D2L Corporation

Patent Trials and Appeals Board

Apr 26, 2021

2019006699 (P.T.A.B. Apr. 26, 2021)

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.
14/490,857 09/19/2014 David BATISTE K8001247US 9062
34236 7590 04/26/2021
GOWLING WLG (CANADA) LLP
50 QUEEN STREET NORTH, STE. 1020
P.O. BOX 2248
KITCHENER, ONTARIO N2H6M2
CANADA
EXAMINER
TRAN, TUYETLIEN T
ART UNIT PAPER NUMBER
2179
NOTIFICATION DATE DELIVERY MODE
04/26/2021 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):
JEFF.WONG@GOWLINGWLG.COM
VAL.COTTRILL@GOWLINGWLG.COM
Waterloo.IP@gowlingwlg.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID BATISTE, DAVID LOCKHART, BRIAN PEARSON,
NICHOLAS DINGLE, RYLAN COTTRELL, KIERAN ANDERSON, and
PHILIP BROWN
Appeal 2019-006699
Application 14/490,857
Technology Center 2100
Before JEAN R. HOMERE, AMBER L. HAGY,
and MICHAEL J. ENGLE, Administrative Patent Judges.
HAGY, 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 1–20. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as D2L Corporation.
Brief 2.
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CLAIMED SUBJECT MATTER
The claims are directed to a system and method for monitoring
viewed content. Spec. ¶ 1. By way of background, Appellant’s
Specification notes that “[d]evelopers of web sites or developers of content
for web sites may also wish to know what users have reviewed, and which
elements or which content was reviewed or left unread by the users.” Id.
¶ 3. In particular, Appellant’s Specification describes the context of
“educational situations,” noting that “instructors developing course specific
web sites may wish to determine what information students[] review and
what information has not been reviewed by the students.” Id. Purportedly to
address that need, Appellant’s Specification describes a system that is
“configured to monitor loaded electronic content, for example, a web page, a
video, a discussion forum, a document, email, or the like, when it is loaded
into a viewer on a user device.” Id. ¶ 34. The system tracks users’ actions
within the content to determine, for example, what content the user has
viewed. Id.
Claims 1, 10, and 19 are independent. Claim 1, reproduced below
with the disputed limitation italicized, illustrates the claimed subject matter:
1. A method for monitoring viewed content comprising:
monitoring, by one or more processors, for loading of
electronic content on a user device;
receiving, by one or more processors, from the user
device, one or more periodic updates at a network device,
wherein the periodic updates include information associated
with one or more characteristics relating to a manner in which
the electronic content is used or consumed on the user device,
and wherein the one or more characteristics relating to the
manner in which the electronic content is used or consumed on
the user device is collected locally at the user device, wherein
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at least one of the one or more characteristics are determined
in relation to one or more location points associated with the
electronic content; and
monitoring, by one or more processors, a viewed status
of the electronic content based at least in part on the
information included in the one or more periodic updates.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Allard2 US 6,018,619 Jan. 25, 2000
Creamer US 2009/0197234 A1 Aug. 6, 2009
Von Hilgers US 2010/0005169 A1 Jan. 7, 2010
Gallo US 2010/0262908 A1 Oct. 14, 2010
REJECTIONS3
Claims Rejected 35 U.S.C. § Reference(s)/Basis
1, 3, 5–8, 10, 12, 14–17,
19, 20
103 Creamer, Allard
2, 4, 11, 13 103 Creamer, Allard, Von Hilgers
9, 18 103 Creamer, Allard, Gallo
OPINION
We have considered Appellant’s arguments and contentions (Brief 6–
18) in light of the Examiner’s findings and explanations (Final Act. 5–22;
Ans. 4–15). For the reasons set forth below, we are not persuaded of
Examiner error in the rejections of the pending claims, and we, therefore,
sustain the Examiner’s rejections.

