Ex Parte DeLuca et al

Patent Trials and Appeals Board

Feb 25, 2019

14630914 - (D) (P.T.A.B. Feb. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/630,914 02/25/2015
75949 7590
IBM CORPORATION
C/0: Fabian Vancott
215 South State Street
Suite 1200
Salt Lake City, UT 84111
02/27/2019
FIRST NAMED INVENTOR
Lisa Seacat DeLuca
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.
RSW92014001 OUS2 7054
EXAMINER
WILSON, KIMBERLY LOVEL
ART UNIT PAPER NUMBER
2167
NOTIFICATION DATE DELIVERY MODE
02/27/2019 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):
patents@fabianvancott.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LISA SEACAT DELUCA, IDO GUY, NILI GUY,
and BOAZ MIZRACHI 1
Appeal2018-005122
Application 14/630,914
Technology Center 2100
Before ROBERT E. NAPPI, MATTHEW J. McNEILL, and JASON M.
REPKO Administrative Patent Judges.
NAPPI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's non-
final rejection of claims 21 through 40. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, International Business Machines Corporation is
the real party in interest. App. Br. 2.
Appeal2018-005122
Application 14/630,914
INVENTION
The invention is directed to a technique for displaying an item from a
collection of items based upon preference criteria of the user. Abstract.
Claim 21 is illustrative of the invention and is reproduced below.
21. A method for displaying a representative item for a
collection of items, the method comprising:
operating all of a processor, memory resources accessible
to the processor, and a network interface to:
obtain a history of interests associated with a first user;
analyze the history of interests to produce
preference criteria associated with the first user, the
preference criteria comprising categorized topics that are
associated with content of the history of interests;
with the network interface, access a collection of
items posted online by a second, different user;
identify, based on the preference criteria for the
first user, a representative item from among the
collection of items; and
display, to the first user, the representative item
corresponding to the collection of items.
EXAMINER'S REJECTIONS 2
The Examiner rejected claims 21 through 40 under 35 U.S.C. § 101
for being directed to patent-ineligible subject matter. Answer 4--11.
The Examiner provisionally rejected claims 21 through 40 on the
ground of nonstatutory, obviousness-type, double patenting, for being
2 Throughout this Decision we refer to the Appeal Brief filed September 9,
2017 ("App. Br."); the Reply Brief filed April 16, 2018 ("Reply Br."); Final
Office Action mailed April 7, 2017 ("Final Act."); and the Examiner's
Answer mailed February 26, 2018 ("Ans.").
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unpatentable over claims 31 through 49 of copending Application No.
14/252,539. Final Act. 3.
The Examiner has rejected claims 21, 22, 24, 25, 29, 30, 33 through
36, and 40 under 35 U.S.C. § I03(a) as being unpatentable over Guldogan et
al. "Personalized Representative Image Selection for Shared Photo Albums"
IEEE. 4pgs. (2013) (hereinafter "Guldogan") and Tseng (US 2012/0166432
Al; June 28, 2012 (hereinafter "Tseng")). Final Act. 6-15.
The Examiner has rejected claim 23 under 35 U.S.C. § I03(a) as
being unpatentable over Guldogan, Tseng, and Bhargava et al. (US
2015/0293989 Al; Oct. 15, 2015 (hereinafter "Bhargava"). Final Act. 15.
The Examiner has rejected claims 26, 27, 37, and 38 under 35 U.S.C.
§ I03(a) as being unpatentable over Guldogan, Tseng, and Kim (US
2014/0043355 Al; Feb. 13, 2014 (hereinafter "Kim")). Final Act. 16-17.
The Examiner has rejected claims 28 and 39 under 35 U.S.C.
§ I03(a) as being unpatentable over Guldogan, Tseng, and Salto (US
2005/0262043 Al; Nov. 24, 2005 (hereinafter "Salto")). Final Act. 17-18. 3
The Examiner has rejected claim 32 under 35 U.S.C. § I03(a) as
being unpatentable over Guldogan, Tseng, and Li (US 2014/0363075 Al;
Dec. 11, 2014 ("Li")). Final Act. 19.
