Ex Parte Dudek et al

Patent Trial and Appeal Board

Sep 26, 2017

13455997 (P.T.A.B. Sep. 26, 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.
13/455,997 04/25/2012 Remigiusz Dudek DE920110039US1 1035
77351 7590 09/27/2017
IBM CORP. (AUS)
C/O THE LAW OFFICE OF JAMES BAUDINO, PLLC
2313 ROOSEVELT DRIVE
SUITE A
ARLINGTON, TX 76016
EXAMINER
WHEATON, BRADFORD F
ART UNIT PAPER NUMBER
2197
MAIL DATE DELIVERY MODE
09/27/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte REMIGIUSZ DUDEK, PAWEL GOCEK, JAKUB KANIA,
and HARI H. MADDURI
Appeal 2017-005337
Application 13/455,997
Technology Center 2100
Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and
JOHN P. PINKERTON, Administrative Patent Judges.
SAADAT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 8—21, which are all the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is International Business
Machines Corporation (App. Br. 2).
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Application 13/455,997
STATEMENT OF THE CASE
Appellants’ invention relates to a method for identifying software
components of a software product, such as a bundled software product
(Spec. 11). Exemplary claim 8 under appeal reads as follows:
8. A system for identifying software components of a
software product, comprising:
a first confidence value establisher that establishes a first
confidence value indicative of a likelihood that a first software
component installed on a machine belongs to said software
product;
a second confidence value establisher that establishes a
second confidence value indicative of a likelihood that said first
software component and a second software component are
software components of a common software product; and
a third confidence value establisher that establishes, based
on said first and second confidence values, a third confidence
value indicative of a likelihood that said second software
component belongs to said software product.
REFERENCES and REJECTIONS
Claims 8—21 stand rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter (see Final Act. 5—6).
Claims 8—9, 14—15, 17, and 21 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Tepper et al. (US 2012/0167075 Al;
published June 28, 2012) (“Tepper”) and Reisz (US 8,332,407 B2; issued
Dec. 11, 2012) (see Final Act. 6—8).
Claims 10-12, 16, and 18—19 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Tepper, Reisz and Bestle et al. (US 2008/0295090 Al;
published Nov. 27, 2008) (“Bestle”) (see Final Act. 8—10).
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PRINCIPLES OF LAW
Statutory Subject Matter
In Alice Corp. Pty. Ltd. v. CLS Bank Intj, 134 S. Ct. 2347 (2014), the
Supreme Court articulated the required analysis for distinguishing patents
that claim laws of nature, natural phenomena, and abstract ideas (which are
not patent eligible under 35 U.S.C. § 101) from patents that claim patent-
eligible applications of these concepts. Alice Corp., 134 S. Ct. at 2355. The
first step in the analysis is to determine whether the claims at issue are
directed to a patent-ineligible concept, such as an abstract idea. Id. If the
claims are directed to a patent-ineligible concept, then the second step in the
analysis is to consider the elements of the claims individually and as an
ordered combination to determine whether the additional elements transform
the nature of the claim into a patent-eligible application. Id.
Claim Construction
A claim under examination is given its broadest reasonable
interpretation consistent with the underlying specification. See In re
American Acad, of Science Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
In the absence of an express definition of a claim term in the specification or
a clear disclaimer of scope, the claim term is interpreted as broadly as the
ordinary usage of the term by one of ordinary skill in the art would permit.
See In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007); see also In re Morris, YU F.3d 1048, 1054 (Fed. Cir. 1997).
Though understanding the claim language may be aided by the explanations
contained in the written description, it is important not to import into a claim
limitations that are not a part of the claim. See SuperGuide Corp. v.
DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004).
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Analogous Art
A prior art reference is analogous to an application if: (1) it is from the
same field of endeavor as the application, regardless of the problem
addressed, or (2) if the reference is not within the field of the inventor’s
endeavor, it is nonetheless reasonably pertinent to the particular problem
with which the inventor is involved. In re Bigio, 381 F.3d 1320, 1325 (Fed.
Cir. 2004). As indicated, these tests are in the alternative, i.e., a finding of
either is sufficient. See In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992).
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments (Appeal Brief and Reply Brief) that the Examiner has erred. We
are unpersuaded by Appellants’ contentions and concur with the findings
and conclusions reached by the Examiner as explained below.
