Ex Parte De Peuter et al

Patent Trial and Appeal Board

Mar 29, 2017

11956498 (P.T.A.B. Mar. 29, 2017)

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.
11/956,498 12/14/2007 Geert De Peuter 0081-146001 7599
93236 7590 03/31/2017
Brake Hughes Bellermann LLP
c/o CPA Global
900 Second Avenue South
Suite 600
Minneapolis, MN 55402
EXAMINER
NUNEZ, JORDANY
ART UNIT PAPER NUMBER
2171
NOTIFICATION DATE DELIVERY MODE
03/31/2017 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@brakehughes.com
uspto@brakehughes.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GEERT DE PEUTER and DAVID BONNELL
Appeal 2016-008641
Application 11/956,498
Technology Center 2100
Before BRUCE R. WINSOR, LINZY T. McCARTNEY, and
NATHAN A. ENGELS, Administrative Patent Judges.
PER CURIAM.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1—16, 18—22, and 26—31. We have jurisdiction under 35 U.S.C.
§ 6(b). Claims 17 and 23—25 are canceled. See App. Br. 24, 26.
We affirm-in-part.
STATEMENT OF THE CASE
The Claims
Independent claims 1 and 18, copied below, are illustrative of the
subject matter on appeal:
Appeal 2016-008641
Application 11/956,498
1. A list folding method, comprising:
receiving individual items for display;
determining a first attribute for each item of the items for
display, the first attribute including at least one descriptive
property with an associated dynamically derived value for each
item of the items for display;
applying a first folding rule to the values of the first
attribute, the first folding rule generating one or more visual
folds, each visual fold including individual items having a value
of the first attribute in common, wherein the first folding rule
does not fold at least some items into the one or more visual folds
based on the value of the first attribute; and
displaying the at least some items not folded into the one
or more visual folds with the one or more visual folds in a display
area, so that the visual folds are displayed instead of any
individual one of the items included in the one or more visual
folds.
App. Br. 21 (Claims App’x).
18. A list folding method, comprising:
obtaining a plurality of items in a hierarchical list having
a plurality of levels;
identifying at first items in the plurality of items that are
included in a static fold;
determining a first attribute for each item of the plurality
of items, the first attribute having an associated value for at least
some of the plurality of items;
dynamically grouping second items that are not first items,
each grouping having second items with a common value for the
first attribute;
folding the dynamically grouped items into one or more
visual folds without creating a persistent container object for the
visual folds; and
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displaying the first items and the one or more visual folds
in a display area instead of any individual one of the items
included in the one or more visual folds.
App. Br. 25 (Claims App’x).
The Examiner s Rejections
Claims 1—16, 18—22, and 26—31 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Gargi1 and one or more of Vronay,2 Moore,3
and Pfohe4. See Final Act. 3—15.
ANALYSIS
Claims 1—4, 8 16, and 26—31
In the rejection of claim 1, the Examiner found Gargi teaches or
suggests “applying a first folding rule” with its method of organizing items
into groups and subgroups (which Gargi refers to as “facets”). See Final
Act. 3; Ans. 6—9. In particular, the Examiner found Gargi discloses
identifying attributes of media items such as photographs and creating
groupings and subgroupings (facets) to organize the items based on
attributes of the items. See, e.g., Ans. 6 (citing Gargi 133 (disclosing that
the user can select a subgrouping having a particular metadata attribute value
(for example, the number of faces on a photo) to view the corresponding
photographs)), 8 (citing Gargi Fig. 2, items 16 (“Create facets based on
useful groupings”), 24 (“Display sub-categories”), 28 (“Display items”));