2 All references are cited using the first-named inventor.
3 The Examiner’s rejections were issued under the provisions of Title 35 of
the United States Code in effect after the effective date of the Leahy-Smith
America Invents Act of 2011. Final Act. 2.
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A. Claims 1, 3, 5–8, 10, 12, 14–17, 19, and 20:
§ 103 over Creamer and Allard
Each of claims 1, 3, 5–8, 10, 12, 14–17, 19, and 20 is rejected under
the same ground of rejection. Final Act. 5–17. Of those claims, Appellant
argues only independent claim 19 and dependent claim 20 separately from
independent claim 1. See Brief 11–14, 15–17. Independent claims 1 and 19
are each directed to a method. Independent claim 10 is directed to a system
comprising a processor that is configured to perform steps corresponding to
the disputed limitation of claim 1. Brief 19–21 (Claims App.). Claims 3, 5–
8, 10, 12, and 14–17, argued collectively with claim 1, stand or fall with
claim 1. See 37 C.F.R. § 41.37(c)(iv).
The Examiner relies on Creamer as teaching or suggesting a method
for monitoring viewed content, including monitoring for loading of
electronic content on user device, as recited in claim 1. Final Act. 5–6
(citing Creamer ¶¶ 25, 72, Fig. 1). The Examiner also relies on Creamer as
teaching or suggesting the recitation in claim 1 of “receiving, by one or more
processors, from the user device, one or more periodic updates at a network
device wherein the periodic updates include information associated with one
or more characteristics relating to a manner in which the electronic content
is used or consumed on the user device.” Id. at 6 (citing Creamer ¶¶ 31, 71,
72, Fig. 1) (emphasis omitted). The Examiner also relies on Creamer as
teaching or suggesting the recitation in claim 1 of “monitoring, by one or
more processors, a viewed status of the electronic content based at least in
part on the information included in the one or more periodic updates.” Id.
(citing Creamer ¶¶ 36, 74, Fig. 1) (emphasis omitted).
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We agree the Examiner’s findings regarding Creamer are supported
by the cited evidence. Creamer discloses a system and method for an online
educational environment, including an “integrated online educational
institution that allows [parents], students, and educators to plan and monitor
a student’s progress.” Creamer, Abs. Creamer further discloses students
may engage with the online educational environment by using a “computing
unit” with a browser, such as a personal computer, mobile phone, or the like.
Id. ¶ 25. Creamer’s system has an audit module that tracks and stores
student activity associated with a course, including course content
downloads and a student’s time spent viewing course content. Id. ¶ 72.
Creamer also discloses collecting attendance data and progress indicators for
students (id. ¶ 36), including a performance tracking module that determines
performance tracking and reporting requirements for a student (id. ¶ 74).
The Examiner finds, and we agree, that Creamer’s progress indicators and
attendance indicators map to the claimed “viewed status of the electronic
content” based on Creamer’s teachings of tracking a student’s time spent
viewing course content in addition to collecting performance tracking data.
Final Act. 7.
The Examiner further finds, however, that “[a]lthough Creamer tracks
user activity with regard to using or consuming electronic content, activity
tracking by the user device and periodic updates to the network device do
not appear to be expressly taught by Creamer.” Id. at 7. That is, the
Examiner finds Creamer does not expressly teach the portion of the disputed
limitation of claim 1 reciting that the user device provides periodic updates
to the network device and that the “one or more characteristics relating to the
manner in which electronic content is used or consumed on the user device
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is collected locally at the user device.” Id. (emphasis added). The Examiner
also finds Creamer does not expressly teach the portion of the disputed
limitation of claim 1 reciting “wherein at least one of the one or more
characteristics are determined in relation to one or more location points
associated with the electronic content.” Id. (emphasis omitted).
