Ex Parte Baggett et al

Board of Patent Appeals and Interferences

Sep 16, 2008

09431674 (B.P.A.I. Sep. 16, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID BAGGETT, GREGORY R. GALPERIN, and
CARL G. DEMARCKEN
____________

Appeal 2007-3495
Application 09/431,674
Technology Center 3600
____________

Decided: September 16, 2008
____________

Before WILLIAM F. PATE, III, LINDA E. HORNER, and
ANTON W. FETTING, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
David Baggett et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the final rejection of claims 1-34. We have jurisdiction under
35 U.S.C. § 6(b) (2002).
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SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
The Appellants’ claimed invention relates to the cost-effective use of
multiple sources of seat availability information to produce high-quality
answers in response to travel planning queries, such as airline reservations
(Spec. 3:13-17). Claims 1 and 11, reproduced below, are representative of
the subject matter on appeal.
1. A travel planning system comprises:
a computer system, comprising:
a processor; and
a memory storing processes for executing on
the processor, the processes comprising:
a scheduling process to provide a set of
instances of transportation that satisfy a user
query; and
an availability process that accesses seat
availability information from multiple sources of
seat availability information, receives the instances
of transportation and uses results from a first
source of the multiple sources of seat availability
information for a mode of transportation to
determine a set of instances of transportation for
which a seat is available from the received
instances of transportation;
determines quality properties of the
availability information from the first source of
seat availability information, with the quality
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properties including at least one of confidence,
precision and validity; and
determines, based on the quality properties,
whether the first source of seat availability
information is reliable, and if the results are not
reliable, the availability process executes a second
set of seat availability queries to the first source or
a different one of the multiple sources of seat
availability information based on the outcome of
determining quality properties, to provide a second
set of instances of transportation for which a seat is
available.

11. The travel planning system of claim 1
wherein the availability process:
speculatively determines the travel options
using availability data that is determined to be low-
quality data as though the data were high-quality
data.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Hornick US 5,270,921 Dec. 14, 1993
Lynch (Lynch ‘114) US 5,839,114 Nov. 17, 1998
Walker US 5,897,620 Apr. 27, 1999
Slotznick US 5,983,200 Nov. 9, 1999
Lynch (Lynch ‘094) US 6,119,094 Sep. 12, 2000
The following rejections are before us for review:
1. Claims 11-13 are rejected under 35 U.S.C. § 112, second paragraph as
being indefinite.
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2. Claims 1-4, 11, 13, 15, 16, 19, 21-23, 26, and 29-32 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Lynch ‘094.
3. Claims 5-8, 10, 18, 20, 25, and 27 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Lynch ‘094 and Lynch ‘114.
4. Claims 9, 17, and 24 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lynch ‘094 and Walker.
5. Claims 12, 33, and 34 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lynch ‘094 and Hornick.
6. Claim 14 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lynch ‘094 and Slotznick.

I. Indefiniteness

A. ISSUE
The Examiner found that claims 11-13 are indefinite because it is
unclear what is meant by “low-quality data” and “high-quality data” and
how the system/method would process these data in a similar or differential
manner (Ans. 4). The Appellants assert that the metes and bounds of claims
11-13 are clear because “[o]ne of ordinary skill in the art would understand
[in view of the Specification] that low quality is, e.g., where the quality
(age/freshness, confidence, precision, or validity) is not as good as a source
with higher quality, e.g., (age/freshness, confidence, precision, or validity)”
(App. Br. 9). The Appellants further assert that the Specification “teaches to
use the low quality speculatively guessed data as if it were high quality data,
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to provide some overall computational benefits” (App. Br. 10). The issue
before us is whether the Appellants have shown that the Examiner erred in
rejecting claims 11-13 under 35 U.S.C. § 112, second paragraph. In
particular, this issue turns on whether those skilled in the art would
understand what is meant by low-quality data and high-quality data when the
claim is read in light of the Specification.

B. FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. “Low” and “high” are terms of degree.
2. The Appellants’ Specification describes various sources for
availability data, but does not specify which sources contain high
quality data and which source contain low quality data:
The availability process 70 runs on the server 12
and access an availability system 66 of one or
more airlines (generally each airline will have its
own availability system) by sending availability
queries over the network 22 (FIG. 1). The system
10 also includes other availability sources 65 such
as an availability predictor based upon a cache or
database of stored availability queries 65a, a
predictive model of availability 65b and/or a
simulation of an availability process 65c or an
actual availability process 65d running as a local
process to the server process 12.
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(Spec. 8:10-19).
3. The Appellants’ Specification in some instances associates the
quality of data with the cost for that data, but it fails to make clear
a standard by which to evaluate what is low cost and what is high
cost. See e.g., Spec. 2:29-32 (“The invention permits use of
inexpensive, but lower-quality data, to guide later queries to more
expensive higher-quality data so as to reduce cost without reducing
the quality of the final travel planning result”); Spec. 9:18-20
(“Typically, the first sources are lower cost, lower quality sources,
while the last sources are more expensive, higher quality sources”);
and Spec. 17:6-11 (“The process 70d makes use of the low-quality
low-cost source of availability information 103, assume every seat
is available in every booking class. Computation proceeds as if the
low-quality speculatively guessed data were high quality, in the
sense that the origin of the data does not affect the computational
processes.”)
4. The Specification further describes that the properties by which to
evaluate the quality of data include “age/freshness, confidence,
precision, or validity” (Spec. 8:24-27).

C. PRINCIPLES OF LAW
The test for definiteness under 35 U.S.C. § 112, second paragraph, is
whether “those skilled in the art would understand what is claimed when the
claim is read in light of the specification.” Orthokinetics, Inc. v. Safety
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Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations
omitted).
Definiteness problems often arise when words of
degree are used in a claim. That some claim
language may not be precise, however, does not
automatically render a claim invalid. When a word
of degree is used the [factfinder] must determine
whether the patent's specification provides some
standard for measuring that degree. The
[factfinder] must decide, that is, whether one of
ordinary skill in the art would understand what is
claimed when the claim is read in light of the
specification.
Seattle Box Co. v. Indust. Crating & Packing, Inc., 731 F.2d 818, 826 (Fed.
Cir. 1984) (affirming the trial court’s determination that an expert would
know the limitations of the claims because the specification clearly sets forth
a standard for measuring the degree used in the claim language). Even if a
person of ordinary skill would need to experiment so as to determine the
limits of a patent's claims, the claims would not be invalid under section
112. See, e.g., W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540,
1557 (Fed. Cir. 1983).

D. ANALYSIS
Claim 11 recites that the availability process speculatively determines
the travel options using availability data that is determined to be low-quality
data as though the data were high-quality data. “Low” and “high” are words
of degree (Fact 1). Although the Appellants’ Specification describes sources
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for the availability data, it does not teach which of the enumerated sources
contain “low-quality” data versus “high-quality” data (Fact 2). The
Specification, in some instances, associates low-quality data with relatively
less expensive sources than high-quality data, but it fails to make clear a
standard by which to evaluate what is low cost and what is high cost
(Fact 3). What is high cost to one person having ordinary skill in the art may
be considered to be low cost to another. The Specification further describes
the properties by which to evaluate the quality of data (Fact 4). This
disclosure is merely a recitation of properties (e.g., age/freshness,
confidence, precision, or validity), but it does not provide a standard that
incorporates these properties to measure the quality of data.
For instance, the Appellants’ Specification fails to provide a standard
by which one of ordinary skill in the art would determine whether data from
an availability predictor based upon a cache or database of stored availability
queries 65a is high quality data or low quality data. This data from source
65a may be of higher quality than data from source 65b, but of lower quality
than data from source 66. As such, one having ordinary skill in the art,
reading the Specification, would not understand what is encompassed by
low-quality data and high-quality data when claim 11 is read in light of the
Specification. Thus, we sustain the rejection of claim 11, and its dependent
claims 12 and 13, as indefinite for failing to particularly point out and
distinctly claim that which the Appellants consider to be the invention.

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E. CONCLUSION
We conclude the Appellants have failed to show that the Examiner
erred in rejecting claims 11-13 under 35 U.S.C. § 112, second paragraph.

