Ex Parte Fellman

Patent Trial and Appeal Board

Apr 14, 2014

11504361 (P.T.A.B. Apr. 14, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte BARRY FELLMAN
__________

Appeal 2012-000197
Application 11/504,361
Technology Center 2100
__________

Before, LORA M. GREEN, JEFFREY N. FREDMAN, and
ERICA A. FRANKLIN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal1 under 35 U.S.C. § 134 involving claims to a widget
service system for defining and delivering a user modifiable visual element.
The Examiner rejected the claims as obvious. We have jurisdiction under
35 U.S.C. § 6(b). We reverse.

1 Appellant identifies the Real Party in Interest as the inventor,
Barry Fellman (see App. Br. 3).
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Statement of the Case
Background
The Specification teaches that “a widget may take the form of a small
desktop application that provides easy access to frequently used functions
and provides some visual information to the user regarding the data returned
by the functions” (Spec. 6 ¶ 0031).
The Claims
Claims 1, 2, 6-12, 18-22, 26-32, 38-40, and 43-48 are on appeal.
Claim 1 is representative and reads as follows:
1. A widget service system for defining and delivering a
user modifiable visual element, the system comprising:
a data storage system comprising a computer
processor configured to store visual element defining data in
a data storage, the data comprising:
image data including a base image component and
other image components;
user-defined data including alphanumeric data
representing information to be conveyed in the defined
visual elements; and
real-time data indicative of current conditions;
a client definition interface configured to receive input
from a client computing device indicative of a user selection
of at least some of the image data, the user-defined data, and
the real-time data to be associated with the visual element;
a generation module configured to generate the visual
element based on the user-selected visual element defining
data; and
a network interface module configured to receive
requests from the client computing device related to the
generated visual element, and send the generated visual
element that is responsive to the request,
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wherein the system is operative to define and deliver
to the client computing device independent of the operating
system of the client computing device making the requests.

The issue
A. The Examiner rejected claims 1, 6-12, 18-21, 26-32, 38-40, 43, 44,
and 46-48 under 35 U.S.C. § 103(a) as obvious over Konfabulator2 and
Kenyon3 (Ans. 4-11).
B. The Examiner rejected claims 2, 22, and 45 under 35 U.S.C. § 103(a)
as obvious over Konfabulator, Kenyon, and Istari4 (Ans. 11-12).
A. 35 U.S.C. § 103(a) over Konfabulator and Kenyon
The Examiner finds that “Konfabulator teaches a widget service
system for defining and delivering a user modifiable visual element”
including a data storage system, image data, user-defined data, and real-time
data (Ans. 4-5). The Examiner finds that Konfabulator teaches “that the user
may input a subset of the user-defined data to search for corresponding
widgets via the ‘Submit Query’ button)” which functions as “a client
definition interface configured to receive input from a client computing
device indicative of a user selection” (Ans. 5). The Examiner finds that
Konfabulator teaches “a generation module configured to generate the visual

2 Konfabulator, http://www.konfabulator.com, December 2004
(We will number this reference sequentially, beginning with the
page showing the Microsoft™ logo and the large X as page
number 1).
3 Lisa Kenyon, “Widgets,” The University of Texas at Austin, Fall
2002.
4 Istari, Will Gadgets trump widgets?
http://www.wincustomize.com/article/81545, July 2005.
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element based on the user- selected visual element defining data (. . .
Konfabulator teaches this limitation in that the search results are generated
based on the search query” (Ans. 5).
The Examiner acknowledges that Konfabulator fails to teach “wherein
the system is operative to define and deliver to the client computing device
independent of the operating system of the client computing device making
the requests” (Ans. 6). The Examiner finds that Kenyon teaches “widgets
created by a scripting language, able to be run independent of the operating
system (see page 4, ‘Any HTML en[]abled device’)” (Ans. 6).
The Examiner finds it obvious to “modify the invention of
Konfabulator to include the above feature of Kenyon for the purpose of
allowing widgets to be used on just about any personal computer in the
world” (Ans. 6).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner’s conclusion that Konfabulator and Kenyon render
claim 1 obvious?
Findings of Fact
1. The Specification teaches that “image element 32 may also
include sub-images which may be visual components that are combined with
the base image along with real-time data and/or other user-specified
alphanumeric data to produce a dynamically generated widget image” (Spec.
6-7 ¶ 0033).
2. Konfabulator teaches that the “utility that introduced Widgets
to the world can now be used on just about any personal computer in the
world. Konfabulator 1.8 introduces complete cross-platform compatibility
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with Widgets on Windows and Mac OS X. Write a widget once, run it
anywhere you want” (Konfabulator 1).
3. Konfabulator discloses an “EarthFall” widget as reproduced
below:

