Ex Parte CosmanDownload PDFPatent Trial and Appeal BoardDec 28, 201613167590 (P.T.A.B. Dec. 28, 2016) Copy Citation 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. 13/167,590 06/23/2011 Charles Douglas Cosman APX-059D3 8395 51414 7590 12/30/2016 GOODWIN PROOTFR T T P EXAMINER PATENT ADMINISTRATOR ROJAS, HAJIME S 100 Northern Avenue BOSTON, MA 02210 ART UNIT PAPER NUMBER 3627 NOTIFICATION DATE DELIVERY MODE 12/30/2016 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): PATENTBOS @GOODWINPROCTER.COM PSOUSA-ATWOOD@GOODWINPROCTER.COM GLENN.WILLIAMS@GOODWINPROCTER.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CHARLES DOUGLAS COSMAN Appeal 2014-009553 Application 13/167,590 Technology Center 3600 Before: MURRIEL E. CRAWFORD, JOSEPH A. FISCHETTI, and MICHAEL W. KIM, Administrative Patent Judges. FISCHETTI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE1 Appellant seeks our review under 35U.S.C. § 134 from the Examiner’s final rejection of claims 77—82. We affirm. 1 The Appellant identifies the real party in interest is YIELDEX, INC. (Appeal Br. 4). Appeal 2014-009553 Application 13/167,590 THE CLAIMED INVENTION Appellant claimed invention relates to managing advertising inventory by allocation to avoid cannibalization. (Spec. para. 2). Claim 77 reproduced below is illustrative of the claimed subject matter: 77. A method for managing inventory that may be provided over a network, comprising: with an inventory management module run on a computing device, creating a product vector for each of a plurality of items of inventory; with the inventory management module, determining a quantity of the items of the inventory associated with each of the product vectors; using said quantity of the items of the inventory associated with each of the product vectors to generate forecast vectors and to generate a result set representing the inventory for a time period against which allocations of the inventory can be made; performing, with the inventory management module, an allocation of at least one of the products in the inventory; and processing the forecast vectors to account for impacts of allocation of one item belonging to a set of the inventory on other sets of the inventory to account for cannibalization. (Appeal Br. 38, Claims App.) REFERENCES The prior art relied upon by the Examiner in rejecting the claims on Atsuyoshi Nakamura and Naoli Abe, Improvements to the Linear Programming Based Scheduling of Web Advertisements, Electronic Commerce Research, 5: 75-98, 2005 (hereinafter “Nakamura”). appeal is: Lin Peterson US 2005/0050215 A1 Mar. 3, 2005 WO 99/13398 Mar. 18, 1999 2 Appeal 2014-009553 Application 13/167,590 REJECTIONS The following rejections are before us for review. The Examiner rejected claim 77-82 under 35U.S.C. § 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which Applicant regards as the invention. The Examiner rejected claims 77 and 79—82 under 35 U.S.C. § 103(a) as unpatentable over Lin and Nakamura. The Examiner rejected claim 78 under 35 U.S.C. § 103(a) as unpatentable over Lin, Nakamura, and Official Notice (as evidenced by Peterson). FINDINGS OF FACT We find the following facts by a preponderance of the evidence. 1. Lin discloses a system for predicting the number of page views for which advertising is sold. (Lin para. 5). 2. The term “product vector” is not defined by Appellant’s Specification. 3. The ordinary and customary meaning of “vector” is a “one-dimensional array.” (Last retrieved on December 6, 2016 from http://www.thefreedictionary.com/vector). 4. Lin discloses “systems and methods are provided for predicting visitor traffic to a collection of web site pages.” (Lin para. 8). 5. Lin discloses for each web page for which an ad may be sold for each view: it is desirable to predict at least two types of inventory: number of pageviews and number of runviews. The number of pageviews of a space is the number of visits to the corresponding web page. The number of runviews of a space S 3 Appeal 2014-009553 Application 13/167,590 is the sum of pageviews of S and S’s descendent spaces as defined by the tree.” (Lin para. 17). 6. Lin discloses using historical data about page views to predict the quantity of future page views into which ads may be placed. (Lin paras. 39-44). 7. Lin discloses determining “recent traffic history of space S, represented by a vector.” (Lin para. 76). 8. The Specification describes a total sold quantity which represents the number of impressions for a given advertising product or segment that have already been sold based on previous advertising requests or orders, which also may be referred to as reserved or allocated product or impressions. Generally, the total sold value is relatively simple to manage. For the purposes of the present discussion, the terms “sold” and “allocated” are considered equivalent where reference herein both in text and in equations. (Spec. para. 13). 