Ex Parte Castellanos et al

Patent Trial and Appeal Board

Sep 26, 2016

13436541 (P.T.A.B. Sep. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/436,541 03/30/2012 Maria G. CASTELLANOS
56436 7590 09/28/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82929158 4315
EXAMINER
NICHOLS, JENNIFER ELIZABETH-JO
ART UNIT PAPER NUMBER
2142
NOTIFICATION DATE DELIVERY MODE
09/28/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARIA G. CASTELLANOS,
UMESHW AR DAY AL, RIDDHIMAN GHOSH, and
MEICHUNHSU
Appeal2015-001947
Application 13/436,541
Technology Center 2100
Before JEFFREYS. SMITH, MICHAEL J. STRAUSS, and
KEVIN C. TROCK, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2015-001947
Application 13/436,541
STATE~vfENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
THE INVENTION
The claims are directed to analyzing social media. Spec., Title.
Claim 8, reproduced below, is representative of the claimed subject matter:
8. A method for analyzing social media, the method comprising:
configuring adaptors to acquire data as a snapshot or a
continuous stream from one or more online sites;
storing data in a database, the database configured for
rapid acquisition and rapid responses to queries from one or a
plurality of users;
analyzing data in said database using a number of
algorithms to identify a list of attributes associated in said data
with a target subject, the algorithms configured to distill insight
at an attribute level by analyzing a relative popularity of
respective attributes and trending with time of said relative
popularity of respective attributes; and,
configuring a dashboard to present results of said
algorithms.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Goeldi US 2010/0121707 Al
Bennett et al. US 2010/0275263 Al
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May 13, 2010
Oct. 28, 2010
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Application 13/436,541
REJECTIONS
The Examiner made the following rejections1:
Claims 8-14 and 17 stand rejected under 35 U.S.C. § 112 first
paragraph as failing to comply with the written description requirement.
Final Act. 3--4.
Claims 1-20 stand rejected under 35 U.S.C. § 112 second paragraph as
being indefinite. Final Act. 4--5.
Claims 1-3 and 5-20 stand rejected under 35 U.S.C. §102(b) as being
anticipated by Goeldi. Final Act. 5-25.
Claim 4 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Goeldi and Bennett. Final Act. 25-28.
APPELLANTS' CONTENTIONS
1. In connection with the rejection under 35 U.S.C. § 112, first
paragraph, because the Specification discloses the identification of
attributes of entities, one skilled in the art would have understood the
attribute of the claimed invention to be that of some subject. App. Br.
10.
2. In connection with the rejection under 35 U.S.C. § 112, second
paragraph, an initial recitation of "one or a plurality of algorithms"
provides adequate antecedent support for a subsequent limitation
referencing plural algorithms. App. Br. 11-12.
1 A separate rejection of claim 10 under 35 U.S.C. § 112, second paragraph,
for insufficient antecedent bases for the limitation "said graphical user
interface" has been withdrawn. Ans. 3.
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3. In connection with the rejection of independent claim 8 under 35
U.S.C. § 102(b)2 :
1. "There is no clear teaching [in the cited portion of Goeldi] of a
target subject or of identifying a list of attributes associated in
said data with such a target subject." App. Br. 12.
11. "Goeldi never teaches or suggests 'to distill insight at an
attribute level by analyzing a relative popularity of respective
attributes."' App. Br. 13-14.
111. Goeldi operates at the brand and product level, not at the
attribute level as claimed, and therefore fails to "teach or
suggest 'algorithms to identify a list of attributes associated in
said data with a target subject, the algorithms configured to
distill insight at an attribute level by analyzing a relative
popularity of respective attributes."' App. Br. 15-16.
4. In connection with the rejection of independent claim 15 under 35
U.S.C. § 102(b ), the cited portion of Goeldi only describes
determining the relevance of a post to a term of interest including
information relating to the author of each post, not distilling the
intentions of an author of an online text as required by claim 15. App.
Br. 17-18.
2 Although Appellants' contentions occasionally fault the anticipation
rejection under 35 U.S.C. § 102(b) for failure of Goeldi to teach or suggest
the argued claim limitations (a test applicable to obviousness rejections
under 35 U.S.C. § 103(a)), we recognize, to anticipate under§ 102, a prior
art reference must disclose all elements within the four comers of the
document arranged as in the claim and apply that standard in our review.
