Ex Parte Demarcken et al

Board of Patent Appeals and Interferences

Oct 22, 2009

10456980 (B.P.A.I. Oct. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CARL G. DEMARCKEN and JUSTIN A. BOYAN
____________

Appeal 2009-005251
Application 10/456,9801
Technology Center 2100
____________

Decided: October 22, 2009
____________

Before HOWARD B. BLANKENSHIP, THU A. DANG, and
CAROLYN D. THOMAS, Administrative Patent Judges.

THOMAS, Administrative Patent Judge.

DECISION ON APPEAL
I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection
of claims 1-39 mailed July 19, 2006, which are all the claims pending in the
application.2 We have jurisdiction under 35 U.S.C. § 6(b).

1 Application filed June 6, 2003. The real party in interest is ITA Software,
Inc.
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We affirm-in-part.

A. INVENTION
Appellants invented a system, method, and computer readable
medium for providing travel planning, including a cache database that stores
query results and a cache test mechanism that receives a travel planning
query and uses the query to find a result in the cache database. If a result is
found, it is returned. The result includes a set of answers, with each answer
in the set having a flight and a fare useable with the flight. (Spec. 30,
Abstract.)

B. ILLUSTRATIVE CLAIM
The appeal contains claims 1-39. Claims 1, 14, and 27 are
independent claims. Claim 1 is illustrative:
1. A method for testing freshness of query results in a travel
planning query cache comprising:
retrieving from a cache database a result comprising a set
of answers, each answer including a flight and a fare usable with the
flight, in response to a travel planning query;
testing the retrieved result to determine whether at least
one answer in the result is stale or insufficiently fresh to be returned
as an answer to the query, and if at least one of the answers is stale,

2 An Oral Hearing was held via telephone with the U.S. Patent and
Trademark Office on October 8, 2009.
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sending the travel planning query to a travel planning
system; and
storing a result from execution of the travel planning
query in the cache database, with the result comprising a set of
answers, each answer including a flight and a fare usable with the
flight.

C. REFERENCES
The sole reference relied upon by the Examiner as evidence in
rejecting the claims on appeal is as follows:
DeMarcken US 6,418,413 B2 Jul. 9, 2002

D. REJECTIONS
The Examiner entered the following rejections which are before us for
review:
(1) Claims 1-39 are rejected under 35 U.S.C. § 102(e) as being
anticipated by DeMarcken; and
(2) Claims 1, 2, 14, 15, 27, and 28 are provisionally rejected under
the judicially created doctrine of obviousness-type double patenting as being
unpatentable over claims 1-30 of copending Application No. 10/456,997.

II. FINDINGS OF FACT
The following findings of fact (FF) are supported by a preponderance
of the evidence.
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DeMarcken
1. DeMarcken discloses “a cache or a database of stored availability
queries and answers to the availability queries. The queries are used to
identify when a stored query is the same as a received query request, and the
answers are used as a substitute for direct access for future identical or
substantially related queries.” (Col. 2, ll. 51-55.)
2. In DeMarcken, a result will generally comprise a message that
includes airline information, the flight, the origin, the destination, the date,
booking codes, and counts. (Col. 5, ll. 45-60.)
3. DeMarcken discloses “booking codes that are labels used to
designate different prices that an airline is willing to sell tickets at. . . . [I]n
general most carriers will use Y booking codes corresponding to an
expensive coach class fare and a Q booking code as an inexpensive coach
class fare.” (Col. 1, ll. 31-44.)
4. DeMarcken discloses that “an availability predictor 65 includes a
database 70, a database engine 80 and a predictor process 90. The database
70 stores availability queries and answers . . . .” (Col. 5, ll. 10-13.)
5. In DeMarcken, “[t]he database 70 can be implemented using
various approaches including . . . a software or hardware cache.” (Col. 7,
ll. 46-49.)
6. DeMarcken discloses that “[i]n response to a query, the look-up
and retrieval process 94 produces either a prediction for the answer of the
query or an actual answer depending upon whether the look-up and retrieval
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process retrieves an answer from the database 70 or the yield management
system 66.” (Col. 6, ll. 52-57.)
7. In DeMarcken, “[i]f a stored query is found 114 in the query
database 70 that matches the received query . . . the process 94 will retrieve
116 the stored answer. The process 94 will determine if the stored answer is
stale 118 by comparing the time of the query to a threshold time . . . .” (Col.
7, ll. 20-25.)
8. In DeMarcken, “[i]f the query was not found in the database 70 or
if the stored query which was found is stale, the look-up and retrieval
process 94 optionally can determine 122 whether or not to use another
predictor . . . . Otherwise, . . . the process can send 126 an actual availability
query to the airline availability system 66.” (Col. 7, ll. 33-44.)
9. DeMarcken discloses that “[t]he answer that is received 128 from
the airline availability system 66 is returned 130 as the answer and can be
used to update 130 the database 70.” (Col. 7, ll. 44-46.)
10. DeMarcken discloses storing “a number that corresponds to the
number of actual queries that were used to arrive at the probability estimate.
This number can be used to produce a confidence factor that is returned with
the predictor.” (Col. 9, ll. 2-5.)
11. DeMarcken discloses that “[t]he predictor process 90 includes an
update process 92 that interfaces with the query database 70 (FIG. 3) and
database engine 80 to make sure that the query database 70 contains the
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most current information available for the availability predictor 90.” (Col. 6,
ll. 23-30.)

