Ex Parte Baluja et al

Board of Patent Appeals and Interferences

Mar 28, 2011

10952482 (B.P.A.I. Mar. 28, 2011)

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.
10/952,482 09/29/2004 Shumeet Baluja 0026-0103 9163
44989 7590 03/29/2011
HARRITY & HARRITY, LLP
11350 Random Hills Road
SUITE 600
FAIRFAX, VA 22030
EXAMINER
YEN, SYLING
ART UNIT PAPER NUMBER
2166
MAIL DATE DELIVERY MODE
03/29/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SHUMEET BALUJA, DOUG BEEFERMAN, and
ANDREW R. GOLDING
____________

Appeal 2009-007384
Application 10/952,482
Technology Center 2100
____________

Before LANCE LEONARD BARRY, ST. JOHN COURTENAY III, and
DEBRA K. STEPHENS, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-007384
Application 10/952,482

2
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-9, 12-25, 28, 29, 31-34, and 42 which are all the claims
pending in the application. Claims 10, 11, 26, 27, 30, and 35-41 were
cancelled during prosecution. We have jurisdiction under 35 U.S.C. § 6(b).
We Reverse.

Representative Claim
1. A method of determining query similarity, comprising:

logging instances of a first query;

logging instances of a second query;

deriving a first query distribution using the logged
instances of the first query;

deriving a second query distribution using the logged
instances of the second query;

comparing the first and second query distributions, where
comparing the first and second query distributions comprises:

determining a distance measure between the first query
distribution and the second query distribution;

comparing the distance measure to a specified threshold;
and designating the second query as similar to the first query if
the distance measure is below the specified threshold; and

determining whether the second query is similar to the
first query based on the comparison. (Emphasis added).

Appeal 2009-007384
Application 10/952,482

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Rejections
1. Claims 1, 5-9, 12, 14-16, 20-22, 25, 28, 29, 31, and 42 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over
Beitzel (“Hourly Analysis of a Very Large Topically
Categorized Web Query Log”), and Beeferman (US 6,701,309
B1, filed Mar. 2, 2004).2
2. Claims 2-4 and 23-24 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Beitzel, Beeferman, and McCarley
(US 6,349,276 B1, filed Feb. 19, 2002).
3. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Beitzel, Beeferman, and Raz (US 6,230,154
B1, filed May 8, 2001).
4. Claims 17-19 and 32-34 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Beitzel, Beeferman, and
Voorhees (US 5,864,845, filed Jan. 26, 1999).

Claims 1, 5-9, 12, 14-16, 20, 21, and 42
ISSUE
Based upon our review of the administrative record, we have
determined that the following issue is dispositive in this appeal:

Under §103, did the Examiner err in determining that the
cited combination of references would have taught or
suggested comparing the distance measure to a specified

2 Although claim 30 is cancelled, the Examiner rejects claim 30 on pages 9-
10 of the Answer. We note that the Examiner agrees with the Appellants’
statement of the status of the claims on page 2 of the Answer.
Appeal 2009-007384
Application 10/952,482

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threshold; and designating the second query as similar to
the first query if the distance measure is below the
specified threshold, within the meaning of representative
claim 1?

FINDINGS OF FACT
1. Beeferman teaches:
[O]btaining a first query and a second query that have
been submitted during a search for data, and determining
whether the first query and second query have a
likelihood of being submitted by a class of searcher.
(Col. 2, ll. 35-40).

2. Beitzel teaches “calculat[ing] the KL-divergence
(Equation 4) between the likelihood of receiving any
query at a particular time and the likelihood of receiving
a query in a particular category, as can be seen in Figure
9.” (Page 5, right column, paragraph 2). (Emphasis
added).

Equation 4 as shown on Beitzel’s page 5

ANALYSIS
Appellants contend that the cited combination of references fail to
teach or suggest comparing the distance measure to a specified threshold,
and designating the query as similar to the first query if the distance measure
is below the specified threshold. (App. Br. 8). We agree for the reasons
discussed infra.
The Examiner contends that Beitzel reasonably describes the argued
limitation of “determining a distance measure between a first query
Appeal 2009-007384
Application 10/952,482

