Ex Parte Robinson

Patent Trial and Appeal Board

Mar 29, 2013

11413534 (P.T.A.B. Mar. 29, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte DOUGLAS B. ROBINSON
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Appeal 2010-009356
Application 11/413,534
Technology Center 2100
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Before SCOTT R. BOALICK, BARBARA A. BENOIT, and
DANIEL N. FISHMAN, Administrative Patent Judges.

BENOIT, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1-29. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-
part.

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STATEMENT OF THE CASE
Appellant’s invention relates to file maintenance of a version object
base used for source control management (SCM) of software being
developed. See generally Abstract; Spec. ¶¶ 0001-02. Claim 1 is illustrative
and reads as follows, with key disputed limitations emphasized:
1. An apparatus comprising: computer-executable logic instructions
embedded on computer-readable media and operable to:
[(a)] collect information for element entries in a list, wherein multiple
versions of elements are maintained in a version object base;
[(b)] determine whether the elements are removable based on whether
the elements are at least one of the group of: private files and locally
mastered elements; and
[(c)] skip elements that are not removable.
The Rejection
The Examiner rejected claims 1-29 under 35 U.S.C. § 103(a) as
unpatentable over Leblang (US 5,649,200; issued July 15, 1997) and Sigal
(US 5,881,292; issued Mar. 9, 1999). Ans. 3-18.
ANALYSIS
Claims 1, 4-6 and 8-10
The Examiner finds that Leblang and Sigal collectively teach or
suggest every element in claim 1. Ans. 3-4. The Examiner relies on
Leblang as teaching step (a) and on Sigal as teaching steps (b) and (c)
recited in claim 1. Ans. 3-4. The Examiner concludes that it would have
been obvious to an ordinarily skilled artisan to combine the teachings of the
references because a skilled artisan would have done so “to provide a system
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for transparent access to multiple versions, the ability to build different
configurations concurrently without interference, and [provide] additional
monitoring and reporting capabilities not found in known computer aided
software engineering environment[s].” Ans. 4-5.
Leblang discloses a version control system for software that provides
access only to specific versions as determined by selection rules and
maintains multiple versions of elements being controlled. Leblang,
Abstract, col. 6, ll. 51-55. Leblang also discloses each version-controlled
file is stored in a VOB (versioned object base), which organizes versions of
controlled elements into a version tree structure, having branches and sub-
branches. Leblang, col. 6, ll. 62-65. Leblang further discloses controlled
elements include files and directories. Leblang, col. 6, ll. 53-55.
Sigal describes a dynamic versioning system for synchronizing
different versions of modules. Sigal, Abstract. When a user requests access
to a module, Sigal’s system opens a master module and provides read-only
access to the most recent version of slave modules. Sigal, col. 6, ll. 20-26;
see also Sigal, col. 4, ll. 23-54. A slave module is opened and copied to the
user’s private memory space only when expressly requested. Sigal, col. 4, ll.
43-48. Sigal’s system waits for a specific request from the user. Sigal, col.
6, ll. 26-29. Sigal’s system, once a request is received, determines what
action is requested in a series of decision steps and takes appropriate action
for each respective decision step. Sigal, col. 6, ll. 29-34, Fig. 6. One of the
steps a user can request is deleting a slave module. Sigal, col. 7, ll. 1-5, Fig.
6 (steps 618, 620). Sigal also describes that a user can modify a private copy
of the requested slave module. Sigal, col. 8, ll. 1-5. Sigal further describes
“cleaning up” old versions by removing old versions of master and slave
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modules from permanent non-volatile memory space when the last user of
the version control system requests to close the system. Sigal, col. 7, ll. 10-
25, Fig. 6 (steps 623-626). In finding that Sigal’s version control system
discloses step (b) recited in claim 1, the Examiner maps Sigal’s private copy
of a requested slave module to the recited private file (Ans. 4) and indicates
“a version is . . . a file or a group of files in a software development system”
(Ans. 19). Appellant contends that the Examiner erred in rejecting claim 1
because Sigal does not teach step (b) recited in claim 1.
Based on the record before us, we are not persuaded of error in the
rejection of claim 1. Appellant’s arguments focus unduly on the specific
structures present in the prior art and ignore the capabilities of the ordinarily
skilled artisan. The test for obviousness is “what the combined teachings of
the references would have suggested to those of ordinary skill in the art.” In
re Keller, 642 F.2d 413, 425 (CCPA 1981). Moreover, as noted by the
Court in KSR, “[a] person of ordinary skill is also a person of ordinary
creativity, not an automaton.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
421 (2007).
Sigal teaches (i) modifying a private copy of a requested slave module