III. PRINCIPLES OF LAW
Anticipation
In rejecting claims under 35 U.S.C. § 102, “[a] single prior art
reference that discloses, either expressly or inherently, each limitation of a
claim invalidates that claim by anticipation.” Perricone v. Medicis Pharm.
Corp., 432 F.3d 1368, 1375 (Fed. Cir. 2005) (citing Minn. Mining & Mfg.
Co. v. Johnson & Johnson Orthopaedics, Inc., 976 F.2d 1559, 1565 (Fed.
Cir. 1992)).
Anticipation of a patent claim requires a finding that the claim
at issue “reads on” a prior art reference. In other words, if
granting patent protection on the disputed claim would allow
the patentee to exclude the public from practicing the prior art,
then that claim is anticipated, regardless of whether it also
covers subject matter not in the prior art.

Atlas Powder Co. v. IRECO, Inc., 190 F.3d 1342, 1346 (Fed. Cir. 1999)
(internal citations omitted).

Non-Statutory Obviousness-Type Double Patenting
As stated by our reviewing court in In re Braat, 937 F.2d 589 (Fed.
Cir. 1991):
Obviousness-type double patenting is a judicially created
doctrine intended to prevent improper timewise extension of the
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patent right by prohibiting the issuance of claims in a second patent
which are not “patentably distinct” from the claims of a first patent.

Id. at 592 (citation omitted).
An obviousness-type double patenting analysis is analogous to an
obviousness analysis under 35 U.S.C. § 103(a). See Studiengesellschaft
Kohle mbH v. N. Petrochemical Co., 784 F.2d 351, 355 (Fed. Cir. 1986); In
re Longi, 759 F.2d 887, 892-93 (Fed. Cir. 1985).

