Ex Parte Cheah

Patent Trial and Appeal Board

Jan 25, 2018

12268981 (P.T.A.B. Jan. 25, 2018)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/268,981 11/11/2008 Chris Cheah 079894.0516 9320
91230 7590 01/29/2018
Raker Rntts; T T P /Faeehnnk Tne
EXAMINER
2001 ROSS AVENUE STITT, ERIK V
SUITE 700
Dallas, TX 75201 ART UNIT PAPER NUMBER
2145
NOTIFICATION DATE DELIVERY MODE
01/29/2018 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):
ptomaill @bakerbotts.com
ptomai!2 @ bakerbotts .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRIS CHEAH
Appeal 2017-008051
Application 12/268,981
Technology Center 2100
Before ERIC S. FRAHM, KRISTEN L. DROESCH, and
JOHN D. HAMANN, Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL1
1 We note that the instant application on appeal is related to twelve other
applications also on appeal, all having the same inventive entity (Chris
Cheah) and assignee (Facebook, Inc.). The related applications are as
follows: U.S. Patent Application No. 12/258,299 and Appeal No. 2016-
006539 decided Feb. 23, 2017 (affirmed-in-part); U.S. Patent Application
No. 13/609,041 and Appeal No. 2017-002678 decided August 17, 2017
(affirmed-in-part); U.S. Patent Application No. 14/599,216 and Appeal No.
2017-002157 decided January 16, 2018 (affirmed); U.S. Patent Application
No. 13/615,062 and Appeal No. 2017-002512; U.S. Patent Application No.
13/618,881 and Appeal No. 2017-002456; U.S. Patent Application No.
13/612,619 and Appeal No. 2017-002455; U.S. Patent Application No.
12/258,295 and Appeal No. 2017-002384; U.S. Patent Application No.
13/612,606 and Appeal No. 2017-002088; U.S. Patent Application No.
12/258,302 and Appeal No. 2017-002070; U.S. Patent Application No.
11/840,968 and Appeal No. 2017-009638; U.S. Patent Application No.
13/610,560 and Appeal No. 2017-008097; and U.S. Patent Application No.
13/612,584 and Appeal No. 2017-008113.
Appeal 2017-008051
Application 12/268,981
STATEMENT OF CASE
Introduction
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 16—28, 30-32, 34—37, and 40-46. Claims 1—15, 29, 33, 38, and 39
have been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Disclosed Field of Invention
Appellant discloses a method and system for controlled distribution of
information, such as electronic business cards or contact information, over a
network. Title; Spec. H 3—5; see generally Figs. 1—4. More specifically,
Appellant discloses a method for automatically updating and distributing
contact information such as profiles or electronic business cards, as well as
allowing attachment of various additional information (e.g., business website
information or Universal Resource Focator, hyperlinks, audio/video objects,
etc.). Spec. H10-12. A first user requests access to a user profile of a
second user, where the access request comprises “information about the
second user entered in an input area of a graphical user interface (GUI) by
the first user” (claim 16). See Figs. 11, 14, 18E; Spec. H 48, 52, 106, 107,
125; Abstract; see also App. Br. 5. The user profiles include “one or more
visual indicators of communication mechanisms for use in communicating
with a user associated with the profile” (claim 16). See Fig. 18C; Spec. H
72—77; see also App. Br. 5. “[T]he communication mechanisms may
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Application 12/268,981
include telephone, facsimile, and email...[,] video-conference, on-line
chat, and Internet telephony.” Spec. 173.
