Ex Parte Bastide et al

Patent Trial and Appeal Board

May 27, 2016

13860232 (P.T.A.B. May. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/860,232 04/10/2013
75949 7590
IBM CORPORATION
C/O: Fabian Vancott
215 South State Street
Suite 1200
Salt Lake City, UT 84111
06/01/2016
FIRST NAMED INVENTOR
Paul R. Bastide
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
RSW920110119US2 3381
EXAMINER
HUYNH, LINDA TANG
ART UNIT PAPER NUMBER
2175
NOTIFICATION DATE DELIVERY MODE
06/01/2016 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):
patents@fabianvancott.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL R. BAS TIDE, MATTHEW E. BROOMHALL,
ROBERT E. LOREDO, and MATTHEWS. ROSNO
Appeal2015-003448
Application 13/860,232
Technology Center 2100
Before JOHNNY A. KUMAR, MELISSA A. RAAP ALA, and
KAMRAN JIVANI, Administrative Patent Judges.
RAAP ALA, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from a final
rejection of claims 1-18. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal2015-003448
Application 13/860,232
INVENTION
Appellants' invention is directed to tag clouds that identify tags
contextually relevant to users. Spec. i-f 2. Claim 1 is exemplary of the
subject matter on appeal:
1. A method for customizing a tag cloud, comprising:
assigning a score to each tag in a source of tags, said
score being based on a tag attribute;
temporarily increasing said score for a new tag during a
time period measured from a creation of said new tag; and
customizing said tag cloud in a graphical user interface
by emphasizing each tag according to its score.
REJECTIONS ON APPEAL
Claims 1, 4, 8, 10, 11, and 13-16 stand provisionally rejected on the
ground of nonstatutory obviousness-type double patenting over claims 14--
16 and 27 of copending Application No. 13/344,216. 1 Final Act. 5-10.
Claims 1-18 stand rejected under 35 U.S.C. § 103(a) as being obvious
over the combination of Majko (US 2009/0182727 Al; July 16, 2009) and
Tuttle (US 2006/0218141 Al; Sept. 28, 2006). Final Act. 10-24.
ISSUES
Appellants' contentions present us with the following issues:
1 As of the mailing date of this Decision, copending parent Application No.
13/344,216 has not issued as a patent; therefore, this rejection remains
provisional. We note that at the time the Appeal Brief was filed in the
present case, there was a currently pending appeal in the parent application
(see PTAB Appeal No. 2014-007834). Appellants fail to cite this case as a
related appeal as required by 37 C.F.R. § 41.37(c)(ii). We remind
Appellants to review pending proceedings before the Board and ensure that
all related Appeals are identified.
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Application 13/860,232
A) Did the Examiner err in finding the combination of Majko and
Tuttle teaches or suggests temporarily increasing said score for a new tag
during a time period measured from a creation of said new tag
("temporarily increasing" limitation), as recited in independent claim 1?
B) Did the Examiner err in finding the combination of Majko and
Tuttle teaches or suggests leaving scores of tags that fall outside of said time
period unaltered ("leaving" limitation), as recited in independent claim 17?
C) Did the Examiner err in finding the combination of Majko and
Tuttle teaches or suggests adjusting said score when said time period of said
new tag expires so that said score reverts to what said score would have
been without temporarily increasing said score ("adjusting" limitation), as
recited in dependent claim 8?
ANALYSIS
We have reviewed the Examiner's rejections in consideration of
Appellants' contentions and the evidence of record. We disagree with
Appellants' conclusions that the Examiner's rejections of the claims are in
error.
Double-Patenting Rejection
Appellants do not submit any arguments contesting the provisional
double patenting rejection, but instead request the rejection be held in
abeyance. App. Br. 10. For the purposes of compact and efficient
prosecution, we decline. Accordingly, we summarily sustain this
provisional rejection. SeeHyattv. Dudas, 551F.3d1307, 1314 (Fed. Cir.
2008) ("When the appellant fails to contest a ground of rejection to the
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Appeal2015-003448
Application 13/860,232
Board, ... the Board may treat any argument with respect to that ground of
rejection as waived.").
Issue A: Obviousness Rejection of Claims 1-6 and 9-16
Appellants contend the combination of Majko and Tuttle does not
teach or suggest the "temporarily increasing" limitation recited in claim 1.
App. Br. 11-15; Reply Br. 4--8. In particular, Appellants argue Majko
describes tracking of subsequent instances of words, not new words, which
are merely added to a data structure without an increase of its score. App.
Br. 11. Appellants further argue the recency ranking described in Tuttle
merely assigns a score to a record based on how recently the record was
accessed, and the creation of a record in a crawler database is not equivalent
to the new tag as defined in the Specification because Tuttle does not
consider whether the elements are new as to the webpage. App. Br. 13-14
(citing Spec. i-f 32). 2 Appellants also argue that defining creation of a new
record at the time a record was found is not commensurate with the
definition of "new tag" in Appellants' Specification. App. Br. 15; Reply Br.
6. We are not persuaded by Appellants' arguments.
Appellants concede Majko teaches new instances of a word (tag)
added to a data structure, but contend Majko' s teaching of tracking the