IV. ANALYSIS
Grouping of Claims
In the Brief:
Group I: Appellants argue claims 1, 3, 4, 14, 16, 17, 27, 29, and 30
as a group (App. Br. 8-15; 21-22). For claims 3, 4, 14, 16, 17, 27, 29, and
30, Appellants repeat the same argument made for claim 1. We will,
therefore, treat claims 3, 4, 14, 16, 17, 27, 29, and 30 as standing or falling
with claim 1.
Group II: Appellants argue claims 2, 15, and 28 as a group (App. Br.
15-16; 22). For claims 15 and 28, Appellants repeat the same argument
made for claim 2. We will, therefore, treat claims 15 and 28 as standing or
falling with claim 2.
Group III: Appellants argue claims 5, 18, and 31 as a group (App.
Br. 16-17; 22). For claims 18 and 31, Appellants repeat the same argument
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made for claim 5. We will, therefore, treat claims 18 and 31 as standing or
falling with claim 5.
Group IV: Appellants argue claims 6, 19, and 32 as a group (App.
Br. 17; 22). For claims 19 and 32, Appellants repeat the same argument
made for claim 6. We will, therefore, treat claims 19 and 32 as standing or
falling with claim 6. We shall also group claims 7, 8, 20, 21, 33, and 34
with claim 6 due to their dependency.
Group V: Appellants argue claims 9, 22, and 35 as a group (App. Br.
18-19; 22). For claims 22 and 35, Appellants repeat the same argument
made for claim 9. We will, therefore, treat claims 22 and 35 as standing or
falling with claim 9.
Group VI: Appellants argue claims 10, 23, and 36 as a group (App.
Br. 19; 22). For claims 23 and 36, Appellants repeat the same argument
made for claim 10. We will, therefore, treat claims 23 and 36 as standing or
falling with claim 10.
Group VII: Appellants essentially argue claims 11, 12, 24, 25, 37,
and 38 as a group (App. Br. 20; 22). For claims 12, 24, 25, 37, and 38,
Appellants essentially repeat the same argument made for claim 11. We
will, therefore, treat claims 12, 24, 25, 37, and 38 as standing or falling with
claim 11.
Group VIII: Appellants argue claims 13, 26, and 39 as a group
(App. Br. 20-22). For claims 26 and 39, Appellants repeat the same
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argument made for claim 13. We will, therefore, treat claims 26 and 39 as
standing or falling with claim 13.
See 37 C.F.R. § 41.37(c)(1)(vii). See also In re Young, 927 F.2d 588,
590 (Fed. Cir. 1991).

The Anticipation Rejection
We first consider the Examiner’s rejection of the claims under
35 U.S.C. § 102(e) as being anticipated by DeMarcken.

Group I
Claims 1, 3, 4, 14, 16, 17, 27, 29, and 30
Appellants contend that “[D]eMarcken neither describes nor suggests
‘retrieving from a cache database a result comprising a set of answers, each
answer including a flight and a fare usable with the flight, in response to a
travel planning query.’ Rather as the examiner admits, [D]eMarcken stores:
‘seat availability queries.’” (App. Br. 10.) Appellants further contend that
“[w]hile Appellant concedes that [D]eMarcken teaches: ‘sending the travel
planning query to a travel planning system,’ [D]eMarcken does not do so as
a result of determining that at least one answer is stale.” (App. Br. 14.)
The Examiner found that “DeMarcken teaches retrieving from a cache
database a result comprising a set of answers, each answer including a flight
and a fare usable with the flight” (Ans. 13 (cites omitted).)

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Issue: Have Appellants shown that the Examiner erred in finding that
DeMarcken discloses “retrieving from a cache database a result comprising
a set of answers, each answer including a flight and a fare usable with the
flight” and “testing . .. whether at least one answer in the result is stale”?

DeMarcken discloses both travel planning queries and results. For
example, DeMarcken discloses that a cache database, having stored
availability queries and answers to the queries, is used to identify answers as
a substitute for direct access to an airline system (FF 1). DeMarcken further
discloses that the returned message includes flight information and a set of
booking codes, e.g., F, C, Y, M, K, L, and Q, each signifying a particular
price range (FF 2). In DeMarcken, the booking codes are labels used to
designate the different “fares/prices” that airlines are willing to sell the
tickets for (FF 3). In other words, DeMarcken’s booking codes inherently
includes various pricing information. Appellants’ Specification defines
“fares” as “prices” (Spec. 3, l. 24). Thus, the claimed “set of answers . . .
each answer including a flight and a fare” reads on DeMarcken’s results
including a flight associated with various booking codes which inherently
include pricing information.
DeMarcken further discloses that database 70 stores the availability
queries and answers and can be implemented as a cache (FF 4-5). In
response to a query in DeMarcken, the look-up and retrieval process
produces either a prediction for the answer or an actual answer (FF 6). In
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other words, DeMarcken may retrieve an actual answer, including a flight
and fare, from a cache database.
Therefore, we find that the claimed “the result comprising a set of
answers, each answer including a flight and a fare usable with the flight”
reads on DeMarcken’s results from database 70.