Final Act. 3 (citing Gargi Fig. 2, || 23, 24, 25 (disclosing an album title of
1 Gargi (US 2007/0255745 Al; published Nov. 1, 2007).
2 Vronay etal. (US 2005/0177801 Al; published Aug. 11, 2005).
3 Moore et al. (US 2006/0036568 Al; published Feb. 16, 2006).
4 Pfohe et al. (US 7,610,564 Bl; issued Oct. 27, 2009).
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The Beatles as an example of a metadata attribute value of a subgrouping),
26, 28, 37). The Examiner also found that Gargi discloses enabling a user to
select a desired subgrouping and view the corresponding data items in the
subgrouping. See Ans. 6 (citing Gargi 133 (disclosing that the user can
select a subgrouping having a particular metadata attribute value (for
example, the number of faces on a photo) to view the corresponding
photographs)); Final Act. 3 (citing Gargi 126 (“Furthermore, it will be
appreciated that, as described in greater detail below, upon selecting one
grouping, the user may be presented with additional groupings in order to
further narrow down the items to be viewed.”)).
Appellants contend the Examiner erred because, according to
Appellants, Gargi does not teach or suggest the “applying a first folding
rule” limitation of claim 1. See App. Br. 8—10; Reply Br. 5—6. Specifically,
Appellants argue the Examiner erred in relying on Gargi’s disclosures of
“user selection of a subgrouping because claim 1 indicates the folding rule is
applied prior to display (otherwise, there are no ‘one or more visual folds’ to
display).” According to Appellants, Gargi’s methods of “user selection
subsequent to display [are] wholly irrelevant to the generation of the folds
for display.” App. Br. 9.
We find Appellants’ arguments unpersuasive because the arguments
are not commensurate with the scope of claim 1 and mischaracterize the
Examiner’s rejection. Claim 1 recites steps of a method using the open-
ended transition term “comprising” and does not preclude steps in addition
to those recited. See Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501
(Fed. Cir. 1997) (citation omitted) (“‘Comprising’ is a term of art used in
claim language which means that the named elements are essential, but other
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elements may be added and still form a construct within the scope of the
claim.'1'’ (emphasis added)); see also Gillette Co. v. Energizer Holdings Inc.,
405 F.3d 1367, 1371 (Fed. Cir. 2005); MPEP § 2111.03. In other words,
nothing in claim 1 precludes displaying items before applying a first folding
rule or before the recited “displaying” step. Contrary to Appellants’
arguments, Gargi’s display of subgrouping identifiers for a user’s selection
does not negate the fact that Gargi subsequently displays the items
corresponding to the selected subgrouping. See Gargi 133 (“[S]ub-
groupings corresponding to the number of faces (i.e. 1 face, 2 faces, 3 faces,
etc.) are displayed. The user may then select one of these subgroupings to
view the corresponding photographs.”).
Moreover, we agree with the Examiner that the cited disclosures of
Gargi teach or suggest applying a rule to group items prior to displaying
items. Contrary to Appellants’ arguments, Gargi teaches that after
identifying attributes and grouping items that possess a particular attribute,
“[t]he user may then select one of the[] sub-groupings to view the
corresponding photographs.'1'’ See Ans. 6 (citing Gargi 133) (emphasis
added), 8 (citing Gargi Fig. 2); Final Act. 3 (citing Gargi Fig. 2, H 23—26,
28, 37). In fact, Appellants’ Specification similarly describes folding
(grouping) items for display. See Spec. H 8 (“dynamically folding (i.e.,
grouping) list items for display”), 22 (“[A] 11 twenty-two computers with OK
status have been grouped together and displayed under a visual fold 225. . . .
based on their shared status (e.g., OK status).”), 45, 49, 52, 58. Accordingly,
consistent with our analysis herein, we conclude that a broad but reasonable
interpretation of the claimed “applying a first folding rule . . . generating one
or more visual folds” includes Gargi’s teaching or suggestion of applying a
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first grouping rule generating one or more visual groups, as found by the
Examiner. See Spec. Tflf 8, 22, 45, 49, 52, 58; Final Act. 3; Ans. 6—9.
In view of the foregoing, we also disagree with Appellants that the
Examiner switches the elements of Gargi relied upon for “the items for
display” and “folding rule” elements. See Reply Br. 5—6. Appellants have
not persuasively shown, nor do we find, any specific evidence of such a
change in either the Examiner’s Final Rejection or Answer. See Final Act.