in view of the difference between master, read-only slave modules, and
private slave modules (col. 8, ll. 1-5), (ii) enabling a user to delete a slave
module (col. 7, ll. 1-5), and (iii) removing modules from memory when the
last user requests to close the system (col. 7, ll. 10-25). We are not
persuaded that this functionality would not at least suggest “logic
instructions . . . operable to . . . determine whether the elements are
removable based on whether the elements are . . . private files” recited in
claim 1.
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Moreover, Appellant has not provided any persuasive evidence or
argument to rebut the Examiner’s findings. See generally App. Br. 4-6.
Appellant, for example, argues a limitation not required by claim 1. App.
Br. 5 (arguing claim 1 requires removing multiple versions of elements).
Appellant also proffers conclusory statements without any persuasive
evidence or argument to support the statements. App. Br. 5 (asserting the
recited private files preclude Sigal’s private slave modules and the recited
locally mastered elements preclude Sigal’s master modules); 5-6 (asserting
the Examiner has provided no motivation for combining Sigal’s private copy
or master module with Sigal’s cleanup of old versions).
Thus, we are not persuaded of error in the Examiner’s proposed
combination of Leblang and Sigal for the combination predictably uses prior
art elements according to their established functions—an obvious
improvement, and we find the Examiner’s reason (Ans. 4) to combine the
teachings of the cited references supported by articulated reasoning with
some rational underpinning to justify the Examiner’s obviousness
conclusion. See KSR, 550 U.S. at 417-18.
We therefore will sustain the rejection of (i) independent claim 1 and
(ii) dependent claims 4-6 and 8-10, not argued separately with particularity.
Claim 2
Claim 2, which depends from claim 1, additionally recites “the entries
in the list are associated with elements that reside in a lost+found directory.”
The Examiner finds that Leblang’s history list equates with the recited
lost+found directory. Ans. 5 (citing Leblang, col. 16, ll. 14-18).
In challenging the rejection of claim 2, Appellant relies on the same
arguments made in connection with claim 1 (App. Br. 6), which we do not
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find persuasive for the reasons discussed above. Additionally, Appellant
contends that the Examiner’s finding (Ans. 5) regarding the additionally
recited features of claim 2 is “a mere conclusory statements—unsupported
by evidence or reasoning.” App. Br. 6. Appellant, however, does not
provide any persuasive arguments or evidence why the Examiner’s finding
is incorrect. Mere speculation unsupported by factual evidence is entitled to
little probative value. Cf. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997).
Accordingly, we are not persuaded of Examiner error in the rejection
of claim 2.
Claim 3
Claim 3, which depends from claim 1, additionally recites “logic
instructions operable to: select between different removal procedures based
on whether the entry is a Version Object Base (VOB) symbolic link entry.”
The Examiner relies on Leblang’s description of entries with pointers to a
VOB symbolic link as disclosing the additional limitation recited in claim 3.
Ans. 5 (citing Leblang, col. 26, ll. 60-65), 21-22.
We agree with Appellant (App. Br. 7) that Leblang and Sigal do not
teach selecting between two removal procedures based on the specific
feature additionally recited in claim 3–namely, based on whether the entry is
a VOB symbolic link entry. App. Br. 7. Although we agree with the
Examiner that Appellant mistakenly points to Sigal (App. Br. 21) when the
rejection relies on Leblang as teaching or suggesting the limitation, we are
persuaded by Appellant that merely describing that an entry is a VOB
symbolic link entry (as Leblang does) is not sufficient to disclose “logic
instructions operable to: select between different removal procedures based
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on whether the entry is a Version Object Base (VOB) symbolic link entry,”
as recited in claim 3.
We therefore will not sustain the rejection of claim 3.
Claim 7
Claim 7, which depends from claim 1, additionally recites “logic
instructions operable to: skip removal of elements and VOB symbolic link
entries associated with elements that are not locally mastered.” The
Examiner cites Sigal’s description of adding a file to, or deleting a file from,
a temporary copy of the versioning system’s master module as disclosing the
additionally recited limitation in claim 7. Ans. 6.
We agree with Appellant (App. Br. 7-8) that the relied-upon portion
of Sigal does not teach or suggest skipping removal of elements and VOB
symbolic link entries associated with elements that are not locally mastered,
as recited in claim 7.
Accordingly, we will not sustain the rejection of claim 7.
Claims 11-17
Independent claim 11 recites “[a] method comprising: removing an
element from a version object base (VOB) in a computer system, wherein
more than one version of the element can exist, and removal of the element
is based on at least one of the group of: whether the element is a master
