Ex Parte Charbonneau et alDownload PDFPatent Trial and Appeal BoardJun 7, 201611686858 (P.T.A.B. Jun. 7, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 11/686,858 03/15/2007 12324 7590 06/09/2016 Billion & Armitage - Digital River 7401 Metro Blvd. Suite 425 Minneapolis, MN 55439 FIRST NAMED INVENTOR Daniel J. Charbonneau 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. ll 42.022US l/D33-062-02-US 7 ll 9 EXAMINER VAUGHN, GREGORY J ART UNIT PAPER NUMBER 2178 NOTIFICATION DATE DELIVERY MODE 06/09/2016 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): docketing@billionarmitage.com mmiller@billionarmitage.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANIEL J. CHARBONNEAU and MICHAEL D. SCHNAPF 1 Appeal2015-000094 Application 11/686,858 Technology Center 2100 Before ALLEN R. MacDONALD, AMBER L. HAGY, and AARON W. MOORE, Administrative Patent Judges. HAGY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1, 4--11, and 14--22, which are all of the pending claims. 2 We have jurisdiction over these claims under 35 U.S.C. § 6(b ). We affirm. 1 Appellants identify Digital River, Inc., as the real party in interest. (Br. 1.) 2 Claims 2, 3, 12, and 13 have been canceled. (Final Act. 2.) Appeal2015-000094 Application 11/686,858 Introduction According to Appellants, "[t]he present invention relates to a web page user interface. In particular, it relates to updating web pages in real- time over a network." (Spec. i-f 2.) Exemplary Claim Claim 1, reproduced below with the disputed limitation italicized, is exemplary of the claimed subject matter: 1. A web-based page builder system for use on a network including a server with a processor and a memory, comprising: a layout module containing program code which when executed by the processor in the server causes the server to perform operations of designing web page layouts for a particular web site by reusing layouts from previously created web sites, the designing web page layouts operation comprising utilizing a markup language with a site identification code in a uniform resource locator (URL) that identifies specific layouts from another previously created web site whereby reuse of layouts from those previously created for other web sites is enabled; a content editor module containing program code which when executed by the processor in the server causes the server to perform operations of applying a layout to a web page and modifying content of the web page for the particular web site by reusing content from previously created web sites, the modifying content of the web page operation comprising utilizing the markup language with the site identification code in the URL that identifies specific content from another previously created web site whereby reuse of content from those previously created for other web sites is enabled; and 2 Appeal2015-000094 Application 11/686,858 a deployment module containing program code which when executed by the processor in the server causes the server to perform operations of immediately publishing pages in real time over the network for the particular web site to the web server whereby approval is not required of a system administrator. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Baxter et al. ("Baxter") Heptinstall et al. ("Heptinstall") Renzi et al. ("Renzi") US 2002/0198878 Al US 2003/0217076 Al US 2007/0180490 Al REJECTIONS Dec. 26, 2002 Nov. 20, 2003 Aug.2,2007 Claims 1, 10, 11, and 20-22 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Baxter and Heptinstall. (Final Act. 3-7.) Claims 4--9 and 14--19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Baxter, Heptinstall, and Renzi. (Final Act. 7-9.) ISSUE Whether the Examiner erred in finding the combination of Baxter and Heptinstall teaches or suggests "utilizing a markup language with a site identification code in a uniform resource locator (URL) that identifies specific layouts from another previously created web site," as recited in independent claim 1 and commensurately recited in independent claim 11. 3 Appeal2015-000094 Application 11/686,858 ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' arguments the Examiner has erred. 3 We do not find Appellants' arguments persuasive of Examiner error. We highlight the following for emphasis. A. Claims 1, 10, 11, and 20-224 The Examiner finds Baxter teaches or suggests the limitations of claim 1, except "using a site identification code in a URL to identify layouts or content." (Final Act. 3-6.) The Examiner finds Heptinstall teaches "using a site id in a URL to identify web site components." (Final Act. 6 (citing Heptinstall Fig. 5 and i-f 84).) The Examiner further finds "it would have been obvious, to one of ordinary skill in the art, at the time the invention was made, to combine the content management system of Baxter with the website generator of Heptinstall." (Final Act. 6.) Appellants argue the Examiner's findings are in error because Baxter does not disclose "the use of markup language." (Br. 7.) We disagree. The Examiner finds, and we agree, that Baxter discloses use of HTML (a known markup language) by stating that "one of ordinary skill in the art to which this invention belongs will have a solid understanding of ... (HTML) ... or other markup languages" (Baxter i-f 33), which the Examiner interprets as indicating "that Baxter's invention is built using HTML (or any markup 3 Only those arguments made by Appellants have been considered in this Decision. Arguments Appellants did not make in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv). 4 Appellants argue claims 10, 11, and 20-22 collectively with claim 1. Except for our ultimate decision, these claims are not discussed further herein. See 37 C.F.R. § 41.37(c)(l)(iv). 