Konfabulator illustrates the “EarthFall” widget with a partially shaded global
map, text describing “EarthFall” as “A global perspective of the earth, The
classic sunclock now displaying on a Konfabulator desktop near you,” and
two buttons, one labeled “More Widgets”and one labeled “Download”
(Konfabulator 2).
4. Konfabulator discloses a menu as reproduced below:
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Konfabulator illustrates a category menu with a “Submit Query” box and a
“Submit a Widget” button, as well as Widget tools and Search tools
(Konfabulator 2).
5. Kenyon teaches that “Standard Web Widgets” are
“Implemented in HTML” and operate on “Any HTML enabled device”
(Kenyon 4).
Principles of Law
“In proceedings before the Patent and Trademark Office, the
Examiner bears the burden of establishing a prima face case of obviousness
based upon the prior art.” In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir.
1992).
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In addition, “obviousness requires a suggestion of all limitations in a
claim.” CFMT, Inc. v. Yieldup Int’l Corp., 349 F.3d 1333, 1342 (Fed. Cir.
2003).
Analysis
Appellant contends that “a user query cannot be considered ‘input
from a client computing device indicative of a user selection’ because a
query is not a user selection, but merely a request for information” (App. Br.
7). Appellant further contends that
A search for some unknown widget that may be stored on a
website is not the same thing as a “user selection of at least
some of the image data, the user-defined data, and the real-
time data to be associated with the visual element” because
the search is merely asking the system to find something,
while the claimed “user selection” is specific to some
particular data.

(App. Br. 7).
The Examiner finds that “[r]egardless of whether a particular input is
used for a query, said particular input remains as user input. Furthermore,
the set of widgets returned in response to user input is the selection” (Ans.
13). The Examiner further finds an alternative interpretation of the claims
where “the ‘user input’ for making a ‘selection’ may be interpreted as the
actuation of any of the ‘Download’ buttons corresponding to any of the
displayed widgets – thereby making a selection of a particular widget for
download” (Ans. 13).
We find that Appellant has the better position. While we agree with
the Examiner that the “Submit Query” box in the menu of the Konfabulator
web page (FF 4) is a user input which is indicative of a user selection, the
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Examiner has not explained why that user selection is “of the image data, the
user-defined data, and the real-time data to be associated with the visual
element” as required by claim 1.
That is, the Specification explains that “image element 32 may also
include sub-images which may be visual components that are combined with
the base image along with real-time data and/or other user-specified
alphanumeric data to produce a dynamically generated widget image” (Spec.
6-7 ¶ 0033; FF 1). In selecting a widget using the “Submit Query” box of
Konfabulator, a user may select a widget or set of widgets based on selection
criteria, but the Examiner has not established any user selection of visual
components, whether image data, user-defined data, or real-time data, which
then dynamical generate an image such as a widget image. Instead, the
visual element of any selected widget(s) is simply the image provided by the
server, not selected by the user.
Therefore, the Examiner has neither argued nor identified evidence
supporting a finding based on Konfabulator, Kenyon, or other record
evidence of an interface which is “indicative of a user selection of at least
some of the image data, the user-defined data, and the real-time data to be
associated with the visual element” as required by claim 1.
Conclusion of Law
The evidence of record does not support the Examiner’s conclusion
that Konfabulator and Kenyon render claim 1 obvious.
B. 35 U.S.C. § 103(a) over Konfabulator, Kenyon, and Istari
This rejection relies upon the underlying obviousness rejection over
Konfabulator and Kenyon. Having reversed the rejection of claim 1, we
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necessarily reverse this obviousness rejection further including Istari, since
the Examiner does not rely upon Istari to teach an interface which is
“indicative of a user selection of at least some of the image data, the user-
defined data, and the real-time data to be associated with the visual element”
as required by claim 1.
SUMMARY
In summary, we reverse the rejection of claims 1, 6-12, 18-21, 26-32,
38-40, 43, 44, and 46-48 under 35 U.S.C. § 103(a) as obvious over
Konfabulator and Kenyon.
We reverse the rejection of claims 2, 22, and 45 under 35 U.S.C.
§ 103(a) as obvious over Konfabulator, Kenyon, and Istari.

REVERSED

cdc