Ex Parte Batra et al

Board of Patent Appeals and Interferences

Aug 23, 2010

10077012 (B.P.A.I. Aug. 23, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte VIRINDER M. BATRA, VALERIE M. BENNETT,
ANDREW N. CAPELLA, XIAOYAN CHEN, XIAO CHENG DING,
PETER R. GAMBLE, and STEVEN M. MILLER

____________

Appeal 2009-006395
Application 10/077,012
Technology Center 2400
____________

Before JOSEPH L. DIXON, JOHN A. JEFFERY, and THU A. DANG,
Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING1
Appellants, pursuant to 37 C.F.R. § 41.52, have submitted a timely
Request for Rehearing dated October 25, 2010 (hereafter the “Request”),

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.
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requesting rehearing of our original decision dated August 23, 2010
affirming the Examiner’s decision to reject claims 1-6. Opinion 10.
We have reconsidered our opinion of August 23, 2010 in light of
Appellants’ comments in the Request. We grant the Request and supplant
the Opinion with our newly-presented ground of rejection for claims 1-3, 5,
and 6 under § 103. Based on the specific circumstances in this case, the
rejection of claims 1-3, 5, and 6 is designated as a new ground to ensure that
Appellants have the opportunity to respond to the rejection’s thrust. See In
re Kumar, 418 F.3d 1361, 1368 (Fed. Cir. 2005) (internal citations omitted).
We also reverse the obviousness rejection of claim 4.

New Ground of Rejection Under 37 C.F.R. § 41.50(b)
Pursuant to 37 C.F.R. § 41.50(b), claims 1-3, 5, and 6 are rejected
under 35 U.S.C. § 103 over Requena and Lee.

ANALYSIS
Claim 1
We begin by construing the phrase, "location-based services provided
by a plurality of disparate location-based service providers, different ones of
said plurality of disparate location-based service providers specifying
different formats for receiving requests" in the preamble. We find this
limitation is not limiting because it merely states the invention’s purpose or
intended use. See Catalina Marketing Int’l, Inc., v. Coolsavings.com Inc.,
289 F.3d 801, 808 (Fed. Cir. 2002). That is, the recitation to “a particular
location-based service provider” in the claim’s body is structurally complete
without the preamble’s recitation to the “disparate location-based server
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providers specifying different formats.” See Am. Medical Systems, Inc. v.
Biolitec Inc., 618 F.3d 1354, 1358-59 (Fed. Cir. 2010). Since this
preambular limitation is an intended use limitation, Requena and Lee need
only teach or suggest a process that possesses the ability to request services
provided by location-based service providers specifying different formats.
See In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997). Notably, the
location-based service provider recited in the body of claim 1 therefore does
not have to be one of the providers specifying different formats recited in the
preamble. With this claim construction in mind, we turn to Requena.
Requena discloses a method for processing requests (e.g., message
can be a request or response (Requena, ¶ 0075)) from service applications
for services. For example, Requena discusses a user’s mobile terminal
obtaining a specific service when the response is received (see Requena, ¶¶
0209,2 0215) and thus must have an application for the service to implement
service on the user’s mobile terminal. Requena further discloses that the
service is based upon the mobile terminal’s physical situation or actual
location (Requena, ¶ 0209) and thus is a location-based service application
for a location-based service as recited. See also Requena, ¶ 0016.
Additionally, Requena discloses these requests for services are provided by
disparate location-based service providers (e.g., Home Subscriber Service
(HSS), Presence Server, CSCF, and Location Based Server (LBS) servers)
as recited in claim 1. See Requena, ¶¶ 0211-14, 0036.

2 Although Requena uses the term “resister” in this context (Requena, ¶
0209), we presume that this is a typographical error, and that the term was
intended to be “register.”