35 U.S.C. § 101 Rejections
Independent Claims 8 and 15
Independent claims 8 and 15 recite, respectively, a system and a
computer program product comprising a computer readable storage medium,
and are, therefore, directed to one of the four statutory categories of
patentability enumerated by 35 U.S.C. § 101 (process, machine,
manufacture, or composition of matter). The Examiner found the claims are
directed to the abstract idea of a mathematical relationship, and the
additional elements or combination of elements in the claim, other than the
abstract idea, per se amount to no more than mere instructions to implement
the abstract idea on a computer (see Final Act. 5).
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Appellants contend claims 8 and 15 are clearly directed toward more
than a “mathematical relationship,” and further contend the Examiner has
not identified any particular mathematical formula that the claims are
allegedly attempting to “tie up” (see App. Br. 6, 8; see also Reply Br. 2—3,
5—6). Appellants further contend claims 8 and 15 recite limitations that: (a)
are not well-understood, routine or conventional in the field; and (b) provide
an improvement to the computer field (i.e., determining a relationship
between different software components on a machine relative to a particular
software product) (see App. Br. 6—7; see also Reply Br. 5—6).
We are not persuaded by Appellants’ arguments. Claim 8 recites
establishing first, second, and third confidence values. Claim 8 further
recites the first confidence value indicates a likelihood that a first software
component belongs to a software product, the second confidence value
identifies a likelihood that the first software component and a second
software component belong to a common software product, and the third
confidence value identifies a likelihood that the second software component
belongs to the software product. Claim 8 further recites the third confidence
value is established based on the first and second confidence values. Claim
15 recites similar limitations.
Considering these recited limitations of claims 8 and 15 in the context
of the first step in the Alice analysis, we agree with the Examiner’s finding
that the claims are directed to a mathematical relationship between the first
and second confidence values and the third confidence value (see Final
Act. 5; see Ans. 2—3). Appellants’ claimed subject matter is similar to
subject matter found by our reviewing courts to be abstract. See Gottschalk
v. Benson, 409 U.S. 63, 67 (1972) (“a scientific truth, or the mathematical
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expression of it, is not a patentable invention”); see also Parker v. Flook,
437 U.S. 584, 595 (1978) (“if a claim is directed essentially to a method of
calculating, using a mathematical formula, even if the solution is for a
specific purpose, the claimed method is nonstatutory”); Diamond v. Diehr,
450 U.S. 175, 191 (1981) (“[a] mathematical formula ... 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
environment”); In re Grams, 888 F.2d 835, 837 (Fed. Cir. 1989)
(“mathematical algorithms join the list of non-patentable subject matter not
within the scope of section 101”). As such, we agree with the Examiner that
claims 8 and 15 are directed to an abstract idea (see Final Act. 5; see Ans. 2—
3).
Appellants’ argument that claims 8 and 15 are similar to the claims in
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016)
because the claims are directed to an improvement in computer functioning
(see Reply Br. 3 4) is not persuasive. Unlike the claims in Enfish, claims 8
and 15 fails to recite any technical details that constitute the alleged
improvement of a technological process of determining whether certain
software components installed on a machine belong to a particular software
product. Thus, claims 8 and 15 are merely directed to the calculation of a
probability that a software component belongs to a particular software
product using a generic computer. Such an “improvement” is not a
patentable improvement in computer technology.
With respect to the second step in the Alice analysis, Appellants have
not provided persuasive evidence or arguments that the disputed limitations
do anything more than limit the recited mathematical relationship to the
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particular environment of bundled software products. Thus, we agree with
the Examiner that the argued limitations do not add “significantly more” to
the abstract idea (see Ans. 4—6). Therefore, considering the elements of
claims 8 and 15 both individually and in combination, we conclude there are
no additional elements that transform the nature of the claim into a patent-
eligible application. See Alice, 134 S. Ct. at 2355.
Appellants further argue that claims 8 and 15 are similar to the claims
in DDR Holdings, LLCv. Hotels.com., 773 F.3d 1245, 1257 (Fed. Cir. 2014)
because the claims are necessarily rooted in computer technology to address
the Internet-centric problem of how to provide user access to computer-
implemented applications over the Internet (see Reply Br. 4—5). This
argument is not persuasive. We agree with the Examiner that the problem
the claims are attempting to solve (i.e., identifying related software
components that are associated with a common bundled software product) is
a problem of product bundling that is not rooted in computer technology, and
thus, is not distinguished from the abstract idea of using a mathematical
relationship to identify related product components. See Ans. 4. Further,
Appellants’ argument that claims 8 and 15 do not “tie-up” or otherwise
preempt every application of a particular mathematical relationship (see
App. Br. 8) is not persuasive. The Federal Circuit has made clear that “the
absence of complete preemption does not demonstrate patent eligibility” of a
claim. Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379
(Fed. Cir. 2015).
