Ex Parte RABIN

Patent Trial and Appeal Board

Dec 4, 2018

14249514 (P.T.A.B. Dec. 4, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/249,514 04/10/2014
27562 7590 12/06/2018
NIXON & V ANDERHYE, P.C.
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Steve RABIN
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.
SJP-723-3974 8361
EXAMINER
WHEATON, BRADFORD F
ART UNIT PAPER NUMBER
2197
NOTIFICATION DATE DELIVERY MODE
12/06/2018 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVE RABIN
Appeal 2018-003381
Application 14/249,514
Technology Center 2100
Before JOHN A. JEFFERY, DENISE M. POTHIER, and
JUSTIN BUSCH, Administrative Patent Judges.
POTHIER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1,2 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-22. Appeal Br. 15-27. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.
1 Throughout this opinion, we refer to the Final Action (Final Act.) mailed
March 29, 2017; the Appeal Brief (Appeal Br.) filed August 1, 2017; the
Examiner's Answer (Ans.) mailed December 15, 2017; and the Reply Brief
(Reply Br.) filed February 9, 2018.
2 Appellant identifies the real party in interest as Nintendo Co., Ltd. Appeal
Br. 3.
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Invention
Appellant's invention relates to classifying which functions in a
software program belong to or are affiliated with a particular software
system. Spec., Abstract; see also id. ,r,r 2, 32. According to the
Specification, a particular software system "might consist of ( although not
limited to) physics, animation, artificial intelligence, particle effects,
graphics, audio, online, memory, job system, and/or math." Id. ,r 22, Figs.
2A-2C. The technique also involves displaying the classified software
system results (e.g., Idle, Physics, and Animation). Id. ,r 22, Figs. 2A---C.
Illustrative claim 5 is reproduced below:
5. A system for profiling software, comprising:
a processing system having at least one processor, the
processing system configured to:
assign a first set of functions, executing in a running
program, to a software system classification, that describes a
grouping to which the executing function is associated;
calculate a correlation between a second set of functions,
executing in the running program, to one or more functions in
the first set of functions to determine one or more belief scores
that are propagated among at least the second set of functions;
assign each function in the second set of functions to the
software system classification based on the one or more belief
scores; and
generate a display showing function execution over time
with the respective functions being displayed to correspond to
their software system classification.
Appeal Br. 30-31 (Claims App'x).
The Examiner relies on the following as evidence of unpatentability:
Harif
Dasu
Yamamoto
US 2002/0087613 Al
US 2007/0198971 Al
US 2007 /0226222 Al
2
July 4, 2002
Aug.23,2007
Sept. 27, 2007
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Sindhgatta
Dowds
Alj ammaz
Basak
Griffith
US 2010/0100867 Al
US 2011/0257896 Al
US 2012/0284691 Al
US 2013/0145349 Al
US 2013/0290238 Al
The Rejections
Apr. 22, 2010
Oct. 20, 2011
Nov. 8, 2012
June 6, 2013
Oct. 31, 2013
Claims 1-22 are rejected under 35 U.S.C. § 101 as being directed to
patent ineligible subject matter. Final Act. 3-5.
Claims 1, 2, 5-7, 9, 11, 14, 16, 19, 21, and 22 are rejected under
35 U.S.C. § 103 as being unpatentable over Aljammaz, Griffith, Basak,
Yamamoto, and Harif. Final Act. 6-1 7.
Claim 3 is rejected under 35 U.S.C. § 103 as being unpatentable over
Aljammaz, Griffith, Basak, Yamamoto, Harif, and Dowds. Final Act. 17.
Claims 4, 10, 15, and 20 are rejected under 35 U.S.C. § 103 as being
unpatentable over Aljammaz, Griffith, Basak, Yamamoto, Harif, and Dasu.
Final Act. 17-18.
Claims 8, 12, 13, 17, and 18 are rejected under 35 U.S.C. § 103 as
being unpatentable over Aljammaz, Griffith, Basak, Yamamoto, Harif, and
Sindhgatta. Final Act. 18-21.
THE PATENT-INELIGIBILITY REJECTION
Appellant argues claims 1-22 as a group. See Appeal Br. 15-17;
Reply Br. 2-9. We select independent claim 5 as representative. See
37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds the claims are directed to "an abstract idea of 'an
idea 'of itself" involving software classification that includes grouping,
calculating and assigning function information and displaying the functions.
