Ex Parte Kodosky et al

Board of Patent Appeals and Interferences

Mar 5, 2012

10176726 (B.P.A.I. Mar. 5, 2012)

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.
10/176,726 06/21/2002 Jeffrey L. Kodosky 5150-67700 3265
7590 03/06/2012
Jeffrey C. Hood
Meyertons, Hood, Kivlin, Kowert & Goetzel PC
P.O. Box 398
Austin, TX 78767
EXAMINER
ALHIJA, SAIF A
ART UNIT PAPER NUMBER
2128
MAIL DATE DELIVERY MODE
03/06/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JEFFERY L. KODOSKY, DARSHAN SHAH,
and STEVEN W. ROGERS
____________

Appeal 2010-004042
Application 10/176,726
Technology Center 2100
____________

Before JOSEPH L. DIXON, LANCE LEONARD BARRY, and
HOWARD B. BLANKENSHIP, Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-004042
Application 10/176,726

2
STATEMENT OF THE CASE
A Patent Examiner rejected claims 1, 3-6, 8, 9, 11, 13-15, 17, and
20-27. The Appellants appeal therefrom under 35 U.S.C. § 134(a). We
have jurisdiction under 35 U.S.C. § 6(b). This appeal is related to a prior
appeal 2008-001208, where we affirmed-in-part the Examiner's rejection
based upon anticipation.
We reverse.
A. INVENTION
The invention at issue on appeal "relates to the fields of system design
and distributed software programming and deployment, and more
particularly to a system and method for enabling a user to more easily
specify or create distributed systems and/or applications utilizing a
configuration diagram. The present invention further relates to techniques
for graphically distributing or deploying programs among a plurality of
different devices or nodes in a distributed system." (Spec. 1).

B. ILLUSTRATIVE CLAIM
Claim 1, which further illustrates the invention, follows.
1. A computer-implemented method for configuring
program execution, the method comprising:
displaying a first program icon proximate to a first device
icon in a configuration diagram on a display, wherein the first
program icon corresponds to a first program deployed on a first
device, and wherein the first device icon corresponds to the first
device, wherein displaying the first program icon proximate to
the first device icon visually indicates that the first program is
deployed on the first device;
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Application 10/176,726

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displaying a second program icon in the configuration
diagram on the display, wherein the second program icon
corresponds to a second program deployed on a second device;
displaying a first link icon connecting the first program
icon and the second program icon in the configuration diagram
in response to user input; and
in response to the user input displaying the first link icon,
automatically configuring the first program to invoke the
second program on the second device during execution of the
first program on the first device;
wherein the first link icon visually indicates that the first
program corresponding to the first program icon is configured
to invoke the second program corresponding to the second
program icon during execution of the first program.

C. REFERENCES
The Examiner relies on the following references as evidence:

Kodosky US 5,610,828 Mar. 11, 1997
Thomsen US 5,987,246 Nov. 16, 1999

D. REJECTIONS
Claim(s) 1, 3-6, 8, 9, 11, 13-15, 17, and 20-27 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Kodosky in view of Thomsen.

Appeal 2010-004042
Application 10/176,726

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PRINCIPLES OF LAW
35 U.S.C. § 103
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966). "[T]he [E]xaminer bears
the initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability." In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). Furthermore, "'there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness' . . . . [H]owever, the analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ." KSR Int'l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006)).
The question of obviousness is "based on underlying factual
determinations including . . . what th[e] prior art teaches explicitly and
inherently." In re Zurko, 258 F.3d 1379, 1383 (Fed. Cir. 2001).

ANALYSIS
Appellants note that:
the Examiner has equated the recited first program icon and the
recited second program icon with various block diagram icons
taught in Kodosky. However, again as noted above, all of
Kodosky's block diagram icons execute on the computer system
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Application 10/176,726

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(e.g., the computer 206 of FIG. 21), not on the devices (e.g.,
Tektronix FG5010 device and Fluke 8840A Digital Multimeter
device) coupled to the computer system. Therefore, Kodosky
clearly does not teach automatically configuring a first program
which is deployed on a first device to invoke a second program
on a second device, where the first program and the second
program correspond to respective program icons displayed in
the diagram. In a similar manner, the block diagram icons in
Thomsen's diagrams also execute on the computer system (e.g.,
the computer 206 of FIG. 5) rather than the devices coupled to
the computer system.
…

In other words, Thomsen also fails to teach automatically
configuring a first program which is deployed on a first device
to invoke a second program on a second device, where the first
program and the second program correspond to respective
program icons displayed in the diagram.