3—4, 16-19; Ans. 6-9.
Appellants further argue Gargi does not teach or suggest the limitation
“the first folding rule does not fold at least some items into the one or more
visual folds,” as required by claim 1. See App. Br. 8—10; Reply Br. 5—6.
Appellants acknowledge Gargi discloses grouping items by a metadata
attribute and displaying subgroupings corresponding to particular metadata
attribute values, which a user can select to view the corresponding items.
See App. Br. 7—8 (citing Gargi || 28, 33). Appellants argue, however, that
there is no evidence Gargi teaches or suggests that the other items (those that
do not have the metadata attribute value of the selected sub-grouping) are
excluded from or are no longer in one of the groupings by metadata
attribute. See App. Br. 9—10; Reply Br. 6.
We disagree. As discussed above, the Examiner found, and
Appellants do not rebut, that Gargi teaches or suggests the subgrouping of
items based on attributes and allowing a user to select a particular
subgrouping in order to view the corresponding items. See Final Act. 3
(citing Gargi || 23—26, 28, 37); Ans. 6 (citing Gargi 133), 8 (citing Gargi
Fig. 2); App. Br. 7—8 (citing Gargi || 28, 33). For example, Gargi teaches
that from a collection of photos (or Beatles songs), a user can select a
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subgrouping of all photos having a specific number of faces (or all Beatles
songs from a particular Beatles album) to view the corresponding photos (or
songs). See, e.g., Gargi || 25 (describing examples of organizing songs by
artist name and album title), 33 (describing examples of organizing
photographs based on the number of people in the photographs). The
Examiner explained that upon “selecting the sub-grouping with 2-faces, . . .
the sub-groupings with more or less than 2-faces would be excluded” (Final
Act. 16). See Final Act. 16—17; Ans. 6.
Consistent with the Examiner’s findings and explanation, we agree
that Gargi’s teaching of selecting a subgrouping to display the corresponding
items implies or at least suggests that items in subgroupings other than the
selected subgroupings are not included with the items in the selected
subgrouping. See Ans. 6; Final Act. 16—17; Gargi || 26 (“Furthermore, it
will be appreciated that. . . upon selecting one grouping, the user may be
presented with additional groupings in order to further narrow down the
items to be viewed.” ), 30 (“breaking up the collection into groupings that
have a relatively even distribution of items allows the user to more quickly
narrow down the collection when selecting subgroups”). Our analysis is
commensurate with the scope of claim 1, which does not preclude the items
not folded into the one or more visual folds from being folded into one or
more other folds separate from the recited “one or more visual folds . . .
including individual items having a value of the first attribute in common.”
Appellants additionally argue the Examiner erred “in using
Appellants’ claims as the blueprint for the rejection because none of the
applied references can be stitched together in the manner proposed by the
Examiner without a very detailed set of operation instructions provided only
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by the present claims in hindsight” (App. Br. 11). See App. Br. 11—12;
Reply Br. 7—8.
We disagree. As explained by the Examiner,
the principal difference between the instant Application. . .
and . . . Gargi. . . which teaches automatically grouping
individual items according to an attribute value and displaying
only the groups instead of the individual items, is that Gargi does
not seem to teach that some items that should be grouped inside
a directory are instead displayed individually. A person of
ordinary skill in the art would readily recognize that grouping
items and displaying only the associated groups is well known in
the art (at least as evidenced by Gargi), and merely individually
displaying some items that should instead be inside one of the
groups is not sufficient to overcome [§ 103(a)], particularly in
view of Vronay .... [0]ne would have been motivated to make
such combination because a way to facilitate displaying lists of
information would have been obtained and desired, as expressly
taught by Vronay.