The Examiner finds Allard teaches “limitations not taught by Creamer
regarding periodically updating a network device with information collected
at a user or client device.” Ans. 5; Final Act. 8–9. In particular, the
Examiner finds that, like Creamer, Allard discloses a method of tracking
usage of content and activity by system users, and that Allard further
discloses collecting usage data in a log at a client device and periodically
updating a server or network device. Ans. 5 (citing Allard 1:10–16); Final
Act. 8–9 (citing Allard 9:57–64, 10:19–23,4 11:62–12:2, 12:61–67, 13:33–
47).
Appellant argues error in the Examiner’s finding regarding “receiving
. . . periodic updates” that include “characteristics relating to a manner in
which the electronic content is used or consumed on the user device.” Brief
11. Appellant focuses on the Examiner’s citation to paragraphs 31 and 71 of
Creamer, and asserts that Creamer discloses in those passages merely
managing and tracking students enrolled in a class and capturing feedback
and comments provided by instructors to students. Id. at 12. Appellant
argues that “input from a user is different from a periodic update,” and that
the “input that is captured by the system of Creamer does not receive a

4 The Office Action cites to “column 8,” but we deem that to be a
typographical error, as the quoted material appears in the same lines at
column 10.
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periodic update relating to a manner in which the electronic content is used
or consumed.” Id. at 12–13. Appellant does not substantively address the
Examiner’s findings regarding Allard, but contends, in conclusory fashion,
that “Allard fails to cure the above-noted deficiencies of Creamer.”
Id. at 13.
We are not persuaded of Examiner error in the rejection. First, we
note that Appellant addresses only a subset of the Examiner’s citations to
Creamer, disregarding, for example, the portions of Creamer that disclose an
audit module that detects and stores time spent by students viewing course
content and course content downloads. See Creamer ¶ 72; Ans. 7. As the
Examiner finds, and we agree, “[t]racking logins by students, and course
content downloads . . . require the network to track inputs received
periodically from a client device.” Ans. 7.
Additionally, Appellant’s piecemeal challenge to Creamer, which fails
to address the Examiner’s findings regarding the combined teachings of
Creamer and Allard, is inherently flawed. It is well established that one
cannot show nonobviousness by attacking references individually where the
rejections are based on combinations of references. See In re Keller, 642
F.2d 413, 425 (CCPA 1981). The Examiner relies on the teachings of Allard
to modify Creamer “to replace the server side tracking to expressly include
client side tracking with periodic updates to the server.” Ans. 7.
Appellant next argues that the Examiner’s combination of Creamer
and Allard to teach or suggest “at least . . . one or more characteristics are
determined in relation to one or more location points associated with the
electronic content” is in error because it “is grounded in impermissible
hindsight reasoning.” Brief. 14, 13. In that regard, Appellant contends that
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the Examiner sets forth only a “general rationale” for combining the
teachings of the references, and fails to set forth a rationale that is connected
with the “proposed modification of the teachings of Creamer with the
teachings of Allard” to derive the disputed limitation. Id. at 14.
We disagree that the Examiner has engaged in improper hindsight
reconstruction or has erred in combining the teachings of the cited
references. The Examiner has provided an articulated reason for combining
Creamer and Allard that includes a rational underpinning, which Appellant
disregards by quoting only a portion of the Examiner’s findings. In
particular, the Examiner finds:
It would have been obvious to one of ordinary skill in the
art before the effective filling date of the claimed invention to
modify the server side tracking performed by Creamer to add
client side usage tracking per Allard for reasons taught by
Allard. Allard teaches client side usage tracking to reduce
server overhead, remove lag time for processing information
requested from the server, to avoid the need to account for
proxy servers, to produce more accurate accounting of user
activity by eliminating “access tracks” from web crawlers and
to provide tracking information on how much of a content item
is viewed.
Final Act. 9 (citing Allard, 2:52–4:44, 13:42–47); Ans. 8–9. The Examiner
thus finds, and we agree, that the ordinarily skilled artisan would have been
motivated to modify Creamer with the teachings of Allard “to provide client
side tracking of portions of viewed content by tracking location points
relative to content end points” (Ans. 8), which would include “client side
usage tracking of how much content is viewed using location points” (id. at
9).