ANALYSIS
We have reviewed Appellants' arguments in the Briefs, the
Examiner's rejections, and the Examiner's response to Appellants'
arguments. Appellants' arguments have not persuaded us of error in the
3 The Examiner withdrew the art rejection of claim 31. Answer 3.
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Examiner's rejections of 21 through 30 and 32 through 40 under 35 U.S.C.
§ 103(a) or of claims 21 through 40 under 35 U.S.C. § 101.
Double Patenting Rejection.
Appellants argue on page 10 of the Appeal Brief that the Examiner's
double patenting rejection is provisional and requests the rejection be held in
abeyance. We decline to reach the provisional rejection. See Ex parte
Moncla, 95 USPQ 2d 1884, 1885 (BP AI 2010) (precedential).
Rejection under 35 USC§ 101.
PRINCIPLES OF LAW
Patent-eligible subject matter is defined in 35 U.S.C. § 101 of the
Patent Act, which recites:
Whoever invents or discovers any new and useful
process, machine, manufacture, or composition of matter, or
any new and useful improvement thereof, may obtain a patent
therefor, subject to the conditions and requirements of this title.
There are, however, three judicially created exceptions to the broad
categories of patent-eligible subject matter in 35 U.S.C. § 101: "[l]aws of
nature, natural phenomena, and abstract ideas." Alice Corp. Pty. v. CLS
Banklnt'l, 573 U.S. 208,216 (2014); Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 70 (2012).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. 573 U.S. at 217-18 (citing Mayo, 566 U.S. at 75-77). In
accordance with that framework, we first determine what concept the claim
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is "directed to." See Alice, 573 U.S. at 219 ("On their face, the claims
before us are drawn to the concept of intermediated settlement, i.e., the use
of a third party to mitigate settlement risk."); see also Bilski v. Kappas, 561
U.S. 593, 611 (2010) ("Claims 1 and 4 in petitioners' application explain the
basic concept of hedging, or protecting against risk.").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219--20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes ( Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
( 1981) ); "tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores" (id. at 184 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267---68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that "[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 U.S. at 176; see also id. at 192 ("We
view respondents' claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula."). Having
said that, the Supreme Court also indicated that a claim "seeking patent
protection for that formula in the abstract ... is not accorded the protection
of our patent laws, ... and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
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environment." Id. ( citing Benson and Flook); see, e.g., id. at 187 ("It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.").
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an 'inventive
concept' sufficient to 'transform' the claimed abstract idea into a patent-
eligible application." Alice, 573 U.S. at 221. "A claim that recites an
abstract idea must include 'additional features' to ensure 'that the [claim] is
more than a drafting effort designed to monopolize the [ abstract idea]."' Id.
( quoting Mayo, 566 U.S. at 77). "[M]erely requir[ing] generic computer
implementation fail[ s] to transform that abstract idea into a patent-eligible
invention." Id.
The United States Patent and Trademark Office "USPTO" recently
published revised guidance on the application of
§ 101. USPTO's January 7, 2019 Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance ("Memorandum"). Under that
guidance, we first determine whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a}-(c), (e}-(h)).
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Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
"well-understood, routine, conventional" in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Memorandum.
Abstract idea
The Examiner determines the claims are not patent eligible as they are
directed to judicial exception without reciting significantly more. Answer 4.
Specifically, the Examiner determines the claims are directed to the abstract
idea of tailoring content based upon user preference criteria, and that the
concept is similar to a concept identified as an abstract idea by the courts.
Answer 4--5 (citing Intellectual Ventures I LLC v. Capital One Bank., 792
F.3d 1363, 1369 (Fed. Cir. 2017)).
