Xiang Tan et al.

Patent Trials and Appeals Board

Jan 7, 2020

13821208 - (D) (P.T.A.B. Jan. 7, 2020)

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.
13/821,208 03/06/2013 Xiang Tan 83210560 6648
146568 7590 01/07/2020
MICRO FOCUS LLC
500 Westover Drive
#12603
Sanford, NC 27330
EXAMINER
GORTAYO, DANGELINO N
ART UNIT PAPER NUMBER
2168
NOTIFICATION DATE DELIVERY MODE
01/07/2020 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 XIANG TAN, ZHENG LING, and LI-HAO CHEN
Appeal 2018-005835
Application 13/821,208
Technology Center 2100
Before ALLEN R. MacDONALD, NABEEL U. KHAN and
DAVID J. CUTITTA II, Administrative Patent Judges.
KHAN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 2–23. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as EntIT Software
LLC. Appeal Br. 1.
Appeal 2018-005835
Application 13/821,208
2
CLAIMED SUBJECT MATTER
Appellant describes the invention as relating to:
A method for recognizing software applications installed on
hardware devices includes scanning a hardware device to
discover a target software application installed on the hardware
device, where the target application includes one or more files;
retrieving one or more sample applications for comparison to the
target application; determining a resemblance between the target
application and each of the one or more sample applications; and
identifying the target application based on the resemblance
determination.
Abstract.
Claim 9, reproduced below, is illustrative of the claimed subject
matter:
9. A method of a computer system for recognizing
software applications installed on hardware devices,
comprising:
scanning a hardware device to discover a target software
application installed on the hardware device, wherein the target
software application comprises one or more files;
retrieving sample software applications from a sample
application database for comparison to the target software
application, the sample software applications being distinct
from the target software application;
determining a type of application of the target software
application;
selecting a subset less than all of the sample software
applications that correspond to the determined type of
application, the sample software applications of the selected
subset being of the determined type of application, the selected
subset comprising a first sample software application and a
second sample software application, wherein the first sample
software application and the second sample software
Appeal 2018-005835
Application 13/821,208
3
application are different versions of a particular software
application;
determining a resemblance between the target software
application and each of the selected sample software
applications in the subset; and
identifying the target software application based on the
determining of the resemblance between the target software
application and each of the selected sample software
applications in the subset.

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Rabin US 7,287,159 B2 Oct. 23, 2007
Hess US 7,451,162 B2 Nov. 11, 2008
Anuszczyk US 8,037,195 B2 Oct. 11, 2011

REJECTION
Claims 2–23 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Anuszczyk, Rabin, and Hess. Final Act. 3–24.