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Final Act. 3; see also id. at 4. The Examiner further states the claim
elements taken individually or as an ordered combination do not include
additional elements that amount to significantly more than the abstract idea.
Id. at 3. The Examiner determines the claims recite no more than (1)
instructions to apply the abstract idea on a computer, (2) a generic computer
to perform generic computer functions that are well-understood, routine, and
conventional activities previously known in the industry, and (3) sending
information from one source to another. Id. at 5.
Appellant argues that the claimed invention is not directed to an
abstract idea like the claims in Alice Corp. Proprietary Ltd. v. CLS Bank
International, 134 S. Ct. 2347 (2014). Appeal Br. 15-16; Reply Br. 2-7.
According to Appellant, the claims "are directed to advancements in
'computer functionality' because they can, for example, aid a developer to
modify the software so that it runs more effectively on the hardware in
which it executes." Reply Br. 3 ( citing Spec. ,r,r 21-23 ). Appellant argues
the claims are not comparable to those in Electric Power Group, LLC v.
Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) because "the claims in
Electric Power Group were directed to a result rather than a solution for
achieving the result." Reply Br. 4. Appellant asserts the claims parallel the
findings in Finjan, Inc. v. Blue Coat Systems, Inc., 879 F.3d 1299, 1303
(Fed. Cir. 2018) because "similar to the claims at issue in Finjan,
Appellant's claimed approach 'recite[s] more than a mere result' and
include[s] the specific steps for accomplishing the desired result." Reply Br.
7.
To the extent the claims are directed to an abstract idea, Appellant
further asserts "[ m ]uch like the claimed features in [ BASCOM Global
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Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1348 (Fed.
Cir. 2016)], Appellant's claims are directed to improvements in an existing
technological process." Reply Br. 8; see also Appeal Br. 17; Reply Br. 7-9.
ISSUE
Under § 101, has the Examiner erred in rejecting claim 5 by finding
that the claim is directed to judicially excepted, patent ineligible subject
matter?
ANALYSIS
Based on the record before us, we find no error in the Examiner's
rejection of independent claim 5. Under 35 U.S.C. § 101, a patent may be
obtained for "any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof." The
Supreme Court has "'long held that this provision contains an important
implicit exception: Laws of nature, natural phenomena, and abstract ideas
are not patentable."' Alice, 134 S. Ct. at 23 54 ( quoting Ass 'n for Molecular
Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116 (2013)). The
Supreme Court in Alice reiterated the two-step framework previously set
forth in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566
U.S. 66 (2012), "for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts." Alice, 134 S. Ct. at 2355. First, "determine
whether the claims at issue are directed to a patent-ineligible concept," such
as an abstract idea. Id. Abstract ideas may include, but are not limited to,
fundamental economic practices, methods of organizing human activities, an
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idea of itself, and mathematical formulas or relationships. Id. at 2355-57. If
so, "consider the elements of each claim both individually and 'as an ordered
combination' to determine whether the additional elements" add enough to
transform the "nature of the claim" into "significantly more" than a patent-
ineligible concept. Id. at 2355, 2357 (quoting Mayo, 566 U.S. at 79); see
Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed.
Cir. 2016).
Mayo/Alice Step 1
Step one in the Mayo/Alice framework involves looking at the "focus"
of the claims at issue and their "character as a whole." Elec. Power Grp.,
830 F.3d at 1353; Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1335
(Fed. Cir. 2016). "The 'abstract idea' step of the inquiry calls upon us to
look at the 'focus of the claimed advance over the prior art' to determine if
the claim's 'character as a whole' is directed to excluded subject matter."
Affinity Labs, 838 F.3d at 1257 (citing Elec. Power Grp., 830 F.3d at 1353).
There is no definitive rule in determining what constitutes an "abstract idea."
Enfish, 822 F.3d at 1334 (citing Alice, 134 S. Ct at 2357). We need only
look to other decisions where similar concepts were previously found
abstract by the courts. See Amdocs (Isr.) Ltd. v. Openet Telecom, Inc., 841
F.3d 1288, 1294 (Fed. Cir. 2016); see also Enfzsh, 822 F.3d at 1334--35.
Claim 5's preamble recites "[a] system for profiling software."