Appellants argue the Examiner's rejection is in error as the claims do
not recite an abstract concept but rather recite an improved user interface for
a computer system. Reply Br. 16-17. Appellants assert in Core Wireless
Licensing S.A.R.L. v. LG Electronics Inc., 880 F.3d 1356 (Fed. Cir. 2018)
"the court expressly held that an improved user interface for a computing
devices is patent eligible subject matter." Reply Br. 16. Appellants reason
that since the claims in Core Wireless were found to improve a computer or
technological system and were not abstract, so too are Appellants' claims.
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Reply Br. 16-17. Further, Appellants argue that as the claims are directed to
an improvement in the user interface, a computer related technology which
is not abstract, the claims are patent eligible in light of the court's decision in
Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). Appellants
conclude that in light of the decisions in Core Wireless and Enfzsh, the
claims are patent eligible without considering the "significantly more step."
Reply Br. 18.
Appellants' arguments have not persuaded us of error in the
Examiner's rejection of representative claim 21. As discussed above, the
Examiner has found that the claims are directed tailoring content based upon
user preference criteria, which we consider to be a mental process (e.g.,
pointing out articles to a friend based upon observations and knowledge of
their favorite team). Further, the Examiner has demonstrated that the claims
recite a concept similar to that held as abstract by the court, citing
Intellectual Ventures I LLC v. Capital One Bank.
We concur, representative claim 21 recites steps of obtaining a history
of interests; analyzing the history to produce preference criteria, comprising
categories of interests; and identifying items in a collection, based upon the
preference criteria. Thus, the claim recites steps of gaining knowledge of a
person's interests and using it to select content. We consider this to be
similar to concepts held to be abstract by the court in Intellectual Ventures I
LLC v. Capital One Bank (where the court held that a claim to an interactive
interface that displayed portions of a website as a function of the user's
characteristics as an abstract concept). Intellectual Ventures I LLC v.
Capital One Bank at 1369. Appellants' arguments have not discussed or
differentiated their claims from those at issue in Intellectual Ventures I LLC
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v. Capital One Bank, but rather, as discussed above, cite Core Wireless for
the assertion that user interfaces are not abstract and as such are patent
eligible technology. We do not consider Core Wireless to stand for the
proposition that the recitation of a user interface, is an improvement in a
computer related technology and as such is not abstract as is implied by
Appellants' arguments. Our reviewing court found claims including user
interfaces to be directed to abstract concepts in Intellectual Ventures I LLC
v. Capital One Bank, discussed above and FairWarning IP v. Iatric Sys. Inc.,
839 F.3d 1089, 1096 (Fed. Cir. 2016) ("the use of generic computer
elements like a microprocessor or user interface do not alone transform an
otherwise abstract idea into patent-eligible subject matter.") ( citing DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014)).
The court's holding in Core Wireless, is much narrower than asserted by
Appellants as the court analyzed specific limitations of the claimed interface
such as: an application summary that can be reached through a menu, the
data being in a list and being selectable to launch an application, and
additional limitations directed to the actual user interface displayed and how
it functions. Core Wireless at 1363. The court found that the claims were
directed to an improved user interface and not the abstract concept of an
index as the claim "limitations disclose a specific manner of displaying a
limited set of information to the user, rather than using conventional user
interface methods to display a generic index on a computer." Id. At the
outset we note that representative claim 21 does not recite a user interface,
but rather a method for displaying a representative item. Further, Appellants
have not shown, nor do we find that the claim recites any specific manner of
displaying the information, as in Core Wireless. Rather, the step of
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displaying is merely reciting generic functions of displaying information
using the abstract concept of tailoring information based upon user
preferences and is not a step integrating the abstract idea into a practical
application.. Thus, Appellants' arguments have not persuaded us the
Examiner erred in concluding the claims are directed to an abstract concept.
