Ex Parte George et al

Patent Trial and Appeal Board

Mar 7, 2017

13335648 (P.T.A.B. Mar. 7, 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.
13/335,648 12/22/2011 William Brandon George 58083-857843
(B1438US01)
7886
72058 7590 03/09/2017
Kilpatrick Townsend & Stockton LLP
Adobe Systems, Inc. 58083
Mailstop: IP Docketing - 22
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
EXAMINER
YUN, CARINA
ART UNIT PAPER NUMBER
2194
NOTIFICATION DATE DELIVERY MODE
03/09/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ipefiling @ kilpatrickstockton .com
jlhice@kilpatrick.foundationip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM BRANDON GEORGE and KEVIN G. SMITH
Appeal 2016-007486
Application 13/335,6481
Technology Center 2100
Before JOSEPH L. DIXON, SCOTT B. HOWARD, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1—7, 9-21, and 23—36, which constitute all of the claims pending
in this application. Claims 8 and 22 have been cancelled. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Adobe Systems Incorporated as the real party in
interest. App. Br. 1.
Appeal 2016-007486
Application 13/335,648
THE INVENTION
The disclosed and claimed invention is directed to systems and
methods for measuring unsupported user interface actions. Abstract; Spec.
14.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method, comprising:
performing, by a computing device:
identifying a user interface event received by an
application as unsupported by using an event handling hierarchy,
the event handling hierarchy comprising a plurality of event
handlers and an unsupported event module, the event handlers
configured to handle events based on corresponding event levels,
the unsupported event module configured to identify the user
interface event as unsupported based on a determination that the
event handlers are incapable of handling the user interface event;
generating, by the unsupported event module, one or more
records comprising information about the user interface event
and an indication that the user interface event is unsupported; and
storing, by the unsupported event module, the one or more
records at the computing device;
transmitting the one or more records from the computing
device to a collection server;
modifying the application on the computing device based
on an analysis of the one or more records and of a plurality of
records collected at the collection server and associated with
instances of the application on a plurality of computing devices,
the modifying comprising an update to the event handling
hierarchy to include an event handler configured to handle the
user interface event.
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Application 13/335,648
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
https://web.archive.Org/web/20111001004707/http://www.clicktale.com
(hereinafter “ClickTale”).
Claims 1, 3—5, 7, 9, 10, 15—17, 19-21, 23, and 33—36 stand rejected
under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Ramakrishna
in view of Larsson and Golde. Final Act. 4—13.
Claims 2, 6, 11—14, and 18 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Ramakrishna in view of Larsson, Golde,
and ClickTale. Final Act. 13—16.
Claims 24 and 26—32 stand rejected under pre-AIA 35 U.S.C. § 103(a)
as being unpatentable over Yavilevich in view of Larsson, Ramakrishna, and
Golde. Final Act. 16—21.
Claim 25 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Yavilevich in view of Larsson, Ramakrishna, Golde, and
ClickTale. Final Act. 21—22.
2 In addition to the rejections listed below, the Examiner also rejected claims
1—7, 9-21, and 23—26 for failing to comply with the written description
required of 35 U.S.C. § 112, first paragraph. The Examiner withdrew the
rejection. Ans. 2.
Larsson
Golde
Ramakrishna
Yavilevich
US 2004/0107387 A1 June 3, 2004
US 6,951,022 B1 Sept. 27, 2005
US 7,594,166 B1 Sept. 22, 2009
US 7,941,525 B1 May 10, 2011
REJECTIONS2
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Application 13/335,648
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellants’
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellants.
We are not persuaded by Appellants’ arguments regarding the pending
claims, and we incorporate herein and adopt as our own: (1) the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken (Final Act. 4—22), and (2) the reasons and rebuttals set forth in the
Examiner’s Answer in response to Appellants’ arguments (Ans. 21—26). We
incorporate such findings, reasons, and rebuttals herein by reference unless
otherwise noted. However, we highlight and address specific findings and
arguments for emphasis as follows.
Claims 1, 10 and 16
Appellants argue the Examiner erred in finding Ramakrishna teaches
an “event handling hierarchy comprising a plurality of event handlers,” as
recited in claim 1. App. Br. 11—13; Reply Br. 2-4. According to
Appellants, “Ramakrishna’s hierarchy is not a hierarchy that comprises
event handlers. Instead, it is a hierarchy of the elements in the document
(e.g., the DOM).” App. Br. 12.
The Examiner finds Ramakrishna teaches:
[A] plurality of event handlers, the event handlers configured to
handle events based on corresponding event levels .... If no
event handler is attached, the event bubbles up through the
hierarchy of elements until the top of the hierarchy has been
reached, (i.e., until the event bubbles up to the window object),
as represented by steps 516-518).
Final Act. 4 (citing Ramakrishna 11:16—35).
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Application 13/335,648
As the Examiner explains:
[Tjhese sections of Ramakrishna describe the event being
handled in a hierarchical fashion, if the event handler is not
present for that element it is passed up until a handler is reached.