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As for the preambular limitation to the disparate location-based
service providers specifying different formats for receiving the requests,
Requena teaches or suggests a request’s structure (e.g., message can be
request (Requena, ¶ 0075)), such as the message’s body, can have a specific
format. See Requena, ¶¶ 0082-86. Specifically, Requena discusses using a
Session Initiation Protocol (SIP) that specifically formats the message’s
body into Session Description Protocol (SDP) or text format. See id.
Requena thus suggests that each service provider may have different specific
formats to format the message’s body.
For example, one service provider can format its messages’ bodies in
a SDP format, while another service provider can formats its messages’
bodies in a text format. See Requena, ¶ 0086. As another example, Figure 3
shows a REGISTER request that is applicable to the Figure 10 embodiment
in a SDP format (Requena, ¶¶ 0044, 0083-84; Figs. 3, 10), and Figure 4
shows an INVITE request that is also applicable to the Figure 10
embodiment in XML format (Requena, ¶¶ 0045, 0083-84; Figs. 4, 10).
Armed with these teachings, an ordinarily skilled artisan would have
recognized that Requena’s system possesses or is capable of yielding
different providers specifying different formats (e.g., one with a SDP format
and another with text format) with the predictable result of having disparate
location-based service providers specifying different formats for receiving
request as recited in claim 1. See KSR Int’l Co., v. Teleflex Inc., 550 U.S.
398, 416 (2007).
Requena also teaches receiving a request (e.g., a message) for the
location-based services as recited in claim 1, when the user requests a
service suited to the user’s actual location. See Requena, ¶ 0209.
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Additionally, Requena discloses various steps taken to obtain a service
suited to the user’s actual location or a location-based service that
determines from a request a location-based service provider which can
service the request. See Requena, ¶¶ 0204-15; Fig. 9. As part of this
process, Requena discloses different requests, including the CSCF receiving
a service request and checking user information in the HSS or Presence
Server. See Requena, ¶¶ 0210-11. As this received message at the CSCF is
a request for service or is used to obtain a location-based service (see id.),
Requena discloses a request used to check whether certain information (i.e.,
a location) is stored in the HSS or Presence Server. See id. Based on this
checking, Requena’s CSCF further queries a LBS server (e.g., a location-
based service provider) for information. See Requena, ¶¶ 0213-14. Thus,
from this service request, Requena ultimately determines a location-based
service provider (e.g., LBS server) that can service the request. We
therefore find that Requena teaches determining from each location-based
service request at least one particular location-based service provider which
can service a request as recited in claim 1.
As stated above and regarding the “specifically formatting each
request according to a specific format specified by said particular location-
based service provider” step, Requena states a message's body using SIP can
contain data, such as a session description following a specific format (e.g.,
SDP or text scripts). See Requena, ¶¶ 0074-75, 0082-86. Thus, Requena
teaches part of each request is specifically formatted according to a specific
format. For example, Figure 3 shows a REGISTER request that is
applicable to the Figure 10 embodiment in a SDP format (Requena, ¶¶ 0044,
0083-84; Figs. 3, 10), and Figure 4 shows an INVITE request that is also
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applicable to the Figure 10 embodiment in XML format (Requena, ¶¶ 0045,
0083-84; Figs. 4, 10). These teachings at least suggest that each device in
Requena’s system, including mobile terminals and service providers (e.g.,
CSCF or LBS server), must accept at least one of these formats to function
properly. Additionally, Requena teaches the system uses SIP, including the
CSCF in which the syntax of the messages uses either User Datagram
Protocol (UDP) or Transmission Control Protocol (TCP). Requena, ¶¶
0075, 0211. Requena thus at least suggests specifically formatting each
request according to a specific format specified by the particular location-
based service provider (e.g., SDP or text using UDP or TCP) as recited in
claim 1.
Alternatively, Requena discloses a negotiation between two speakers
(e.g., a user and a third party). Requena, ¶ 0107. Once the user registers a
location, the user indicates a data format. Id. If the third party requests that
information, the third party will be notified about the format. Id. Requena
teaches and suggests in this embodiment receiving a request for location-
based services (e.g., a request for a user’s information), determining from
the request a particular service provider (e.g., a user) which can service the
request, and specifically formatting the request according to a format
specified by the provider’s (e.g., the user’s data format). See id. Requena
therefore teaches yet another service provider (e.g., a user’s device) that has
a specific format and suggests that different providers (e.g., different users)
have different formats. Otherwise, there would be no need to notify the third
party about the information’s format. See id.