Exemplary Claims
Exemplary claims 16 and 45, with bracketed lettering and emphases
added to disputed portions of the claims, read as follows below:
16. A method comprising:
by a computer system, maintaining in a data repository a
plurality of user profiles for a plurality of users, each user
profile being associated with profile information received, via
a network, from a respective user;
by the computer system, [A] receiving an access request
from a first user, the access request comprising a request to
access a profile of a second user, the access request
further comyrisins information about the second user entered
in an input area of a srayhical user interface by the first user;
by the computer system, providing for display to the
second user an authorization request responsive to the access
request from the first user;
by the computer system, receiving an authorization
response from the second user responsive to the authorization
request, the authorization response being generated at least
in part by the second user interacting with one or more
selectable options displayed with the authorization request; and
by the computer system, in response to the authorization
response, permitting the first user to access the profile of the
second user;
[B] wherein one or more of the plurality of user profiles
presents one or more visual indicators of communication
mechanisms for use in communicating with a user
associated with the profile, the communication mechanisms
being selectable by a requesting user and adapted to induce
communication with the user associated with the profile in
accordance with the selected communication mechanism.
45. The method of claim 16, further comprising [C]
adding, by the computer system, the second user as a contact of
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Application 12/268,981
the first user only after the second user selects, using the one or
more selectable options, to accept the access request from the
first user.
The Examiner’s Rejection
(1) The Examiner rejected claims 16—28, 30, 31, 34—37, 40-43, 45,
and 46 under 35 U.S.C. § 103(a) as being obvious over the combination of
Robertson (US 6,269,369 Bl; issued July 31, 2001), Harkins (US 5,657,461;
issued Aug. 12, 1997), and Tang (US 6,349,327 Bl; issued Feb. 19, 2002).
Final Act. 4—21; Ans. 3—7.
(2) The Examiner rejected claim 32 under 35 U.S.C. § 103(a) as being
obvious over the combination of Robertson, Harkins, Tang, and Appelman
(US 7,539,942 Bl; issued May 26, 2009). Final Act. 22.
(3) The Examiner rejected claim 44 under 35 U.S.C. § 103(a) as being
obvious over the combination of Robertson, Harkins, Tang, and Gilmour
(US 6,377,949 Bl; issued Apr. 23, 2002). Final Act. 23.
Issues on Appeal
Based on Appellant’s arguments in the Briefs (App. Br. 8—17; Reply
Br. 2—7), the following principal issues are presented on Appeal:2
2 With regard to the rejection over Robertson, Harkins, and Tang, Appellant
does not present separate arguments regarding the patentability of claims
17—28, 30, 31, 34—37, 40-43, and 46, and instead relies on the arguments
presented as to claim 16 for the patentability of claims (see App. Br. 8—12;
Reply Br. 2—5). Independent claims 16 (method), 21 (method), and 31
(system) recite similar subject matter, including a first user requesting access
to a user profile of a second user, and the user profiles include visual
indicators of communication mechanisms. Therefore, we select independent
claim 16 as representative of the group of claims consisting of claims 16—28,
30, 31, 34—37, 40-43, and 46 rejected as being obvious over Robertson,
Harkins, and Tang. Because Appellant does not present separate arguments
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Application 12/268,981
(1) Did the Examiner err in rejecting claims 16—28, 30, 31, 34—37, 40—
43, and 46 under 35 U.S.C. § 103(a) as being obvious over the combination
of Robertson, Harkins, and Tang because the combination fails to teach or
suggest italicized limitations [A] and/or [B], as recited in independent claim
16, supra, and as similarly recited in remaining independent claims 21 and
31?
(2) Did the Examiner err in rejecting claim 45 under
35 U.S.C. § 103(a) as being obvious over the combination of Robertson,
Harkins, and Tang because the combination, and specifically Robertson,
fails to teach or suggest italicized limitation [C], supra, as recited in
dependent claim 45?
ANALYSIS
We have reviewed Appellant’s arguments in the Briefs (App. Br. 8—
17; Reply Br. 2—7), the Examiner’s rejection (Final Act. 4—9), and the
Examiner’s response (Ans. 3—7) to Appellant’s arguments.
Obviousness Rejection of Claims 16—28, 30, 31, 34—37, 40—43, and 46
With regard to representative claim 16, we adopt as our own: (1) the
findings and reasons set forth by the Examiner in the action from which this
appeal is taken (Final Act. 4—7) and (2) the reasons set forth by the Examiner
in the Examiner’s Answer in response to Appellant’s Appeal Brief (see Ans.