For the above reasons, we are not persuaded of error in the
Examiner’s obviousness rejection of claim 1, and we, therefore, sustain that
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rejection, along with the rejection of claims 3, 5–8, 10, 12, and 14–17 not
argued separately.
Appellant separately argues error in the Examiner’s rejection of
independent claim 19, which recites, in part, “determining, by one or more
processors, analytics based at least in part on the information included in the
one or more periodic updates including information associated with a
student’s viewing of the electronic content” and “aggregating, by one or
more processors, the analytics over a plurality of students for the electronic
content.” Brief 15–17, 22 (Claims App.). Appellant’s arguments regarding
claim 19 consist essentially of summarizing three paragraphs of Creamer
cited by the Examiner (paragraphs 36, 68, and 76), and then stating, in
conclusory fashion, that those portions of Creamer do not disclose the
disputed limitations. Id. at 16. Such conclusory attorney assertions have
little or no value in identifying the Examiner’s alleged error, and,
consequently, have little persuasive value. See 37 C.F.R. § 41.37(c)(iv) (“A
statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim.”); see also In
re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Appellant has not explained
why the relied-upon disclosures do not teach or suggest the claimed feature
under its broadest reasonable interpretation in light of the Specification;
rather, Appellant merely alleges that the feature is different because it is
described in different terms. Cf. In re Bond, 910 F.2d 831, 832 (Fed. Cir.
1990) (explaining that the comparison of references to the claimed invention
“is not an ‘ipsissimis verbis’ test”).
In any event, for the reasons stated by the Examiner (Final Act. 12–
17; Ans. 10–13), we agree the Examiner’s findings regarding claim 19 are
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supported by the cited teachings of Creamer and Allard. With regard to
collecting and aggregating analytics based on periodic updates for a plurality
of students, the Examiner finds, and we agree, that Creamer discloses
providing course content to a plurality of students, and collecting analytics
including student attendance and progress, from which, for example, a list of
students ready for standard testing may be determined. Ans. 10–13 (citing
Creamer ¶¶ 7, 31, 36, 68, 71, 72, 76, Figs. 4, 5). The Examiner also maps
the client-side claim requirements to Allard in a manner similar to the
Examiner’s findings regarding claim 1, in which, as noted above, we have
found no error. See id.; Final Act. 15–17. We, therefore, are not persuaded
of Examiner error in the rejection of claim 19, and we sustain that rejection.
Appellant separately argues error in the Examiner’s rejection of
independent claim 20, which recites, in part, “the user device tracks whether
the electronic content was scrolled to or past a location in the electronic
content that is associated with the one or more location points.” Brief 17,
22. In particular, Appellant argues, in conclusory fashion, that Allard fails
to disclose tracking whether electronic content was scrolled to, and does not
disclose or render obvious the claim’s recitation of location points. Id. at 17.
Appellant also reiterates its position that the Examiner’s combination of
Creamer and Allard is premised on hindsight. Id.
We are not persuaded of Examiner error in the rejection. The
Examiner finds, and we agree, that Allard discloses “tracking a user
scrolling a text object to a location indicating a portion of content scrolled
with regard to the end point of the text content.” Ans. 14. Allard states:
If it is a text object, the user will scroll through the text until the
end of the object is reached. If after viewing a portion of
object, the user determines that the object is of little interest,
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she may choose another object . . . . In such cases it is useful to
know an approximation of how much of the object was actually
processed by the smart client under user direction as a gauge of
the user’s interest in that object.