version and whether there are any versions of the element currently checked-
out.” The Examiner relies on the combination of Leblang and Sigal in
concluding claim 11 would have been obvious. Ans. 7-8, 23.
Appellant argues that the proposed combination of Leblang and Sigal
does not teach or suggest “removal of the element is based on at least one of
the group of: whether the element is a master version and whether there are
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any versions of the element currently checked-out,” recited in claim 11.
App. Br. 8-9. Appellant argues that Leblang does not teach removing
“based on …whether there are any versions of the element currently
checked-out” but merely teaches an editable copy of a file is removed during
check-in. App. Br. 8. Appellant also argues that Sigal does not teach
periodic removal related to master versions. App. Br. 9.
We are not persuaded of error because attacking references
individually does not show nonobviousness where the rejection, as is here, is
based on the combination of references. See In re Merck & Co., Inc., 800
F.2d 1091, 1097 (Fed. Cir. 1986). Moreover, we are not persuaded of error
in the Examiner’s finding that Sigal teaches or suggests removal of the
element is based on whether the element is a master version (Ans. 7), which
is one of “at least one of the group” required by claim 11. As noted by the
Examiner, Sigal teaches removing from memory unused and old versions,
which includes master module versions. Ans. 23 (citing Sigal, col. 16, ll. 1-
3, Fig. 5 (item 502–master module version 1), Fig. 6 (item 620)); see also
Ans. 7-8; Sigal, col. 7, ll. 10-25 (describing “cleaning up” old versions by
removing old versions of master and slave modules from permanent non-
volatile memory space when the last user of the version control system
requests to close the system). We also note, as the Examiner has (Ans. 23),
that Sigal discloses deleting a slave module but saving a new master module,
which teaches or suggests removal of the element based on whether the
element is a master version. See Sigal, Fig. 6, item 620.
Although Appellant contends that the Examiner erred by not
providing a rationale for “condition[ing a] periodic removal action on the
existence of a master version” (App. Br. 9), the Examiner has provided a
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rationale for combining the references in the manner proposed–namely, “to
provide a method of generating and maintaining versions of a complex
software system having a plurality of modules for each of multiple users of
the complex software system” (Ans. 8). Accordingly, we find the
Examiner’s reason to combine the teachings of the cited references
supported by articulated reasoning with some rational underpinning to
justify the Examiner’s obviousness conclusion. See KSR, 550 U.S. at 418.
We therefore will sustain (i) independent claim 11 and (ii) dependent
claims 13 and 15-17, not argued separately with particularity.
We, however, will not sustain claim 12, which depends from claim 11
and additionally recites “determining whether to remove the element based
on whether the element is a View private file.” Although we agree with the
Examiner that Leblang discloses a view-private file (Ans. 8-9), we agree
with Appellant that Leblang does not teach or suggest making a
determination based on whether the element is a view private file (App. Br.
9-10).
Likewise, we will not sustain claim 14, which depends from claim 11
and additionally recites “determining how to remove the element based on
whether an entry for the element is a symbolic link.” For this limitation the
Examiner relies on Leblang’s teaching that attributes can be attached to
VOB symbolic links. Ans. 10 (citing Leblang, col. 16, ll. 56-60). We agree
with Appellant (App. Br. 10) that Leblang’s teaching of a symbolic link does
not teach or suggest making a determination how to remove the element
based on whether an entry for the element is a symbolic link.
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Claims 18-28
Independent claim 18 recites “[a] computer product embodied in
computer-readable media comprising: a clean-up utility program operable to
remove unused versions of elements taking into account a first set of policies
and a set of custom policies.” In rejecting claim 18, the Examiner relies on
Sigal’s description of a cleanup process that eliminates unused old copies of
slave modules (citing Sigal, col. 2, ll. 42-44) and Leblang’s description of
configuration rules that control access to specific versions and can be a
constant version or a version including variables or expressions (citing
Leblang, col. 10, ll. 65-67) in concluding claim 18 would have been obvious.
Ans. 11-12, 25. Appellant asserts that the proposed combination fails to
teach or suggest “remov[ing] unused versions of elements taking into
account a first set of policies and a set of custom policies,” as recited in
claim 18. App. Br. 10-11.
On this record, we are not persuaded of error in the Examiner’s
rejection of claim 18. Appellant proffers conclusory statements without any
persuasive evidence or argument to support the statements--that is,
Appellant merely argues that the Examiner erred because (i) Leblang’s rules
