Ex Parte Case

Patent Trial and Appeal Board

Jun 24, 2013

11535761 (P.T.A.B. Jun. 24, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte CLARK L. CASE
____________________

Appeal 2011-000981
Application 11/535,761
Technology Center 2400
____________________

Before: ROBERT E. NAPPI, DEBRA K. STEPHENS, and CATHERINE
SHIANG, Administrative Patent Judges.

STEPHENS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-000981
Application 11/535,761

2
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 1-30. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

Introduction
According to Appellant, the invention is related to an industrial
control system having components that dynamically apply context data to
alarms or events. The system may aggregate and analyze data and direct
data to parties. (Spec. 1, [0001]).

STATEMENT OF THE CASE
Exemplary Claim(s)
Claims 1 and 22, reproduced below, are illustrative of the claimed
subject matter:
1. A data processor for an industrial automation system,
comprising:

a processor;

a memory communicatively coupled to the processor, the
memory having stored therein computer-executable
instructions to implement the system, including:

an event component to generate an initial event
message from an industrial control system
component, the initial message based in part on
one or more automatically detected conditions; and

Appeal 2011-000981
Application 11/535,761

3
a context component to enable context data to be
added to the initial event message to facilitate post
processing of system events, wherein the context
data is automatically added according to a
common data model that is hierarchically
structured to represent a hierarchical structure of
one or more industrial processes, the context data
is related to at least one portion of the one or more
industrial processes associated with generation of
the initial message.

22. A computer readable medium having computer
executable instructions stored thereon to facilitate event
processing in an industrial automation environment,
comprising:

generating at least one event in a control system;

providing a base annotation to the event including at least one
of a time, a name or an address; and

applying a supplemental annotation to the event, wherein the
supplemental annotation includes process related data
corresponding to a portion related to the event of a hierarchical
structured data model representative of one or more industrial
processes.

REFERENCES
Ginter
Chu-Carroll
Lawton

US 2005/0015624 A1
US 2003/0212686 A1
US 2007/0198477 A1
Jan. 20, 2005
Nov. 13,2003
Aug. 23, 2007

Appeal 2011-000981
Application 11/535,761

4
REJECTIONS
The Examiner made the following rejections:
(1) Claims 22-25 stand rejected under 35 U.S.C § 101 as being
directed to non-statutory subject matter (Ans. 4).
(2) Claims 1-17 and 19-30 stand rejected under 35 U.S.C § 103(a)
as being unpatentable over Ginter and Chu-Carroll (Ans. 5).
(3) Claim 18 stands rejected under 35 U.S.C § 103(a) as being
unpatentable over Ginter, Chu-Carroll, and Lawton (Ans. 22).1

We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made but chose not to
make in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(vii)(2011).

ISSUE 1
35 U.S.C. § 101: Claims 22-25
Appellant argues the invention as recited in claims 22-25 is directed to
statutory subject matter because claim 22 recites “a computer readable
medium having computer executable instructions stored thereon” (Reply Br.

1 Appellant argues the Examiner’s objection to the Specification as failing to
provide proper antecedent basis for the claimed subject matter – specifically,
“computer readable medium” recited in claim 22. Notwithstanding
Appellant’s arguments, this matter is not before us since we lack jurisdiction
over petitionable matters. See, e.g., MPEP § 706.01 (“[T]he Board will not
hear or decide issues pertaining to objections and formal matters which are
not properly before the Board.”); see also MPEP § 1201 (“The Board will
not ordinarily hear a question that should be decided by the Director on
petition….”).
Appeal 2011-000981
Application 11/535,761

5
13). Thus, according to Appellant, transitory mediums that are not capable
of storage would be excluded (id.). As such, Appellant contends, the
invention recited in claim 22 is directed to statutory subject matter (id.).

Issue 1: Has the Examiner erred in determining the invention as
recited in claims 22-25 is directed to non-statutory subject matter?

ANALYSIS
We start by noting that Appellant has not identified any description or
definition within the Specification for the claimed “computer readable
medium.” Thus, we adopt a broad, but reasonable, interpretation in light of
the Specification. Accordingly, we determine that despite Appellant’s
argument, the recited computer readable medium can encompass non-
statutory transitory forms of signal transmission. (See U.S. Patent &
Trademark Office, Interim Examination Instructions for Evaluating Subject
Matter Eligibility Under 35 U.S.C. § 101, Aug. 2009, at 2 (“Interim
Instructions”), available at http://www.uspto.gov/web/
offices/pac/dapp/opla/2009-08-25_interim_101_instructions.pdf and David
J. Kappos, Subject Matter Eligibility of Computer Readable Media, 1351
Off. Gaz. Pat. Office 212 (Feb. 23, 2010) (“OG Notice”), available at
http://www.uspto.gov/web/offices/com/sol/og/2010/week08/TOC.htm#
ref20).
Accordingly, the Examiner did not err in rejecting claims 22-25 under
35 U.S.C. § 101 as being directed to non-statutory subject matter.