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Furthermore, Requena teaches uniformly formatting each result set
produced from a request. Requena explains that all messages, including
responses (see Requena, ¶ 0075), are coded and decoded using a standard
coding mechanism, such as a XML or Geography Markup Language
(GML). Requena, ¶¶ 0118-20. Accordingly, Requena’s response to the
request (i.e., a result set) will be formatted using a standard or uniformly
formatted (e.g., a GML response). Moreover, claim 1 includes the open-
ended transitional phrase, "comprising," that does not exclude additional,
unrecited steps. See Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376 (Fed.
Cir. 2004). Requena can thus both specifically and uniformly format
messages (e.g., request and responses) and still meet the limitations of claim
1. For example, Requena specifically formats the request’s body with SDP
or text and then codes or uniformly formats the same request with GML that
is sent to the service providers. When the service provider provides the
result set (e.g. the response), Requena will again uniformly format the set
produced from the request. Requena therefore teaches "uniformly
formatting each result set produced from" the requests as recited in claim 1.
Lee further illustrates a specific technique for uniformly formatted
responses (i.e., result sets) that was known in the art at the time of the
invention. Lee specifically teaches using XML as a standard to describe
web-based documents in a Geographic Information System (GIS) having a
GML specification. Lee, at 1936-37. Lee uses a XML data provider as an
interface to standardize the documents from heterogeneous data sources
(Lee, at 1936-37; Fig. 1), such as Requena suggests (see Requena, ¶¶ 0118-
120). Thus, combining Lee’s teachings with Requena would have been
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obvious to an ordinarily skilled artisan since the combination predictably
yields no more than uniformly formatting a result set in a specific manner.
See KSR, 550 U.S. at 416.

Claim 2
Requena discloses and teaches that the uniformly formatted result sets
(e.g., responses) have been formatted according to GML. See Requena, ¶
0120.

Claim 3
As discussed above, Requena discloses a location-based service
adapter interface or a Universal Mobile Telecommunications System
(UMTS) that requests a service based on the user’s actual location. See
Requena, ¶¶ 0208-15. Additionally, Requena teaches a message coding
mechanism or interface that codes and decodes all messages using a
standard, such as GML or XML. Requena, ¶¶ 0118-20. Requena therefore
discloses a uniform input interface (e.g., coding mechanism) through which
location-based services can be requested using a uniform format independent
of a specific format required by a particular service adapter.
Additionally, Lee teaches a XML data provider acts as an interface to
standardize or format uniformly messages in a GIS environment. See Lee, at
1936-37. Substituting Lee's uniform input interface (see id.) for Requena's
uniform coding mechanism (Requena, ¶¶ 0118-20) yields nothing more than
a predicable result of providing Requena's coding scheme with an uniform
input interface adapted to be connected to different service adapters
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specifying different formats for receiving inputs as recited in claim 3. See
KSR, 550 U.S. at 416. This interface improves upon Requena's coding
scheme and provides a rationale for combining Lee with Requena.
Moreover, as noted above, Requena at least suggests a uniform output
interface (e.g., HSS, Presence Server, of LBS server output interface) having
the requested information, through which specifically formatted result sets
(e.g., responses that include message’s structure having a body with a
specific format, such as SDP or text (see Requena, ¶¶ 0082-86, 0075)), are
also uniformly formatted into GML (see Requena, ¶¶ 0118-120, 0075).
Additionally, we previously discussed Requena teaches an embodiment
where the user, that has the information requested by a third party, registers
and has its own data format. See Requena, ¶ 0107. Requena therefore
teaches yet another uniform output interface (e.g., coding mechanism for the
user) through which the user’s specifically formatted result sets (e.g., in the
user’s data format) can be formatted using a uniform format.
Requena also teaches and suggests the uniform input interface (e.g.,
coding mechanism) is adapted to be connected to different service adapters
(e.g., LBS servers) through the CSCF. See Requena, ¶¶ 0036, 0213-14.
That is, Requena teaches a uniform input interface (e.g., the coding
mechanism) that uniformly formats requests separate from the service
providers or adapters specifying different formats for receiving inputs (e.g.,
SDP and text (see Requena, ¶¶ 0082-86)). We refer to our previous
discussion of claim 1 for the details relating to the different service adapters
specifying different formats for receiving inputs. Finally, the phrase,
“adapted to” is a functional limitation and only requires Requena possess the
ability of connecting to different service adapters specifying different
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formats. The above analysis of claim 1 demonstrate the uniform input
interface’s ability to be connected to different service adapters specifying
different formats for receiving inputs.