Ans. 12. See also Ans. 13; Final Act. 3^4 (citing Gargi Fig. 2, || 12, 23—26,
28, 37; Vronay 5, 31—35); Ans. 5 (citing Vronay 46—50), 6—9
(additionally citing Gargi 133). Contrary to Appellants’ arguments, the
Examiner’s findings, reasoning, and conclusion are drawn not from
Appellants’ disclosure, but rather from the prior art and the knowledge of
one skilled in the art. See Final Act. 3^4; Ans. 5—13. In view of the
foregoing, Appellants have not persuaded us the Examiner employs
improper hindsight in combining Gargi and Vronay to reject claim 1. See In
re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971)).
Having considered the Examiner’s rejections in light of each of
Appellants’ arguments and the evidence of record, we are unpersuaded of
error and adopt as our own the Examiner’s findings, conclusions, and
reasoning consistent with the analysis above. See Ans. 5—13; Final Act. 3^4.
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We sustain the Examiner’s rejection of claim 1, as well as the rejections of
independent claim 28 and dependent claims 2-4, 8—16, 26, 27, and 29—31,
which were not argued separately with particularity beyond the arguments
advanced for claim 1 (see App. Br. 13, 19; see generally Reply Br. 2—12).
Claims 5 and 7
Appellants contend the Examiner erred because Gargi does not teach
or suggest “wherein determining the first attribute for each item includes
. . . deriving the value of the first attribute from a value of the second,” as
recited in claim 5. See App. Br. 17—18; Reply Br. 11. Appellants argue
“once the facets have been determined, the system of Gargi has already
‘determined the first attribute’ so any interaction the user may have with the
facets at this point is irrelevant to ‘determining the first attribute’” (App. Br.
18 (quotations omitted)). Appellants further argue “the Examiner has failed
to demonstrate that Gargi discloses a ‘faces attribute (true or false)’ from
which the number of faces is derived” (Reply Br. 11).
The Examiner found that Gargi teaches or suggests the disputed
limitation by determining whether the sub-category selected by the user
includes a manageable number of items, and if not, further grouping the
items in the collection according to an algorithm that nicely organizes the
items. See Final Act. 5 (citing Gargi H 21, 29, 51). The Examiner
additionally found that the user’s ability in Gargi to drill down within a facet
to select one of its subgroupings to view the corresponding items shows
“deriving a ‘number-of-faces’ attribute value (e.g., 1, 2, 3, etc[.]) from a
‘faces’ attribute value (true or false)” (Ans. 22).
Having reviewed Appellants’ arguments in light of the Examiner’s
findings, we agree with Appellants that the Examiner erred. Contrary to the
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Examiner’s findings, in Gargi’s method, each of the original facets
(including “the first attribute”) has already been determined prior to the cited
disclosures relating to a user’s selection of a particular subgrouping
(attribute value) of a facet. See Gargi Fig. 2 (showing creation of original
facets at step 16, prior to the selection of sub-categories from a user at step
24 and the creation of a new set of facets by re-grouping items in step 32);
21—25, 55 (discussing the creation of new set of facets different from the
original set). Notably, any newly created facet would have a new attribute
different from the claimed “first attribute” of one of the previously created
facets. See Gargi Fig. 2, H 21—25, 55.
Accordingly, we agree with Appellants that the Examiner erred in
finding that Gargi teaches or suggests the disputed limitation of claim 5. We
reverse the Examiner’s rejection of claim 5, as well as the rejection of
dependent claim 7, which include the same deficiency. See App. Br. 22.
Claim 6
Appellants contend the Examiner erred because Gargi does not teach
or suggest “removing the improper visual folds, so that items included in the
improper visual folds,” as recited in claim 6. See App. Br. 18—19; Reply Br.
11—12. Appellants argue a sub-category selected by the user is not an
improper visual fold, such as an empty visual fold or a visual fold with a
single item or all of the items. See App. Br. 18—19. Appellants further argue
that Gargi’s disclosure of nicely organizing items by evenly distributing the
attributes does not teach or suggest “removing the improper visual folds.”