Appeal 2011-000981
Application 11/535,761

6
ISSUE 2
35 U.S.C. § 103(a): Claims 1-17, 19-21, and 26-30
Appellant asserts the invention is not obvious over Ginter and Chu-
Carroll because the combination does not teach “a context component to
enable context data to be added to the initial event message to facilitate post
processing of system events, wherein the context data is automatically added
according to a common data model that is hierarchically structured to
represent a hierarchical structure of one or more industrial processes, the
context data is related to at least one portion of the one or more industrial
processes associated with generation of the initial message” (App. Br. 6-10).
Specifically, Appellant contends Ginter is concerned with security of a
computer network, not with operation of an industrial process; and Chu-
Carroll is concerned with accessing legacy computer systems, not with
operation of an industrial process (App. Br. 7 and 8).
Additionally, Appellant argues Ginter does not disclose capturing
context data electronically because no context data is needed in real-time
(App. Br. 8). In Ginter, an operator receiving real-time status information
from a machine already knows the context of the system event, but does not
capture this data to facilitate post processing of system events (id.).
Appellant further argues Chu-Carroll does not disclose adding context
data according to a data model that represents the hierarchical structure of an
industrial process(es) (App. Br. 9). In Chu-Carroll, according to Appellant,
the hierarchy categorizes events with regard to actions performed on data
objects but provides no information about the underlying industrial process
associated with the event (App. Br. 10). Instead, Appellant contends, the
Appeal 2011-000981
Application 11/535,761

7
information provides a means to pass commands between a client and a
server (id.).
Appellant therefore argues the combination of Ginter and Chu-Carroll
does not render independent claim 1 obvious.

Issue 2: Has the Examiner erred in finding the combination of Ginter
and Chu-Carroll teaches or suggests “a context component to enable context
data to be added to the initial event message to facilitate post processing of
system events, wherein the context data is automatically added according to
a common data model that is hierarchically structured to represent a
hierarchical structure of one or more industrial processes, the context data is
related to at least one portion of the one or more industrial processes
associated with generation of the initial message” as recited in independent
claim 1?

ANALYSIS
Initially, we note Appellant has not explicitly defined the terms
“context data” or “event” in the Specification. Appellant has not persuaded
us the Examiner’s reliance on a broad, but reasonable interpretation of these
terms in finding the combination of Ginter and Chu-Carroll teaches the
invention as recited is in error. We also determine that “industrial” in the
term “industrial process” is a non-functional descriptive label for a process.
We agree with the Examiner’s findings and we are not persuaded by
Appellant’s arguments. Indeed, we find Ginter discloses “the context data is
related to at least one portion of the one or more industrial processes
Appeal 2011-000981
Application 11/535,761

8
associated with generation of the initial message” (Ans. 5-8 and 24-25).
Appellant’s arguments regarding “capturing data in real-time” and
“capturing context data electronically” are not persuasive since these
limitations are not recited in the claim. The claim recites memory having
computer-executable instructions including a context component to enable
context data to be added to the initial event message (see claim 1).
Appellant’s arguments that Chu-Carroll does not teach “the context
data is automatically added according to a common data model that is
hierarchically structured to represent a hierarchical structure of one or more
industrial processes” (App. Br. 9-10) is also unpersuasive. Again, the terms
“common data model” and “hierarchical structure” are not explicitly defined
in Appellant’s Specification. Thus, we are not persuaded the Examiner’s
interpretation is in error, taking a broad, but reasonable, interpretation in
light of Appellant’s Specification (see e.g., Spec. 14-15, [0038]-[0045]).
Specifically, we are not persuaded by Appellant’s argument that Chu-
Carroll does not disclose this limitation because the reference is not
concerned with industrial processes or that the hierarchy provides no
information about the underlying industrial processes associated with the
event (App. Br. 9-10). As set forth above, “industrial” is a non-functional
descriptive label for the processes. Further, we are not persuaded the
Examiner’s findings that Chu-Carroll teaches the context data is
automatically added according to a common data model and that the
common data model is hierarchically structured are in error (Ans. 7 and 25).
We additionally agree with the Examiner that Appellant appears to be
arguing the references individually (see Ans. 25). Specifically, the
Appeal 2011-000981
Application 11/535,761