Furthermore, we note that Appellants have not shown how the
claimed “travel planning system” is distinguishable from DeMarcken’s
“airline availability system.” Although Appellants argue distinguishing
features for the “travel planning system,” Claim 1, as drafted, does not
require any particular functionality to be attached to the travel planning
system, other than to provide answers to queries. Therefore, we view these
terms as mere labels and under a broad but reasonable interpretation, a
“travel planning system” can include any system which facilitates travel.
Here, DeMarcken’s airline availability system facilitates travel by providing
answers to availability queries. Secondly, as noted by the Examiner,
DeMarcken checks for staleness and if stale, uses another travel system,
other than the cache database, to get results.
Specifically, DeMarcken discloses that its process will determine if
the stored answer is stale by comparing the time of the query to a threshold
time (FF 7-8). In DeMarcken, if the answer is indeed stale, then the look-up
retrieval process can send an actual availability query to the airline
availability system (FF 8). The answer received from DeMarcken’s airline
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availability system is returned as the answer and is used to update the
database 70 (FF 9).
Thus, we find that the claimed “if at least one of the answers is stale,
sending the travel planning query to a travel planning system” reads on
DeMarcken’s above noted features.
Thus, Appellants have not persuaded us of error in the Examiner’s
conclusion of anticipation for representative claim 1. Therefore, we affirm
the Examiner’s § 102 rejection of independent claim 1 and of claims 3, 4,
14, 16, 17, 27, 29, and 30, which fall therewith.

Group II
Claims 2, 15, and 28
Appellants contend that “[u]nlike in [D]eMarcken the age of the found
result is not disclosed as part of the comparison.” (App. Br. 16.)
The Examiner found that “[t]he process 94 will determine if the stored
answer is stale 118 by comparing the time of the query to a threshold time.”
(Ans. 15-16 (italic omitted).)

Issue: Have Appellants shown that the Examiner erred in finding that
DeMarcken discloses using the age of the cache result to determine whether
the result is stale?

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As noted by the Examiner, DeMarcken discloses comparing the “time
[i.e., age] of the query” to a threshold time to determine if the stored answer
is stale (see also FF 7). However, we find that the “query time” is not the
same as the claimed “age of the result,” which is generally subsequent to the
query time.
Thus, Appellants have persuaded us of error in the Examiner’s
conclusion of anticipation for claim 2. Therefore, we reverse the Examiner’s
§ 102 rejection of claim 2 and of claims 15 and 28, which stand therewith.

Group III
Claims 5, 18, and 31
Appellants contend that “[D]eMarcken neither describes nor suggests
a set of answers and therefore does not meet the feature of: testing of
validity of cache result by ‘testing validity of cache answers that comprise
the cache result.’” (App. Br. 16-17.)
The Examiner found that DeMarcken discloses “testing of validity of
the cache result is the testing the answers.” (Ans. 16.)

Issue: Have Appellants shown that the Examiner erred in finding that
DeMarcken discloses testing of validity of cached result by testing validity
of cached answers that comprise the cached result?

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Here, we find that while Claim 5 tests the validity of the cached
answers, no specific test is called for in the claim language. Claim 5 merely
requires that the answers be tested. As noted supra, DeMarcken discloses
comparing the “time [i.e., age] of the query” to a threshold time to determine
if the stored answer is stale (FF 7), i.e., a staleness test. Thus, DeMarcken
discloses testing the answers.
Thus, Appellants have not persuaded us of error in the Examiner’s
conclusion of anticipation for representative claim 5. Therefore, we affirm
the Examiner’s § 102 rejection of claim 5 and of claims 1 and 31, which fall
therewith.

Group IV
Claims 6-8, 19-21, and 32-34
Appellants contend that “there is not any basis in [D]eMarcken to
make a decision from the table predictor based on the proportion or number
of invalid answers in the result.” (App. Br. 17.)
The Examiner found that “a proportion or number of invalid answers
is inherently used in storing a number that corresponds to the number of
actual queries that were used to arrive at the probability estimate.” (Ans.
17.)

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Issue: Have Appellants shown that the Examiner erred in finding that
DeMarcken discloses testing staleness by proportion or number of invalid
answers?

