Ex Parte 7370047 et al

Patent Trial and Appeal Board

Apr 29, 2014

95000626 (P.T.A.B. Apr. 29, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
95/000,626 04/25/2011 7370047 120443-001REX 8505
27189 7590 04/30/2014
PROCOPIO, CORY, HARGREAVES & SAVITCH LLP
525 B STREET
SUITE 2200
SAN DIEGO, CA 92101
EXAMINER
CAMPBELL, JOSHUA D
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
04/30/2014 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

DEEP SKY SOFTWARE, INC.
Patent Owner and Appellant

v.

SOUTHWEST AIRLINES CO.
Requester and Respondent
____________

Appeal 2014-001434
Reexamination Control 95/000,626
Patent 7,370,047 B2
Technology Center 3900
____________

Before RICHARD M. LEBOVITZ, DAVID M. KOHUT, AND
IRVIN E. BRANCH, Administrative Patent Judges.

BRANCH, Administrative Patent Judge.

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DECISION ON APPEAL
Appellant, Patent Owner Deep Sky Software, Inc. (“Deep Sky” or
“Patent Owner”) appeals the Examiner’s decision to reject claims 4, 5, 15–
23, 27–38, and 43–48. App. Br. 1.1 We have jurisdiction under 35 U.S.C.
§§ 134 and 315. We affirm. Claims 1–3, 6–14, 24–26, and 39–42 are not
subject to reexamination.

STATEMENT OF THE CASE
A request was filed on behalf of Requester, on April 25, 2011, for
inter partes reexamination of United States Patent 7,370,047 B2 (the “’047
Patent”), which issued to John G. Gorman on May 6, 2008.
The ’047 Patent pertains to filtering and sorting data. Specifically, a
filter cell, associated with columns in a data table, receives filter criteria then
filters and sorts data cells accordingly. Abstract.
Claim 4, which is illustrative of the appealed subject matter, reads as
follows:
4. A method of managing data, the method
comprising:
displaying, in a window of a display, one or more filter
cells and a table including one or more rows and columns of
data cells, wherein each data cell includes content that belongs
to one or more data sets, wherein each of the data cells is
associated with at least one of the filter cells, and wherein the

1 Throughout this opinion, we refer to (1) the Right of Appeal Notice mailed
Nov. 15, 2012 (“RAN”); (2) Patent Owner’s Appeal Brief filed Feb. 19,
2013 (“App. Br.”); (3) Requester’s Respondent Brief filed Mar. 19, 2013
(“Req. Resp. Br.”); (4) the Examiner’s Answer mailed May 7, 2013
(“Ans.”); and (5) Patent Owner’s Rebuttal Brief filed June 7, 2013 (“Reb.
Br.”).
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filter cells comprise interactive display elements configured to
receive input from a user for whom the window of the display
is displayed;
automatically inserting predefined filter criteria into
selected filter cells in response to a user selection; identifying
data cells that have content that satisfies the predefined filter
criteria of an associated filter cell; and
sorting data sets that include the identified data cells.

RELATED PROCEEDINGS
We are informed that the parent of the ’407 Patent (US 6,738,770) is
under reexamination (Inter Partes Reexamination Control No. 95/000,625)
and that the ’407 Patent is the subject of a broadening reissue application
(U.S. Patent Application No. 12/800,142), which is presently stayed pending
the outcome of the present inter partes reexamination of the ’047 Patent.
App. Br. 1.
THE PRIOR ART
Groff et al. 5,787,411 Jul. 28, 1998
Marshall et al. 5,926,806 Jul. 20, 1999
Spaey et al. 2002/0055981 May 9, 2002
Microsoft Windows 95 Help Program included in Windows 95 (Microsoft
1995).

Microsoft Windows 95 Help Authoring Kit (Microsoft Press 1995).

Mark R. Brown, USING NETSCAPE COMMUNICATOR 4, (Que 1997) (herein
“Brown”).

Brian Shea et al., VISUAL BASIC SOURCE CODE LIBRARY (Sams Jan. 1999)
(herein “Shea”).

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Thomas Chester & Richard H. Alden, MASTERING EXCEL 97, (Sybex,
4th ed.1997) (herein “Chester”).

THE EXAMINER’S REJECTIONS
Patent Owner appeals the Examiner’s rejecting the claims as follows:
Claims 4, 5, 15–23, 27, 29–37, and 46–48 under 35 U.S.C. § 102(e) as
anticipated by Spaey;
Claim 28 under 35 U.S.C. § 103(a) as obvious over Spaey in view of
Groff;
Claims 4, 5, 15–23, 27–38, and 43–48 under 35 U.S.C. § 103(a) as
obvious over Marshall in view of Brown;
Claims 4, 5, 18–23, 27, 29–37, and 46–48 under 35 U.S.C. § 102(b) as
anticipated by Chester;
Claims 15–17 under 35 U.S.C. § 103(a) as obvious over Chester in
view of Shea; and
Claim 28 under 35 U.S.C. § 103(a) as obvious over Chester in view of
Groff.