3—5). We concur with the conclusions reached by the Examiner with regard
to the obviousness of claim 16 over Robertson, Harkins, and Tang. We
as to the obviousness rejections of: (i) claim 32 over Robertson, Harkins,
Tang, and Appelman; and (ii) claim 44 over Robertson, Harkins, Tang, and
Gilmour, claims 32 and 44 stand or fall with representative claim 16.
Accordingly, our analysis will only address representative claim 16, and
dependent claim 45 separately argued (see App. Br. 14—16; Reply Br. 5—6).
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Application 12/268,981
disagree with Appellant’s contentions (App. Br. 8—12; Reply Br. 2—5) that
the Examiner erred in rejecting claim 16, and we find the combination of
Robertson, Harkins, and Tang teaches or suggests limitations [A] and [B] as
recited in claim 16.
With regard to limitation [A], we agree with the Examiner (Ans. 3—4)
that both Robertson and Harkins teach or suggest a request having
information about a user because (i) making a request by naming a user
clearly involves “information about a user” (e.g., the user’s name), as in
Robertson and (ii) selecting how information is to be sent is information
about how a user is to receive information (e.g., by email), as in Harkins.
Appellant’s arguments (App. Br. 11—12; Reply Br. 4—5) that the
combination, and specifically Robertson, does not disclose limitation [A] are
unpersuasive. Robertson discloses that the profile sharing process begins by
“member A link[ing] to member B” (col. 8,1. 62). Robertson also discloses
(see generally Fig. 8; col. 7,1. 28—col. 8,1. 10) a GUI 580 “that allows a first
user to select other users” (col. 7,11. 28—29), and “a first user specifies a
second user” (col. 8,11. 14—15). Appellant admits (Reply Br. 4) that “the
cited portion of Robertson may disclose specifying a second user.” One of
ordinary skill in the art would have known that there were two primary
methods for selecting/specifying a user to communicate with when using a
graphical user interface (i.e., mouse/cursor, keyboard, and display screen) on
a computing device: (1) scrolling through an address book and clicking on
the name of the user you wish to select using the mouse and (2) typing in the
name of the user you wish to select into an entry field of a graphical user
interface using a keyboard. Therefore, even if Robertson does not explicitly
disclose how a user is specified, it necessarily flows from Robertson’s
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Application 12/268,981
disclosure that either method (1) or (2) of selecting a user discussed supra
meets the requirement of claim 16 of entering information about a user
entered in an input area of a graphical user interface.
Appellant’s contention (Reply Br. 5) that Harkins fails to disclose an
access request including information about the second user is not persuasive,
because (i) the Examiner relies upon Robertson, and not Harkins, as teaching
the access request (Final Act. 4) and (ii) Harkins’ disclosure choosing how
to communicate with a user is “information about” the user being contacted
(i.e., how to communicate with the user), and therefore, we agree with the
Examiner’s finding (Ans. 5 citing Harkins Fig. 11; col. 11,11. 2—5) that
Harkins teaches this feature.
With regard to limitation [B], we agree with the Examiner (Final Act.
4—6; Ans. 5) that Robertson teaches user profiles having many different
elements, including showing an email address 634-2 for communication
with another user (see Robertson Fig. 10; col. 10,11. 54—56), which
constitutes a visual indicator. We also agree with the Examiner that Tang’s
Figure 1 shows an email button 36 (and also a stick-up text button 34 and
video conference button 3 8) that “presents one or more visual indicators of
communication mechanisms for use in communicating with a user,” as
recited in claim 16 (see Ans. 5 citing Tang Fig. 1, item 36; col. 8,11. 58—
60).3 Appellant’s arguments concerning Tang (App. Br. 8—10; Reply Br. 3)
are misplaced, because Appellant mistakenly refers to Figure 1A of Tang
3 Although the Examiner mistakenly refers to “Col 10 58-60” of Tang at
page 5 of the Answer, it is clear that the portion of the description describing
Figure 1 and item 36 is column 8, lines 58—60 (stating “sending email to the
worker through the email button 36”).