Significantly more than an abstract idea/practical application
The Examiner finds that the claims do not recite significantly more
than the abstract idea. Answer 5-11. Specifically, the Examiner finds:
The claim recites the additional limitations of a processor,
memory resources and a network interface. Generic computer
components recited as performing generic computer functions
that are well-understood, routine and conventional activities
amount to more than implementing the abstract idea with a
computerized system. Regarding the second user, tailoring
content based upon similarity with other people (such as
through demographic information) is exactly the sort of content
tailoring contemplated in Intellectual Ventures v Cap One Bank
3 82. Specifying that the person is a second "user" merely
confines the claim to a particular technological environment
without adding significantly more than the abstract idea itself.
Thus, taken alone, the additional elements do not amount to
significantly more than the above-identified judicial exception
(the abstract idea). Looking at the limitations as an ordered
combination adds nothing that is not already present when
looking at the elements taken individually. There is no
indication that the combination of elements improves the
functioning of a computer or improves any other technology.
Their collective functions merely provide conventional
computer implementations.
Answer 5.
Appellants have not contested the Examiner's findings and
conclusions directed to the second part of the Alice framework. As discussed
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above Appellants' arguments merely concluded that in light of the decisions
in Core Wireless and Enfish, the claims are patent eligible without
considering the "significantly more step." Reply Br. 18. Further, in as much
as Appellants' arguments discussed above are asserting that the claim recites
significantly more than the abstract idea because a user interface is a
computer related technology, we are not persuaded of error. As discussed
above the representative claim is not so limited, but rather generically recites
displaying an item identified by the abstract concept. Further, our reviewing
courts have not held that the mere recitation of a user interface draws the
claim to a computer related technology. Accordingly, we are not persuaded
of error in the Examiner's determination that the claim does not recite
significantly more than the abstract idea ( or that the claim recites a practical
application of the abstract idea).
In summary, Appellants' arguments have not persuaded us of error in
the Examiner's determination that the claims are directed to an abstract idea
of tailoring content based upon user preference criteria ( a mental process).
Further, Appellants' arguments have not persuaded us that the Examiner
erred in determining that the claims are not: directed to an improvement in
the functioning of the computer or to other technology or other technical
field; directed to a particular machine; directed to performing or effecting a
transformation of an article to a different state or thing; or directed to using a
judicial exception in some meaningful way beyond linking the exception to a
particular technological environment such that the claim as a whole is more
than a drafting effort to monopolize the judicial exception. Accordingly, we
sustain the Examiner's rejection of claims 21 through 40 under 35 U.S.C.
§ 101 as being directed to patent ineligible subject matter.
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Rejection of claims 21, 22, 24, 25, 29, 30, 33 through 36, and 40
under 35 US.C. § 103 based upon Guldogan and Tseng.
With respect to claim 21 Appellants argue that the combination of
Guldogan and Tseng does not teach the limitation "analyze the history of
interests to produce preference criteria associated with the first user, the
preference criteria comprising categorized topics that are associated with
content of the history of interests" as recited in claim 31. App. Br. 10-14.
Specifically, Appellants argue that Guldogan teaches looking at a user's
history with respect to a set of images and picking the image that the user
has previously visited the most as a representative image. App Br. 12.
Further, Appellants argue Guldogan does not teach the user's activity is used
to produce preference criteria, rather Guldogan teaches user's selected
images are subject to visual modeling to identify images. Reply Br. 6-7.
With respect to Tseng, Appellants state the reference teaches a user-profiles
store that maintains interest information for users and Appellants argue this
does not teach the disputed limitation. App Br. 13. Thus, Appellants argue
the disputed limitation is not taught by the art of record.
In response the Examiner finds that Guldogan teaches analyzing the
history of interests to produce preference criteria associated with the first
user and that Tseng teaches preference criteria has categories of topics.
Answer 12-18 (citing Guldogan section III, and Tseng paragraphs 29, 30,
56, and 59).
We have reviewed the Examiner's rejection, response to Appellants'
arguments, rationale and the cited teachings and concur with the Examiner's
finding. Appellants' arguments which focus on the term "preference
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criteria" not being used in Guldogan's teachings and Tseng not teaching
analyzing a user's history, are not persuasive of error as the Examiner has
relied upon the combined references to teach the disputed limitation.
