Ex Parte Shani et al

Patent Trial and Appeal Board

Sep 21, 2018

14783477 (P.T.A.B. Sep. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
14/783,477
146568 7590
Entit Software LLC
500 Westover Drive
#12603
Sanford, NC 27330
FILING DATE FIRST NAMED INVENTOR
10/09/2015 Inbar Shani
09/25/2018
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.
90031133 1007
EXAMINER
CHEN,QING
ART UNIT PAPER NUMBER
2191
NOTIFICATION DATE DELIVERY MODE
09/25/2018 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):
software.ip.mail@microfocus.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte INBAR SHANI, SHARON LIN, and YAEL OSHRI 1
Appeal 2018-003191
Application 14/783,477
Technology Center 2100
Before CARLA M. KRIVAK, KARA L. SZPONDOWSKI, and
MICHAEL M. BARRY, Administrative Patent Judges.
BARRY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-7 and 12. 2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 EntIT Software LLC, a wholly-owned affiliate of Micro Focus
International Plc, is identified as the real party in interest. App. Br. 3. We
also note the original Application Data Sheet identifies Hewlett-Packard
Development Company, L.P. as the Applicant and assignee at time of filing.
2 Pending claims 13-20 have been allowed, and claims 8-11 stand objected
to. See Final Act. 1, 14.
Appeal 2018-003191
Application 14/783,477
Introduction
By way of background Appellants discuss that "Continuous Delivery
(CD) is a growing practice" for software development. Spec. ,r 1 (explaining
it can be used for deploying multiple software implementations into a
software environment to allow for functional and performance testing, and
can also be used in a production environment after completion of testing).
Appellants disclose that practitioners of CD increasingly use "feature flags,"
which can be used "as switches to specifically and dynamically activate and
deactivate ... associated features of a process," thus "reducing risk of
possibly causing malfunction of the process by allowing delivery and/or
integration of feature code continuously." Spec. ,r 7.
Claims 1 and 6 are illustrative of the claims on appeal:
1. A method of handling dependencies between
feature flags, comprising:
defining, by a processing resource executing instructions,
dependencies between a plurality of feature flags in a process
executable by the processing resource; and
enforcing, by the processing resource executing
instructions, the dependencies during activation of a first
feature by a determination of validity of utilization of a feature
flag as a switch for a second feature.
6. A non-transitory machine readable medium storing
a set of instructions that, when executed, cause a processing
resource to:
define, in a feature flags graph, dependencies between a
plurality of feature flags in a process executable by the
processmg resource;
determine operability of the process via the feature flags
graph when the process utilizes a first feature flag as a switch;
and
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Application 14/783,477
determine, based upon the dependencies in the feature
flags graph, whether the first feature flag is utilizable as the
switch.
App. Br. 15, 16 (Claims App'x) (disputed limitations emphasized).
Rejections & References
Claims 1---6 stand rejected under 35 U.S.C. § 103 as unpatentable over
Babb (US 2007/0162903 Al; July 12, 2007) and Harmes, Ross, "Flipping
Out," ( code.flickr.com, posted Dec. 2, 2009; available at code.flickr.net/
2009/12/02/flipping-out/ (last accessed Aug. 21, 2018)). Final Act. 3-11.
Claim 7 stands rejected under § 103 over Babb, Harmes, and Sereni
(US 2009/0240649 Al; Sept. 24, 2009). Final Act. 11-12.
Claim 12 stands rejected under§ 103 over Babb, Harmes, Sereni, and
Hines (US 2002/0062463 Al; May 23, 2002). Final Act. 12-13.
ANALYSIS
The Board "reviews the obviousness rejection[ s] for error based upon
the issues identified by appellant, and in light of the arguments and evidence
produced thereon," and treats arguments not made as waived. Ex parte
Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with
approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)); see also
37 C.F.R. § 4I.37(c)(l)(iv).
Claim 1
In rejecting claim 1, the Examiner finds Babb teaches "[a] method of
handling dependencies between [software] components" and a process for
"enforcing ... the dependencies" between the components. Final Act. 3
( citing Babb ,r,r 24, 26, Fig. 9). The Examiner then finds Harmes teaches
feature flags, including "activation of a first feature by a determination of
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Application 14/783,477
validity of utilization of a feature flag as a switch for a second feature," and
concludes that it would have been obvious to an ordinarily skilled artisan to
combine Harmes with Babb to achieve the disputed limitation of "enforcing
... the dependencies during activation of a first feature by a determination
of validity of utilization of a feature flag as a switch for a second feature," as
recited. Final Act. 4 ( citing Harmes pp. 1-2).
Appellants argue the Examiner errs because, "even assuming
arguendo that one of ordinary skill in the art may have hypothetically
combined Babb and Harmes, the hypothetical fails to disclose or render
obvious enforcing dependencies between a plurality of feature flags, as set
forth in claim 1." App. Br. 10. Specifically, Appellants contend that while
Babb teaches determining dependencies between software components and
eliminating dependencies between software components, "Babb fails to
disclose or render obvious enforcing dependencies between software
components." Id. (citing Babb ,r,r 23, 26) (emphasis added). Appellants'
argument is persuasive.
Claim 1 requires "enforcing ... dependencies during activation of a
first feature" by determining "validity of utilization of a feature flag as a
switch for a second feature." In other words, the enforcement of the
dependencies is performed while activating the first feature.
Babb discloses a software tool that identifies and displays