Here, we find that the Examiner has directed our attention to
DeMarcken’s “confidence factor” for a probability estimate rather than to a
determination of staleness based on a number of invalid answers. In other
words, the Examiner’s findings merely show how DeMarcken looks at the
number of actual queries that were used to arrive at the probability estimate
(FF 10). DeMarcken’s confidence factor points to how trustworthy the
estimate is. However, the Examiner has not shown, and we do not readily
find, how DeMarcken discloses determining “staleness” based on the
number of invalid answers.
Thus, Appellants have persuaded us of error in the Examiner’s
conclusion of anticipation for claim 6. Therefore, we reverse the Examiner’s
§ 102 rejection of claim 6 and of claims 19 and 32, which stand therewith.
Claims 7, 8, 20, 21, 33, and 34 are also reversed for their dependency to
claims 6, 19, and 32, respectively.

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Group V
Claims 9, 22, and 35
Appellants contend that “[D]eMarcken does not discuss: ‘testing
whether flights, fares or availability in key markets have changed.’” (App.
Br. 18.)
The Examiner found “that cached answers comprise of flights, fares
key markets (trip origin and destination) and are used to determine the
staleness of the cached answer. [sic]” (Ans. 18.)

Issue: Have Appellants shown that the Examiner erred in finding that
DeMarcken discloses testing whether flights, fares or availability in key
markets have changed?

Here, we find that the Examiner merely focuses on DeMarcken’s
matching of queries (Ans. 18), and fails to show how DeMarcken test
validity by considering changes in key markets. Instead, the Examiner
merely shows how DeMarcken finds answers. Thus, we cannot sustain this
rejection based on the Examiner’s findings.
Thus, Appellants have persuaded us of error in the Examiner’s
conclusion of anticipation for claim 9. Therefore, we reverse the Examiner’s
§ 102 rejection of claim 9 and of claims 22 and 35, which stand therewith.

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Group VI
Claims 10, 23, and 36
Appellants contend that “[D]eMarcken does not test answer
components, nor does [D]eMarcken test that answer components remain
valid by examining content of travel databases.” (App. Br. 19.)
The Examiner found that DeMarcken discloses “that the predictor
process, which contains cached answers, uses the most current information
in the database.” (Ans. 18.)

Issue: Have Appellants shown that the Examiner erred in finding that
DeMarcken discloses testing whether answer components remain valid by
examining current contents of travel database?

DeMarcken discloses an “update process” that makes sure that the
query database contains the most current information (FF 11). We find that
in order to insure that the most current information is stored, some type of
testing of answers must be performed. Thus, the claimed “testing whether
answer components remain valid by examining current contents of travel
database” reads on the above noted features of DeMarcken.
Thus, Appellants have not persuaded us of error in the Examiner’s
conclusion of anticipation for representative claim 10. Therefore, we affirm
the Examiner’s § 102 rejection of claim 10 and of claims 23 and 36, which
fall therewith.
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Group VII
Claims 11, 12, 24, 25, 37, and 38
Appellants contend that “although [D]eMarcken mentions the direct
query (to populate), [D]eMarcken neither describes nor suggests direct
querying, e.g., sending actual availability queries to an airline’s revenue or
yield management systems as part of a process that tests the validity of the
cache answers.” (App. Br. 20.) Appellants further contend that “[w]hile
[D]eMarcken teaches sending actual seat availability queries to an
availability system, those are not flight pricing queries.” (Id.)
The Examiner found that “the update process is the re-querying.”
(Ans. 19-20.)

Issue: Have Appellants shown that the Examiner erred in finding that
DeMarcken discloses testing validity of cached answers by re-querying?