This is the same way applicant describes event handling
hierarchy in applicant’s specification, and Ramakrishna is not
just a hierarchy of elements in a document but rather describes
the event being handled in a hierarchical bubble up fashion,
passed through various levels until the event handler is reached.
Ans. 22.
Claim 1 recites “the event handling hierarchy comprising a plurality
of event handlers and an unsupported event module'’'’ (emphasis added).
Accordingly, the claim does not require a hierarchy of event handlers, as
argued by Appellants. Instead, the claim defines the event handling
hierarchy as including two elements, a plurality of event handlers and an
unsupported even module. Because Appellants’ arguments are not
commensurate with the scope of the claims, they are unpersuasive. See In re
Self, 671 F.2d 1344, 1348 (CCPA 1982).
Appellants further argue the Examiner erred in finding the
combination of Ramakrishna and Larsson teaches an “event handling
hierarchy comprising a plurality of event handlers and an unsupported event
module,” as recited in claim 1. App. Br. 13—15; Reply Br. 4. Specifically,
Appellants contend that the combination of the references would not result
in the claim limitation:
If Larsson’s program module were combined with
Ramakrishna’s hierarchy, the default action would require
reporting an error. However, reporting an error is inconsistent
and is not contemplated by the teachings of Ramakrishna.
Instead, Ramakrishna contemplates that when the hierarchy is
traversed and an event is not attached to an element, a default
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behavior (e.g., a non-dynamic behavior) is used rather than an
error being reported.
App. Br. 14. Additionally, Appellants argue “the combination would lead to
reporting an error every time a default behavior is used” and that “such a
reporting is inefficient and wasteful.” Id.
“The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference . . . .” In re Keller, 642 F.2d 413, 425 (CCPA 1981). Instead, the
relevant issue is “what the combined teachings of the references would have
suggested to those of ordinary skill in the art.” Id. “Combining the
teachings of references does not involve an ability to combine their specific
structures.” In re Nievelt, 482 F.2d 965, 968 (CCPA 1973); see also In re
Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (“It is well-established that a
determination of obviousness based on teachings from multiple references
does not require an actual, physical substitution of elements.”).
Accordingly, we are not persuaded by Appellants’ argument directed to the
bodily incorporation of the references as opposed to the combination of
teachings.
We are also not persuaded by Appellants’ argument regarding
inefficiency. Appellants rely solely on attorney argument. However, it is
well settled that mere attorney arguments and conclusory statements, which
are unsupported by factual evidence, are entitled to little probative value. In
re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson,
494 F.2d 1399, 1405 (CCPA 1974) (attorney argument is not evidence).
Appellants also argue the Examiner erred in finding Golde teaches
“modifying the application on the computing device based on an analysis of
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the one or more records and of a plurality of records collected at the
collection server and associated with instances of the application on a
plurality of computing devices,” as recited in claim 1. App. Br. 15—16.
According to Appellants, “Golde discloses event accessor declarations of an
event that specify executable statements associated with adding and
removing event handlers.” Id. at 16. However, Appellants argue the cited
section of Golde “does not show that adding or removing an event handler is
based on records at collection server from a plurality of computing devices,
where a record comprises information about a user interface event and an
indication that the user interface event is unsupported as recited in the
claims.” Id.
The Examiner finds the combination of Ramakrishna and Larsson
“generat[e], by the unsupported event module, one or more records
comprising information about the user interface event and an indication that
the user interface event is unsupported” and “stor[e], by the unsupported
event module, the one or more records at the computing device; transmitting
the one or more records from the computing device to a collection server.”
Final Act. 5. The Examiner further finds Golde teaches “modifying the
application on the computing device” and modifying the teachings of
Ramakrishna and Larsson to apply it to the recited records. Id. at 6; see also
Ans. 24—25.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The
test for obviousness is not whether the claimed invention is expressly
suggested in any one or all of the references, but whether the claimed subject
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matter would have been obvious to those of ordinary skill in the art in light
of the combined teachings of those references. Keller, 642 F.2d at 425.
Because Appellants’ arguments are directed to Golde alone and not the
combined teachings of the references, we are not persuaded by Appellants’
argument the Examiner erred.
Finally, Appellants argue the Examiner erred in combining the
references. App. Br. 16—17. According to Appellants, “the Examiner does
not provide a rationale or explanation of how the combination results in the
alleged purposes.” App. Br. 16. Accordingly, Appellants argue “the
Examiner’s reason to combine is conclusory and is not supported by any
evidence.” Id.
The Examiner finds a person of ordinary skill in the art would have
modified “the teachings of Ramakrishna by adapting the teachings of
Larsson for the purposes of reporting and storing data relating to any type of
event.” Final Act. 5 (citing Larsson | 8). The Examiner further finds the
person of ordinary skill in the art would have modified “the teachings of
Ramakrishna and Larsson by adapting the teachings of Golde for the
purposes of adding an event handler to handle events for usability.” Id. at 6
(citing Golde 11:30—51).
We determine that Examiner’s finding provides a “rational
underpinning to support the legal conclusion of obviousness.” In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in KSRInt’l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007). Accordingly, the Examiner made
sufficient findings to combine the teachings of the various references.
