Ex Parte Arora et alDownload PDFPatent Trial and Appeal BoardDec 19, 201612234404 (P.T.A.B. Dec. 19, 2016) Copy Citation 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. 12/234,404 09/19/2008 Aditya Arora 2043.579US1 4005 49845 7590 12/21/2016 SCHWEGMAN LUNDBERG & WOESSNER/EBAY P.O. BOX 2938 MINNEAPOLIS, MN 55402 EXAMINER CHOI, YUK TING ART UNIT PAPER NUMBER 2153 NOTIFICATION DATE DELIVERY MODE 12/21/2016 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): USPTO@SLWIP.COM SLW @blackhillsip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ADITYA ARORA, KEITH PERKINS, BRIAN M. JOHNSON, RICHARD D. HENDERSON, and SWATI AGARWAL Appeal 2014-000786 Applicationl 2/234,4041 Technology Center 2100 Before HUBERT C. LORIN, ANTON W. FETTING, and SHEILA F. McSHANE, Administrative Patent Judges. McSHANE, Administrative Patent Judge. DECISION ON APPEAL The Appellants seek our review under 35 U.S.C. § 134(a) of a decision of the Examiner to reject claims 1—19. We have jurisdiction under 35 U.S.C. § 6. We AFFIRM. 1 According to Appellants, the real party in interest is eBay Inc. (Appeal Brief filed July 3, 2013, hereafter “App. Br.” 2). Appeal 2014-000786 Applicationl2/234,404 BACKGROUND The invention relates to item clustering, where free-form text may be converted to compatibility-based search inquiries. Specification, hereafter “Spec” 21—22. Clustering may be used to record interoperability of items with a parent item. Id. at 23 Representative claim 1 reproduced from page 13 of the Claims Appendix of the Appeal Brief (Claims App’x) as follows, with emphasis added to relevant claim limitations: 1. A method comprising: receiving a query comprising free-form text associated with an item; extracting a term from the free-form search query to identify an item descriptor in the free-form search query; using the extracted term and the item descriptor to identify the item; identifying, using at least one processor, a parent item comprising a product from a different category of the item, the item comprising parts and accessories that work with the product of the parent item; constructing compatibility data for the item based on identification of the parent item, identification of the item descriptor and identification of the item; accessing the compatibility data for the item, the compatibility data including a plurality of parent items with which the item is compatible; identifying a particular parent item within the compatibility data; creating an item cluster at a processing device for the item and an additional item based on compatibility of the item and the additional item with the particular parent item, the compatibility reflected within the compatibility data; associating a compatibility identifier with the item cluster; and associating the compatibility identifier with the particular parent item. 2 Appeal 2014-000786 Applicationl2/234,404 The Examiner rejected claims 1—6 and 9—19 under 35 U.S.C. § 103(a) over Musgrove2, Faisal3, and Gehrking4. Claims 7 and 8 were rejected under 35 U.S.C. § 103(a) over Musgrove, Faisal, Gehrking, and Kleinberger5. Final Action mailed March 5, 2013, hereafter “Final Act.,” 3—10; Answer mailed August 15, 2013, hereinafter “Ans.,” 3. DISCUSSION The Appellants argue independent claims 1,14, and 17 together on the same common issues, with dependent claims 2—7, 9—13, 15, 16, 18, and 19 standing or falling with them. App. Br. 7—11. The Appellants allege that the additional prior art relied upon for obviousness rejection of claims 7 and 8 fail to cure the deficiencies of the teachings as to representative claim 1. Id. at 11. We therefore only need address the issues relating to the independent claims, and we will use claim 1 as representative. The Appellants argue that the prior art, and Musgrove in particular, fails to teach the limitation of claim 1 of “identifying ... a parent item comprising a product from a different category of the item, the item comprising parts and accessories that work with the product of the parent item.” App. Br. 8. More specifically, the Appellants allege that Musgrove fails to teach a relationship between the parent item and items, where the items are parts and accessories of the parent items, because the prior art only discloses categorizing the items themselves. Id. at 9 (referring to Musgrove, Fig. 7). The Examiner finds that Musgrove teaches the comparison of an “item’s manufacturer part number, model IDS, UPC or other accessories and parts to 2 US Publication 2004/0143600 Al, published July 22, 2004. 3 US Patent 6,094,652, issued July 25, 2000. 4 US Publication 2006/0242147 Al, published October 26, 2006. 