Appeal Br. 30 (Claims App'x). The system includes a processing system
configured to perform four functions----( 1) assigning first functions to a
software system classification ("assign a first set of functions ... to a
software system classification that describes a grouping to which the
executing function is associated"), (2) calculating the second/first function
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set correlation to determine belief scores propagated among second function
set ("calculate a correlation between a second set of functions ... to one or
more functions in the first set of functions to determine one or more belief
scores that are propagated among at least the second set of functions"), (3)
assigning the second functions to the software system classification based on
the belief scores ("assign each function in the second set of functions to the
software system classification based on the one or more belief scores"), and
(4) displaying function execution over time with the respective functions
corresponding to their software system classification ("generate a display ...
with the respective functions being displayed to correspond to their software
system classification."). Id. at 30-31 (Claims App 'x).
Courts have found steps of gathering, analyzing, manipulating, and
comparing information and displaying results are directed to abstract ideas.
See Elec. Power Grp., 830 F.3d at 1354 (indicating the claims are directed to
an abstract idea of gathering and analyzing information of a specified
content and displaying results); Content Extraction & Transmission LLC v.
Wells Fargo Bank, Nat'] Ass 'n, 776 F.3d 1343, 1347 (Fed. Cir. 2014)
(indicating the claims are directed to the abstract idea of collecting data
using a scanner, recognizing specific information within a collected dataset,
and storing the recognized data in memory); In re TL! Commc 'ns LLC
Patent Litig., 823 F.3d 607, 613 (Fed. Cir. 2016) (indicating the claims were
directed to an abstract idea of classifying and storing digital images in an
organized manner); Berkheimer v. HP Inc., 881 F.3d 1360, 1366-67 (Fed.
Cir. 2018) (stating the claims are directed to an abstract idea of parsing and
comparing information akin to collecting and recognizing data and
classifying data in an organized manner).
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Similarly, the functions outlined above in claim 5 are those of
gathering information (e.g., "a first set of functions, executing in a running
program" and "a second set of functions, executing in the running
program"), analyzing or comparing information (e.g., "assign a first set of
functions ... to a software system classification," "calculate a correlation
between a second set of functions ... to one or more functions in the first set
of functions to determine one or more belief scores," and "assign each
function in the second set of functions to the software system classification
based on the one or more belief scores"), and displaying results ( e.g.,
"generate a display showing function execution over time with the
respective functions being displayed to correspond to their software system
classification."). Moreover, even when such information is limited to
particular content ( e.g., a software system classification that describes a
grouping associated with an executing function), it is well-settled that such
steps (e.g., collecting certain information) are within the realm of abstract
ideas. Elec. Power Grp., 830 F.3d at 1353.
We find unavailing Appellant's contentions that the claims differ from
those in Electric Power Group and are similar to those in Finjan. Reply
Br. 2-7. In particular, Appellant argues that the claims are "directed to
improvements in software profilers that aid in analyzing the dynamic
behavior of computer programs." Id. at 3. According to Appellant, the
claimed features allow a developer to modify the software so that it runs
more effectively on the hardware in which it executes, thereby improving
the computer functionality itself. Id. ( citing Spec. ,r,r 21-23). According to
Appellant, the claimed approach includes a solution for achieving the
innovative results rather than being directed to a result like in Electric Power
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Group. Id. at 4---6. But, claim 5 does not include a feature where a
developer uses the displayed results to modify software (Appeal Br. 30-31
(Claims App'x)) as argued. See Spec. ,r 23, cited in Reply Br. 3.
Additionally, the Specification states "[ s ]oftware profilers aid in
analyzing the dynamic behavior of a computer program ( e.g., for optimizing
the program's performance or finding bugs or other problems)." Spec. ,r 21,
cited in Reply Br. 3. That is, the disclosure indicates that software profilers
already are being used to optimize a program's performance and to find
bugs. See Spec. ,r 21. Moreover, claim 5 's limitations do not focus on
improving a computer's functionality, such as optimizing the software's
performance or finding bugs as asserted. Appeal Br. 30-31 (Claims App'x).
The Specification also "describes a way to improve upon current
software profiler systems in order to classify and display software execution
in a program." Spec. ,r 21. The profiler "[auto-categorizes] all recorded
functions and its associated data into ... [ a set of different software] systems
and display aggregate results without user intervention or mark-up of the
original source code." Id. ,r 22. In light of this discussion, an implied
advance over the prior art is auto-categorizing software functions into
software systems/categories ( e.g., physics, animation, and artificial
intelligence) and displaying the results.