THE OBVIOUSNESS REJECTION OVER MARSHALL AND BROWN
The Examiner finds the combination of Marshall and Brown teaches
or suggests the elements of all claims subject to reexamination, concluding
the claims to be unpatentable as obvious. RAN 4–7 (referencing Request for
Inter Partes Reexamination, Appendix C, pp. 1–97, filed Apr. 25, 2011
(“Request”)). Marshall discloses displaying information from related tables
of a database in different display windows. The windows are interlinked
such that a selection of an entry in one window causes another window to
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display entries related to the selection. Abstract. Brown discloses operation
of a web browser, including character-by-character searching (Brown 253–
254) and message sorting (id. at 263) associated with newsgroups.
Claims 4, 27, and 46–48
Patent Owner argues the Examiner has not properly communicated
the basis of the rejections (App. Br. 13–14) and “it is unclear what the
Examiner has interpreted as the ‘predefined filter criteria’ and the ‘filter
cells’” (id. at 14; see also App. Br. 14–19 and Reb. Br. 8–9). Patent Owner
further argues the combination of Marshall and Brown fails to disclose at
least “one or more filter cells and a table including one or more rows and
columns of data cells,” “automatically inserting predefined filter criteria into
selected filter cells in response to a user selection,” and “sorting data sets
that include the identified data cells.” App. Br. 14; see also Reb. Br. 10–12.
Issue
Whether the Examiner erred in rejecting representative claim 4 by,
inter alia, finding that Marshall and Brown collectively would have taught
or suggested “one or more filter cells and a table including one or more rows
and columns of data cells,” “automatically inserting predefined filter criteria
into selected filter cells in response to a user selection,” and “sorting data
sets that include the identified data cells.”
Analysis
On this record we find no error in the Examiner’s obviousness
rejection of representative claim 4 over Marshall and Brown. Patent
Owner’s general allegations of error (App. Br. 13–14) and assertion that “the
Examiner has never articulated how Marshall and Brown are being
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combined to render the claims [] obvious” (id. at 13) are unpersuasive
because Appendix C of the Request, upon which the Examiner’s rejections
are based, cites specific passages of Brown and/or Marshall for each and
every element of representative claim 4. Request, Appendix C. Moreover,
the Examiner articulated a specific reason for combining the references,
stating that “it would have been obvious to one of ordinary skill in the art at
the time the invention was made to have combined the teachings of Marshall
with the teachings of Brown” for the purpose of “allow[ing] users another
means of inputting custom filter commands.” RAN 4–5 (citing Brown, pp.
253–254). Accordingly, we are unpersuaded the Examiner has failed “to
provide an explicitly articulated analysis” and “establish a prima facie case
of obviousness.” App. Br. 14.
We are also unpersuaded of error by Patent Owner’s various
characterizations of Marshall (App. Br. 14–19), which allege, inter alia, that
the Examiner’s interpretation precludes Marshall from disclosing “one or
more filter cells and a table including one or more rows and columns of data
cells” because “the claims require one or more filter cells that are separate
and distinct from the table and data cells.” Marshall’s list boxes, including
“list box 116,” “list[] or otherwise display[] multiple entries with a row and
column format” (col. 5, ll. 19–20), and Marshall’s “group drop down list box
122” includes entries such as “Retailers” which, upon selection by a user,
operate to display in list box 116 entries matching the customer-selected
filter criteria. See, e.g., Fig. 1, col. 7, ll. 5–20, col. 9, ll. 2–9 and 14–65, and
col. 15, ll. 31–46 (further explaining Fig. 1 element functionality). Hence,
Marshall’s group drop down list boxes 122, 138, and 154 teach or suggest
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the claimed “filter cells,” and the list boxes 116, 132, and 148 teach or
suggest a “table including one or more rows and columns of data cells.”
That the claimed filter cell also reads on Marshall’s list box 1002 (Fig. 10,
analogous to list box 116 in Fig. 1), which allows a user to select an entry,
causing the other list boxes 1004 and 1006 (analogous to list boxes 132 and
148 in Fig. 1) to be “automatically modified such that they visually indicate
those records that are related to the user selection” (col. 9, ll. 44–46), does
not negate the claimed table also reading on the list box 116/1002. As both
elements are separately described by Marshall, we see no error in the
Examiner’s finding that Marshall teaches or suggests, “one or more filter
cells and a table including one or more rows and columns of data cells.”
We also see no error in the Examiner’s finding that “automatically
inserting predefined filter criteria into selected filter cells in response to a
user selection” and “sorting data sets that include the identified data cells”
reads on Marshall’s group drop down list boxes (e.g., 122) and the resulting
displaying of selected entries. See, e.g., Fig. 1, col. 7, ll. 5–20 and col. 15, ll.
31–46. Marshall discloses that user selections in list box 1002 result in the
content of list boxes 1004 and 1006 being “automatically modified such that
they visually indicate those records that are related to the user selection” and
are “sorted (in this case alphabetically) and placed at the top of the list box
1004 before those records that are not related to the user selections.” Col. 9,
44–52. Although the selection of entries in list box 1002 may be initiated by
a user selection from the group drop down list box 122 and subsequent
insertion of the filter criteria (e.g., “Retailers”) into the group drop down list
box (i.e., the filter cell), the predefined filter criteria still operates to identify
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data cells in list box 1004 and sort the data sets as required by the claim.
Patent Owner’s arguments that Brown does not disclose “predefined filter
criteria” (App. Br. 18–19; Reb. Br. 11) are unavailing of error because
Marshall is also cited. Patent Owner’s arguments amount to an unpersuasive
attack on an individual reference when the rejection is based on the
combined teachings of Marshall and Brown. We therefore see no error in
the Examiner’s finding that Marshall and/or Brown teaches or suggests
“automatically inserting predefined filter criteria into selected filter cells in
response to a user selection” and “sorting data sets that include the identified
data cells.”
Patent Owner also argues unpersuasively that the “Requester’s