OPINION
Claim 9
Appellant argues, “The implication of claim 9 is that the target
software application discovered by the initial ‘scanning’ task is not
identified, i.e., not known.” Appeal Br. 7. In contrast, Appellant argues,
“the ‘model-based discovery’ of ‘components’ (i.e., applications) in
Anuszczyk first constructs a model of a component that is known.
Appeal 2018-005835
Application 13/821,208
4
Anuszczyk refers to ‘inspecting the actual contents of the IT system to see if
components are present that match the fingerprint of the model of the
known component.” Appeal Br. 8. Because “the model used to discover
other components has already been constructed for a known component, the
model-based discovery of Anuszczyk would have absolutely no need to
perform the last ‘identifying’ clause of claim 9.” Appeal Br. 8. In other
words, Appellant argues, “the ‘model-based discovery’ of Anuszczyk
compares components to a model of a known component, i.e., compares
applications to a model of a known application. In contrast, according to
claim 9, a resemblance is determined between sample applications and the
target software application that is initially un-identified, i.e., unknown.”
Appeal Br. 8–9.
In summary, Appellant argues,
The sequence of tasks performed in Anuszczyk is the
opposite of what is performed in claim 9. In claim 9, an unknown
target software application is compared to known selected
sample software applications in a subset, such that the target
software application can be identified. In contrast, in Anuszczyk,
a known application (represented by the fingerprint) is compared
to unknown applications for discovering the unknown
applications.
Appeal Br. 13; see also Reply Br. 8 (“The problem with the Examiner’s
interpretation is that in claim 9, multiple known sample applications
(including different versions of a particular application) are matched to the
unknown target application, whereas in Anuszczyk, one model of one
known component is matched to multiple unknown installed (or existing)
components.”).
Appeal 2018-005835
Application 13/821,208
5
We are unpersuaded by Appellant’s arguments. The Examiner finds
Anuszczyk teaches a database of fingerprints and subfingerprints that are
used to match installed software. Final Act. 3 (citing Anuszczyk 13:36–48,
12:6–18, 21:56–22:8, Fig. 12); see also Ans. 6–7 (citing Anuszczyk 21:56–
22:14, Fig. 3). The Examiner maps the fingerprints and subfingerprints to
the claimed sample software applications (Final Act. 3; Ans. 7) and the
installed software applications to the claimed target software applications.
(Final Act. 3, Ans. 6). The Examiner further finds that the set of fingerprints
and subfingerprints comprise a first and second sample software application
where the first and second software applications are different version of a
particular software. Final Act. 5 (citing Anuszczyk 14:12–35, 23:34–55).
The Examiner further finds Rabin teaches retrieving sample software
applications from a sample application database for comparison to the target
software application. Final Act. 6. The Examiner finds that in Rabin “a
software is matched with a set of fingerprints from a fingerprint database
representing software applications, the software to be compared interpreted
as target software application and the set of fingerprints of software
components interpreted as sample software applications.” Final Act. 6
(citing Rabin Figure 1, 8:4–24, 9:61–10:7). Alternatively, the Examiner
finds Anuszczyk could also be interpreted as teaching retrieving sample
software applications for comparison to the target software application.
Final Act. 6.
Appellant essentially acknowledges this mapping, with small
differences (see Reply Br. 8), but argues that the sequence of tasks
performed in Anuszczyk is the opposite of the sequence performed in claim
9. Appeal Br. 13. In other words, according to Appellant, in Anuszczyk a
Appeal 2018-005835
Application 13/821,208
6
match is attempted between a model (or fingerprint) of a known application
to multiple unknown target applications, whereas in claim 9, a match is
attempted between multiple known applications to an unknown target
application. See Reply Br. 8.
This argument is unpersuasive for several reasons. First, Appellant
does not take into account Examiner’s findings regarding Rabin. The
Examiner explicitly finds that Rabin teaches matching target software with a
set of fingerprints from a fingerprint database where the set of fingerprints
are mapped to the claimed set of sample software applications. Final Act. 6
(citing Rabin Figure 1, 8:4–24, 9:61–10:7). Thus, the combination of
Anuszczyk and Rabin teaches the sequence of tasks Appellant argues as
required by claim 9. In other words, even if in Anuszczyk a match is
attempted between a known sample application and a set of target
applications, one of ordinary skill in the art would have been able to modify
Anuszczyk’s teaching given Rabin’s disclosure of attempting to match a
target application to a set of known sample applications.
Second, and alternatively, we agree with the Examiner that
Anuszczyk also teaches the sequence of tasks of claim 9. Anuszczyk
discloses having a database of multiple fingerprints and subfingerprints that
are used to identify installed software. See Anuszczyk 12:14–16 (“In the
network server 10 of FIG. 3, fingerprints can be contained in the database
130 of models, fingerprints, and rules”); 21:56–61 (“At block 204 of FIG. 9,
the fingerprints and subfingerprints are used to discover components in the
IT system. Referring to FIG. 2, the analysis service 70 of the agent 12,
including the rule engine 74, accumulator 80, and fingerprint database 84
can be used for the discovery of components at the agent-level.”) The
Appeal 2018-005835
Application 13/821,208
7
Examiner finds that this database of multiple models, fingerprints, and
subfingerprints are used to identify installed software. Final Act. 3–4, 6.
Further, the Examiner finds that subfingerprints may be used to identify the
version of the target software. Final Act. 4 (citing 14:12–35, 23:34–55).
Thus, the Examiner finds that multiple fingerprints and subfingerprints are
used to identify a target software application, as claim 9 requires.
Appellant next argues,
the Examiner conceded that Anuszczyk and Rabin do "not
explicitly disclose determining a resemblance between the target
application and each of the one or more sample applications in
the subset." Office Action at 7. This concession necessarily