See Net Moneyln, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir.
2008).
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5. In connection with the rejection of independent claim 1 under 35
U.S.C. § 102(b ), Appellants' Specification discloses an adjustable
temporal view includes a timer slider configured to narrow or expand
a view to a desired period of time while Goeldi merely displays data
over a selected range of time in a snapshot thereby failing to teach or
suggest the disputed temporal-view adjustable dashboard. App. Br.
18-19.
6. In connection with the rejection of claims 2 and 9 under 35 U.S.C.
§ 102(b ), in addition to the reasons presented in connection with claim
15, "Goeldi does not teach or suggest the claimed 'an intention
analysis algorithm' of[these claims]." App. Br. 21.
7. In connection with the rejection of claim 3 under 35 U.S.C. § 102(b),
Goeldi's application of different filters to data fails to disclose user
selection of a source of data as required by claim 3. App. Br. 22.
8. In connection with the rejection of claims 6 and 13 under 35 U.S.C.
§ 102(b ), "Goeldi only shows results of the data analysis, not a portion
of the underlying analyzed data." App. Br. 23.
9. In connection with the rejection of claim 7 under 35 U.S.C. § 102(b),
as argued in connection with claim 6, "Goeldi has not been shown to
teach or suggest that the underlying analyzed data is presented on the
dashboard." App. Br. 23.
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ANALYSIS
Rejection under 35 U.S. C. § 112, first paragraph
Appellants argue attributes do not exist in a vacuum but must be
attributable to some subject. App. Br. 10. According to Appellants, "If one
is identifying the attributes of some subject, it is the target. Thus, it is only
natural to recite identifying a list of attributes associated in data with a target
subject [as claimed]." Id. In support of the disputed phrase attributes
associated in said data with a target subject, in addition to paragraph 92
(App. Br. 10), Appellants further direct attention to paragraph 149 of the
Specification disclosing "SMAS 5 may store the data acquired in a database,
the database configured for rapid acquisition of data and typically, rapid
responses to queries form [sic.] one or a plurality of users, as depicted in
block 505." See App. Br. 7. The Examiner responds by finding claim 8
requires the attributes be associated with the data and not necessarily the
claimed "target subject" which can be interpreted as a separate item along
with the list of attributes. Ans. 5. According to the Examiner "The claim
language does not tie in the 'target subject' to the acquired data nor to the list
of attributes. "Since the specification does not mention, describe, or clarify
how the claimed 'target subject' is related to or tied to the acquired data
and/or to the list of attributes, the 'target subject' is unclear." Id.
We find Appellants' arguments unpersuasive. The Specification fails
to use the term "target subject," instead disclosing "attributes of entities."
Spec. i-f 92. Thus, it is unclear, for example, whether the argued "subject"
refers to a topic, person, or something else. Furthermore, Appellants offer
no factual evidence, besides mere attorney argument or speculation, that
rebuts the Examiner's findings and determinations or that would indicate
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that one of ordinary skill in the art would have found the disclosed attributes
of entities associated with data to be sufficiently related to and descriptive of
target subjects in compliance with the written description requirement.
Therefore we sustain the rejection of 8-14 and 17 under 35 U.S.C. § 112 first
paragraph as failing to comply with the written description requirement.
Rejection under 35 U.S. C. § 112, second paragraph
The Examiner finds "[i]n regards to claim 1, the claim language is not
clear to if 'the algorithms' is referring back to the singular or plural
algorithm(s)." Ans. 6. Appellants argue the "recitations of 'one or a
plurality of algorithms' provides antecedent basis for the subsequent
recitation of 'the algorithms."' App. Br. 12.
We agree with Appellants and find the latter recitation of plural
"algorithms" is an acceptable construct referring back to both possibilities of
a singular and plural number of algorithms. Therefore we do not sustain the
rejection of claims 1-20 under 35 U.S.C. § 112 second paragraph as being
indefinite.
Rejections under 35 U.S.C. §§ 102(b) and 103(a)
We have reviewed the Examiner's rejections under 35 U.S.C. §§
102(b) and 103 (a) in light of Appellants' arguments the Examiner has erred.