dependencies between components in a software system, with the specific
concern of identifying problematic "cyclic dependencies" as well as "other
types of unnecessarily complicated patterns of dependencies," in order to
assist in redesigning the software system to avoid or reduce the problematic
dependencies. See Babb. ,r,r 2---6. "The present invention [ of Babb] is useful
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not only for the re-design and simplification of existing systems, but is also
useful from the beginning of system development to guide software
architects, designers, and programmers and help them avoid unnecessary
complexity as systems are being constructed." Id. at 18. Thus, Babb clearly
teaches a software tool to identify dependencies during software
development to facilitate a software developer in revising the developed
software.
The Examiner responds to Appellants' argument by finding because
"Babb discloses the graph simplification analyzer determining the
dependency or dependencies that, if eliminated by software re-organization
or redesign, would lead to the greatest simplification of the overall system
structure," it follows that "one of ordinary skill in the art would readily
comprehend that the graph simplification analyzer manages (or 'enforces')
the dependencies by performing software re-organization or redesign to
produce a simplification of the overall system structure." Ans. 15.
We agree with Appellants that the Examiner errs, because the graph
simplification analyzer of Babb that determines dependencies does not
enforce dependencies during activation, as recited in claim 1. App. Br. 7-
11; Reply Br. 1-3. In Babb, after analyzing software to identify
dependencies between software components (see Babb ,r,r 6-8, 24), "the
graph simplification analyzer 16 can help determine the dependency or
dependencies that, if eliminated by software reorganization or redesign,
would lead to the greatest simplification of the overall system structure."
Babb ,r 26. The simplification analyzer determines "problematic areas of
especially high complexity ( corresponding to high Normalized Cumulative
Component Dependency (NCCD))" (i-f 22) and presents a list of
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dependencies "to be considered if the software designer intends to re-design
the system to remove a single dependency in order to simplify the system"
(i-f 26). Thus, although Babb teaches determining and then eliminating or
modifying dependencies, we agree with Appellants that ordinarily skilled
artisans would not have understood the techniques disclosed by Babb to
involve "enforcing" by performing the determination "during activation" of
a software feature, as recited in claim 1.
Accordingly, we do not sustain the § 103 rejection of claim 1. We
also do not sustain the rejection of its dependent claims 2-5.
Claim 6
In rejecting claim 6, the Examiner finds Babb teaches all limitations
except for the "feature flags" and related requirements for using a feature
flag as "a switch." See Final Act. 9-11 (citing Babb ,r 24, Fig. 9, claim 14).
The Examiner then finds Harmes teaches the limitations related to feature
flags, and concludes the combination of Babb and Harmes renders obvious
claim 6. Final Act. 11-12 (citing Harmes pp. 1-2).
Appellants argue the Examiner errs because no "part of Harmes,
however, discloses or renders obvious determining whether the ... feature
flag is utilizable as a switch." App. Br. 13 (further contending the "missing
elements" are not inherent in Harmes ). On the record before us, this
argument is unpersuasive.
The disputed limitation of claim 6 recites "determine, based on the
dependencies in the feature flags graph, whether the first feature flag is
utilizable as the switch." Vis-a-vis this limitation, the Examiner relies on
Babb, not Harmes, for teaching instructions that cause a processor "to
determine" (i.e., the determination based on dependencies (i.e., not feature
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flags)). Final Act. 9. The Examiner relies on Harmes only for teaching
(a) that the "component graph" of Babb may be a feature flags graph-a
finding with which we agree and that Appellants do not dispute-and
(b) "whether the first feature flag is utilizable as the switch." Final Act. 9--
11. We discern no error in these findings and, in view of Appellants'
arguments, are unpersuaded the Examiner errs in finding the combination of
teachings of Babb and Harmes renders obvious claim 6.
We specifically agree with the Examiner that artisans of ordinary skill
would have understood that the feature flags of Harmes function as switches.
See Ans. 22-23; see also Harmes pp. 1-2 (explaining the feature flags and
feature flippers allow for selectively turning on and off software). We also
agree that such artisans would have understood the combination of the
dependency graph of Babb and the feature flag teachings of Harmes teach
making determinations "based on the dependencies in the feature flags
graph," as recited. Final Act. 9--10. Regardless of whether Appellants are
correct that "Harmes presumes that its feature flag is utilizable as a switch"
(Ans. 4), Appellants do not persuasively explain why the Examiner errs in
finding the combination of Babb's teachings for making determinations of
dependencies and Harmes' teaching that a feature flag can be a switch fails
to teach or suggest the recited requirement to "determine ... whether the
first feature flag is utilizable as the switch."
Accordingly, we sustain the § 103 rejection of claim 6. We also
sustain the§ 103 rejections of its dependent claims 7 and 12, for which
Appellants offer no substantive separate arguments.
DECISION
We reverse the 35 U.S.C. § 103 rejection of claims 1-5.
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We affirm the 35 U.S.C. § 103 rejections of claims 6, 7, and 12.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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