We find Appellants’ arguments unpersuasive. The Examiner found,
and we agree, Gargi’s disclosure of evenly distributing remaining items to
create a new set of facets teaches or suggests “removing the improper visual
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folds,” as recited in of claim 6. See Ans. 23; Final Act. 5 (citing Gargi ||
20, 55). Indeed, both Gargi’s and Appellants’ inventions, when creating
groups or folds, apply similar rules that exclude the grouping or folding of a
single item and all items in a collection. Compare Gargi || 24 (disclosing
that attributes having the same value for every song or a different value for
every song are not useful and therefore not selected as a group), 25
(disclosing that (1) ‘artist name’ would not be a useful grouping in a
collection that consists only of Beatles songs because every song would have
The Beatles listed for the artist name attribute value and (2) ‘album title’
would not be a useful grouping in a collection that consists only of one-hit
wonders because no album would be associated with more than one song),
with Spec. 27 (stating that default folding rules may provide that a single
item should never be folded and a fold should not contain all of the items in
the list), 34 (“In general, two principles guide dynamic folding process 300.
First, a dynamic visual fold of list items should not be created if it would
contain only a single item. Second, a dynamic visual fold should not be
created if all items in the list would be contained in that fold.”). Further, we
agree with the Examiner that “[a] person of ordinary skill in the art would
reasonably understand [an even distribution of the remaining items] to mean
that groupings of items . . . that result in ‘empty’ sets are indeed removed
from consideration and determined to be improper facets (e.g.,. . .visual
folds)” (Ans. 23). See KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007) (“[A] court can take account of the inferences and creative steps that
a person of ordinary skill in the art would employ.”), 421 (“Rigid
preventative rules that deny factfinders recourse to common sense . . . are
neither necessary under our case law nor consistent with it.”); Perfect Web
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Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009) (holding
that an obviousness analysis “may include recourse to logic, judgment, and
common sense available to the person of ordinary skill that do not
necessarily require explication in any reference or expert opinion”). Indeed,
one of ordinary skill in the art would understand creating facets without any
items would run counter to Gargi’s goal of creating facets based on useful
groupings by evenly distributing the items. See Gargi Fig. 2, items 16, 32;
1121-25, 50, 55.
Having considered the Examiner’s rejections in light of each of
Appellants’ arguments and the evidence of record, we are unpersuaded of
error and adopt as our own the Examiner’s findings, conclusions, and
reasoning consistent with the analysis above. See Ans. 23—24; Final Act. 3—
5. Accordingly, we sustain the Examiner’s rejection of claim 6.
Claim 18
Appellants contend the Examiner erred because the combination of
Gargi, Vronay, and Moore does not teach or suggest the “dynamically
grouping” limitation, as recited in claim 18. See App. Br. 14—16; Reply Br.
8—11; see also Final Act. 12—13 (citing Gargi H 22—23; Moore H 62, 438—
440, 576). Appellants argue that contrary to the Examiner’s findings, the
cited disclosures of Moore merely recite static lists and the Examiner does
not explain how the second items are not first items. See App. Br. 15—16.
Appellants further argue the Examiner failed to show that Moore discloses a
common “to-do” or “to be printed” property between the first and second
items. See Reply Br. 8—9. Appellants additionally argue Moore’s use of
logical operators to create unioned lists contemplates overlapping pictures
but does not disclose or suggest excluding first items of the static fold to
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form the “dynamic[] grouping” as recited in claim 18. See Reply Br. 11.
Lastly, Appellants argue “absent Appellants’ Specification and claims, it is
unclear how the lists of items in Moore even relate to the groups of Gargi
and Vronay, or how such lists allegedly ‘ease the organization, searching,
and retrieval [of] a large number of files’ as alleged. App. Br. 17 (citing
Final Act. 13).
The Examiner found Gargi teaches dynamically grouping items with a
common value for the first attribute but “fails to specifically show:
dynamically grouping second items that are not first items, each grouping
having second items with a common value for the first attribute” (Final Act.
12 (citing Gargi || 22—23) (emphasis added)). Nevertheless, the Examiner
found Moore teaches the entirety of the disputed limitation with its
disclosure that a user may provide input identifying a first data object such
that an item corresponding the first data object is added to a user-created
static list of items. See Final Act. 13 (citing Moore Tfl[ 62, 438-440, 576).