II. Obviousness
A. ISSUE
The Examiner found that Lynch ‘094 discloses each and every
element of claims 1-4, 11, 13, 15, 16, 19, 21-23, 26, and 29-32, except that it
does not expressly disclose whether a single component performs all of the
recited functions or whether these functions are carried out by more than one
component. The Examiner concluded that it would have been obvious to
modify the system of Lynch ‘094 to have the functions performed by a
single availability component to maximize the use of each component in a
system with limited resources (Ans. 4-16).
The Appellants argue that the Examiner erred in this rejection because
Lynch ‘094 does not describe or suggest “an availability process that
accesses seat availability information from multiple sources of seat
availability information, … and uses results from a first source of the
multiple sources of seat availability information … to determine a set of
instances of transportation for which a seat is available … determines quality
properties of the availability information from the first source …; and
determines, based on the quality properties, whether the first source of seat
availability information is reliable” (Reply Br. 2; see also App. Br. 12-13).
In particular, the Appellants contend that Lynch ‘094 retrieves its data from
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computer reservation services (CRSs), which in turn would get the data from
an airline’s yield or revenue management system, which are known, correct
sources of seat availability data, and thus it would be illogical to modify
Lynch ‘094 to determine quality properties of the availability information or
determine whether the first source was reliable, because Lynch ‘094 already
receives the data known to have the highest quality from the known reliable
sources (CRSs) (id.).
The Examiner responded that the purpose of Lynch ‘094 is to retrieve
inventory and determine a plurality of low-cost alternate travel arrangements
and one having ordinary skill in the art would have been motivated to
include various types of seat availability sources to maximize the likelihood
that the system will identify a plurality of low-cost travel arrangements for
the customer (Ans. 29). The Examiner further found that the update module
in Lynch ‘094 at least suggests that outdated availability data could make the
data unreliable (Ans. 31).
The Examiner likewise relied on this reasoning for the rejections of
claims 5-8, 10, 18, 20, 25, and 27 as unpatentable over Lynch ‘094 and
Lynch ‘114, claims 9, 17, and 24 as unpatentable over Lynch ‘094 and
Walker, claims 12, 33, and 34 as unpatentable over Lynch ‘094 and Hornick,
claim 14 as unpatentable over Lynch ‘094 and Slotnick, and claim 28 as
unpatentable over Lynch ‘094 and Official Notice.
The issue before us is whether Lynch ‘094 discloses or suggests
accessing seat availability information from multiple sources, using
information from a first source to provide first set of instances of
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transportation, determining the quality of the information from the first
source and whether this information is reliable, and if the results are
unreliable, using information from another source to provide a second set of
instances of transportation.

B. ADDITIONAL FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence.
5. Lynch ‘094 discloses an automated system to identify a plurality of
alternate low-cost travel arrangements for a customer (Lynch ‘094,
col. 2, ll. 56-60).
6. The system accesses one or more computer reservation systems
(CRSs) in order to obtain inventory information regarding, for
example, the availability and listed rates of various travel
arrangements, such as inventory information on airline flights,
airline carriers providing the flights, fare classes available on the
flights, and seat availability (Lynch ‘094, col. 2, ll. 60-64, col. 6, ll.
31-38, and col. 8, ll. 28-32).
7. The system includes an inventory update sub-module which
determines if a pre-determined time has elapsed since inventory
information was last obtained from the CRSs, and if the time has
elapsed, the system reads data from one or more CRSs and updates
the inventory data structure in the database using information
obtained from the CRSs (Lynch ‘094, col. 6, ll. 6-40).
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8. The inventory update sub-module then trains the genetic
algorithms by providing the most current pool of candidate
solutions (i.e., the travel arrangements specified in the most
recently obtained inventory information) to the genetic algorithms
(Lynch ‘094, col. 6, ll. 53-56).
9. The system then receives a travel request from a user, e.g., a travel
agent, inputs the parameters specified in the travel request into the
genetic algorithms, which genetic algorithms produce a set of
parameters which can be used to identify suitable travel
arrangements, and uses information retrieved from the inventory
data structure of the database to identify all of the alternate travel
arrangements that fall within the parameters output by the genetic
algorithm (Lynch ‘094, col. 7, ll. 8-49).
10. Thus, Lynch ‘094 discloses performing a single query against its
cache of inventory information (a cache query) collected from one
or more CRSs, and does not disclose performing live queries
directly against a CRS or other database (a live query).
11. Lynch ‘094 does not determine the quality of information from any
source, nor does it execute a second query if the results from the
first query are unreliable.

C. PRINCIPLES OF LAW
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
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that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 127 S. Ct. 1727,
1734 (2007). The question of obviousness is resolved on the basis of
underlying factual determinations including (1) the scope and content of the
prior art, (2) any differences between the claimed subject matter and the
prior art, (3) the level of skill in the art, and (4) where in evidence, so-called
secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18
(1966). See also KSR, 127 S. Ct. at 1734 (“While the sequence of these
questions might be reordered in any particular case, the [Graham] factors
continue to define the inquiry that controls.”)
In rejecting claims under 35 U.S.C. § 103(a), the examiner bears the
initial burden of establishing a prima facie case of obviousness. In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); see also In re Piasecki, 745
F.2d 1468, 1472 (Fed. Cir. 1984). Only if this initial burden is met does the
burden of coming forward with evidence or argument shift to the appellant.
See Oetiker, 977 F.2d at 1445; see also Piasecki, 745 F.2d at 1472.
Obviousness is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. Id.