5 US Publication 2003/0145002 Al, published July 31, 2003. 3 Appeal 2014-000786 Applicationl2/234,404 categories of a taxonomy to determine a category product or a parent item for the item.” Ans. 4 (citing Musgrove 10, 81, 191). The Examiner also finds that Musgrove checks “category to category relation, product to category relation, product to product and product to category relation in order to classify the products into categories.” Id. (citing Musgrove 184—191). The Examiner finds that Musgrove’s example of products in different categories such as “Xbox cartridges” and “Xbox Game Console,” that have a parts and accessory relationship teaches the limitation at issue. Id. (citing Musgrove 1188). The Examiner also finds that “[t]he printer cartridge (a part/accessory) is related to a model of printer. The cartridge and the printer are in different categories but have an allied relationship.” Id. at 4—5 (citing Musgrove 1190). In Reply, the Appellants argue that Musgrove’s disclosures relating to the Xbox are directed to a relationship between an entire category of cartridges and the game console, and not an “item.” Reply Brief mailed October 15, 2013, hereafter “Reply Br.,” 2. The Appellants additionally argue that the Examiner’s findings regarding the “Product-to-Product relation,” and the cited printer cartridge and photo-printer disclosure, represent a new ground of rejection under 37 C.F.R. 1.181 (a), and state that they filed a Petition on the issue of the alleged new ground. Id. The Appellants also argue that the Examiner’s reliance on this portion of Musgrove is incompatible with the Examiner’s previous allegations related to other elements of the claims. Id. at 2—3. More specifically, the Appellants refer to the Examiner’s reliance on portions of Musgrove’s teachings (Musgrove 67, 68) related to the limitation “creating] an item cluster ... for the item and an additional item with the particular parent item, the compatibility reflected within the compatibility data,” arguing that this portion of Musgrove discloses “clustering] . . . according to which products are most likely to be the same 4 Appeal 2014-000786 Applicationl2/234,404 product,” and does not disclose creation of an item cluster for two items with the same parent item. Id. at 3. The Petition, in which the Appellants argue that Examiner’s assertion that Musgrove teaches a “product to product” relationship was impermissibly raised for the first time in the Examiner’s Answer, was dismissed after review. See Decision on Petition Under 37 C.F.R. § 1.181, mailed July 6, 2016 (citing Final Act. 3). The dismissal was based upon the Examiner’s identification of paragraph 190 of Musgrove in the Final Rejection that afforded the Appellants notice of the product- to-product relation disclosure and, additionally, the Examiner’s discussion in the Answer in response to the Appellants’ arguments did not serve to change the thrust of the Examiner’s rejection. Id. at 3. We will therefore consider the portion of the Examiner’s Answer that was the subject of the Petition, i.e., Musgrove’s printer cartridge/printer disclosure. Upon consideration of the evidence on this record in light of the arguments advanced by the Appellants, we find that the Appellants have not identified reversible error in the Examiner’s determination that representative claim 1 is obvious. We add the following for emphasis. Claim 1 ’s limitation at issue recites "the item comprising parts and accessories that work with the product of the parent item.'1'’ We agree with the Examiner that Musgrove’s teaching of a printer cartridge is a “part” that works with the product, and the cartridge and the printer are in different categories. See Ans. at 4—5 (citing Musgrove 1190). We do not agree with the Appellants’ argument that the Examiner’s reliance on other portions of Musgrove for the teachings of the “item cluster” limitation induces incompatibility in the Examiner’s findings on this limitation, and instead view that the Appellants’ assertion represents a new argument not raised in the Appeal Brief that could have been 5 Appeal 2014-000786 Applicationl2/234,404 raised therein. Absent any showing of good cause why the argument could not have been timely presented in the Appeal Brief, we deem this argument waived. See In re Hyatt, 211 F.3d 1367, 1373 (Fed. Cir. 2000). We therefore sustain the rejections of claims 1—19. SUMMARY The rejection of claims 1—19 under 35 U.S.C. § 103(a) is affirmed. 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). AFFIRMED 6 Copy with citationCopy as parenthetical citation