In essence, the Examiner finds that in order to have the most current
information in the database, some process in the background must routinely
re-query to ensure the freshness of the cache (Ans. 19). We agree.
As noted supra, DeMarcken discloses updating the database answers
with the most current information (FF 11). This process in itself implies re-
querying using the same or similar query.
In addition, we find that the claimed recitations “travel planning
query” and “flight pricing queries” both contain non-functional descriptive
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material, which does nothing to change the utility of the underlying method.
For example, the focus of the “query” does not affect any machine function,
but represents mere data that is being sent. The content of non-functional
descriptive material is not entitled to weight in the patentability analysis.
See in re Lowry, 32 F.3d 1579, 1583 (Fed. Cir. 1994) (“Lowry does not
claim merely the information content of a memory. . . . Nor does he seek to
patent the content of information resident in a database.”). See also Ex parte
Nehls, 88 USPQ2d 1883, 1887-90 (BPAI 2008) (precedential); Ex parte
Curry, 84 USPQ2d 1272 (BPAI 2005) (informative), aff’d, No. 06-1003
(Fed. Cir. Jun. 12, 2006) (Rule 36); Manual of Patent Examining Procedure
(MPEP) § 2106.01 (Eighth ed., Rev. 7, Jul. 2008).
Thus, Appellants have not persuaded us of error in the Examiner’s
conclusion of anticipation for representative claim 11. Therefore, we affirm
the Examiner’s § 102 rejection of claim 11 and of claims 12, 24, 25, 37, and
38, which fall therewith.

Group VIII
Claims 13, 26, and 39
Appellants contend that “[D]eMarcken does not teach re-querying
using shallow queries.” (App. Br. 21.)
The Examiner found that “the stored query is the shallow query.”
(Ans. 20.)

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Issue: Have Appellants shown that the Examiner erred in finding that
DeMarcken discloses testing staleness by performing a shallow query?

Here the Examiner finds that the “stored query” is the shallow query.
Appellants’ Specification suggests that a “shallow query” only considers a
smaller/quicker number of possibilities than a normal query (Spec., 16). We
find that the Examiner has not clearly established that the “stored query” is
consistent with a shallow query because there is no certainty from the
DeMarcken reference itself as to what specific type of query is being used to
carry out the aforementioned search. DeMarcken merely discloses looking
up the query in the database. As such, the Examiner has left it up to us to
speculate.
Therefore, we find that the Examiner has not set forth a sufficient
initial showing of anticipation, and we find that Appellants have shown error
in the Examiner’s rejection of claim 13. Therefore, we reverse the rejection
of claim 13, and of claims 26 and 39 which stand therewith.

Double Patenting
Regarding the outstanding double patenting rejections of claims 1, 2,
14, 15, 27, and 28, Appellants have indicated in the record that “App[ellants]
will consider submission of a terminal disclaimer upon indication of
allowable subject matter” (App. Br. 22). However, this statement does not
constitute an argument sufficient to rebut the obviousness-type double
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patenting rejection, and thus the double patenting rejections are deemed
conceded. Therefore, we summarily sustain the rejection of claims 1, 2, 14,
15, 27, and 28 under the obviousness-type double patenting rejection with
respect to U.S. Application Serial No. 10/456,997.

V. CONCLUSIONS
We conclude:
(1) Appellants have not shown that the Examiner erred in rejecting
claims 1, 3-5, 10-12, 14, 16-18, 23-25, 27, 29-31, and 36-38 under 35 U.S.C.
§ 102(e);
(2) Appellants have shown that the Examiner erred in rejecting
claims 2, 6-9, 13, 15, 19-22, 26, 28, 32-35, and 39 under 35 U.S.C. § 102(e);
and
(3) Appellants have not shown that the Examiner erred in
provisionally rejecting claims 1, 2, 14, 15, 27, and 28 under the judicially
created doctrine of obviousness-type double patenting.

VI. DECISION
In view of the foregoing discussion:
(1) We affirm the Examiner’s rejection of claims 1, 3-5, 10-12, 14,
16-18, 23-25, 27, 29-31, and 36-38 under 35 U.S.C. § 102(e);
(2) We reverse the Examiner’s rejection of claims 2, 6-9, 13, 15, 19-
22, 26, 28, 32-35, and 39 under 35 U.S.C. § 102(e); and
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(3) We affirm the Examiner’s rejection of claims 1, 2, 14, 15, 27, and
28 under the judicially created doctrine of obviousness-type double
patenting.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv)(2009).

AFFIRMED-IN-PART

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