Ex Parte Clearwater et al

Patent Trial and Appeal Board

Dec 23, 2016

13563651 (P.T.A.B. Dec. 23, 2016)

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.
13/563,651 07/31/2012 Scott Clearwater 82990953 3438
56436 7590 12/28/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
EXAMINER
WILSON, KIMBERLY LOVEL
ART UNIT PAPER NUMBER
2167
NOTIFICATION DATE DELIVERY MODE
12/28/2016 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
chris. mania @ hpe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SCOTT CLEARWATER and
BERNARDO HUBERMAN
Appeal 2015-008077
Application 13/563,651
Technology Center 2100
Before MAHSHID D. SAADAT, JOHNNY A. KUMAR, and
JON M. JURGOVAN, Administrative Patent Judges.
SAADAT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—7 and 12—14.2 We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Hewlett-Packard
Development Co., L.P. (App. Br. 1).
2 Claims 8—11, 15, and 16 have been objected to as being dependent upon
rejected base claims, but otherwise indicated as allowable (see Final Act.
11).
Appeal 2015-008077
Application 13/563,651
STATEMENT OF THE CASE
Appellants’ invention relates to ordering items on a list based on
measurements of performance of the items during a series of time windows
(Spec. 16). Exemplary claim 1 under appeal reads as follows:
1. A process comprising:
establishing in a computer respective ratings for items in a
list; and
for each of a series of time windows, the computer:
determining respective measurements of performance of
the items during the time window; and
for each of the items, adjusting the rating of the item by a
plurality of adjustments that are respectively associated with
competing items in the list, wherein each of the adjustments
depends on the rating of the item, the rating of the competing
item associated with the adjustment, and whether the
measurement of performance of the item is higher than the
measurement of the performance of the competing item
associated with the adjustment.
REFERENCES and REJECTION
Claims 1—7 and 12—14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Bowman et al. (US 6,185,558 Bl; issued Feb. 6, 2001)
and Sarnia et al. {Ranking Mechanisms in Twitter-like Forums, Web Search
and Data Mining (WSDM) ‘10 Conference, New York, NY, Feb. 4—6, 2010)
{see Final Act. 2—11).
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Application 13/563,651
ANALYSIS
Independent Claims 1, 12, and 13
First Issue
Appellants contend the combination of Bowman and Sarma does not
teach the claimed “adjusting the rating of the item” based on “measurements
of performance of the item” relative to the performance of another item,
because Sarma’s ranking is based on an explicit pairwise comparison by a
user, whereas the examples in Appellants’ disclosure adjust the ratings of
items based on measurements of performance without any explicit
comparison by the user (App. Br. 6—8). Appellants’ contention is not
commensurate with the scope of claims 1, 12, and 13, which do not require
the absence of a user comparison in the performance measurement or rating
adjustment steps. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982)
(limitations not appearing in the claims cannot be relied upon for
patentability). The Examiner properly states that, although claims are
interpreted in light of the specification, limitations from the specification,
such as Appellants’ specific examples of adjusting the ratings, are not read
into the claims (Ans. 2—3). See In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993).
We note that Appellants’ Specification discloses “determining
measurements of performance” can involve a computer process in
conjunction with user input, such as a computer tracking the number of
times a user clicks on an item (Spec. 114). We agree with the Examiner’s
finding that the broadest reasonable interpretation, consistent with
Appellants’ disclosure, of “the computer determining respective
measurements of performance of items” does not preclude Sarma’s pairwise
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Appeal 2015-008077
Application 13/563,651
comparison process, which involves a computer tracking a user clicking on
an item to select it as a winning item (i.e., the number of times clicked = 1,
compared to zero clicks for the losing item), and, thus, giving the item a
higher performance measurement than a competing item (Final Act. 4; Ans.
3^4 (citing Sarma Section 4.2 and 5.3)).
We further agree with the Examiner’s finding that Sarma uses the
same “Elo” rating adjustment algorithm as described by Appellants (Ans. 5
(citing Sarma Section 4.2 and Spec 116)). Specifically, we agree with the
Examiner’s finding that Sarma teaches the claimed rating adjustments,
which depend on whether the item’s measurement of performance is higher
than that of the competing item, i.e., whether the item won or lost the
comparison (Final Act. 4; Ans. 5 (citing Sarma Section 4.2 and 5.3)).
Sarma’s rating adjustments also depend on the respective ratings of each
item in the comparison, i.e., if an item wins against another item with a high
score, that item’s score gets a more significant boost than it would by
defeating an item with a low score (id.). Thus, we are not persuaded of
Examiner error in the rejection of independent claims 1,12, and 13.
Second Issue
Appellants contend Sarma teaches only a single time window for
rating adjustments and does not teach adjusting ratings for a “series of time
windows,” which was acknowledged by the Examiner (Reply Br. 1—3).
Appellants argue Bowman’s tables that rank the relevance of an item are
based on different queries, and do not teach adjusting rankings over time or
for a particular time window (App. Br. 7; Reply Br. 1—2). Thus, Appellants
contend the ordinary skilled artisan would not be led to combine Bowman
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Appeal 2015-008077
Application 13/563,651
and Sarnia to achieve the claimed adjustments performed “for a series of
time windows” (Reply Br. 2—3).
Appellants’ contentions are not persuasive of error. The Examiner
finds, and we agree, that Bowman teaches determining performance
measurements for items by identifying the number of times the item is
selected by users, and adjusting the rating of the item by a score increase that
corresponds to the number of user selections, the measurements and
adjustments being made in a series of time windows such as a series of days
(Final Act. 2—3; Ans. 3^4 (citing Bowman col. 5,1. 49 — col. 6,1. 40 and Fig.
5, e.g., daily time window of Feb. 8 — Feb. 13)). We also disagree with
Appellants’ contention that Bowman teaches rankings based on different
queries. In fact, Bowman teaches combining the scores of the same,
corresponding items from each rating table (see, e.g., Fig. 4, item
1883823064 with a score of 23) in the series of time windows into a
composite table with item scores for the entire time window (see, e.g. Fig. 6,
item 1883823064 with a score of 116) (Final Act. 2—3; Ans. 3^4). Thus, we
agree with the Examiner’s finding that one of ordinary skill in the art would
have arrived at the claimed adjustment method using the combination of
Sarnia’s comparative rating adjustments, as discussed supra, with
Bowman’s rating adjustments for a series of time windows (Final Act. 2^4;
Ans. 4—5).
Accordingly, we sustain the Examiner’s rejection of independent
claims 1, 12, and 13 under 35 U.S.C. § 103(a) as unpatentable over Bowman
and Sarnia.
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Application 13/563,651
Remaining Claims
No separate arguments are presented for the remaining dependent
claims 2—7 and 14 (see App. Br. 8), and, therefore, we sustain their rejection
for the reasons stated with respect to independent claims 1 and 13.
DECISION
We affirm the Examiner’s rejection of claims 1—7 and 12—14 under 35
U.S.C. § 103(a).
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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