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Accordingly, we sustain the Examiner’s rejection of claim 1, along
with the rejections of claims 10 and 16, which are argued on the same
grounds. See App. Br. 17
Claims 3—5, 7, 9, 15, 17, 19—21, 23, and 33—36
Appellants argue because the dependent claims 3—5, 7, 9, 15, 17, 19-
21, 23, and 33—36 contain additional features not found in the prior art, the
Examiner erred in rejecting the claims. App. Br. 17. However, Appellants
only discuss a single claim. Specifically, Appellants argue the Examiner
erred in finding Larsson teaches or suggest the additional limitation of claim
36. According to Appellants,
Larsson discloses reporting the occurrence of an event that
utilizes a generic reporting schema and database configured for
transmitting and storing event data for any type of event and a
database for storing data relating to one or more events that is
normalized and configured for storing data relating to any type
of event.
App. Br. 18. However, Appellants contend Larsson does not teach “a
collection server that is configured to generate a report based on records, let
alone that the report is configured to provide metrics about a user interface
event at different user-selectable granularity levels as recited in claim 36.”
Id.
The Examiner finds “Larsson teaches wherein the collection server is
configured to generate a report based on the one or more records and the
plurality of records, wherein the report is configured to provide metrics
about the user interfaces event at different user-selectable granularity
levels,” as recited in claim 36. Final Act. 13. More particularly, the
Examiner finds Larsson teaches “generic reporting schema and database
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configured for transmitting and storing event data for any type of event.” Id.
(citing Larsson | 8). The Examiner further finds the reports generated by
Larsson “store any number types of events and errors at various levels of
event handling.” Ans. 26 (citing Larsson || 24, 25, 36). Accordingly, the
Examiner finds those different reports “would contain the metrics of the
events at different user-selectable levels.” Id.
With regard to dependent claims 3—5, 7, 9, 15, 17, 19—21, 23, and 33—
35, Appellants’ contention amounts to a general denial that fails to address
the Examiner’s findings and is, therefore, insufficient to be considered an
argument for separate patentability. See 37 C.F.R. § 41.37(c)(l)(iv) (“A
statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim.”); In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board
reasonably interpreted Rule 41.37 to require more substantive arguments in
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art.”).
With regard to claim 36 — the only claim argued with specificity —
Appellants’ arguments are directed to Larsson alone and not the combined
teachings of the various references. Specifically, Appellants focus on the
details of the reports generated by Larsson as opposed to what those reports
would contain if generated by the combined teachings of Larsson,
Ramakrishna, and Golde. Therefore, we are not persuaded by Appellants’
argument that the Examiner erred. See Merck, 800 F.2d at 1097; Keller, 642
F.2d at 425.
Accordingly, we sustain the Examiner’s rejection of claims 3—5,1,9,
15, 17, 19-21, 23, and 33-36.
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Claims 2, 6, 11—14, and 18
Appellants argue that ClickTale, the additional reference cited in
rejecting those claims, “fails to remedy the deficiencies noted above with
respect to independent claims 1, 10, and 16.” App. Br. 17. Because we
determine that the rejection of claims 1,10, and 16 are not erroneous for the
reasons discussed above, we sustain the rejections of these claims.
Appellants also argue because the dependent claims 2, 6, 11—14, and
18 contain additional features not found in the prior art, the Examiner erred
in rejecting the claims. App. Br. 17. However, a general denial that fails to
address the Examiner’s findings is insufficient to be considered a separate
argument for patentability of the claims. See 37 C.F.R. § 41.37(c)(l)(iv);
Lovin, 652 F.3d at 1357.
Claim 24 and 26—32
Appellants’ arguments regarding claim 24 are, with one exception
discussed below, substantially the same as the arguments set forth regarding
claim 1. See App. Br. 18—21. For the same reasons discussed above
regarding claim 1, we are not persuaded by those arguments that the
Examiner erred.
In rejecting claim 24, the Examiner relies on the three references
relied on in rejecting claim 1 along with one additional reference.
Appellants’ only new argument is directed to the alleged failure of the
Examiner to provide a rationale for combining the four references. App. Br.
20-21.
We have reviewed the Examiner’s findings on the reasons to combine
the references. Final Act. 17—18. We determine that Examiner’s findings
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provide a “rational underpinning to support the legal conclusion of
obviousness.” Kahn, 441 F.3d at 988.
Accordingly, we sustain the Examiner’s rejection of claim 24, along
with the rejection of dependent claims 26—32, which are not separately
argued. See App. Br. 21.
Claim 25
With respect to dependent claim 25, Appellants merely contend that
because ClickTale, the additional reference used in the rejection of that
claim, does not cure the shortcomings of the other references applied against
claim 24, the Examiner failed to make a prima facie case of obviousness for
claim 25. App. Br. 21. Because we determine that the rejection of claim 24
is not erroneous for the reasons discussed above, we sustain the rejection of
claim 25.
DECISION
For the above reasons, we affirm the Examiner’s decisions rejecting
claims 1—7, 9—21, and 23—36.
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). See 37
C.F.R. § 41.50(f).
AFFIRMED
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