9. Nakamura discloses accounting for cannibalization in ad sales inventories, at Figure 3, shown below. 4 Appeal 2014-009553 Application 13/167,590 Case 1 Afternoon Sports Category (10,000 page views) (10,080 page views) S.otio:: inipmsini eoiitraet Figure 3 of Nakamura illustrating ad inventory overlap that leads to cannibalization. 10. Nakamura discloses, in reference to Figure 3 from above: Consider Case 1 shown in Figure 3, where the estimated numbers of page views for afternoon and sports-category constraints are 10,000 each and 4,000 of them satisfy both constraints. Assume that there exists a contract which requests 8,000 impressions on sports-category pages only. In this case, 8,000 sellable impressions remain for afternoon constraint when no other contracts exist, since 2,000 views in (afternoon, sports) arc needed for the contract for sports-category constraint. In this manner, calculation of the remaining sellable impressions for a certain constraint t needs to take into account contracts for other constraints which overlap constraint t. (Nakamura, pp. 87—88). ANALYSIS Rejection under 35 U.S.C. § 112, Second Paragraph The rejection is affirmed as to claim 77. Appellant does not provide a substantive argument as to the separate patentability of claims 78—82 that 5 Appeal 2014-009553 Application 13/167,590 depend from claim 77, which is the sole independent claim among those claims. Therefore, we address only claim 77, and claims 78—82 fall with claim 77. See 37 C.F.R. § 41.37(c)(l)(iv). The Examiner rejects claims 77—82 as indefinite for the following reasons. First, the Examiner reasons that: [i]t is not clear if one product vector is created for multiple items; or whether a first product vector is created for a first item and a second product vector created for a second item; or whether a first product vector is created for a first plurality of multiple items and a second product vector is created for a second and different plurality of items. (Final Act. 2—3). Appellant argues the Specification clearly shows that for each product a vector is created where each position of the vector represents “inventory regions” into which the single product, which is the subject of each product vector, may or may not “fit.” (Appeal Br. 11—14; see also Reply Br. 2—3). Appellant cites paragraphs 24 and 25 of Appellant’s Specification for support. (Appeal Br. 11-13). Paragraph 25 describes by example that “the representation of the inventory includes a product vector representation of each of the inventory regions such as a bitmap of each region with a bit that can be set for an inventory item to indicate each segment into which the item fits.” (Spec. para. 25). We agree that the plain language of the claim recites that there is a single product represented by each vector, because the claim recites “a product vector for each of a plurality of items of inventory.” However, we decline to read into the claim any meaning of positions in the product vector, because there is no language in the claim about “regions” for the “items of inventory,” or positions within a vector. We must be careful not to read a 6 Appeal 2014-009553 Application 13/167,590 particular embodiment appearing in the written description into the claim if the claim language is broader than the embodiment. See SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) 343 F.3d 1364, 1369 (Fed. Cir. 2003). The claim, thus, broadly defines a product vector, which includes data of unknown significance, and which could be a single value vector representing a single “item of inventory,” such as an identification of that “product.” Therefore, “a quantity of the items of the inventory associated with each of the product vectors” represents, in the broadest reasonable interpretation of the claim, an inventory quantity of the product represented or identified by the product vector. Thus, the Examiner’s concerns are a matter of claim breadth, not indefmiteness. “Breadth is not indefmiteness.” In re Gardner, All F.2d 786, 788 (1970). But, the Examiner also finds a lack of antecedent basis for the claim term “at least one of the products,” because the introducing language of “products” is “items of inventory,” but not “products of inventory.” (Final Act. 3). The Examiner also finds the use of terms “item/s” and “product/s” throughout claims 77—82 is unclear. (Id. ). Appellant argues, essentially, that “items of the inventory” has equivalent meaning to “products in the inventory.” (Appeal Br. 15). The test for definiteness under 35 U.S.C. § 112, second paragraph, is “whether those skilled in the art would understand what is claimed when the claim is read in light of the specification.” Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations omitted). It is not clear, from the plain language of claim 77, that “items of’ and “products in” the inventory mean the same thing. In addition, we find 7 Appeal 2014-009553 Application 13/167,590 nothing in the Specification which associates the two terms to each other. Therefore, we agree with the Examiner that “the products in the inventory” has no antecedent basis, which renders the claim language indefinite. The result is that it is not clear whether “products in the inventory” is the same as “items of the inventory.” We, therefore, affirm the rejection of claims 77—82 under 35 U.S.C. §112, second paragraph, as indefinite. Rejection of Claims 77 and 79—82 under 35 U.S.C. § 103(a) The rejection is affirmed as to claim 77. Appellant does not provide a substantive argument as to the separate patentability of claims 79-82 that depend from claim 77, which is the sole independent claim among those claims. Therefore, we address only claim 77, and claims 79—82 fall with claim 77. See, 37 C.F.R. § 41.37(c)(l)(iv). Appellant argues “Lin is not relevant” because “Lin cites page views and not advertising impressions, as claimed.” (Appeal Br. 18). Appellant’s argument fails because claim 77 does not recite the terms “advertising” or “impressions.” None of claims 78—82 recites either term. Appellant is, thus, arguing limitations not recited in the claim. Appellant next argues Lin “has absolutely nothing in common with the claimed invention other than it is in the same problem domain.” (Appeal Br. 18; see also Reply Br. 3). “Two criteria have evolved for determining whether prior art is analogous: (1) whether the art is from the same field of endeavor, regardless of the problem addressed, and (2) if the reference is not within the field of 8 Appeal 2014-009553 Application 13/167,590 the inventor's endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved.” In re Clay, 966 F.2d 656, 658-659 (Fed. Cir. 1992) (citing In re Deminski, 796 F.2d 436, 442 (Fed. Cir. 1986); In re Wood, 599 F.2d 1032, 1036 (CCPA 1979)). Lin discloses predicting the number of page views for an internet site for which advertising is sold. (FF 1). Lin is, thus, concerned with common problems in managing advertising inventory, and is, thus, reasonably pertinent to the claimed invention which is also concerned with managing inventories. Appellant next argues “Lin is concerned with predicting inventory using a tree hierarchy” and fails to disclose the “use of product vectors.” (Appeal Br. 19; see also Reply Br. 3—9). We are not persuaded by Appellant’s argument. In claim 77, a product vector is “created” and then a quantity of inventory for the product represented by the “product vector” is “determined.” The meaning of a “product vector” is not defined or established by Appellant’s Specification. (FF 2). We rely on the ordinary and customary meaning of “vector” as a “one-dimensional array.” (FF 3). We construe a “product vector” as a vector using data to reference a product. In the context of advertising2, a product vector may, thus, be a location at which an ad may be placed. Lin discloses an inventory of advertising possibilities of web page views. (FF 4, 5). Lin, thus, discloses a product vector in that Lin identifies a web page or set of web pages into 2 The claim language, however, does not limit the meaning of “product” to being related to advertising. 9 Appeal 2014-009553 Application 13/167,590 which ads may be placed. (Id.). This is consistent with the Examiner’s finding that “the product vectors may be interpreted as the descriptors (set of identifiers) of each space” (Answer 5—6). Appellant next argues that Lin does not disclose “determining a quantity of the items of the inventory associated with each of the product vectors,” as claimed, because Lin uses “historical data” to make predictions about the future. (Appeal Br. 20). We disagree, because Lin discloses predicting the number of page views using historical data. (LL 6; see also LL 7). The number of page views determined in the historical data is the claimed “quantity of the items of the inventory associated with each of the product vectors.” In addition, Lin’s creation of page view predictions meets the claim language as to “using said quantity of the items of the inventory associated with each of the product vectors to generate forecast vectors and to generate a result set representing the inventory for a time period against which allocations of the inventory can be made.” Appellant argues that determining historical page views and using them to predict future page views “is not the same thing as using product vectors to allocate inventories,” which Lin allegedly does not disclose. (Appeal Br. 21—26; see also Reply Br. 9—15). We are unpersuaded by Appellant’s argument, first, the term “allocate” is described by Appellant’s Specification as being “equivalent” to the term “sold.” (LL 8). Second, the Examiner relies on Nakamura as disclosing the disputed claim language, (final Act. 4—5). Nakamura