4 Appeal2015-000094 Application 11/686,858 language)." (Ans. 9 (citing Baxter il 33).) The Examiner further finds, and we agree, Baxter discloses use of a markup language by disclosing use of "tags" to control information, which the Examiner notes "is a fundamental aspect of markup languages." (Ans. 9 (citing Baxter i1i14, 89, 92, and Tables 10, 13, and 16).) Appellants also argue Baxter "fails to discuss the use of a URL in the manner claimed in the presently pending claims." (Br. 7.) In particular, Appellants argue "[t]here is no teaching or suggestion [in Baxter] of combining the markup language and the URL as recited in claims 1, 11 and 22, namely utilizing a markup language with a site identification code in the uniform resource locator (URL) that identifies specific layouts from another previously created web site." (Br. 7-8.) Appellants' argument is not persuasive of Examiner error, as it amounts to no more than a statement of what Baxter purportedly discloses, followed by a conclusory statement that the reference does not teach or suggest the disputed limitation. (Br. 7-8.) Such conclusory attorney assertions have little or no value in identifying the Examiner's alleged error, and, consequently, have little persuasive value. See 3 7 C.F .R. § 41.3 7 ( c )(iv) ("A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim."); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011 ). Moreover, Appellants' argument is also unpersuasive of Examiner error because it focuses on alleged deficiencies in the individual teachings of Baxter, and does not address the Examiner's combination of Baxter with Heptinstall. (Final Act. 6; Ans. 10.) See In re Keller, 642 F.2d 413, 425 (CCPA 1981). 5 Appeal2015-000094 Application 11/686,858 Appellants additionally argue: Baxter does not describe the claimed reuse feature of independent claims 1, 11 and 22, rather, Baxter describes something else entirely. Baxter's FIG. 5 is a flow chart for the ["]migration of existing content to the content management system ... i.e. catalog in the data structure ... by creating outlines, templates, styles, etc ... " (Baxter, paragraphs [0100]- [0101]) to "archive organizational and format components for possible future reuse[."] (Baxter, paragraph [0120]). Applicant agrees that this describes capturing content and layouts from an existing web site for reuse; however, this is not what the Applicant is claiming. Rather, Applicant is claiming that utilizing a site identification code in the URL identifies and applies the layouts from an existing web site. (Br. 8 (bold emphasis added).) Although Appellants premise this argument on the contention Baxter does not disclose "reuse," Appellants admit Baxter discloses reusing content and layouts from an existing web site. This argument, therefore, boils down to reiterating that Baxter does not disclose "a site identification code in a uniform resource locator (URL)." However, as noted above, Appellants' piecemeal challenge to the Baxter reference is inherently unpersuasive because it fails to address the basis of the Examiner's rejection with regard to this disputed limitation, which is the combination of Baxter and Heptinstall. (See Final Act. 6; Ans. 10.) The test for obviousness is not whether 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 at 425 (citations omitted, emphasis added). Thus, where, as here, the rejections are based upon the teachings of a combination of references, "[ n ]on-obviousness cannot be established by attacking references 6 Appeal2015-000094 Application 11/686,858 individually." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing Keller, 642 F .2d at 425). Appellants' only discussion of Heptinstall is the argument that "the Heptinstall reference also fails to fill the above identified shortcoming of Baxter as it teaches away from the use of markup language." (Br. 8 (emphasis added).) In particular, Appellants argue Heptinstall's statement that "[a Jn advantage of the present invention is that a graphic designer does not need to understand HyperText Markup Language (HMTL) in order to produce the highest quality work," is a "clear teaching away of the recitation of the inventions of claims 1, 11 and 22." (Br. 8-9.) We disagree. Heptinstall does not, as Appellants at least implicitly assert, teach that HTML is not used to generate a web site. Rather, Heptinstall discloses that the designer need not write the code because the underlying software generates the code using a library of objects: Another advantage of the present invention is that a graphic designer need only to place his/her work within the perimeters of a design interface and the present invention generates code to make a website. No HTML is written by a graphic designer or stored as a functioning website on a server. The final code is generated on-demand and on the fly in response to a request to view a website. (Heptinstall i-f 6.) In particular, Heptinstall expressly discloses that the code for the website is generated using a "library object," which is a "pre-built, self- contained library of variables and executable functions." (Heptinstall i-f 59.) Heptinstall further explains "[t]hese functions are responsible for retrieving the appropriate website data from repository 138, and generating file paths for web content so that it may be rendered to a webpage using a web 7 Appeal2015-000094 Application 11/686,858 language, such as for example, HT'ML or eXtensible HTML (xHTML)." (Id. (emphasis added).) Thus, contrary to Appellants' argument, Heptinstall does not "teach away" from using HTML to build a website. For the foregoing reasons, Appellants' arguments do not persuade us of error in the Examiner's 35 U.S.C. § 103(a) rejection of independent claim 1 as unpatentable over the combination of Baxter and Heptinstall. We, therefore, sustain that rejection, along with the rejection of independent claims 11 and 22, and dependent claims 20 and 21, which Appellants argue collectively with claim 1. B. Claims 4-9 and 14-19 Appellants do not present separate substantive arguments for the patentability of dependent claims 4--9 and 14--19, which stand rejected over Baxter and Heptinstall with the addition of Renzi. (Final Act. 7-9.) As to these claims, Appellants contend only "Renzi '490 does not teach or describe the claimed feature described above [with regard to claim 1] as missing from the Baxter and Heptinstall references." (Br. 9.) Because we are not persuaded of deficiencies in the Examiner's findings regarding Baxter and Heptinstall as to claim 1, as explained above, we also sustain the Examiner's 35 U.S.C. § 103(a) rejection of dependent claims 4--9 and 14-- 19. 8 Appeal2015-000094 Application 11/686,858 DECISION For the above reasons, the Examiner's 35 U.S.C. § 103(a) rejection of claims 1, 4--11, and 14--22 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 9 Copy with citationCopy as parenthetical citation