Allard, 13:36–42. The Examiner further finds, and we agree, that Allard
teaches logging the amount of content viewed by a user with
respect to the end of the electronic content[,] which maps to
“one or more location points”. The end of the content is
interpreted by the Examiner to be a location point in the
electronic content. The point at which the user stops after
viewing “a portion” of a text object also maps to “a location in
the electronic content that is associated with the one or more
location points.” The portion is associated with a distance from
the end point to approximate how much of the text was actually
processed.
Ans. 14. We, therefore, agree that Allard discloses tracking the portion of
content that was processed, which includes tracking how much text was
scrolled through. As for Appellant’s “hindsight” argument, we are not
persuaded by that argument as to claim 20 for the same reasons we are not
persuaded with regard to claim 1, as discussed supra.
For the foregoing reasons, we are not persuaded of Examiner error in
the rejection of claim 20 and we, therefore, sustain that rejection.
B. Claims 2, 4, 11, and 13:
§ 103 over Creamer, Allard, and Von Hilgers
Appellant asserts error in the Examiner’s rejection of claim 2, which
recites “retrieving user conditions associated with the electronic content; and
modifying the viewed status based on the user conditions.” Brief 14, 19.
The basis of Appellant’s argument is that the Examiner’s combination of
Creamer, Allard, and Von Hilgers “is firmly rooted in hindsight reasoning,”
because the Examiner “merely proposes combining Von Hilgers with the
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teachings of Creamer and Allard to derive the presently claimed
combination of features.” Id. at 15.
Again, we disagree that the Examiner has engaged in improper
hindsight reconstruction or has erred in combining the teachings of the cited
references. The Examiner has provided an articulated reason for combining
Creamer, Allard, and Von Hilgers that includes a rational underpinning,
which Appellant disregards by quoting only a portion of the Examiner’s
findings. In particular, the Examiner finds:
It would have been obvious to one of ordinary skill in the
art before the effective filling date of the claimed invention to
modify the course progress tracking features of the electronic
content viewing method taught by Creamer to include tracking
electronic document “viewed status” based upon user
conditions per Von Hilgers for reasons taught by Von Hilgers.
Von Hilgers teaches this method of tracking user interactions to
determine viewed portions of electronic documents as a more
reliable way to infer that a user has actually read portions of a
document and to what degree.
Final Act. 19 (citing Hilgers ¶ 11); Ans. 10. The Examiner thus finds, and
we agree, that the ordinarily skilled artisan would have been motivated to
modify Creamer and Allard with Von Hilgers to achieve “improved
reliability of viewed status” because “Von Hilgers considers conditions of
scrolling velocity and direction when determining viewed status of
electronic content to more reliably infer that a user has actually read portions
of the content and to what degree.” Ans. 10.
For the above reasons, we are not persuaded of error in the
Examiner’s obviousness rejection of claim 2, and we, therefore, sustain that
rejection, along with the rejection of claims 4, 11, and 13 rejected on the
same basis and not argued separately. See 37 C.F.R. § 41.37(c)(1)(iv).
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C. Claims 9 and 18:
§ 103 over Creamer, Allard, and Gallo
Appellant does not separately argue dependent claims 9 and 18, which
are rejected over the combination of Creamer, Allard, and Gallo, but merely
asserts patentability based upon these claims’ dependency from independent
claims 1 and 10, respectively. See Brief 17. For the same reasons we
provide above for sustaining the rejection of claims 1 and 10, we also sustain
the Examiner’s obviousness rejections of dependent claims 9 and 18 over the
additionally cited prior art listed above. See 37 C.F.R. § 41.37(c)(1)(iv).
CONCLUSION
The Examiner’s 35 U.S.C. § 103 rejections are AFFIRMED.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 5–8,
10, 12, 14–
17, 19, 20
103 Creamer, Allard 1, 3, 5–8,
10, 12, 14–
17, 19, 20

2, 4, 11, 13 103 Creamer, Allard,
Von Hilgers
2, 4, 11, 13
9, 18 103 Creamer, Allard,
Gallo
9, 18
Overall
Outcome
1–20

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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