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Application 12/268,981
(US 5,793,365; issued Aug. 11, 1998),4 and not Tang (US 6,349,327 Bl;
issued Feb. 19, 2002) which has been applied in the instant case by the
Examiner. In this light, Appellant’s arguments (App. Br. 8—10; Reply Br. 2—
4) that the combination of Robertson, Harkins, and Tang fails to disclose
limitation [B] are not persuasive.
Motivation and Reasonable Expectation of Success
A rationale to support a conclusion that a claim would have been
obvious is that all the claimed elements were known in the prior art and one
skilled in the art could have combined the elements as claimed by known
methods with no change in their respective functions, and the combination
would have yielded nothing more than predictable results to one of ordinary
skill in the art. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 538, 416 (2007);
Sakraida v. AG Pro, Inc., 425 U.S. 273 (1976); Anderson ’s-BlackRock, Inc.
v. Pavement Salvage Co., 396 U.S. 57, 62—63 (1969); Great Atlantic &P.
Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 152 (1950). Such
understandings about reasons to combine or countervailing reasons not to
combine could come from the knowledge, skill, and creativity of the
ordinarily skilled artisan. KSR, 550 U.S. at 418.
In the instant case, the Examiner determines that it would have been
obvious to modify Robertson with Harkins “so that users can select the other
users who they want to send to” (Final Act. 5). We agree. And, because
Harkins discloses allowing an information sender to choose the manner of
4 Tang (US 5,793,365; issued Aug. 11, 1998) was actually cited in at least
two related appeals/cases: U.S. Application No. 12/258,302 and Appeal No.
2017-002070; and U.S. Application No. 12/258,295 and Appeal No. 2017-
002384, but is not at issue in the instant case on appeal.
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communication (see e.g., Fig. 11; col. 11,11. 2—5 (allowing sender to choose
fax or electronic mail as the means for communication); see also Final Act.
5), it also would have been obvious to modify Robertson with Harkins to
provide the benefit of allowing users to select the manner in which they are
to be communicated with by other users. The Examiner also determines that
it would have been obvious to further modify Robertson to use Tang’s
ability to allow users to choose a communication mechanism “so that users
can set how they want to communicate by chatting [Tang figure 1]” (Final
Act. 7). And, notably, Appellant does not contest the Examiner’s motivation
for modifying Robertson with Tang. Appellant only contests the motivation
for modifying Robertson with Harkins. See App. Br. 13.
In this light, Appellant’s contention (App. Br. 12) that “the Examiner
has failed to provide a clear articulation of the reasons why the proposed
Robertson-Harkins-Tang combination would have been obvious to one of
[ordinary] skill in the art” is not persuasive. And, notably, Appellant does
not further address this issue in the Reply Brief, or otherwise respond with
evidence or argument as to any lack of motivation. We agree with the
Examiner (Final Act. 5—7; Ans. 5) that one of ordinary skill in the art,
looking at the combined teachings and suggestions of Robertson (see e.g.,
Figs. 7, 9, 10 showing user profiles and access request forms), Harkins (Fig.
11, fax or email communication preference indication), and Tang (Fig. 1,
stick-up text button 34, email button 36, video conference button 38), would
have found it predictable to successfully perform the method recited in claim
16, including allowing users to request access to other users’ profiles, and
presenting indications of the communication mechanisms preferred by a user
associated with a profile.
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Where there is a reason to modify or combine the prior art to achieve
the claimed invention, the claims may be rejected as prima facie obvious
provided there is also a reasonable expectation of success. In re Merck &
Co., Inc., 800 F.2d 1091 (Fed. Cir. 1986)\ Amgen Inc. v. F. Hoffman-LA
Roche Ltd., 580 F.3d 1340, 1362 (Fed. Cir. 2009) (“An obviousness
determination requires that a skilled artisan would have perceived a
reasonable expectation of success in making the invention in light of the
prior art.”).