Based on our analysis above, we are not persuaded the Examiner erred
in finding claims 8 and 15 recite patent-ineligible subject matter.
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Accordingly, we sustain the rejection of claims 8 and 15 under
35 U.S.C. 101.
Claim 12
Appellants contend claim 12 is clearly directed toward more than a
“mathematical relationship,” and further assert claim 12 recites limitations
that: (a) are not well-understood, routine or conventional in the field; and (b)
provide an improvement to the computer field (i.e., determining a
relationship between different software components on a machine relative to
a particular software product) (see App. Br. 9-12; see also Reply Br. 6—7, 9).
We are not persuaded by Appellants’ arguments. Claim 12 recites
establishing underlying data that is used to establish the second confidence
value, where the data includes locations of first and second software
components, communication occurrences between the first and second
software components, configuration references between the first and second
software components, and installations times of the first and second software
components. With respect to the first step in the Alice analysis, the
Examiner properly finds that the limitations of claim 12 describe what the
underlying data represents but does not change the underlying mathematical
relationship between the first and second confidence values and the third
confidence value recited in independent claim 8, of which claim 12 depends
from (see Ans. 7; see also Final Act. 5). As such, we agree with the
Examiner that claim 12 is directed to an abstract idea.
Appellants’ additional argument that claim 12 is directed to an
improvement in computer functioning (see Reply Br. 7—8) is not persuasive.
As previously described regarding claims 8 and 15, claim 12 fails to recite
any technical details that constitute the alleged improvement of a
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technological process of determining whether certain software components
installed on a machine belong to a particular software product. Thus, similar
to claims 8 and 15, claim 12 is merely directed to the calculation of a
probability that a software component belongs to a particular software
product using a generic computer.
With respect to the second step in the Alice analysis, we agree with the
Examiner that the additional limitations of claim 12 do not add “significantly
more” to the abstract idea (see Ans. 7). Therefore, considering the elements
of claim 12 both individually and in combination, we conclude there are no
additional elements that transform the nature of the claim into a patent-
eligible application. See Alice, 134 S. Ct. at 2355.
Appellants further argue that claim 12 is necessarily rooted in
computer technology in order to address the Internet-centric problem of how
to provide user access to computer-implemented applications over the
Internet (see Reply Br. 8—9). This argument is not persuasive. Similar to
claims 8 and 15, the problem claim 12 is attempting to solve is a problem of
product bundling that is not rooted in computer technology, and thus, is not
distinguished from the abstract idea of using a mathematical relationship to
identify related product components. See Ans. 7. Further, regarding
Appellants’ argument that claim 12 does not “tie-up” or otherwise preempt
every application of a particular mathematical relationship (see App. Br. 12),
this argument is not persuasive because, as previously discussed, the absence
of complete preemption does not demonstrate patent eligibility of a claim.
Therefore, we are not persuaded the Examiner erred in finding claim
12 recites patent-ineligible subject matter. Accordingly, we sustain the
rejection of claim 12 under 35U.S.C. 101.
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Claims 13 and 20
Appellants contend claims 13 and 20 are clearly directed toward more
than a “mathematical relationship,” and further assert claims 13 and 20
recite limitations that: (a) are not well-understood, routine or conventional in
the field; and (b) provide an improvement to the computer field (i.e.,
determining a relationship between different software components on a
machine relative to a particular software product) (see App. Br. 12—17; see
also Reply Br. 11, 14—15).
We are not persuaded by Appellants’ arguments. Claim 13 recites
establishing the second confidence involves increasing the second
confidence value by one or more specifically defined values that correspond
to potential values of the underlying data. Claim 20 recites similar
limitations. With respect to the first step in the Alice analysis, the Examiner
correctly finds that these limitations merely recite further details of the
mathematical relationship used to establish the third confidence value recited
in independent claims 8 and 15, of which claims 13 and 20 respectively
depends from (see Ans. 8). As such, we agree with the Examiner that claims
13 and 20 are directed to an abstract idea (see Final Act. 5; see Ans. 8).