(App. Br. 10; emphasis omitted; see also Reply Br. 2). In response to
Appellants' contention, the Examiner maintains that:
the aspect of the claimed invention whereby a program icon is
proximate to its respective devices as well as configuring
invocation of the programs and devices would have been
obvious to one of ordinary skill in the art at the time of the
invention since the Kodosky and Thomsen references recite the
creation of graphical programming utilizing programs and
devices as per the citations presented above. The citations
further lead to the obviousness of invoking a program based on
how the icon is linked which is seen in the Thomsen recitation
of manipulating nodes by connecting inputs/outputs in order to
assemble the final graphical program. Thomsen also discloses,
in Column 2 Lines 40-44, that the bottom of the nodes
represents an input for configuration of the node. With respect
to the user input and automatic configuring aspect of the claims
the Examiner notes that user input is utilized to create the
graphical program as described above and the software
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environment in which the program is created automatically
executes the program path as per the interconnections drawn by
the user.
Specifically, with respect to "in response to the user input
displaying the first link icon, automatically configuring the first
program to invoke the second program on the second device
during execution of the first program on the first device" the
Examiner notes the recitation in Thomsen which recites, as per
Column 7, lines 16-20, "A user or developer assembles a
graphical program on the video screen comprising a plurality of
three-dimensional node icons. Assembling the graphical
program includes interconnecting ones of said plurality of
three-dimensional node icons to perform a desired
function." The Examiner notes that this recitation which
describes the functionality of the nodes to be dependent upon
how the interconnections are assembled in conjunction with the
configuration information recited in Column 2 of Thomsen
above and further in view of the steps laid out in at least claim 1
of Thomsen whereby the interconnections of the nodes denotes
the assembly of a program and the myriad iterations of types of
interconnections result in different resultant desired functions,
meaning how and in what order the nodes are connected to each
other alters the functionality of the set of nodes. The Examiner
notes in view of the combination of references and the
knowledge of a person of ordinary skill in the art at the time of
the invention the act of interconnecting various nodes,
specifically through the corresponding configuration at the
bottom of the nodes, would read on "in response to user
input" whereby the user assembles the proper procedure of
icons, "automatically configuring the first program to
invoke the second program on the second device during
execution of the first program on the first device" which is
seen in the resultant of the assembly process whereby the
output of one node is inputted to the input of a second node in
both data, side of node, and configuration of what to do with
the data, the bottom of the node, resulting in the first program
invoking the second program based on the assembly of the
nodes by the user in order to perform a desired function. The
Examiner finally notes that the output data of a first node
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Application 10/176,726

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feeding into the input of a second node, which thereby is calling
or activating the second node, constitutes an invocation of the
second node following the definition of invocation which is to
call or activate.

(Answer 11-12). We find the Examiner's reliance upon columns 2 and 7 of
Thomsen to merely identify the basic teachings of graphical programming,
but does not specifically address the language of independent claim 1
regarding "automatically configuring the first program to invoke the second
program on the second device during execution of the first program on the
first device." Therefore, we are constrained to reverse the Examiner's
rejection of independent claim 1 and its respective dependent claims 3-6, 8,
9, 11, 13-15, 20-26. We further note that independent claims 17 and 27
contain similar claim limitations, and we cannot sustain the rejection thereof.

CONCLUSION
For the aforementioned reasons, Appellants have shown error in the
Examiner's showing of obviousness of independent claims 1, 17, and 27.

ORDER
We reverse the obviousness rejections of claims 1, 3-6, 8, 9, 11,
13-15, 17, and 20-27.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
REVERSED
pgc