9
Examiner is relying on Chu-Carroll as teaching context data is automatically
added according to a common data model that is hierarchically structured to
represent a hierarchical structure of processes (Ans. 7). “The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference; nor is it that
the claimed invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of the references
would have suggested to those of ordinary skill in the art.” In re Keller, 642
F.2d 413, 425 (CCPA 1981) (citations omitted).
Further, Appellant has not persuaded us that such combination is more
than a simple arrangement of old elements, with each performing the same
function it had been known to perform, yielding no more than one would
expect from such an arrangement. See KSR Int'l Co. v. Teleflex Inc., 550
U.S. 398, 406 (2007). We are not persuaded adding context data as recited
would have been “uniquely challenging or difficult for one of ordinary skill
in the art” or “represented an unobvious step over the prior art.” See
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007) (citing KSR, 550 U.S. at 418-19).
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Ginter and Chu-Carroll teaches or suggests “a context
component to enable context data to be added to the initial event message to
facilitate post processing of system events, wherein the context data is
automatically added according to a common data model that is hierarchically
structured to represent a hierarchical structure of one or more industrial
processes, the context data is related to at least one portion of the one or
Appeal 2011-000981
Application 11/535,761

10
more industrial processes associated with generation of the initial message”
as recited in independent claim 1. Independent claims 26 and 29 were not
separately argued, but instead relied upon previous arguments set forth;
therefore, they fall with independent claim 1. Dependent claims 3, 6-11, 13,
14, 16, 17, 19-21, 27, 28, and 30 were not separately argued and thus fall
with their respective independent claims. Accordingly, we sustain the
rejection of claims 1, 3, 6-11, 13, 14, 16, 17, 19-21, 26-30 under
35 U.S.C. § 103(a) for obviousness over Ginter and Chu-Carroll.

ISSUE 3
35 U.S.C. § 103(a): Claims 2, 4, 5, 12, and 15
With respect to dependent claim 2, Appellant argues Chu-Carroll does
not disclose the XML document relied upon contains program information
relating to a code module(s) executing an industrial process(es) (App. Br.
12). Therefore, Appellant contends the combination of Ginter and Chu-
Carroll does not teach or suggest “the context data includes program
information relating to at least one code module executing the one or more
industrial processes” (id.).
Similarly, with respect to claim 5, Appellant argues Ginter only
discloses a workstation that a user can use to view information or enter
inputs for controller or monitoring device operations but does not teach
entering context information added to an event message (App. Br. 13).
Therefore, Appellant contends the combination of Ginter and Chu-Carroll
does not teach or suggest “a user interface to input user entered context data
Appeal 2011-000981
Application 11/535,761

11
to the context component, wherein user entered context data is added to the
initial event message” (App. Br. 12-13).
With respect to claims 12 and 15, Appellant argues the event handlers
of Chu-Carroll are used for replicating the data structure changes and related
to data structure changes between systems, respectively and not industrial
processes (App. Br. 13).

Issue 3: Has the Examiner erred in finding the combination of Ginter
and Chu-Carroll teaches or suggests the limitation as recited in dependent
claims 2, 5, 12, and 15?

ANALYSIS
We are not persuaded by Appellant’s arguments. With respect to
claim 2, the content of the context data refers to the content of the data and
therefore, is non-functional descriptive matter.
With respect to claim 5, we are not persuaded as Ginter teaches a user
interface for adding information (Spec. 9, [0060]). We additionally
determine using a user interface to add information to a message would not
have been uniquely challenging or beyond the skill of an ordinarily skilled
artisan at the time of the invention.
With respect to claims 12 and 15, we agree with the Examiner’s
findings (Ans. 23-24) and Appellant has not identified sufficient evidence or
argument to persuade us of error. Again, we note “industrial” is a non-
functional descriptive label of the process.
Appeal 2011-000981
Application 11/535,761

12
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Ginter and Chu-Carroll teaches or suggests the limitations as
recited in claims 2, 5, 12, and 15 and claim 4, not separately argued.
Therefore, we sustain the rejection of claims 2, 4, 5, 12, and 15 under
35 U.S.C. § 103(a) for obviousness over Ginter and Chu-Carroll.