Claims 5 and 6
Requena teaches and suggests a machine readable storage (e.g., the
Central servers, Messaging servers, and Presence servers can be combined
and collectively perform the functions described by Figure 9 (see Requena,
¶¶ 0042, 0061-66, 0208-215)) having stored a computer program for
processing request, including receiving the request, determining the service
provider to service the request, specifically format the request, uniformly
format the results, and forwarding the results. Requena, ¶¶ 0195, 0211-214.
Regarding the remaining limitations in claims 5 and 6, they are
commensurate in scope with claims 1 and 2 respectively. The above
discussion of claims 1 and 2 therefore applies to the remaining recitations.

Purported Errors in the Obviousness Rejection
Appellants argue that we allegedly misapprehended the claimed
invention. Request 8, 11. Specifically, Appellants contend that the claim
requires (1) specifically formatting each request according to the format
specified by the particular location-based provider, and (2) uniformly
formatting each result set produced from the disparate location-based server
providers. Request 8-11. We address each of these limitations in the above
rejection and did not ignore the distinction between specifically formatting a
request and uniformly formatting a result set.
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As stated above, Requena teaches the request’s (e.g., message’s)
structure includes formatting the message with a specific format, including
SDP, text, or XML script. Requena, ¶ 0086. For example, Requena states
that the message’s body can be in a SDP or text format. See Requena, ¶¶
0086, 0130. Since both SDP and text are specific formats as explained
above, Requena thus suggests that at least portions of a message (e.g.,
message’s body) can be formatted according to a specific—not uniform—
format specified by a particular location-based service providers (e.g., HSS,
Presence Server, and LBS server). Additionally, as discussed above in the
rejection, Requena illustrates yet another example where a user, which has a
specific data format, services requests or is a location-based service provider
that specifies a specific data format. See Requena, ¶ 0107. Requena
therefore at least suggests specifically formatting a request according to a
format specified by the location-based service provider.
Requena additionally teaches that a message coding mechanism that
formats all messages, including responses (see Requena, ¶ 0075), uses a
uniform format language, such as GML. See Requena, ¶¶ 0118-20. Given
its broadest reasonable construction, a response to a request is also a “result
set.” See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004) (internal citations omitted). Requena thus further teaches uniformly
formatting a result set (e.g., a response). While we agree with Appellants
that Requena teaches a single coding mechanism (Request 8-9), Requena
teaches more than this single coding mechanism. Notably, Requena teaches
and suggests both (1) specifically formatting each request according to a
specific format specified by the service provider (e.g., message’s body is in a
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SDP format), and (2) uniformly formatting (e.g., with GML) each result set
(e.g., response) produced from the request as recited in claim 1. See the
above rejection for more details.
Contrary to Appellants’ assertions (Request 10 referring to Reply Br.
6), we additionally noted in the rejection that the preamble in claim 1 is not
limiting because it merely states the invention’s purpose or intended use.
See Catalina, 289 F.3d at 808. That is, the recitation to “a particular
location-based service provider” in the claim’s body is structurally complete
without the preamble’s recitation to the “disparate location-based server
providers specifying different formats.” See Am. Medical Systems, 618 F.3d
at 1358-59. Thus, at best, the recitation of processing the requests for
services provided by “disparate location-based service providers specifying
different formats for receiving said requests” in claim 1 is an intended use
limitation. See Schreiber, 128 F.3d at 1478. Yet, as stated above, Requena
at least suggests that the request from a location-based service provider
includes specifically formatting information (e.g., message’s body is in a
SDP or text format), and thus actually suggests different providers
specifying different formats (e.g., one provider formats the message’s body
in SDP, and another provider formats the message’s body in a text format).
Regarding claim 3, Appellants contend that the discussion about
“intended use” is inapplicable. Request 10. We agree that claim 3 does not
include a preamble commensurate in scope to claim 1. Nonetheless, claim 3
does recite functional language (i.e., “said uniform input interface adapted to
be connected to different service adapters specifying different formats for
receiving inputs”) (emphasis added). Such functional recitations cover any
and all structure capable of performing the recited limitations. See In re
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Swinehart, 439 F.2d 210, 213 (CCPA 1971). As stated above, Requena
teaches a uniform input interface that includes the coding mechanism
adapted to be connected or capable of being connected to service adapters
(e.g., coding mechanism described in Requena, ¶¶ 0118-120) which specify
formats (e.g., SDP or text). Also, contrary to Appellants’ contentions
(Request 10), we addressed the disputed limitations of claim 3, including an
interface that is adapted to be connected to different service adapters
specifying different formats for receiving inputs in the above rejection.
Finally, Appellants contend that we failed to address Appellants’
arguments on page nine, line five through page ten, line twenty-one of the
Appeal Brief. Request 11-12. We find that some of this discussion is
rendered moot because the § 103 rejection relies on Requena—not Lee—to
meet the limitations of specifically formatting the request and uniformly
formatting the result set. Although Lee is cumulative (see above discussion
under the New Grounds section), Lee nonetheless further illustrates that an
ordinarily skilled artisan would have recognized uniformly formatting result
sets as claimed.
For the foregoing reasons, Appellants have not persuaded us of error
in our decision.

