Ex Parte Kodosky et al

Patent Trial and Appeal Board

Mar 13, 2013

10123851 (P.T.A.B. Mar. 13, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JEFFREY L. KODOSKY, DARSHAN SHAH,
and STEVEN W. ROGERS
____________________

Appeal 2010-005128
Application 10/123,851
Technology Center 2100
____________________

Before KALYAN K. DESHPANDE, DAVID M. KOHUT, and
JOHNNY A. KUMAR, Administrative Patent Judges.

KUMAR, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-005128
Application 10/123,851

2
STATEMENT OF CASE1
The Appellants seek review under 35 U.S.C. § 134(a) of a Final
Rejection of claims 129, 130, and 132-167, the only claims pending in the
Application on Appeal. Claims 1-128 and 131 are cancelled. We have
jurisdiction over the Appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.

INVENTION
An understanding of the invention can be derived from a reading of
exemplary claim 129, which is reproduced below:
129. A memory medium comprising first program instructions
for configuring a graphical program, wherein the first program
instructions execute on a first computer system, wherein a first
physical device is coupled to the first computer system, wherein
the first program instructions are executable to implement:
displaying a first device icon on a display of the first
computer system, wherein the first device icon represents the
first physical device;
displaying a graphical program on the display of the first
computer system, wherein the graphical program is a data flow
graphical program comprising a plurality of connected nodes,
wherein connections between nodes indicate that data produced
by one node is used by another node, wherein each of the
plurality of connected nodes represents a software function
implemented by the first computer system;
associating the first device icon with the graphical
program in response to user input;

1 Our Decision will make reference to the Appellants’ Appeal Brief (“App.
Br.”) filed Jul. 6, 2009, Reply Brief (“Reply Br.”) filed Nov. 20, 2009, and
the Examiner’s Answer (“Ans.”) mailed Oct. 29, 2009.
Appeal 2010-005128
Application 10/123,851

3
automatically including second program instructions
and/or data structures in the graphical program that are
executable to perform at least one of read data from or write
data to the first physical device during execution of the
graphical program, wherein said automatically including is
performed in response to said associating;
automatically creating one or more input or output
terminals for the first device icon in response to said associating
without receiving manual specification of the one or more input
or output terminals, wherein the one or more input or output
terminals for the first device icon are usable for connecting the
first device icon to at least one of the plurality of connected
nodes of the graphical program; and
displaying the first device icon in the graphical program
in response to said associating.

REJECTIONS
The Examiner rejected claims 129, 130, 132, 134-137, and 140-167
under 35 U.S.C. § 103(a) as being unpatentable over McKaskle (US
5,481,741, Jan. 2, 1996) and Axberg (US 6,009,466, Dec. 28, 1999). Ans. 4-
30.
The Examiner rejected claims 133, 138, and 139 under 35 U.S.C.
§ 103(a) as being unpatentable over McKaskle, Axberg, and Petchenkine
(US 6,380,951 B1, Apr. 30, 2002). Ans. 31-33.

ISSUE
The issue of whether the Examiner erred in rejecting claims 129, 130,
and 132-167 turns on whether the combination of McKaskle and Axberg
teaches or suggests “automatically creating one or more input or output
terminals for the first device icon in response to said associating without
Appeal 2010-005128
Application 10/123,851

4
receiving manual specification of the one or more input or output terminals,
wherein the one or more input or output terminals for the first device icon
are usable for connecting the first device icon to at least one of the plurality
of connected nodes of the graphical program,” as recited in independent
claim 129 and as similarly required by independent claims 156, 162, and
166.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We disagree with Appellants’
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken and (2) the
reasons set forth by the Examiner in the Examiner’s Answer in response to
Appellants’ Appeal Brief. We concur with the conclusions reached by the
Examiner. We highlight and address specific findings and arguments for
emphasis as follows.