We find a system that auto-categorizes all software functions into
categories and displays the results, as claim 5 encompasses, does not
describe an advance in hardware or software that, for example, is similar to
Finjan or Enfzsh. See Finjan, 879 F.3d at 1304 (finding a new kind of file
that allows a computer security system to accumulate and use newly
available, behavior-based information about potential threats improves
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computer functionality itself); Enfzsh, 822 F.3d at 1337 (finding a "self-
referential table for a computer database" functions differently than
conventional database structures and improves computer functionality
itself). Granted, and as noted by Appellant (Reply Br. 6-7), independent
claim 1 and dependent claim 6, which depends from claim 5, recite a
processing system configured to assign functions to a class by partial string
matching and to calculate a correlation using the functions classified by
partial string matching to determine a belief score. But, string matching, as
recited in claims 1 and 6, are analogous to recognizing or analyzing
content/information like that discussed in Electric Power Group, 830 F.3d at
1354 and Content Extraction, 776 F.3d at 1347.
On the record, Appellant's claims are not directed to an improvement
in software profilers that parallel those identified in Finjan or Enfzsh.
Rather, and contrary to Appellant's contentions (see Reply Br. 2-7),
Appellant's claims focus on an abstract idea that is not a specific
implementation or solution to a problem in the software arts, unlike the
claims discussed in Enfish.
Lastly, Appellant contends certain limitations in claim 1 "are not
related to some type of 'fundamental economic practice."' Appeal Br. 16
(underlining omitted). We are not persuaded because the rejection
determines the claims are directed to an abstract idea itself (Final Act. 4) and
not a fundamental economic practice.
For the foregoing reasons, we determine claim 5 is directed to one or
more abstract ideas.
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Mayo/Alice Step 2
In step two, we consider claim 5 's elements both individually and as
an ordered combination to determine whether the additional elements add
enough to transform the claim into significantly more than a patent-
ineligible concept. Step two in the Mayo/Alice framework involves the
search for an "inventive concept." Alice, 134 S. Ct. at 2355; Elec. Power
Grp., 830 F.3d at 1353. An "inventive concept" requires more than "well-
understood, routine, conventional activity already engaged in" by the
relevant community. Rapid Litig. Mgmt. Ltd. v. CellzDirect, Inc., 827 F .3d
1042, 1047 (Fed. Cir. 2016) (quoting Mayo, 566 U.S. at 79-80).
The Examiner finds the additional elements in claim 5 ( as well as
independent claims 1 and 11) include a processor. Final Act. 4. The
Examiner concludes under step two in the Mayo/Alice framework that claim
5 uses a "processor" to perform computer functions, but that this use do not
qualify as significantly more than the abstract idea. Final Act. 4--5.
Appellant does not contend the claimed processor operates in an
unconventional manner. See Appeal Br. 17. The disclosure also describes
the processor in generalities. See, e.g., Spec. ,r,r 24--26; Fig. 1. Thus, we
agree with the Examiner (Final Act. 4--5) that the additional elements in
claim 5 are no more than generic computer elements, which fail to transform
the above-discussed abstract idea into a patent-eligible invention. See Alice,
135 S. Ct. at 2358 (holding "the mere recitation of a generic computer
cannot transform a patent-ineligible abstract idea into a patent-eligible
invention"); Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d
1332, 1341 (Fed. Cir. 2017) ("[T]he claims recite both a generic computer
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element-a processor-and a series of generic computer 'components' that
merely restate their individual functions.").
To the extent Appellant attempts to draw parallels between the claims
in the instant application and BASCOM (see Reply Br. 7-8), this argument is
unavailing. According to Appellant, "[much] like the claimed features in
[BASCOM], Appellant's claims are directed to improvements in an existing
technological process." Reply Br. 8. We see no parallel between claim 5
and the claims in BASCOM. In BASCOM, our reviewing court determined
that the claimed "installation of a filtering tool at a specific location, remote
from the end users, with customizable filtering features specific to each end
user" provided an inventive concept in that the installation, giving "the
filtering tool both the benefits of a filter on a local computer and the benefits
of a filter on" an Internet service provider (ISP) server. BASCOM, 827 F.3d
at 1350. Although the claimed components were known and conventional,
the court in BASCOM found an inventive concept in its non-conventional
and non-generic arrangement. Id.