reliance on flip-flopping between opposing and contradictory interpretations
of the same reference, in an attempt to cover all aspects of the claimed ‘filter
cells,’ is the epitome of hindsight bias.” Reb. Br. 11. For reasons discussed
above, we find no “flip-flopping” and therefore no hindsight bias.
Because we are unpersuaded the Examiner erred in rejecting
representative claim 4 as obvious over Marshall and Brown, we sustain the
rejection. We reach the same conclusion regarding claims 27 and 46–48,
which are not separately argued with particularity.
Claim 15
Independent claim 15 recites in pertinent part a plurality of filter cells
and displaying sorted data sets in response to a character-by-character input
into the filter cells.
In rejecting claim 15, the Examiner finds, inter alia, character-by-
character input reads on Brown’s character-by-character incremental search
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that “narrows in after each character you type” to “limit the list to those
newsgroups that match the search string you’ve typed in the search field.”
RAN 4 (citing Brown pp. 253–254).
Patent Owner argues the rejection of claim 15 is erroneous for reasons
discussed with respect to the rejection of claim 4 (App. Br. 19–20) and
because: a) Marshall and Brown fail to disclose “a plurality of filter cells”
(id. at 20); b) “Appendix C appears to admit that Marshall does not
explicitly disclose sorting, and then only presents attorney argument that
searching is obvious” (id.); and c) because Marshall’s “disparagement of
manual queries” negates any motivation to combine Marshall and Brown (id.
at 20–21).
Issue
Whether the Examiner erred in rejecting claim 15 by finding that
Marshall and Brown collectively would have taught or suggested
“displaying the sorted data sets in response to one of a character-by-
character input into the filter cells, or b) lapse of a preset pause period during
which no character is input into any of the filter cells.”
Analysis
We are unpersuaded of error. As discussed above, we find no error in
the Examiner’s rejection of claim 4. We also see no error in the Examiner’s
finding that Marshall teaches or suggests “a plurality of filter cells” because,
as discussed above, Marshall’s group drop down list boxes 122, 138, and
154 teach or suggest “filter cells” (see, e.g., Fig. 1, col. 7, ll. 5–20, col. 9, ll.
2–9 and 14–65, and col. 15, ll. 31–46 (further explaining Fig. 1 element
functionality)), and Marshall teaches more than one filter cell.
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Moreover, Patent Owner’s contention that “Appendix C appears to
admit that Marshall does not explicitly disclose sorting, and then only
presents attorney argument that searching is obvious” (App. Br. 20) is
unavailing of error because claim 15 does not recite searching and Marshall
teaches or suggests the claimed sorting as discussed above. Accordingly, we
do not find persuasive of error Patent Owner’s contention that “The
conflation of sorting and searching elements in this rejection is clearly
erroneous.” Id.
Finally, we are not persuaded Marshall’s statement that “manual
generation of queries is not only burdensome but also typically restricted to
particular tables of the database” (col. 1, ll. 52–54) sufficiently disparaging
to render the motivation to combine “clearly erroneous.” App. Br. 20. The
Examiner has shown the subject matter of claim 15 is a combination of
familiar elements and we do not find evidence sufficient to persuade us that
combining the familiar elements would have yielded unpredictable results or
been beyond the skill of an ordinarily skilled artisan. See KSR International
Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007)
Accordingly, we sustain the Examiner’s rejection of claim 15. Patent
Owner argues claims 18, 31, and 43 under separate headings but bases
patentability on arguments presented with respect to claim 15. We therefore
also sustain the Examiner’s rejection of claims 18, 31, and 43.
Claim 21
Independent claim 21 recites in pertinent part “computing a sorting
priority list, wherein the sorting priority list is based at least in part on the
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filter criteria; and sorting the data sets associated with the identified data
cells based at least in part upon the sorting priority list.”
In rejecting claim 21, the Examiner cites Marshall, col. 8, ll. 21–33;
col. 9, ll. 7–65; col. 11, ll. 1–38; and col. 12–ll. 40–65; and Brown, pp. 253–
254; and chapters 9, 11, and 13. RAN 4 (citing pp. 1–97 of Request
Appendix C). At page 263, Brown discloses changing the order in which a
discussion folder sorts messages, which includes selecting from a submenu a
field on which a sort is based and selecting a sort order.
Patent Owner argues claim 21 based on arguments presented with
respect to previously-analyzed claims, adding, “Marshall, either alone or in
combination with Brown, fails to disclose” the claim 21 elements quoted
above. App. Br. 21. Patent Owner further argues “Marshall merely
discloses that when a user selection is made in one list box, related records
are moved to the top of the other list boxes such that they are distinguishably
displayed,” which merely describes “sorting,” and “Simply because data is
sorted does not mean that it is sorted based on a priority, let alone, a
computed sorting priority list.” Id. at 22. Patent Owner maintains “Since a
single key is utilized in Marshall, there is no reason to prioritize multiple
keys in a sorting priority list for a sort procedure.” Id. Regarding Brown,
Patent Owner argues “it does not disclose prioritized sorting [and there] is
no reason to prioritize a single field.” Id. at 23.
Issue
Whether the Examiner erred in rejecting claim 21 by finding that
Marshall and Brown collectively would have taught or suggested (1)
“computing a sorting priority list, wherein the sorting priority list is based at
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least in part on the filter criteria;” and (2) “sorting the data sets associated
with the identified data cells based at least in part upon the sorting priority
list.”
Analysis
We are not persuaded of error in the Examiner’s rejection of claim 21.
To the extent Patent Owner argues the claimed sorting priority list requires
sorting on multiple keys or fields (App. Br. 21–23), we are not persuaded
because we do not find the claim to require multiple keys or fields. Patent
Owner’s argument, therefore, is not commensurate with the scope of the
claim. Further, Patent Owner has not provided argument or evidence
sufficient to persuade us that the Examiner’s interpretation of “sorting
priority list” is unreasonably broad or that it is not taught or suggested by the
combined teaching of Marshall and Brown. Accordingly, because we are
unpersuaded the Examiner erred in rejecting claim 21 as obvious over
Marshall and Brown, we sustain the rejection.