Claims 129, 130, 132, 134-137, and 140-167 rejected under 35 U.S.C.
§ 103(a) as being unpatentable over McKaskle and Axberg
Appellants argue that neither McKaskle nor Axberg teaches or
suggests the disputed limitations emphasized above. App. Br. 8-12; Reply
Br. 2-4. The Examiner relies upon Axberg for teaching the disputed
limitations. Ans. 34. We agree with the Examiner’s finding because Axberg
explicitly states:
Storage management program automatically creates appropriate
objects in the client library and canvas to represent the device
being created. I.e., if a storage device is being created, a
Appeal 2010-005128
Application 10/123,851

5
PhysicalDisk object and a VDevice object (representing the
appearance of the disk on the user's display screen) are
automatically created. In this manner, the user can place one
device or many devices of the same type. The pointer device
continues to act in the “add device” mode until the user makes
another selection from a toolbar.

Axberg, col. 11, ll. 36-44.
We are also not persuaded by Appellants’ argument that the Examiner
does not provide proper motivation for an ordinarily skilled artisan to
combine McKaskle and Axberg. See App. Br. 12; Reply Br. 4. The
Examiner finds that it would have been obvious to one of ordinary skill in
the art at the time the invention was made to have the input and output
terminals of the virtual instrument icons representing devices of McKaskle,
to be automatically created based on the device it represents, as taught by
Axberg. Ans. 34-35. We agree with the Examiner because this would allow
the program to assist the user in the prevention of violating numerous
constraints involved when connecting devices (see Axberg, col. 11, ll. 1-22).
Since the device icons of McKaskle represent real instruments (McKaskle,
col. 38, ll. 39-42), automatically creating the input and output terminals
would prevent the user from violating constraints of the real instrument. The
combination of McKaskle and Axberg would thus provide virtual instrument
icons representing devices having automatically created input and output
terminals that would be able to connect with nodes of a graphical program
such as those shown in (McKaskle, figure 22).
As such, we agree with the Examiner that it would have been obvious
to combine the references.
Appeal 2010-005128
Application 10/123,851

6
Independent claims 156, 162, and 166 recite similar subject matter. It
follows that the Examiner did not err in rejecting claims 129, 156, 162, and
166 over the combination of McKaskle and Axberg.
Regarding claims 130, 132, 134-137, 140-155, 157-161, 163-165, and
167, while Appellants raised additional arguments for patentability of the
cited claims, we find that the Examiner has rebutted in the Answer each and
every one of those arguments by a preponderance of the evidence. Ans. 8-
33, and 38-55. Therefore, we adopt the Examiner’s findings and underlying
reasoning, which are incorporated herein by reference. Consequently, we
have found no error in the Examiner’s rejections of claims 130, 132, 134-
137, 140-155, 157-161, 163-165, and 167.

Claims 133, 138, and 139 rejected under 35 U.S.C. § 103(a) as being
unpatentable over McKaskle, Axberg, and Petchenkine
Regarding dependent claims 133, 138, and 139, while Appellants
raised additional arguments for patentability of the cited claims (App. Br.
34-36), we find that the Examiner has rebutted in the Answer each and every
one of those arguments by a preponderance of the evidence. Ans. 55-57.
Therefore, we adopt the Examiner’s findings and underlying reasoning,
which are incorporated herein by reference. Consequently, we have found
no error in the Examiner’s rejections of claims 133, 138, and 139.

CONCLUSIONS
The Examiner did not err in finding that the combination of McKaskle
and Axberg teaches or suggests “automatically creating one or more input or
output terminals for the first device icon in response to said associating
Appeal 2010-005128
Application 10/123,851

7
without receiving manual specification of the one or more input or output
terminals, wherein the one or more input or output terminals for the first
device icon are usable for connecting the first device icon to at least one of
the plurality of connected nodes of the graphical program,” as recited in
independent claim 129 and as similarly required by independent claims 156,
162, and 166.

DECISION
The rejection of claims 129, 130, and 132-167 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) (2011).

AFFIRMED

msc