In contrast, Appellants have not demonstrated persuasively that claim
5 contains a non-conventional or non-generic arrangement, whether
considering the elements individually or as a combination. Reply Br. 7-9.
In contrast with Appellant's assertion (Reply Br. 8), the cited passage in the
Specification does not describe assigning different belief scores to computer
functions improves on conventional computer techniques as asserted. Spec.
,r 2, cited in Reply Br. 8. Rather, paragraph 2 merely states that "[i]t would
be helpful to classify a software program ... to determine which parts of the
program are affiliated with a particular software system." Spec. ,r 2. Nor
does the Specification describe the claimed technique improves upon
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conventional software profilers by auto-categorizing all recorded functions
into a system and displaying the result without "a mark-up of the original
source code" as argued. Reply Br. 9. Also, as previously discussed, other
purported technical improvements (see Spec. ,r,r 21, 23) are not claimed such
that any alleged additional element in claim 5 sufficiently transforms the
claim into an inventive concept.
For the above reasons, claim 5 's limitations, viewed both individually
and as an ordered combination, do not amount to significantly more than the
judicial exception and do not sufficiently transform the nature of the claims
into patent-eligible subject matter.
Accordingly, Appellant has not persuaded us of error in the rejection
of independent claim 5 and claims 1--4 and 6-22, which are not separately
argued.
THE OBVIOUSNESS REJECTION OVER ALJAMMAZ, GRIFFITH,
BASAK, YAMAMOTO, AND HARIF
Regarding independent claim 5, the Examiner finds Aljammaz and
Harif teach many of its features, including a processing system configured to
"calculate a correlation between a second set of functions, executing in a
running program, to one or more functions in a first set of functions" to
determine belief scores as recited. Final Act. 11 ( citing Aljammaz ,r,r 22, 37,
claim 6; Harif ,I 57); Ans. 5---6.
Among other arguments, Appellant asserts neither Aljammaz nor
Harif teach or suggest the recited "correlation" calculated between a second
function set to one or more functions in a first function set. Appeal Br. 18-
21. Appellant specifically asserts "Aljammaz provides no disclosure of
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calculating a correlation between functions executing in a program in order
to determine a belief score." Appeal Br. 20-21.
ISSUE
Under§ 103, has the Examiner erred in rejecting claim 5 by finding
Aljammaz, Griffith, Basak, Yamamoto, and Harif collectively would have
taught or suggested a processing system configured to "calculate a
correlation between a second set of functions, executing in the running
program, to one or more functions in the first set of functions to determine
one or more belief scores that are propagated among at least the second set
of functions"?
ANALYSIS
Based on the record before us, we find error in the Examiner's
rejection of independent claim 5.
According to the Examiner, Aljammaz teaches calculating a
correlation between functions to determine a belief score. Ans. 5 ( citing
Aljammaz ,r 37); see also Final Act. 6 (citing Aljammaz ,r,r 22, 37, and claim
6). More specifically, Aljammaz's "calculation of a correlation coefficient
... is viewed as a measure of the structure equivalence" to a belief score
(Ans. 5) and the "correlation coefficient between the software family and
each program using average ratios provides the calculated structural
equivalences" (Ans. 6). In the Examiner's view, the correlation coefficient
"provides the calculated structural equivalences as a decimal value between
0 and 1 (i.e[.,] .95, .98, .85), which can be viewed as the expression of the
belief, likelihood that the function belongs to the software family" (e.g., a
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belief score). Ans. 6. The Examiner thus maps the recited "belief score" in
claim 5 to Aljammaz's "structural equivalence calculation using a
correlation coefficient." Ans. 6.
Aljammaz discusses clustering software programs into software
families by measuring their structural equivalence (e.g., a Euclidean distance
or a correlation coefficient). Aljammaz ,r,r 35-36, Fig. 18 (formula 1820).