In connection with those rejections we disagree with Appellants'
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken and (2) the
reasons set forth by the Examiner in the Examiner's Answer in response to
Appellants' Appeal Brief and concur with the conclusions reached by the
Examiner. We highlight the following for emphasis.
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Claim 8
In connection with claim 8 and contention 3(i), Appellants argue
"Goeldi does not operate at the attribute level as claimed 'by analyzing a
relative popularity of respective attributes and trending with time of said
relative popularity of respective attributes." App. Br. 13. According to
Appellants, in finding Goeldi discloses the disputed limitation, "[t]he Action
is reading subject matter into a relatively vague paragraph [52] of the cited
reference." Id. The Examiner responds by finding the cited portion of
Goeldi was relied upon only for disclosing that data is aggregated and
qualified, i.e., analyzed, and Appellants fail to address the remaining
paragraphs of Goeldi cited in the Action, i.e., paragraphs 51 and 68-70.
Ans. 7-8. The Examiner concludes the disputed "attributes can be anything
that describes or characterizes data." Ans. 8. The Examiner further finds
Goeldi discloses grouping data into different categories such that data
concerning a particular category would be grouped together based on
attributes of the data, e.g., by car brand and model. Id. The Examiner
therefore finds Goeldi discloses the disputed limitation. Ans. 7.
We find Appellants' contention 3(i) unpersuasive. As explained by the
Examiner, under a broad but reasonable interpretation, Goeldi's grouping of
data into categories discloses identifying a list of attributes associated in said
data with a target subject. In contrast, Appellants' argument lacks sufficient
substance to persuade us of error, amounting to little more than a naked
assertion the disputed claim limitation is not disclosed by the prior art in
ipsissimis verbis. See In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009)
(Although a reference must disclose each and every limitation in a claim to
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anticipate the claim, the reference need not satisfy an ipsissinzis verbis test);
37 C.F.R. § 41.37(c)(l)(iv) ("A statement which merely points out what a
claim recites will not be considered an argument for separate patentability of
the claim."); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold
that the Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art."). Accordingly, Appellants' contention 3(i) is unpersuasive of
Examiner error.
In connection with contention 3(ii) Appellants argue Goeldi merely
discloses looking at words in online posts which may label products,
concepts, competitors, etc., but is not a list of attributes associated in the data
of a database with a target subject. App. Br. 14--15. In response the
Examiner finds Goeldi's edge processing extracts data such as sentiment and
intention at an attribute level thereby disclosing the disputed list. Ans. 9.
The Examiner finds "[t]hrough the text edge process, [Goeldi's] system is
able understand and determine insight such as trends by analyzing the terms
of interest and frequency of occurrences of the terms. Examiner notes the
disclosed frequency of occurrences of Goeldi is interpreted as the claimed
relative popularity." Id.
Appellants' argument is unpersuasive. Although Appellants cite to
and characterize portions of Goeldi 's disclosure, Appellants' argument
provides little more than a general denial the disputed claim limitations are
absent from the prior art without sufficient explanation or evidence in
rebuttal to the Examiner's findings to persuade us of error. In contrast, the
Examiner's explanation mapping Goeldi's disclosure to the disputed claim
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language is reasonable and supported by the evidence or record. Therefore,
based on a preponderance of the evidence, Appellants' contention 3(ii) is
unpersuasive of Examiner error.
In connection with contention 3(iii) Appellants argue claim 8 requires
more than "looking at the relative popularity of attributes from the list at a
single point in time, but [instead] the trending changes to the relative
popularity of respective attributes over time." App. Br. 15 (emphasis added).
In response the Examiner finds, and we agree, Goel di' s text trend processing
used to determine how sentiment changes over time discloses the disputed
limitation of analyzing a relative popularity of respective attributes and
trending with time of the relative popularity of respective attributes. Ans.
11-12. Accordingly, Appellants' contention 3(iii) is unpersuasive of error.
For the reasons discussed supra, we are unpersuaded of error in
connection with the rejection of claim 8. Accordingly, we sustain the
rejection of claim 8 under 35 U.S.C. § 102(b) together with the rejection of
dependent claims 10-12 and 14 which are not argued separately.