Patent Owner argues the rejection of claims 5, 16, 17, 19, 20, 22, 23,
28–30, 32–38, 44, and 45 over Marshall and Brown under a separate heading
but bases patentability on arguments presented with respect to other claims
rejected over Marshall and Brown as discussed above. App. Br. 23.
Accordingly, for the reasons discussed above, we sustain the Examiner’s
rejection of claims 5, 16, 17, 19, 20, 22, 23, 28–30, 32–38, 44, and 45 over
Marshall and Brown.

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CONCLUSION
Because the Examiner has not erred in rejecting claims 4, 5, 15–23,
27–38, and 43–48 as obvious under 35 U.S.C. § 103(a) over Marshall and
Brown, we sustain the Examiner’s rejections.
Affirmance of the obviousness rejection over Marshall and Brown
renders it unnecessary to reach the remaining rejections, as all claims subject
to reexamination have been addressed and found unpatentable. Cf. In re
Gleave, 560 F.3d 1331, 1338 (Fed. Cir. 2009) (not reaching additional
obviousness rejections).

ORDER
The Examiner’s decision to reject claims 4, 5, 15–23, 27–38 and 43–
48 is affirmed.
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. See 37 C.F.R. § 41.79.

AFFIRMED

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Third Party Requester:

Justin S. Cohen
THOMPSON & KNIGHT, L.L.P.
1722 Rough Street, Suite 1500
Dallas, TX 75201-2533