subsequent use of words teaches away from tracking new tags. App. Br. 11.
However, this argument is not persuasive as Appellants do not establish that
Majko criticizes, discredits, or otherwise discourages investigation into the
claimed solution of tracking new tags. See In re Fulton, 391F.3d1195,
1201 (Fed. Cir. 2004).
2 We note that the language quoted by Appellants in support of its claim
construction appears in paragraph 33 of the Specification, not paragraph 32.
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Appeal2015-003448
Application 13/860,232
Furthermore, the Examiner finds, and Appellants do not dispute, that
Tuttle teaches creating a new record in a database for web page elements
found since a last analysis of the web page and a recency ranking that
increases a ranking value (score) of a result if an expiration time has not
expired from the current date and when the record was found. See Ans. 5
(citing paragraph 51 of provisional application 60/630,423, incorporated by
reference in Tuttle i-f 51 ); Final Act. 4 (citing i-fi-1 23-28). The Examiner also
finds, and we agree, Tuttle teaches "a time period measured from a creation
of said new tag" when the date found of a web record (tag) is when a crawler
writes web page items into the crawler database. Ans. 5. Contrary to
Appellants' argument that the Specification requires a new tag to be a new
tag created to reflect a new keyword recently added to the tag source (App.
Br. 13), the cited portion of the Specification merely uses permissive
language and is not a limiting definition. See Spec. i-f 33. We determine the
broadest reasonable interpretation of "creation of said new tag" encompasses
the date a new record in a database for web page elements is created (date
found) as taught by Tuttle. Thus, we agree with the Examiner that the
combination of Majko and Tuttle teaches or suggests the "temporarily
increasing" limitation.
For the reasons stated above, Appellants fail to persuade us of error in
the rejection of claim 1. Accordingly, we sustain the 35 U.S.C. § 103(a)
rejection of: (1) claim 1; (2) independent claim 14, for which Appellants
present substantially the same arguments made for claim 1 (see App. Br. 16-
17); and (3) dependent claims 2-6, 9-13, 15, and 16, which are not
separately argued.
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Appeal2015-003448
Application 13/860,232
Issue B: Obviousness Rejection of Claims 7, 17, and 18
With respect to independent claim 17, Appellants present substantially
similar arguments as those made for claim 1. See App. Br. 17-19; Reply Br.
9-10. For the reasons discussed supra in Issue A, we are not persuaded by
these arguments.
Appellants additionally contend the combination of Majko and Tuttle
does not teach or suggest the "leaving" limitation. App. Br. 20-21; Reply
Br. 10-11. In particular, Appellants argue if the value for any content is past
an expiration time, than that file or record of Tuttle would then not be
included in the ranking, significantly leaving those expired files or records
altered. App. Br. 21. We are also not persuaded by this argument.
The Examiner finds Tuttle teaches a Truveo ranking equation, where
the ranking is the sum of several terms, including a recency term, an
editorial popularity term, and a clickthru popularity term. Ans. 7 (citing
Tuttle i-fi-123-27, 29, 30). The Examiner further finds Tuttle teaches records
that are outside of the expiration do not receive a sum total increased by the
recency term; therefore, leaving scores of tags outside of the time period
unaltered (i.e., the recency term is 0, while the other terms are still included
in the equation). Ans. 7-8. Appellants fail to rebut these findings, with
which we agree. Accordingly, we sustain the 35 U.S.C. § 103(a) rejection
of: (1) independent claim 17 and its dependent claim 18, not separately
argued; and (2) claim 7, for which Appellants rely on substantially similar
arguments as those made for the "leaving" limitation (see App. Br. 22).
Issue C: Obviousness Rejection of Claim 8
Appellants contend the combination of Majko and Tuttle does not
teach or suggest the "adjusting" limitation recited in claim 8. Appellants
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present substantially similar arguments as those made for the "leaving"
limitation of claim 17. App. Br. 23. For the reasons discussed supra in
Issue B, we are not persuaded by these arguments.
Appellants additionally argue Tuttle never teaches or suggests
reverting a score to what the score would have been without temporarily
increasing the score. App. Br. 24. We are also not persuaded by the
argument. The Examiner finds this limitation is taught or suggested by
Tuttle's teaching of a ranking equation, in which the sum total of the
variables is not increased by the recency term after the expiration period
(recency value is zero after the temporary increase). Ans. 8-9 (citing
i-fi-1 Tuttle 23-27, 29, 30). We agree. Appellants fail to present persuasive
argument that the broadest reasonable interpretation of reverting the score to
what the score would have been is not encompassed, or at a minimum
suggested, by Tuttle's ranking equation, in which the other terms are
summed as they would have been without the recency term. Therefore, we
are not persuaded of error and sustain the 35 U.S.C. § 103(a) rejection of
claim 8.
DECISION
We affirm the Examiner's decision to reject claims 1-18.
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.
§ 41.50(±).
AFFIRMED
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