Appellants’ argument that claims 13 and 20 are directed to an
improvement in computer functioning (see Reply Br. 11—12) is not
persuasive. As previously described regarding claims 8 and 15, claims 13
and 20 fail to recite any technical details that constitute the alleged
improvement of the technological process of determining whether certain
software components installed on a machine belong to a particular software
product. Thus, similar to claims 8 and 15, claims 13 and 20 are directed to
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the calculation of a probability that a software component belongs to a
particular software product using a generic computer.
With respect to the second step in the Alice analysis, we agree with the
Examiner that the additional limitations of claims 13 and 20 do not add
“significantly more” to the abstract idea (see Ans. 8). Therefore,
considering the elements of claims 13 and 20 both individually and in
combination, we conclude there are no additional elements that transform
the nature of the claim into a patent-eligible application. See Alice, 134 S.
Ct. at 2355.
Appellants’ additional argument that claims 13 and 20 are necessarily
rooted in computer technology in order to address the Internet-centric
problem of how to provide user access to computer-implemented
applications over the Internet (see Reply Br. 13—14) is not persuasive.
Similar to claims 8 and 15, the problem claims 13 and 20 are attempting to
solve is a problem of product bundling that is not rooted in computer
technology, and thus, is not distinguished from the abstract idea of using a
mathematical relationship to identify related product components. See
Ans. 8. Further, Appellants argue that claims 13 and 20 do not “tie-up” or
otherwise preempt every application of a particular mathematical
relationship (see App. Br. 16). This argument is not persuasive because, as
previously discussed, the absence of complete preemption does not
demonstrate patent eligibility of a claim.
Therefore, we are not persuaded the Examiner erred in finding claims
13 and 20 recite patent-ineligible subject matter. Accordingly, we sustain
the rejection of claims 13 and 20 under 35 U.S.C. 101.
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Remaining Claims
No separate arguments are presented for the remaining dependent
claims (see App. Br. 8). We therefore sustain their 35 U.S.C. § 101 rejection
for the reasons stated with respect to independent claims 8 and 15, as the
remaining dependent claims are also directed to an abstract idea and do not
recite any additional limitations that amount to significantly more than the
abstract idea.
Rejections Under 35 U.S.C. § 103(a)
Independent Claims 8 and 15
Appellants contend Tepper fails to teach or suggest a confidence value
indicative of a likelihood that a software component installed on a machine
belongs to a software product (see App. Br. 17; see also Reply Br. 15).
More specifically, Appellants argue a probability calculated by Tepper’s
source machine/system does not indicate a likelihood that a certain software
component belongs to a particular software product, because the source
machine/system already knows which components belong to a particular
software product (see App. Br. 18—19; see also Reply Br. 16—17). Instead,
the calculated probability indicates a likelihood that a software block (i.e.,
software component) will be executed next, and thus, belongs to a software
“chunk” that is to be downloaded as a collective unit (see App. Br. 18—19;
see also Reply Br. 16—17).
We are not persuaded by Appellants’ contention. The Examiner’s
interpretation of the claimed “software product” such that it reads on
Tepper’s software “chunk,” although broad, is reasonable in light of
Appellants’ specification (see Final Act. 6 (citing Tepper 119); see also
Ans. 8). Neither the appealed claims, nor Appellants’ Specification,
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provides a definition for a “software product” that distinguishes the claimed
“software product” from Tepper’s software “chunk.” Further, although
Appellants’ specification provides examples of software products that are
bundled software products (see, e.g., Spec. 1, 3, 9), we refuse to import
example limitations from the Specification into the claims. See SuperGuide,
358 F.3d at 875.
Appellants further contend Tepper and Reisz fail to teach or suggest
confidence values indicative of a likelihood that software components
installed on a machine are components of a common software product (see
App. Br. 19; see also Reply Br. 17). More specifically, Appellants assert
Reisz discloses a system that determines an interdependence of certain
product options (e.g., “RED truck” and “GREEN upholstery”) based on
existing data of previous customers, and evaluates whether such product
options should be bundled together in a future product (see App. Br. 20; see
also Reply Br. 17—18). Appellants argue Reisz fails to disclose calculating a
probability that two different product options are part of an existing product
(see App. Br. 20; see also Reply Br. 17—18).