D. ANALYSIS
Independent claim 1 recites a travel planning system having an
availability process that determines whether a first source of seat availability
information is reliable, and if the results are not reliable, executes a second
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set of seat availability queries to provide a second set of instances of
transportation for which a seat is available. Independent claim 15 likewise
recites a computer program product that determines quality of a first set of
seat availability information from a first source of availability information,
and if the quality of the seat availability information is low, executes a
second set of seat availability queries to provide a second set of seat
availability information. The method of independent claim 21 similarly
recites evaluating a quality measure of seat availability information received
from a first source of seat availability information and producing a second
set of seat availability queries to send to a different source of seat
availability information based on the evaluation of the quality of the
information from the first source.
The system of Lynch’ 094 does not produce a second set of seat
availability queries as claimed, nor has the Examiner provided a reason with
rational underpinning to explain why one having ordinary skill in the art
would have modified the system of Lynch’ 094 to do so. In particular, the
automated system disclosed in Lynch ‘094 creates a cache of inventory data
taken and periodically updated from one or more computer reservation
systems (Facts 5-7). Lynch’s system then submits a single query against the
data contained in Lynch’s inventory data cache to determine a set of travel
arrangements (Facts 8-10). Lynch ‘094 does not disclose evaluating the
results obtained from this inventory data cache and if the results are
unreliable or the quality of the data in the cache is determined to be low,
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executing a second set of queries to provide a second set of instances of
transportation for which a seat is available (Fact 11).
Further, the Examiner has failed to provide a reason why one having
ordinary skill in the art at the time of the invention would have modified the
system of Lynch ‘094 to execute a second set of queries as claimed. The
Examiner’s reasoning misconstrues how the system of Lynch ‘094 operates.
In particular, the Examiner states that “it would have been obvious to one of
ordinary skill in the art to [sic] that a different source or different sources of
seat availability would be included in the second query based upon the
quality of determination (i.e. age) of the first queries” (Ans. 13-14). We
disagree with this reasoning for two reasons. First, it appears from our
reading of Lynch ‘094 that all of the queries are made against Lynch’s own
inventory cache, so that even if the system of Lynch ‘094 updates its
inventory data cache with new data between different sets of queries, the
system is still executing the queries against the same source of data (viz, the
inventory data cache) (Fact 8). Second, Lynch ‘094 does not disclose or
suggest that the execution of a second set of queries is contingent on an
evaluation of the quality of the data from a first source (Fact 11). As such,
the Appellants have persuaded us of error in the Examiner’s rejection of
independent claims 1, 15, and 21 as unpatentable over Lynch ‘094. The
rejection of dependent claims 2-4, 11, 13, 16, 19, 22, 23, 26, and 29-32 relies
upon the underlying rejection of independent claims 1, 15, and 21. Thus, we
also reverse the examiner’s rejection of these dependent claims. See In re
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Fine, 837 F.2d 1071 (Fed. Cir. 1988) (If an independent claim is nonobvious
under 35 U.S.C. § 103, then any claim dependent therefrom is nonobvious).
The remaining rejections of dependent claims 5-8, 10, 18, 20, 25, and
27 over Lynch ‘094 and Lynch ‘114; claims 9, 17, and 24 over Lynch ‘094
and Walker; claims 12, 33, and 34 over Lynch ‘094 and Hornick, claim 14
over Lynch ‘094 and Slotznick, and claim 28 over Lynch ‘094 and Official
Notice all rely on the Examiner’s same misapplication of the disclosure of
Lynch ‘094 to support the rejections. The Examiner does not show how any
of the additional references relied upon in these rejections cure the
deficiencies of the Lynch ‘094 patent as described supra. As such, the
Examiner has failed to set forth a prima facie case of unpatentability of these
claims.

E. CONCLUSIONS
The Appellants have shown that the Examiner erred in rejecting as
unpatentable under 35 U.S.C. § 103(a): claims 1-4, 11, 13, 15, 16, 19, 21-
23, 26, and 29-32 over Lynch ‘094, claims 5-8, 10, 18, 20, 25, and 27 over
Lynch ‘094 and Lynch ‘114; claims 9, 17, and 24 over Lynch ‘094 and
Walker; claims 12, 33, and 34 over Lynch ‘094 and Hornick, claim 14 over
Lynch ‘094 and Slotznick, and claim 28 over Lynch ‘094 and Official
Notice.

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DECISION
The decision of the Examiner to reject claims 11-13 is affirmed, and
the decision of the Examiner to reject claims 1-10 and 14-32 is reversed.
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) (2007).

AFFIRMED-IN-PART

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