discloses accounting for cannibalization between inventories. (LL 9, 10). Nakamura, thus, meets the claim language “processing the forecast vectors 10 Appeal 2014-009553 Application 13/167,590 to account for impacts of allocation of one item belonging to a set of the inventory on other sets of the inventory to account for cannibalization.” Appellant next argues Nakamura “adds nothing to the teaching of Lin,” because, according to Appellants, “Nakamura is not concerned with a technique that limits cannibalization of overlapping segments of advertising products,” and does not “prevent cannibalization.” (Appeal Br. 27; see also Appeal Br. 27—29). We disagree with Appellant. First, the claims do not recite language that limits or prevents cannibalization. Claim 77 only recites “to account for cannibalization,” and claim 81 recites “identifying cannibalization.” Thus, neither claim requires that cannibalization be limited or prevented as part of the claimed method. As we set forth above, Nakamura meets the claim language of “to account for cannibalization.” For these reasons, we affirm the rejection of claim 77 under 35 U.S.C. § 103(a). Appellant’s arguments relative to claim 79—82 merely assert that the Examiner has not shown the claim language is taught or suggested by the cited references. (Appeal Br. 29—31; see also Reply Br. 15—17). A general allegation that the art does not teach any of the claim limitations is no more than merely pointing out the claim limitations. “A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.” (37 C.F.R. § 41.37(c)(l)(iv)). Therefore, we also affirm the rejection of dependent claims 79—82. Rejection of Claim 78 under 35 U.S.C. § 103(a) Dependent claim 78 recites: The method of Claim 77, further comprising: 11 Appeal 2014-009553 Application 13/167,590 applying a growth model for correlated growth to the result set, wherein said inventory management module receives an input growth model record, and iterates through a range of dates that comprises all dates between a start date and an end date given in a model description in a specified order; retrieving daily aggregated forecast vectors that are associated with a referenced product for a current date within said range of dates; creating modified daily aggregated forecast vector data as follows: for each forecast vector, adjusting an associated count as indicated by a growth model factor; wherein if growth is compounded, computing a growth rate for a next date after said current date within said range of dates by multiplying a current rate by an indicated rate; retrieving a next set of vectors for all subsequent dates in the range of dates until the forecast vectors for a last date have been processed; and writing said modified daily aggregated forecast vector data to a data store. (Appeal Br. 38, Claims App.). Appellant argues “nothing in Claim 78 even remotely relates to Lin.” (Appeal Br. 32). This is merely a general allegation that the art does not teach any of the claim limitations, and is not an actual argument. Appellant also argues claim 78 is about “taking an input growth model that was generated elsewhere, and applying it to the aggregated forecast vectors,” and Lin is “different.” (Appeal Br. 32). We disagree with Appellant. Claim 78 merely recites, “receives an input growth model record,” but does not recite language about the record 12 Appeal 2014-009553 Application 13/167,590 being “generated elsewhere.”3 Lin discloses receiving historical data from where it is stored, which meets the claim language. (FF 6). Appellant next argues error in the taking of Official Notice because “it is not unquestionably demonstrable that ‘modified daily aggregated forecast vector data’ is well known.” (Appeal Br. 32—33). This argument fails, however, because that is not the evidence the Examiner introduced by Official Notice. Instead, the Examiner found “that updating data and storing such updated data to at least one data store is old and well known.” (Final Act. 9). Appellant finally argues Peterson fails to disclose “any of the steps of Claim 78.” (Appeal Br. 33—35). This is merely a general allegation that the art does not teach any of the claim limitations, and is not an argument. For these reasons, we affirm the rejection of claim 78. CONCLUSIONS OF LAW The Examiner did not err in rejecting claims 77—82 under 35 U.S.C. §112, second paragraph, as indefinite. The Examiner did not err in rejecting claims 77—82 under 35 U.S.C. § 103(a). DECISION For the above reasons, the Examiner’s rejections of claims 77—82 are affirmed. 3 In addition, in claim 78 the “input growth model record” is never used after being received, because instead “daily aggregated forecast vectors” are retrieved and acted upon. 13 Appeal 2014-009553 Application 13/167,590 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 14 Copy with citationCopy as parenthetical citation