Ex Parte HAO et al

Patent Trial and Appeal Board

Aug 11, 2016

13363602 (P.T.A.B. Aug. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/363,602 02/01/2012 MINGC.HAO
56436 7590 08/15/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82850206 6685
EXAMINER
CHAUHAN, ULKA J
ART UNIT PAPER NUMBER
2614
NOTIFICATION DATE DELIVERY MODE
08/15/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MING C. HAO, HALLDOR JANETZKO, DANIEL KEIM,
UMESHWAR DAYAL, LARS-ERIK HAUG, and MEICHUN HSU
Appeal2015-002392
Application 13/363,602
Technology Center 2600
Before ST. JOHN COURTENAY III, DAVID M. KOHUT, and
TERRENCE W. McMILLIN, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1-11 and 13-26. Claim 12 was cancelled. We have
jurisdiction under 35 U.S.C. § 6(b ).
We Affirm.
Invention
The invention on appeal relates to systems and methods for an
enterprise to "collect feedback from customers . . . to better understand user
sentiment regarding an offering of the enterprise." (Spec. i-f 4.)
Appeal2015-002392
Application 13/363,602
Related PTAB Appeals
Appeal No. 2013-006919 (co-pending Application No. 12/321,612)
decided Nov. 20, 2015 (Examiner Reversed).
Related Patents and Applications
Patent No. 8,643,646 B2 (co-pending Application No. 12/381,716),
issued Feb. 4, 2014, after Appeal Brief was filed on Jan. 29, 2013.
Representative Claim 10
10. An article comprising at least one non-transitory
machine-readable storage medium storing instructions that
upon execution cause a system to:
receive data records representing user feedback, wherein
the data records are associated with geometric coordinates;
generate a graphical visualization including pixels
representing corresponding ones of the data records placed in
positions according to geometric coordinates of the data
records, wherein the positions correspond to geographic
locations in a geographic map; and
[L] place a subset of the pixels sharing common
geometric coordinates in a subregion of nearby positions in the
graphical visualization, wherein the pixels in the subset are
placed in an order in the subregion according to values of a
sentiment attribute of the data records corresponding to the
pixels in the subset.
(Emphasis and bracketed lettering added to highlight contested limitation L.)
Rejections
A. Claims 1-3, 6, 10, 11, 13, 14, 17, and 20-26 are rejected under
35 U.S.C. § 103(a) as being obvious over the combined teachings
and suggestions of Chan et al. (US 8,151,194 Bl; published Apr. 3,
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2012) in view of Cunning et al. (US 2011/0012773 Al; published
Jan. 20, 2011) and Dolph et al. (US 2009/0079766 Al; published
Mar. 26, 2009).
B. Claims 4, 16, and 18 are rejected under 35 U.S.C. § 103(a) as
being obvious over the combined teachings of Chan, Cunning, and
Dolph, and in further view of Morris et al. (US 2012/0150972 Al;
published June 14, 2012).
C. Claim 5 is rejected under 35 U.S.C. § 103(a) as being obvious over
the combined teachings of Chan, Cunning, and Dolph, and in
further view of Prank (US 2008/0059452 Al; published Mar. 6,
2008).
D. Claims 7-9 and 19 are rejected under 35 U.S.C. § 103(a) as being
obvious over the combined teachings of Chan, Cunning, and
Dolph, and in further view of Baker (US 2012/0005045 Al;
published Jan. 5, 2012).
E. Claim 15 is rejected under 35 U.S.C. § 103(a) as being obvious
over the combined teachings of Chan, Cunning, and Dolph, and in
further view of Kreitler et al. (US 2006/002617 0 A 1; published
Feb. 2, 2006).
Grouping of Claims
Based on Appellants' arguments, we decide the appeal of rejection A
of claims 1-3, 6, 10, 11, 13, 17, and 20-26, on the basis of representative
independent claim 10. 1 We address separately argued dependent claim 14,
1 Regarding the claims rejected under rejection A, Appellants advance
separate, substantive arguments for claims 10 and 14. Merely reciting the
language of the claim and asserting the obviousness rejection is "erroneous"
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also rejected under rejection A, infra. Also based upon Appellants'
arguments, we decide the appeal of rejection D of dependent claims 7-9 and
19, on the basis of representative claim 7. We address the remaining claims
rejected under Rejections B, C, and E, infra. See 37 C.F.R.
§ 41.37(c)(l)(iv).
ANALYSIS
We have considered all of Appellants' arguments and any evidence
presented. We disagree with Appellants' arguments, and we adopt as our
own: ( 1) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken, and (2) the reasons and rebuttals set forth in
the Answer in response to Appellants' arguments. (Ans. 3-17.) However,
we highlight and address specific findings and arguments for emphasis in
our analysis below.
Combinability under 35 U.S.C. § 103(a)
As a threshold matter, we decide the question of whether the
Examiner erred by improperly combining the cited references under
35 U.S.C. § 103.
Appellants contend, "no reason existed that would have prompted a
person of ordinary skill in the art to combine Chan, Cunning, and Dolph to
achieve the claimed subject matter [of claim 1 OJ." (App. Br. 10). In
support, Appellants argue the references are "quite disparate" as to subject
matter:
Chan relates to "graphically display[ing] statistics of data
associated with videos posted on a video hosting website."
is not considered an argument for separate patentability. See 37 C.F.R.
§ 41.37(c)(l)(iv). We note claims 1, 6, 17, 20-22, and 26 are only contested
with respect to the comb inability of the cited references.
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Chan, Abstract. As depicted in Fig. 17, relative popularity of a
user's videos can be depicted. Chan, 14:2-6.
In contrast, Cunning refers to plotting and displaying
