concluding
it would have been obvious to use a code issue density value as taught by
Sharma instead of a code issue count value, as used in Sharma’s model, “in
order to achieve the benefit of taking into account the ‘volume’ or size of a
software application desired.” Ans. 4.
We are also unpersuaded by Appellants’ argument the combination is
improper because the model disclosed by Sharma uses an absolute count
value rather than a density metric (App. Br. 10), for the reasons set forth by
the Examiner. See Ans. 14—15. Teaching an alternative method does not
teach away from the use of a claimed method. See In re Dunn, 349 F.2d
433, 438 (CCPA 1965); see also Ex parte Shuping, No. 2008-0394, 2008 WL
336222, at *2 (BPAI 2008) (“[Tjeaching a way is not teaching away.”)
(citation omitted).
Appellants’ contentions of error in connection with the rejection of
independent claim 12 (App. Br. 12—13) are repetitive of those presented in
connection with independent claim 1 and are unpersuasive for similar
reasons as those discussed supra. Appellants’ contention of error in
connection with the rejection of claim 15 is based on the disputed issue
density value limitation (App. Br. 13—14) and is also unpersuasive for the
reasons discussed supra. Accordingly, we sustain the rejections of
independent claims 1 and 12 and dependent claim 15 under 35 U.S.C. § 103,
together with the rejections of independent claim 7 and dependent claims 3—
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5, 9-11, 13, 14, and 16—19 which are not argued separately with
particularity.
DECISION
We affirm the Examiner’s decision to reject claims 1, 3—5, 7, and 9-19
under 35 U.S.C. § 103(a).
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). See 37
C.F.R. § 41.50(f).
AFFIRMED
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