The “reasonable expectation of success” requirement refers to the
likelihood of success in combining references to meet the limitations of the
claimed invention, and does not look to whether one would reasonably expect the
prior art references to operate as those references intended once combined.
Instead, there must be a motivation to combine accompanied by a reasonable
expectation of achieving what is claimed. The teachings of the prior art can
provide a sufficient basis for a reasonable expectation of success. In re
Merck & Co., Inc., 800 F.2d 1091 (Fed. Cir. 2009). In the case before us,
the Examiner has met this burden in making findings about the teachings of
the individual references as they relate to the claimed subject matter.
In addition, evidence showing there was no reasonable expectation of
success may support a conclusion of nonobviousness. In re Rinehart, 531
F.2d 1048 (CCPA 1976). In the instant case, Appellant has not provided any
evidence or reasoning showing there was no reasonable expectation of
success. Appellant’s contentions (see App. Br. 12—14) do not persuade us
that the Examiner erred. Specifically, Appellant merely avers (App. Br. 13—
14) that there is no reasonable expectation of success without providing any
reasoning, and such a naked assertion, without any evidence, is not
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persuasive. It is well settled that mere attorney arguments and conclusory
statements, which are unsupported by factual evidence, are entitled to little
probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see
also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (attorney argument is
not evidence).
Moreover, the Examiner makes specific findings as to why a person of
ordinary skill in the art would have a reasonable expectation of success,
based on the teachings of the references (see Final Act. 4—7). Final Act. 5
(“so that users can select the other users who they want to send to [figure 2
Harkins]”); Final Act. 7 (“so that users can set how they want to
communicate by chatting [Tang figure 1]”); Final Act. 5—6 (finding
Robertson, Harkins, and Tang are in the analogous art of chatting with user
interfaces using profiles); Ans. 5 (“Robertson-Harkins-Tang are analogous
art of registered users setting communication preferences for communication
among members”).
In view of the foregoing, we sustain the Examiner’s rejection of claim
16, as well as claims 17—28, 30, 31, 34—37, 40-43, and 46 grouped
therewith.
Obviousness Rejection of Claim 45
With regard to dependent claim 45 rejected over Robertson, Harkins,
and Tang, Appellant argues in the Appeal Brief (App. Br. 14—16) that the
Examiner erred in relying on Robertson’s Figure 9 and column 8 (col. 8,11.
14—16, 23—28, 35—42) as disclosing, teaching, or suggesting limitation [C],
namely “adding ... the second user as a contact of the first user only after
the second user selects ... to accept the access request from the first user”
(App. Br. 14 citing claim 16)(emphasis added). Although the Examiner
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relied on Figure 9 and column 8 as disclosing limitation [C] in the Final
Rejection (see Final Act. 21 citing Robertson Figs. 3, 9; col. 8,11. 14—16,
23—28, 35—42; Abstract), the Examiner relies on Robertson’s column 9, lines
15—18 in the Answer (Ans. 6). The Examiner finds Robertson’s column 9,
lines 15—18, discloses adding registered users as contacts after the request
user has granted permissions (Ans. 6), and additionally determines it would
have been obvious to omit forwarding the email address of the requested
user to the requesting user’s address book (Ans. 5—6). While we agree with
Appellant (Reply Br. 6) that the Examiner’s statement regarding the
obviousness of omissions is not applicable in the instant case, we do not find
it necessary here to the Examiner’s prima facie case, which is based on
Robertson’s column 9, lines 15—18, and not column 8, line 64 through
column 9, line 4.
Thus, Appellant’s contention (App. Br. 16) that Robertson’s column
8, line 64 through column 9, line 4 discloses an opposite approach from
limitation [C] is unpersuasive inasmuch as the Examiner does not rely on
this portion of Robertson in making the finding of obviousness for claim 45.