This contention is not persuasive. The Examiner’s interpretation of
the claimed “common software product” such that it reads on Reisz’s future
product, although broad, is reasonable in light of Appellants’ Specification
(see Final Act. 7; see also Ans. 9 (citing Reisz 2:25—50)). Neither the
appealed claims, nor Appellants’ Specification, provides a definition for a
“common software product” that distinguishes the claimed “common
software product” from Reisz’s future product.
Appellants also contend Reisz fails to teach or suggest determining a
third confidence value based on first and second confidence values (see App.
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Br. 20; see also Reply Br. 18). More specifically, Appellants assert, even if
Reisz’s probability of product options (e.g., “RED truck” and “GREEN
upholstery”) is considered a “second confidence value,” as recited in claim
8, Reisz does not disclose thereafter establishing another confidence value
based on a first confidence value and the second confidence value, indicative
of a likelihood of either individual product option (e.g., “RED truck” or
“GREEN upholstery”) (see App. Br. 20-21; see also Reply Br. 18—19).
Appellants further assert even if Reisz teaches multiplying two probability
options, the result is not a third confidence value indicating a likelihood that
a second component belongs to a product that the first component may also
belong to (see App. Br. 21; see also Reply Br. 19).
We are not persuaded by Appellants’ contention. We agree with the
Examiner that Reisz teaches multiplying a first probability value
representing a first probability of a first product option (i.e., P(a)) with a
second probability value representing a second probability of a second
product option (i.e., P(b)) resulting in a third probability value representing a
probability of both product options (i.e., P(a)*P(b)) (see Final Act. 7; see
also Ans. 9 (citing Reisz 2:30-40)). We also agree with the Examiner that
Appellants’ Specification discloses establishing a third confidence value
may comprise multiplying the first and second confidence values (see Ans. 9
(citing Spec. 137). In view of the disclosure that a third confidence value
can be established as a product of the multiplication of the first and second
confidence values, Appellants’ contention is not persuasive to distinguish the
claimed determining a third confidence value based on first and second
confidence values from Reisz’s multiplication of probability values.
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Appellants further contend Reisz is non-analogous art (see App.
Br. 21; see also Reply Br. 19). More specifically, Appellants argue: (1)
Reisz is not in the same field of endeavor as the claimed invention; (2) Reisz
is not reasonably pertinent to the particular problem faced by the invention,
because Reisz fails to teach or suggest software components or software
products; (and (3) one would not be motivated to look to a system and
method of predicting potential successful product option combinations if
faced with a problem related to determining whether certain software
components installed on a machine belong to a particular software product
(see App. Br. 21—22; see also Reply Br. 19-20).
This contention is not persuasive. We agree with the Examiner that,
although Reisz does not specifically disclose software components or
software products, Reisz teaches calculating probabilities that product
options will be part of an overall product (see Ans. 9—10). Even assuming
arguendo the lack of disclosure of software components/products placed
Reisz in a different field of endeavor than the claimed invention, Reisz is
reasonably pertinent to the particular problem faced by the invention (i.e.,
accurately identifying whether a software component is part of a software
product). Thus, we agree with the Examiner that Reisz is analogous art.
Therefore, we sustain the rejection of claims 8 and 15 under 35 U.S.C.
§ 103(a).
Claims 9 and 17
Appellants contend the combination of Tepper and Reisz fails to teach
or suggest a fourth confidence value indicative of a likelihood that a second
software component belongs to a software product, where a third confidence
value is established based on first, second, and fourth confidence values (see
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App. Br. 23; see also Reply Br. 21). Appellants assert the cited portions of
Tepper and Reisz relied upon by the Examiner for disclosing the
aforementioned limitation are the same portions the Examiner relied upon
earlier for disclosing the first, second, and third confidence values
previously discussed (see App. Br. 23—24; see also Reply Br. 21).
Appellants further argue none of the cited portions of the applied prior art
teach or suggest confidence values based on earlier derived confidence
values (see App. Br. 23—24; see also Reply Br. 21).