are part of a view configuration, rather than being rules which affect
removal, and (ii) the Examiner failed to provide any rationale for such a
combination. App. Br. 10-11. Moreover, the test for obviousness is “what
the combined teachings of the references would have suggested to those of
ordinary skill in the art” and one cannot show nonobviousness by attacking
references individually where the rejections are based on the combination of
references. Keller, 642 F.2d at 425-26. Further, the Examiner has provided
a rationale for combining the references in the manner proposed–namely, “to
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provide Version Selection in which users can create and use any number of
views, each of which selects a particular configuration of source versions”
(Ans. 12).
Accordingly, we find the Examiner’s reason to combine the teachings
of the cited references supported by articulated reasoning with some rational
underpinning to justify the Examiner’s obviousness conclusion. See KSR,
550 U.S. at 418. We therefore will sustain the rejection of (i) independent
claim 18 and (ii) dependent claims 19-22 and 24-27, not argued separately
with particularity.
Regarding claim 23, which depends from claim 18 and further recites
“logic instructions operable to: determine whether to remove the elements
based on whether the elements are master versions,” the Examiner finds the
additional limitation would have been taught or suggested by Leblang’s
description of a user fixing an error in the software by “work[ing] with a
new version of a file through an old version of a directory” and equating
Leblang’s old version of a directory with the recited master versions (Ans.
14, 25-26).
In challenging the rejection of claim 23, Appellant relies on the same
arguments made in connection with independent claim 18 (App. Br. 11),
which we do not find persuasive for the reasons discussed above.
Additionally, Appellant asserts that Sigal does not teach or suggest this
limitation. App. Br. 11 (citing Sigal, items 618-620, 626).
Appellant’s argument is not persuasive because it is inconsistent with
the rejection which relies on Leblang. See Ans. 14, 25-26. We therefore
will sustain the rejection of claim 23.
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Regarding claim 28, which indirectly depends from independent claim
18, the Examiner relies on Leblang as disclosing the “entries for elements in
the list reside in a version object base lost+found directory” and equating
Leblang’s history list with the recited lost+found directory. Ans. 16 (citing
Leblang, col. 16, ll. 14-18). In challenging the rejection of claim 28,
Appellant relies on the same arguments made in connection with claim 18
(App. Br. 11-12), which we do not find persuasive for the reasons discussed
above. Additionally, Appellant contends that the Examiner’s findings made
regarding the additionally recited features of claim 28 are mere conclusory
statements—unsupported by evidence or reasoning. App. Br. 12. Appellant,
however, does not provide any persuasive arguments or evidence why the
Examiner’s findings are incorrect.
Accordingly, we are not persuaded of Examiner error in the rejection
of claim 28. Cf. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
Claim 29
Regarding independent claim 291, the Examiner relies on Leblang and
Sigal collectively as teaching or suggesting each recited element. Ans. 16-
18, 27-28. In challenging the rejection, Appellant argues that the
combination does not teach or suggest “[(b)] determin[ing] whether the
elements are removable based on whether the elements are private files” and
“[(c)] when the elements are removable, determin[ing] whether the elements
are at least one of the group of: non-replicated and locally mastered
elements,” recited in claim 29. App. Br. 12-14.

1 We note claim 29 recites “skip elements are not removable,” whereas
claim 1 recites “skip elements that are not removable” (emphasis added).
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For the reasons discussed previously with regard to claim 1, we are
not persuaded of error in the Examiner’s finding that the combination
collectively teaches or suggests step (b). Although the Examiner identifies
Sigal’s master module version as a master element or file and finds Sigal
“teaches determining removability based on [whether an element is a]
private or locally master[ed] file” (Ans. 28) as required by step (b) recited in
claim 29, the Examiner has not shown Sigal, alone or in combination with
Leblang, makes the other type of determination (that is, whether the
elements are at least one of two enumerated groups) under a certain
condition—that is, “when the elements are removable”—as recited in claim
29. See Ans. 17-18.
We accordingly are persuaded of error in the Examiner’s finding that
the combination Sigal teaches or suggests step (c) recited in claim 29. Thus,
we will not sustain the rejection of claim 29.

CONCLUSION
Under § 103, the Examiner did not err in rejecting claims 1, 2, 4-6, 8-
11, 13, 15-28, but did err in rejecting claims 3, 7, 12, 14, and 29.

ORDER
The Examiner’s decision rejecting claims 1-29 is affirmed-in-part.
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).

AFFIRMED-IN-PART

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