Errors in the Examiner’s Obviousness Rejection
Although not argued by Appellants, upon reconsideration, we find
error in the Examiner’s § 103 rejection of claim 4 based on Requena and
Lee. Claim 4 recites location-based service adapter objects, a location
service object, and location request objects. The Examiner cites to Sections
III.A and III.B of Lee to teach these recited elements, but fails to map the
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disclosed objects to the recited objects. See Ans. 6. Lee teaches the XML
Data Provider functionality is implemented using a OLE DB mechanism that
creates OLE DB objects, including a Data Source object that performs a
connection function for XML files, a Session object that provides
information on GIS metadata, a Command object that manages command
texts delivered from the GIS application program and other parameters, and
a Rowset object that acquires geographical-related data, SRS-related data,
and other attribute data from a connected XML document and lets the GIS
application program access the data. See Lee, at 1937-38.
However, claim 4 recites a location service object configured to
provide a reference to a location-based service adapter object based upon a
specific location-based service. The Data Source object, the Session object,
the Command object, and the Rowset object are not taught to be objects that
provide references to a location-based service adapter object, which provide
a service responsive to uniformly-formatted request, based upon specified
location-based services. Also, while Lee discloses a Command object that
manages parameters delivered from the GIS application program, Lee does
not teach location request objects configured to define location-based-
service request parameters required by generic ones of the location-based
service adapter objects. Requena also fails to cure these deficiencies. See
generally Requena. Combining Lee’s teaching with Requena would not
have therefore predictably yield (a) a location service object configured to
provide a reference to a location-based service adapter object based upon a
specified location-based service, or (b) location request objects configured to
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define location-based-service request parameters required by generic ones of
the location-based service adapter objects as recited in claim 4. See KSR,
550 U.S. at 416.
For the above reasons, we will not sustain the rejection of dependent
claim 4.