The Examiner explained “the items added to the static list would ‘have a
common value’ with the items already in the list; for example, to-do items
added to a to-do list would have a ‘to-do’ property in common with items
already in the list” (Final Act. 13). See also Ans. 17. The Examiner also
found that Moore teaches or suggests the disputed limitation with its
disclosure that a logical operation AND or OR may be used to manipulate
static lists to avoid the same item from appearing in two different lists. See
Final Act. 13 (citing Moore 1 576); Ans. 17—18. As an example, the
Examiner explained Moore’s manipulation of an American car pictures data
set and a German car pictures data set using a logical operation, teaches
“dynamically grouping second items (e.g., German car pictures) that are not
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first items (e.g., American car pictures), each grouping (e.g., sub-panel)
having second items with a common value for the first attribute (e.g., they
are all car pictures)” (Ans. 18).
Having reviewed Appellants’ arguments in light of the Examiner’s
findings, we agree with Appellants that the Examiner erred. The Examiner
has not provided adequate evidence or rationale to show that the
combination of Gargi, Vronay, and Moore teaches or suggests “dynamically
grouping second items that are not first items, each grouping having second
items with a common value for the first attribute.” See Moore 62, 438—
440, 576. As Appellants contend, we find the Examiner’s position that both
existing and newly added items of Moore’s static list have in common a “to
do” or “to be printed” property value is, at best, speculative and does not
have adequate support in the cited disclosures of Moore. See Moore 62,
438 440, 576. Further, while user input that causes new items to be added
to a static list may constitute grouping in the general sense, there is no
evidence that this functionality of Moore is performed “dynamically” as
claimed. See Moore 62, 438-440, 576. Additionally, as Appellants
contend, there is no evidence that Moore’s disclosure of applying logical
AND or OR operators to data sets teaches or suggests “dynamically
grouping second items that are not first items.” To the contrary, we note that
applying Moore’s logical AND or OR operators to Moore’s data sets appears
to result in either a null set (if an AND operation results in no common
items) or at least one item from each of the first and second data sets. See
Moore 1 576. Nor is there evidence that Moore’s disclosure of applying
logical operators to data sets teaches or suggests “second items with a
common value for the first attribute.” In the Examiner’s example, the
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Examiner explained that pictures in the German car pictures data set have a
common value for the first attribute because “they are all car pictures.”
Although this may show that the American and German car data sets share a
common data attribute in that they both concern cars, the Examiner has not
shown that pictures from the German car pictures data set have a common
“value” for the first attribute. Further, we find no evidence that Moore’s
application of logical operators to data sets is performed “dynamically.”
Moreover, even if the Examiner were correct that Gargi teaches or
suggests dynamically grouping items with a common value for the first
attribute (Final Act. 12 (citing Gargi || 22—23)), the Examiner does not
adequately explain how or why one of ordinary skill in the art would
combine this teaching with Moore’s disclosures of adding items to static lists
and using logical AND or OR operations to manipulate static lists to arrive
at the claimed invention. See Final Act. 13 (citing as the motivation to
combine paragraph 9 of Moore, which merely identifies the general problem
of organization, search, and retrieval with respect to large numbers of files);
Ans. 19-21.
For these reasons, we agree with Appellants that the Examiner has not
established that the combination of Gargi, Vronay, and Moore teaches or
suggests the “dynamically grouping” limitation of claim 18. We reverse the
Examiner’s rejection of claim 18, as well as the rejections of dependent
claims 19—22, which include the same deficiencies. See App. Br. 25—26.
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DECISION
The decision of the Examiner to reject claims 1—4, 6, 8—16, and 26—31
is affirmed.
The decision of the Examiner to reject claims 5, 7, and 18—22 is
reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§§1.136(a)(l)(iv), 41.50(f), 41.52(b).
AFFIRMED-IN-PART
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