In addition, column 8, line 64 through column 9, line 4 of Robertson
describes, in the instance member B does not grant permission, adding a
forwarding email address for member B in the form of a global email
address (col. 8,1. 67—col. 9,1. 2). Specifically, the forwarding or global
email address is one “which maps to the actual e-mail address that member
B has entered into his/her own record” (col. 9,11. 2—4), and not member B’s
actual/real email address or contact information. Therefore, Robertson does
not always enter member B in member A’s address book as Appellant
contends.
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Finally, we find that Robertson’s column 9, lines 15—18 taken in light
of column 9, lines 7—9 teaches or suggests limitation [C] recited in claim 45.
Specifically, Robertson discloses not listing member A in member B’s
address book when member B does not grant permission to member A’s
request (col. 9,11. 7—9), and listing member B’s home address and phone
number in member A’s address book when member B grants permission
(col. 9,1. 15-18).
We note an equivalent teaching in Robertson is not required to
support a legal conclusion of obviousness. Rather, “the question under [35
U.S.C. § 103] is not merely what the references expressly teach but what
they would have suggested to one of ordinary skill in the art at the time the
invention was made.” Merck & Co. v. Biocraft Laboratories, Inc., 874 F.2d
804, 807 (Fed. Cir. 1989) (emphasis added) (quoting In re Lamberti, 545
F.2d 747, 750 (Fed. Cir. 1976); see also MPEP § 2123.
Based on the fact that Robertson discloses not listing member A in
member B’s address book when member B does not grant permission to
member A’s request (col. 9,11. 7—9), it would have been predictable and
common sense that one of ordinary skill in the art would have understood
not to list member B’s home contact information in member A’s address
book until member B grants permission. There are only two possibilities
present when member B does not grant permission to member A’s request:
(1) list member B’s contact information in member A’s address book
anyway even though member B did not grant permission and (2) do not list
member B’s contact information in member A’s address book (which makes
sense, for privacy reasons member B would not want to have his/her
information shared without permission). Therefore, it would have been
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obvious to one of ordinary skill in the art that member B would not want
his/her contact information listed in member A’s address book until
permission was given. Otherwise, there would be no point in member A
having to request permission, i.e., member A could get member B’s contact
information added anyway, without having to make a request.
In view of the foregoing, we sustain the Examiner’s obviousness
rejection of claim 45 over Robertson, Harkins, and Tang.
Obviousness Rejections of Claims 32 and 44
Based on Appellant’s failure to address the Examiner’s prima facie
case of obviousness as to (i) claim 32 over the combination of Robertson,
Harkins, Tang, and Appelman, and (ii) claim 44 over the combination of
Robertson, Harkins, Tang, and Gilmour, Appellant has failed to show that
the Examiner erred in determining that the combination of Robertson,
Harkins, Tang, and either of Appelman or Gilmour teaches or suggests the
subject matter recited in claims 32 and 44. Accordingly, we summarily
sustain the Examiner’s obviousness rejections of claims 32 and 44. See 37
C.F.R. § 41.37(c)(l)(iv) (requiring a statement in the briefs as to each
ground of rejection presented by Appellant for review and stating that
arguments not presented in the briefs will be refused consideration).
CONCLUSIONS
(1) The Examiner did not err in rejecting claims 16—28, 30, 31, 34—
37, 40-43, and 46 under 35 U.S.C. § 103(a) as being obvious over the
combination of Robertson, Harkins, and Tang, because (a) the combination
teaches or suggests limitations [A] and [B] recited in representative claim
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16; and (b) there is sufficient motivation to combine as well as a reasonable
expectation of success in achieving the claimed subject matter.
(2) The Examiner did not err in rejecting claim 45 under
35 U.S.C. § 103(a) as being obvious over the combination of Robertson,
Harkins, and Tang, because Robertson discloses limitation [C] as recited in
claim 45.
(3) Appellant has not adequately shown the Examiner erred in
rejecting (a) claim 32 over Robertson, Harkins, Tang, and Appelman and (b)
claim 44 over Robertson, Harkins, Tang, and Gilmour.
DECISION
The Examiner’s obviousness rejections of claims 16—28, 30—32, 34—
37, and 40-46 are 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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