Additional Comments Regarding the New Ground of Rejection
Appellants argue that according to Ex parte Frye, 94 USPQ2d 1072
(BPAI 2010) (precedential) the Board must limit its review to the
Examiner’s findings and conclusions to avoid presenting a new ground of
rejection. Request 2. Specifically, Appellants argue that the “Board did not
limit its Decision to case law presented by the Examiner and the findings
and conclusions made by the Examiner.” Request 3. For these reasons,
Appellants also assert the rejection must be designated as a new ground of
rejection. Request 3, 12. We take exception to these statements.
First, Frye does not state that the Board is limited to the case law the
Examiner presented. See generally Frye, 94 USPQ2d 1072. Second, while
Frye does state that the Examiner’s challenged findings and conclusions are
reviewed anew, see Frye, 94 USPQ2d at 1075, nothing in this decision
requires us to confine our factual findings to those found by the Examiner to
avoid presenting a new ground of rejection. In fact, it is well settled that the
Board can present additional facts without designating a new ground of
rejection. See In re Meinhardt, 392 F.2d 273, 280 (CCPA 1968) (noting that
the Board’s reliance on a portion of a reference ignored by the Examiner was
not a new ground of rejection); see also In re Kronig, 539 F.2d 1300, 1302-
03 (CCPA 1976) (finding that relying on the same teachings but fewer than
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all the references in support of a § 103 rejection advanced by the Examiner
and the Board does not constitute a new ground of rejection); In re DBC,
545 F.3d 1373, 1382 n.5 (Fed. Cir. 2008) (“[T]he example in the translation .
. . merely elaborates upon, what is taught by the abstract.”) Thus,
Appellants’ merely listing the additional facts presented by the Board (see
Request 4-6) fails to demonstrate that our analysis is a new ground of
rejection.
Appellants also assert that we shifted the statutory basis for the
rejection in the Opinion. Request 6. We disagree. Despite the Examiner’s
reliance on an admittedly cumulative prior art reference, the rejection
discussed in our Opinion and above is still based on obviousness under §
103. Additionally, our analysis relies both on what Requena implicitly and
explicitly teaches and suggests as a whole for various limitations. See, e.g.,
Opinion 8 (“Requena teaches and suggests location-based service providers
capable of specifying different formats.”); see also id. (“Requena also states
all messages are also coded and decoded using a coding mechanism . . . a
teaching that at least suggests uniform formatting.”) (emphases added).
Nevertheless, our recognizing that Requena happens to teach and suggest all
recited limitations (see Opinion 8) despite the Examiner’s reliance on Lee
hardly transforms the rejection to different statutory basis (i.e., an
anticipation rejection) as Appellants seem to suggest. On the contrary, the
rejection is still based upon obviousness. See In re Meyer, 599 F.2d 1026,
1031 (CCPA 1979) (noting that obviousness rejections can be based on
references that happen to anticipate the claimed subject matter). Although
the rejection mainly relies on Requena to teach both specifically formatting
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the message and uniformly formatting the result set, we nevertheless
indicated in the Opinion and above that Lee further demonstrates uniformly
formatting responses to requests (i.e., result sets). See Opinion 8, 10.
We have considered the arguments raised by Appellants in the
Request. We are persuaded that, based on the totality of circumstances and
to the extent that the analysis in the Opinion does not purportedly track the
thrust of the Examiner’s rejection, the rejection of claims 1-3, 5, and 6 based
on Requena and Lee is considered a new ground of rejection.
We have therefore granted the Request and supplant our Opinion with
a new ground of rejection for claims 1-3, 5, and 6 under § 103. We
additionally reverse the § 103 rejection of claim 4.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). This section provides that “[a] new ground of rejection… shall
not be considered final for judicial review.”
Section 41.50(b) also provides that the Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Submit an appropriate amendment of the claims so rejected
or new evidence relating to the claims so rejected, or both, and
have the matter reconsidered by the examiner, in which event
the proceeding will be remanded to the examiner. . . .

(2) Request that the proceeding be reheard under
§ 41.52 by the Board upon the same record. . . .

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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)(iv).

REHEARING GRANTED; 37 C.F.R. § 41.50(b)

pgc

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