Appellants' Specification discusses preference criteria being categorized
topics associated with the user's interest. (Specification para. 34). The
Examiner has shown that Guldogan analyzes user history to determine
interest ( a form of preference), but not the limitation directed to categorizing
the preferences. For the categorizing preferences, the Examiner cites to
Tseng. Thus, we concur with the Examiner that the combined teachings of
the references teach the disputed limitation. Accordingly, we sustain the
Examiner's rejection of claim 21.
With respect to independent 33, Appellants argue that the rejection is
in error for the same reasons as claim 21. App. Br. 15. Accordingly, we
similarly sustain the Examiner's rejection of claim 33.
Appellants have not presented separate arguments with respect to
dependent claims 22, 24, 29, 30, 34, 35, and 40 which are similarly rejected.
Accordingly, we sustain the rejection of these claims for the same reasons as
claim 21.
With respect to claims 25 and 3 6 Appellants argue the combination of
Guldogan and Tseng do not teach changing "the representative item
displayed based on a number of times a previously-selected representative
item has been displayed to the first user" as recited in representative claim
25. App. Br. 15-16. Appellants argue that Guldogan only refers to picking
a representative image based on the most picked image and not a previous
representative image. App. Br. 16. Further, Appellants argue that Tseng's
teaching in paragraph 37 "has nothing to do with selecting a representative
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item from a collection, but merely describes tracking a user's exposure to
content objects as part of the user's profile." App. Br. 16.
The Examiner, in response to Appellants' arguments, finds that Tseng
teaches exposure to an object can be used to determine whether to expose
the user to the same content objects. Answer 18-19 (citing Tseng para. 37).
We concur with the Examiner's finding that this teaching of Tseng meets the
disputed limitation. Paragraph 37 of Tseng discusses controlling exposure to
a content object based upon prior exposure. In the context of paragraph 37
the content objects are third party content items selected based upon a
relevance score for the objects based upon the user's interests (i.e. objects
selected based upon user interest), and thus, paragraph 37 does discuss
changing the representative item based upon prior views of the previously
selected item. See e.g., discussion in paragraph 35. Thus, we disagree with
Appellants' contention that paragraph 37 has nothing to do with selecting an
item from a collection. We consider the Examiner's finding that Tseng's
discussion of using the exposure information being used to adjust the
ranking and selection of content objects in paragraph 37 to teach the
disputed limitation to be reasonable. Thus, we are not persuaded of error by
Appellants' arguments and we sustain the Examiner's rejection of claims 25
and 36.
Rejection of claim 23 under 35 US.C. § 103(a) as being unpatentable
over Guldogan, Tseng, and Bhargava.
Appellants argue the Examiner's rejection of claim 23 is in error as
the cited paragraph of Bhargava discusses the use of natural language
processing to determine the sentiment of the user, but not to analyze the
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history of interests of the user as claimed. App. Br. 17-18.
The Examiner responds stating that Bhargava teaches dynamic user
generated input can be subject to sentiment analysis which can be performed
by natural language processing. Answer 19-20 (citing Bhargava para. 30).
The Examiner also finds that the user generated input can be things such as
likes, check-ins, posts, comments, photos and updates (i.e. user interest).
Answer 19-20 ( citing Bhargava para. 28-29). Thus, the Examiner considers
the sentiments generated from the analysis to represent preference criteria
since they have been generated based on the analysis of the history of
interests (user generated items). Answer 20.
We have reviewed the cited teachings of Bhargava, and concur with
the Examiner's findings and reasoning. Appellants' arguments do not
address all of the teachings of Bhargava cited by the Examiner. Further, we
are not persuaded of error by Appellants' argument that the sentiments of
Bhargava cannot be equated to the preference criteria as they "do not have
the function of determining a representative image from an image set."