Claim 15
In connection with contention 4 Appellants argue Goeldi merely
describes an approach for determining the relevance of a post to a term of
interest by scraping posts for information relating to the author of each post
but not distilling the intentions of the author as required by claim 15. App.
Br. 17-18. The Examiner responds by finding Goeldi's analysis of terms
and concepts contained in post content data of an author includes the
extraction of the intentions and connotations of the author of the online
posts. Ans. 13. Accordingly, the Examiner finds Goeldi discloses the
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disputed algorithms configured to distill intentions of an author of an online
text. Id.
We agree with the Examiner. Appellants provide insufficient evidence
or line of reasoning explaining why the disputed "intentions of an author"
requires any particular action, processing, or analysis distinguishing it over
Goeldi's keyword analysis of an author's postings. Although we agree with
Appellants "to anticipate a claim, a reference must teach each and every
element of the claim, and 'the identical invention must be shown in as
complete detail as contained in the ... claim"' (App. Br. 18), this is not an
ipsissimis verbis test. See In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990); In
re Gleave. Merely alleging Goeldi does not describe a result of the text
analysis as being a distillation of the intentions of the author is insufficient to
persuade us that, under a broad but reasonable interpretation, the analysis
does not provide the argued result. Accordingly we sustain the rejection of
independent claim 15 under 35 U.S.C. § 102(b) together with the rejection of
dependent claims 16-20 which are not argued separately.
Claim 1
In connection with contention 5 Appellants argue the Specification
discloses a temporal-view adjustable dashboard including a time slider
configured to narrow or expand the view to a desired period of time. App.
Br. 19-20. According to Appellants "Goeldi does not teach or suggest, and
has not been shown to teach or suggest, the claimed 'a user-configurable,
and temporal-view adjustable dashboard' outputting the results of analyzing
data from one or more online sites." App. Br. 20. The Examiner responds
by interpreting the disputed adjustable temporal view as requiring "the
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dashboard must be able to be configured by a user and the temporal
parameter must be adjustable." Ans. 14. The Examiner finds, and we agree,
Goeldi's date range filter and user selection of date ranges discloses the
disputed temporal-view adjustable dashboard. Id. Accordingly, Appellants'
contention 5 is unpersuasive of Examiner error and we sustain the rejection
of independent claim 1under35 U.S.C. § 102(b) together with the rejection
of dependent claim 5 which is not argued separately. For the same reasons,
we sustain the rejection of dependent claim 4 under 35 U.S.C. § 103(a) over
Goeldi and Bennett, claim 4 also not argued separately.
Claims 2, 3, 6, 7, 9, and 13
In connection with contentions 6-9, we have reviewed Appellants'
arguments are find them unpersuasive. In particular, Appellants' arguments
consist of little more than naked assertions the disputed claim elements are
not found in the prior art. 3 Absent sufficient evidence or line of reasoning
rebutting the Examiner's findings that Goeldi discloses the disputed claim
limitations, we sustain the rejection of dependent claims 2, 3, 6, 7, 9, and 13
under 35 U.S.C. § 102(b) for the reasons set forth by the Examiner. See
Final Act. 8-12, 14--16, and 18-19; Ans. 15-20.
3 See 37 C.F.R. § 41.37(c)(l)(iv) ("A statement which merely points out
what a claim recites will not be considered an argument for separate
patentability of the claim."); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011) ("[W]e hold that the Board reasonably interpreted Rule 41.37 to
require more substantive arguments in an appeal brief than a mere recitation
of the claim elements and a naked assertion that the corresponding elements
were not found in the prior art.").
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DECISION
The Examiner's decision to reject claims 8-14 and 17 under 35 U.S.C.
§ 112 first paragraph as failing to comply with the written description
requirement is affirmed.
The Examiner's decision to reject claims 1-20 under 35 U.S.C. §112
second paragraph as being indefinite is reversed.
The Examiner's decision to reject Claims 1-3 and 5-20 under 35
U.S.C. §102(b) as being anticipated by Goeldi is affirmed.
The Examiner's decision to reject claim 4 under 35 U.S.C. §103(a)
over Goeldi and Bennett 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)(l )(iv).
AFFIRMED
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