means that Anuszczyk and Rabin do not teach “identifying the
target software application based on the determining of the
resemblance between the target software application and
each of the selected sample software applications in the
subset.”
Appeal Br. 13. Appellant argues, “Hess refers to ‘determining a degree of
relevance of each data object to the data object of interest 810 or ‘target.’”
Appeal Br. 14, Hess, 9:58–60. Hess further states that “[r]elevance of
information to a target data object may be determined from collected
evidence.” Hess, 12:17–18. However, Appellant argues, “like Anuszczyk
and Rabin, Hess also does not provide any teaching or hint of ‘identifying
the target software application based on the determining of the resemblance
between the target software application and each of the selected.” Appeal
Br. 14.
We are unpersuaded by Appellant’s argument. The Examiner does
not rely on Hess alone as teaching “identifying the target software
Appeal 2018-005835
Application 13/821,208
8
application based on the determining of the resemblance between the target
software application and each of the selected sample software applications in
the subset.” Final Act. 7. Instead Hess is relied upon to teach the
“determining a resemblance” element of the aforementioned limitation. This
teaching, combined with the disclosures of Anuszczyk and Rabin teach the
claim limitation as a whole. Because Appellant argues the references
individually, without addressing the entirety of the Examiner’s findings, we
find Appellant’s argument unpersuasive.
Accordingly, we sustain the Examiner’s rejection of claim 9 and of
independent claims 12 and 19, which were argued together. We also sustain
the Examiner’s rejection of claims 10, 18, and 21 for which Appellant does
not make arguments for separate patentability.
Claim 2
Claim 2 depends from claim 9 and recites “wherein the determining of
the resemblance is based on resemblance values, each resemblance value of
the resemblance values based on a distance between the files of the target
software application and corresponding files of each of the selected sample
software applications.” Appeal Br. i., Claims Appendix. The Examiner
finds Rabin teaches determining a resemblance based on resemblance values
by disclosing a Matching Ratio, defined as MatchingRatio =
|CommonFinger|/|EitherFinger|. Final Act. 8 (citing Rabin 8:4–23).
Alternatively, the Examiner finds Hess also teaches the aforementioned
limitation by disclosing an “association between data objects based on
weights” in the form of the following equation: weightedge = ∑e ε evidence
weighte * confidencee * counte. Final Act. 8 (citing Hess 9:27–49).
Appeal 2018-005835
Application 13/821,208
9
Appellant argues that the “value of MatchingRatio in Rabin is
computed by dividing one number from another number” and that “[t]here is
absolutely nothing in column 8 of Rabin that even remotely refers to a
distance between the files of one application and files of another
application.” Appeal Br. 15. Similarly, Appellant argues that “Hess refers
to calculating a weight factor that is based on a multiplication of ‘the
evidence weight, confidence, and count associated with the evidence” and
that this provides “absolutely no teaching or hint of determining a
resemblance based on resemblance values where each resemblance value is
based on a distance between the files of the target software application and
corresponding files of each selected sample software application.” Appeal
Br. 15.
We are unpersuaded by Appellant’s argument. As the Examiner
points out in the Answer, the Specification equates the “computed distance”
to the resemblance value of a specific sample file set to the target file set.
See Spec. ¶ 21 (“The computed distance (resemblance value) of a specific
sample file set to the target file set is used to determine an identity of
discovered software application to a sample software application.”). Thus,
without further limiting the claim, the term “distance” may be interpreted to
encompass a measure of resemblance between two files or objects. Rabin’s
“MatchingRatio,” does exactly that by providing a ratio between two
fingerprints as a measure of their resemblance. See Rabin 8:4–23
(comparing two fingerprints to determine whether certain software matches
other software by using the “MatchingRatio” equation.).
Accordingly, we sustain the Examiner’s rejection of claim 2 and for
the same reasons claims 3, 7, 8, 11, 13, 14, 22, and 23.
Appeal 2018-005835
Application 13/821,208
10
Claim 4
Claim 4 depends from claim 2 and further recites “wherein for target
software application files qi and sample software application files si, the
distance is measured as 𝑟𝑟(𝑞𝑞, s) = ∑ 𝑘𝑘𝑖𝑖|𝑞𝑞𝑖𝑖 − 𝑠𝑠𝑖𝑖|𝑁𝑁𝑖𝑖=1 wherein ∑ 𝑘𝑘𝑖𝑖 = 1𝑁𝑁𝑖𝑖=1 , and
wherein 𝑘𝑘𝑖𝑖 is a weight value for each respective attribute i.” The Examiner
finds Hess teaches this limitation by disclosing an equation of the
“summation of weight times count of properties.” Final Act. 9 (citing Hess
9:41–53; 10:1–15).
Appellant argues, “The cited column 10 passage of Hess calculates a
score based on summing the weight factors. This equation also does not
compute the difference between qi and si and summing over i as claimed.”
Appeal Br. 16.
We are persuaded by Appellant’s argument. Even if we agree with
the Examiner that Hess discloses summations that are used to determine the
resemblance of pieces of certain objects, it is clear that Hess does not teach
or suggest an equation that is the same as or equivalent to the equation
appearing in claim 4. In particular, there is no indication in the Examiner’s
findings that the way resemblance is measured in Hess is through summing
the differences between target and sample software application files.
Accordingly, we do not sustain the Examiner’s rejection of claim 4.
For the same reason we also do not sustain the Examiner’s rejection of
claims 5, 6, 15–17.
Claim 20
Like claim 4, claim 20 also recites 𝑟𝑟(𝑞𝑞, s) = ∑ 𝑘𝑘𝑖𝑖|𝑞𝑞𝑖𝑖 − 𝑠𝑠𝑖𝑖|𝑁𝑁𝑖𝑖=1 wherein
∑ 𝑘𝑘𝑖𝑖 = 1𝑁𝑁𝑖𝑖=1 . Appellant presents the same arguments for claim 20 as it does
Appeal 2018-005835
Application 13/821,208
11
for claim 4. For the same reasons, we do not sustain the Examiner’s
rejection of claim 20.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
2–23 103(a) Anuszczyk, Rabin,
Hess
2, 3, 7–14,
18, 19, 21–
23
4–6, 15–17,
20
Overall
Outcome
2, 3, 7–14,
18, 19, 21–
23
4–6, 15–17,
20

TIME PERIOD FOR RESPONSE
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.
§ 1.136(a)(1)(iv).
AFFIRMED-IN-PART