ISSUE 4
35 U.S.C. § 103(a): Claims 22-25
Appellant asserts the invention is not obvious over Ginter and Chu-
Carroll because the combination does not teach or suggest “applying a
supplemental annotation to the event, wherein the supplemental annotation
includes process related data corresponding to a portion related to the event
of a hierarchical structured data model representative of one or more
industrial processes” (App. Br. 10). Appellant again argues both Ginter and
Chu-Carroll are silent regarding an industrial process or hierarchical
structured data model representative of the industrial process (App. Br. 10).
Further, Appellant argues, the events described in both Ginter and Chu-
Carroll are static in nature in contrast to the present invention in which
supplemental data is added to the event message (App. Br. 11).
According to Appellant, Ginter discloses summarizing events using
base annotation information but does not apply a supplemental annotation to
the event itself (App. Br. 11). Moreover, Appellant argues Ginter’s events
are static and capture information only as the event occurs whereas the
claimed invention recites context data may be supplemented to the original
Appeal 2011-000981
Application 11/535,761

13
event (id.). Therefore, Appellant contends the combination of Ginter and
Chu-Carroll does not render the invention obvious.

Issue 4: Has the Examiner erred in concluding the combination of
Ginter and Chu-Carroll teaches or suggests “applying a supplemental
annotation to the event, wherein the supplemental annotation includes
process related data corresponding to a portion related to the event of a
hierarchical structured data model representative of one or more industrial
processes” as recited in claim 22?

ANALYSIS
We are not persuaded of error in the Examiner’s findings. Appellant
has not explicitly defined “annotation” in the Specification. Thus, in light of
a broad, but reasonable, interpretation in light of the Specification, we agree
with the Examiner that the combination of Ginter and Chu-Carroll teaches
the disputed limitation (Ans. 15-16). We also determine, as set forth above
with respect to claim 1, Appellant’s arguments that neither Ginter nor Chu-
Carroll teaches an industrial process or hierarchical structured data model
representative of the industrial process are unpersuasive.
Further, Appellant’s arguments that Ginter and Chu-Carroll’s events
are static are not commensurate with the claim.
We additionally determine, although not relied upon in affirming this
rejection, the content of the annotations is non-functional descriptive matter.
Specifically, the supplemental annotation includes “process related data.”
Appeal 2011-000981
Application 11/535,761

14
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Ginter and Chu-Carroll teaches or suggests “applying a
supplemental annotation to the event, wherein the supplemental annotation
includes process related data corresponding to a portion related to the event
of a hierarchical structured data model representative of one or more
industrial processes” as recited in claim 22 and claims 23-25, not separately
argued. Therefore, the Examiner did not err in rejecting claims 22-25 under
35 U.S.C. § 103(a) for obviousness over Ginter and Chu-Carroll.

ISSUE 5
35 U.S.C. § 103(a): Claim 18
Appellant asserts the invention is not obvious over Ginter, Chu-
Carroll, and Lawton because Lawton does not teach context data for a
system event or generating and managing events related to an industrial
control system (App. Br. 15). Appellant further argues the regulatory
information is stored independently of a system event (App. Br. 15). Thus,
according to Appellant, the regulatory information described in Lawton is
not context data for an event (id.).

Issue 5: Has the Examiner erred in concluding the combination of
Ginter, Chu-Carroll, and Lawton teaches or suggests “wherein the context
data is associated with a regulatory standard” as recited in claim 18?

Appeal 2011-000981
Application 11/535,761

15
ANALYSIS
In light of the claim language that the context data is associated with a
standard, we find the claim recites non-functional descriptive matter.
Indeed, the claim recites informational content of the data. When
descriptive material is not functionally related to the claimed embodiment,
the descriptive material will not distinguish the invention from the prior art
in terms of patentability. See In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir.
2004) and In re Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983).
Accordingly, the Examiner did not err in finding the combination of
Ginter, Chu-Carroll, and Lawton teaches or suggests “wherein the context
data is associated with a regulatory standard” as recited in claim 18.
Therefore, the Examiner did not err in rejecting claim 18 under
35 U.S.C. § 103(a) for obviousness over Ginter, Chu-Carroll, and Lawton.

DECISION
The Examiner’s rejection of claims 22-25 under 35 U.S.C § 101 as
being directed to non-statutory subject matter is affirmed.
The Examiner’s rejection of claims 1-17 and 19-30 under 35 U.S.C.
§ 103(a) as being unpatentable over Ginter and Chu-Carroll is affirmed.
The Examiner’s rejection of claim 18 under 35 U.S.C. § 103(a) as
being unpatentable over Ginter, Chu-Carroll, and Lawton 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)(iv) (2011).

Appeal 2011-000981
Application 11/535,761

16
AFFIRMED

msc