Reply Br. 13. The Examiner has not relied upon Bhargava to teach the
function of determine a representative image, just to show that a natural
language processing can be used to determine criteria based upon analysis of
the history of interests. It is this teaching in combination with the other
references that show the preference criteria is used to select the
representative image. Accordingly, we sustain the Examiner's rejection of
claim 23.
Rejection of claim 26, 27, 37, and 38 under 35 USC§ 103(a) as
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being unpatentable over Guldogan, Tseng, and Kim.
Initially, we note Appellants only presented arguments with respect to
claims 27 and 38 on pages 18 and 19 of the Answer. These arguments do
not apply to claims 26 and 3 7 as they are not commensurate with the scope
of the claims 26 and 37. Thus, Appellants have not identified an error in the
Examiner's rejection of claims 26 and 37 and we sustain the rejection of
these dependent claims for the same reasons as the independent claims from,
which they ultimately depend ( claims 21 and 33).
With respect to claims 27 and 38, Appellants argue the claims recite
the item displayed to the first user is changed in a round robin. App Br. 18.
Appellants argue that the term "round robin" refers to a scheduling
technique where each item takes an equal share of time being displayed.
App. Br. 18 (citing Specification 103, 106, and 113), Reply Br. 14 (citing a
definition from www.techopedia.com). Appellants argue the Examiner's
cited teachings in Kim does not teach a round robin changing of items as
claimed. App Br. 18.
The Examiner states that Appellants' Specification does not define the
term round robin, and that the term is interpreted as the selection of another
item. Answer 20-21. Based upon this interpretation, the Examiner finds
that while Kim does not use the term "round robin" it nonetheless teaches
changing displays in the manner. Answer 21 ( citing Kim 26, 48, and 67).
We concur with the Examiner's claim interpretation and findings
regarding Kim teaching changing displayed image. We have reviewed the
cited portions of Appellants' Specification and find no definition of "round
robin" meaning displayed for equal time nor do we find sufficient evident to
show that the well-known definition requires such an interpretation. The
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definition proffered by Appellants on page 14 of the Reply Brief does not
identify equal time. Further, we reviewed, the Microsoft Computer
Dictionary (4th ed. Copyright 1999) which defines "round robin" as "a
sequential, cyclical allocation of resources to more than one process or
device" and similarly find no requirement for equal time. As such
Appellants arguments have not persuaded us of error in the Examiner's
claim interpretation or finding that Kim teaches the claimed round robin
display. Accordingly, we sustain the Examiner's rejection of claims 27 and
38.
Rejection of claims 28 and 39 under 35 USC§ 103(a) as being
unpatentable over Guldogan, Tseng, and Saito.
Initially, we note Appellants only presented arguments with respect to
claim 31 on pages 19 and 20 of the Answer. These arguments do not apply
to claims 2 8 and 3 9 as they are not commensurate with the scope of the
claims 28 and 39. Thus, Appellants have not identified an error in the
Examiner's rejection of claims 28 and 39 and we sustain the rejection of
these dependent claims for the same reasons as the independent claims from
which they ultimately depend ( claims 21 and 33).
As discussed above, the Examiner withdrew the rejection of claim 31,
as such we have not considered Appellants' arguments with respect to claim
31.
Rejection of claim 32 under 35 USC§ 103(a) as being unpatentable
over Guldogan, Tseng and Li.
Appellants argue the rejection of claim 32 is in error for the same
reasons as discussed with respect to claim 21. App. Br. 20. As discussed
above we are not persuaded of error in the rejection of claim 21,
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accordingly, we similarly sustain the Examiner's rejection of claim 32.
DECISION
We affirm the Examiner's rejection of claims 21 through 40 under
35 U.S.C. § 101.
We affirm the Examiner's rejection of claims 21 through 3 0 and 3 2
through 40 under 35 U.S.C. § 103.
Because we affirm at least one ground of rejection with respect to
each claim on appeal, the Examiner's decision rejecting claims 30 through
49 is affirmed. See 37 C.F.R. § 4I.50(a)(l).
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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