Aljammaz's signature establishment module (e.g., 150) filters software
programs in a software family. Aljammaz ,r 37, cited in both Final Act. 6
and Ans. 5. Aljammaz determines a structural equivalence by calculating
the software family's average ratio and each software program's ratio in the
software family. Id. For example, the family's average ratio is a set of
sequence of instruction (SOI) counts in the software family ( e.g., 50/500 for
type A, 100/500 for type B, 350/500 for type C) over total SOI counts (e.g.,
500) within the software family, and each program's ratio is a set of SOI
counts in the program over total SOI counts within the program. Id.
Aljammaz then eliminates programs from a software family if a structural
equivalence value for a specific program fails to exceed a threshold. Id.
According to the Examiner, this calculated correlation
coefficient/structural equivalence for type A and C programs corresponds to
the recited "calculate a correlation between" functions as recited. Final
Act. 6; Ans. 5---6. As emphasized above, Aljammaz's calculated correlation
coefficient value is not between a function set and one or more functions in
another function set as recited but rather is between programs. Aljammaz's
claim 6 similarly teaches comparing programs-not functions. Aljammaz,
claim 6. Additionally, even presuming that the Examiner intended to map
Aljammaz's SO Is (Aljammaz ,r 37) of first and second program types to the
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recited first and second function sets in claim 5, we fail to see how
Aljammaz's calculated correlation coefficient correlates the first program's
SOis and the second program's SOis. Nor has the Examiner explained
adequately how Aljammaz suggests such a feature. See Final Act 6; Ans. 5-
6.
On at least one occasion, the Examiner maps the recited "functions" to
paragraph 56 of Aljammaz. See Final Act. 7, 10-11 (when addressing the
"assign" functions). This paragraph describes defining a software family's
signature using bi-grams (e.g., MOV-JUMP, RETURN-SUB, and ADD-
JUMP). Aljammaz ,r 56; see also id. at ,r 26 (defining (a) a "gram" as a
sequence of a certain number of bytes of binary assembly instructions and
(b) a "bi-gram" is two sequential grams and stating an SOI can be a bi-
gram). Aljammaz explains a software family's signature can be the average
of the programs' signatures. Id. ,r 56. But, for similar reasons to those
provided above concerning paragraph 37 of Aljammaz, this signature relates
to a program and not a function set or "one or more functions" of a function
set as claim 5 requires. Presuming the Examiner intended to map
Aljammaz's bi-gram disclosure to the recited first and second set of
functions as claimed, we fail to see-nor has the Examiner explained
sufficiently-how Aljammaz's family signature correlates a program's
function set to "one or more functions" of another function set as recited in
claim 5. See Final Act. 6, 11; see also Ans. 5-6.
Lastly, the Examiner also cites Harif for teaching the disputed
"calculate a correlation" limitation (Final Act. 11 ( citing Harif ,r 57)) but
does not discuss this reference when responding to Appellant's contentions
(Ans. 5---6). In any event, we agree with Appellant that Harif's paragraph 57
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does not teach or suggest the recited "calculate a correlation" between
functions as claim 5 recites. See Appeal Br. 18-20.
For the foregoing reasons, Appellant has persuaded us of error in the
rejection of (1) independent claim 5, (2) independent claims 1, 11, and 16,
which recite commensurate limitations, and (3) dependent claims 2, 6, 7, 9,
14, 19, 21, and 22 for similar reasons.
THE REMAINING REJECTIONS
Claims 3, 4, 8, 10, 12, 13, 15, 17, 18, and 20 depend directly or
indirectly from one of independent claims 1, 5, 11, and 16. The Examiner
concludes that Aljammaz, Griffith, Basak, Yamamoto, Harif, and at least
one other reference teach all the limitations in these claims. Final Act. 17-
21. The Examiner has not relied on the other references (i.e., Dowds, Dasu,
and Sindhgatta) to cure the above-noted deficiency of claims 1, 5, 11, and
16. See id.; see also Ans. 6-8. Thus, because we reverse the Examiner's
rejection of independent claims 1, 5, 11, and 16, we likewise will not sustain
the rejections of claims 3, 4, 8, 10, 12, 13, 15, 17, 18, and 20.
DECISION
We affirm the Examiner's rejection of claims 1-22 under 35 U.S.C.
§ 101.
We reverse the Examiner's rejections of claims 1-22 under 35 U.S.C.
§ 103.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner's decision is affirmed. See 37
C.F.R. § 4I.50(a)(l).
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Appeal 2018-003381
Application 14/249 ,514
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(±).
AFFIRMED
18