We are not persuaded by Appellants’ contention. As previously
discussed, we agree with the Examiner’s findings that Tepper teaches or
suggests a confidence value indicative of a likelihood that a software
component belongs to a software product (see Final Act. 6 (citing Tepper
119); see also Ans. 8), and Reisz teaches or suggests a probability value
being established based on multiplying probability values (see Final Act. 7;
see also Ans. 9 (citing Reisz 2:30-40)). Thus, we also agree with the
Examiner’s finding that the combination of Tepper and Reisz teaches or
suggests the aforementioned limitation of claims 9 and 17 (see Final Act. 7—
8; see also Ans. 10-11). Appellants’ contention does not persuasively
distinguish the aforementioned limitation from the cited portions of Tepper
and Reisz. Therefore, we sustain the rejection of claims 9 and 17 under
35 U.S.C. § 103(a).
Claims 14 and 21
Appellants contend Reisz fails to teach or suggest a third confidence
value that is a product of a first confidence value and a second confidence
value (see App. Br. 24; see also Reply Br. 22). More specifically, Appellants
assert Reisz merely discloses that different probabilities may be compared
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and combined, but fails to disclose that different confidence values are
multiplied to arrive at a third confidence value (see App. Br. 24; see also
Reply Br. 22).
This contention is not persuasive. As previously discussed, we agree
with the Examiner’s findings that Reisz teaches or suggests a probability
value being established based on multiplying probability values (see Final
Act. 7; see also Ans. 9 (citing Reisz 2:30-40)). Thus, we also agree with the
Examiner’s finding that Reisz teaches or suggests the aforementioned
limitation of claims 14 and 21 (see Final Act. 8; see also Ans. 11).
Appellants’ contention does not persuasively distinguish the aforementioned
limitation from the cited portion of Reisz. Therefore, we sustain the
rejection of claims 14 and 21 under 35 U.S.C. § 103(a).
Claims 12 and 16
Appellants contend Tepper, Reisz, and Bestle, whether considered
individually or in combination, fail to teach or suggest data indicative of at
least one of a location of a first software component, a location of a second
software component, an occurrence of communication between the first and
second software components, a configuration reference between the first and
second software components, an installation time of the first software
component, and an installation time of the second software component,
where the data is used to derive a confidence value (see App. Br. 25—26; see
also Reply Br. 22—23). We are not persuaded by Appellants’ contention. It
is well established that one cannot show non-obviousness by attacking
references individually where the rejection is based upon the teachings of a
combination of references. See In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986); see also In re Keller 642 F.2d 413, 425 (CCPA 1981).
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Appellants’ contention that neither Tepper nor Reisz teaches or suggests the
recited data is not persuasive because the Examiner relied upon Bestle rather
than Tepper or Reisz for teaching the disputed limitation. Further, we agree
with the Examiner’s findings that the combination of Tepper and Reisz
teaches or suggests establishing a confidence value based on the underlying
data (see Ans. 11 (citing Tepper | 5; Reisz 2:25—40)), and that Bestle
teaches the aforementioned data (see Ans. 11—12 (citing Bestle Tflf 41, 46)).2
Therefore, we sustain the rejection of claims 12 and 16 under
35U.S.C. § 103(a).
Claims 10—11 and 18—19
Appellants argue the patentability of claims 10-11 and 18—19 by
merely referring to the arguments made regarding claims 8 and 15, and
further assert that Bestle does not cure the deficiencies of the other cited
references (see App. Br. 25). Because no separate arguments are presented
2 We disagree with the Examiner’s finding that the cited art needs to only
disclose one type of the underlying data recited in claims 12 and 16 because
the claims recite “at least one of.” Claim 12 recites “data indicative of at
least one of a location of [a] first software component^] a location of [a]
second software component^] an occurrence of communication . . . between
[the] first and second software components, a configuration reference .. .
between [the] first and second software components, an installation time of
[the] first software component[,] and an installation time of the second
software component” (emphasis added). Our reviewing court has held that
the plain meaning of “at least one of A and B” is the conjunctive phrase “at
least one of A and at least one of B.” SuperGuide, 358 F.3d at 885—86).
Further, our analysis of the Specification, including the claims, does not
reveal any clear definition or disavowal which would compel a different
construction. See Ex parte Jung, No. 2016-008290, 2017 WL 1130560
(PTAB March 20, 2017) at 3—5. However, as we agree with the Examiner’s
finding that the cited art teaches or suggests all the recited types of the
underlying data, we are not persuaded of Examiner error.
18
Appeal 2017-005337
Application 13/455,997
for claims 10—11 and 18—19, we sustain their rejections for the reasons stated
with respect to independent claims 8 and 15.
DECISION
We affirm the Examiner’s decision to reject claims 8—21.
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
19