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distribution and a second query distribution, comparing the distance measure
to a specific threshold, and designating the second query as similar to the
first query if the distance measure is below the specified threshold.” (Ans.
16). Based upon our review of the record, we disagree.
More particularly, we do not find, nor has the Examiner shown, any
comparison of a distance measure to a specified threshold, as required by
claim 1.
While the primary Beitzel reference teaches calculating a distance
measure (KL-Divergence) 3 between the likelihood of receiving any query
(q) at a particular time (t) and the likelihood of receiving a query in a
particular category (c) (FF 2), we find the “likelihood” element relied on by
the Examiner in the statement of the rejection is an integral part of the
distance measure calculation. (Ans. 5; see also Beitzel’s equation 4 (FF 2)).
In particular, the “likelihood” component of Beitzel’s equation 4 is
expressed as a likelihood ratio of conditional probabilities where the
distance (D) calculation further involves a summation calculation. (FF 2).
Thus, the likelihood-ratio element that is integral to the distance measure
calculation in Beitzel cannot teach or fairly suggest a specific threshold that
is compared with the distance measure result.
In contrast, we find the cited portion of the secondary Beeferman
reference at best merely suggests a comparison between a first and second
query to determine whether the first query and the second query have a
likelihood of being submitted by a particular class of searcher. (FF 1).

3 Cf. Spec. 13, para. [0042]: “for example, KL-Divergence, may be used to
calculate the distance measures.”
Appeal 2009-007384
Application 10/952,482

6
In the “Response to Argument” section of the Answer, the Examiner
merely recites the claim language and asserts that the limitations are
“reasonably described,” without providing any clear supporting mapping of
the disputed limitations to the references. (Ans. 16). Therefore, we agree
with Appellants (App. Br. 8) that neither reference, alone or in combination,
teaches or suggests comparing a distance measure with a specified threshold,
and designating the query as similar to the first query if the distance measure
is below the specified threshold. (Claim 1).
For essentially the same reasons argued by Appellants in the Briefs,
we find the Examiner erred in determining that the cited combination of
references would have taught or suggested comparing the distance measure
to a specified threshold, and designating the query as similar to the first
query if the distance measure is below the specified threshold, as recited in
claim 1. Accordingly, we reverse the obviousness rejection of independent
claim 1 and associated dependent claims 5-9, 12, 14-16, 20, 21, and 42
which stand therewith.

Claims 22, 25, 28, 29, and 31
ISSUE
Under § 103, did the Examiner fail to present a prima
facie case in setting forth the rejection of independent
claim 22?

ANALYSIS
Appellants contend that the Examiner did not address the limitations
recited in claim 22 and instead relied on the findings of claim 1. (App. Br.
Appeal 2009-007384
Application 10/952,482

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15). Therefore, according to Appellants, because claims 1 and 22 recite
different limitations (see claims 1 and 22), a prima facie case has not been
established with respect to claim 22. We agree.
For example, we note that claim 22 recites “smoothing the volume per
unit of time of each of the issued other queries and the volume per unit time
of the issued first query to remove noise.” The aforementioned limitation is
not recited in claim 1. We observe that the Examiner did not specifically
address this limitation as well as other limitations that differ from claim 1.
(Ans. 9-10).
The allocation of burdens requires that the USPTO produce the factual
basis for its rejection of an application under 35 U.S.C. §§ 102 and 103. In
re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984) (citing In re Warner, 379
F.2d 1011, 1016 (CCPA 1967)). The one who bears the initial burden of
presenting a prima facie case of unpatentability is the Examiner. In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
This reasoning is applicable here. For essentially the same reasons
argued by Appellants in the Brief (14-16), as discussed above, we agree that
the Examiner did not present a prima facie case of unpatentability in the
rejection of independent claim 22 under § 103. Accordingly, we reverse the
rejection of claim 22, as well as associated dependent claims 25, 28, 29, and
31, which stand therewith.

Claims 2-4, 13, 17-19, 23, 24, and 32-34
Dependent claims 2-4, 13, 17-19, 23, 24, and 32-34 depend from
independent claims 1 and 22 respectively. We do not find, nor has the
Examiner established, that the secondary references McCarley, Raz, and
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Application 10/952,482

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Voorhees cure the deficiencies of Beitzel and Beeferman discussed supra.
Accordingly, we reverse the § 103 rejections of these dependent claims
which stand with independent claims 1 and 22 for the reasons discussed
above.

DECISION
We reverse the § 103 rejections of all claims on appeal.
ORDER

REVERSED

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11350 Random Hills Road
SUITE 600
FAIRFAX, VA 22030