"pixels corresponding with each of a plurality of location
coordinates determined by the radar and/ or sonar data .... "
Cunning, if [0031]. Moreover, Dolph relates to displaying
markers representing location points in a map, in a fanned
manner.
(App. Br. 10).
Appellants urge the same reasoning applies to the combination of
Chan, Cunning, and Dolph in regards to claims 1, 6, 17, 20-22, and 26. (Id.
at 12-13.)
We do not find Appellants' argument persuasive. To the extent
Appellants are contending Chan, Cunning, and Dolph are non-analogous art,
we note it is insufficient to merely allege the references are different. The
question of whether a prior art reference is "analogous" turns on a two-prong
test: "(1) whether the art is from the same field of endeavor, regardless of
the problem addressed and, (2) if the reference is not within the field of the
inventor's endeavor, whether the reference still is reasonably pertinent to the
particular problem with which the inventor is involved." In re Klein, 64 7
F.3d 1343, 1348 (Fed. Cir. 2011).
Here, we find each of the references relied upon by the Examiner is
from the same general field of endeavor, namely graphically depicting data
on a map. (See, i.e., Chan, Fig. 17; Cunning, Figs. 4--5; Dolph, Fig. 4.)
Chan is directed to the problem of displaying data in a manner "that
provides a rapid look at various video statistics" to a user. (Chan, col. 13, 11.
66-67.) Cunning specifically maps sonar data for the purpose of providing
"greater visual clarity." (Cunning if 17.) Dolph is concerned with
displaying overlapping graphical markers in a manner to allow "a user ...
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to identify each location and/or point represented by a graphical marker on
the map display" so that data "is not lost, hidden or obscured by [the]
overlapping markers." (Dolph i-f 90; see also Fig. 4, depicting lettered
markers E, D, H, B, and A.)
The invention on appeal addresses the problem of providing a
"meaningful analysis" of a large corpus of data. (Spec. i-f 1.) We find Chan,
Cunning, and Dolph, each address this same general problem. Although the
particular types of data analyzed and mapped by the cited references are
different than Appellants' "data records representing user feedback" (claims
1, 10), we find the techniques used to map the data are: (1) from the same
general field of endeavor, and/or, (2) at least reasonably pertinent to the
problem with which the inventors were involved. See Klein, 647 F.3d at
1343. Therefore, on this record, we are not persuaded the Examiner erred by
combining the Chan, Cunning, and Dolph references under § 103.
Rejection A of Independent Claim 10 under 35U.S.C.§103(a)
Issue: Under 35 U.S.C. § 103(a), did the Examiner err in finding the
combination of Chan, Cunning, and Dolph would have taught or suggested
contested limitation L:
place a subset of the pixels sharing common geometric
coordinates in a subregion of nearby positions in the graphical
visualization, wherein the pixels in the subset are placed in an
order in the subregion according to values of a sentiment
attribute of the data records corresponding to the pixels in the
subset, within the meaning of claim 1 O? 2 (emphasis added.)
2 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997). See also Spec. e.g., i-f39 ("Other
implementations may include modifications and variations from the details
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The Examiner incorporates previous findings from the rejection of
claim 1 (Final Act. 8), and finds Dolph teaches the claim 10 limitation:
''place a subset of the pixels sharing common geometric coordinates in a
subregion of nearby positions in the graphical visualization," by disclosing
overlapping graphical markers (i.e., "pixels sharing common geometric
coordinates" - claim 10) which are placed in afanned manner. (Final Act.
5---6, citing Dolph i-f 69; Fig. 4.)
The Examiner further finds Chan teaches or suggests the claim 10
limitation, "wherein the pixels in the subset are placed in an order in the
subregion according to values of a sentiment attribute of the data records
corresponding to the pixels in the subset," by disclosing a popularity map
(i.e., a sentiment attribute) that is colored by country, state, or other region.
(Id. at 8 (citing Chan, col. 14, 11. 3---6).) (emphasis added).
Appellants disagree, and contend, "Dolph provides no teaching or hint
of ordering pixels in the subregion according to values of the sentiment
attribute of the data records." (App. Br. 8.) Appellants further contend,
"[i]ndicating the relative popularity of the user's videos in different regions
in a map, as performed in Chan, provides no teaching or hint of placing
pixels sharing common geometric coordinates in an order in the subregion."
(Id.) Appellants urge, "Cunning does not provide any teaching or hint of
placing pixels sharing common geometric coordinates in a subregion of
nearby positions in a graphical representation." (Id. at 9.)
The Examiner disagrees, and explains, "Dolph is applied to teach,
'place a subset of the pixels sharing common geometric coordinates in a
discussed above. It is intended that the appended claims cover such
modifications and variations.").
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subregion of nearby positions in the graphical visualization.'" (Ans. 5---6.)
The Examiner further explains Chan's map is colored based on popularity
(col. 14, 11. 3---6), which "corresponds to the pixels placed according to
sentiment value." (Ans. 8.)
In the Reply Brief, Appellants essentially restate arguments
previously advanced in the principal Brief. (Reply Br. 4--8.)
We do not find Appellants' arguments persuasive, because (as noted
by the Examiner, Ans. 5---6), Chan, not Dolph, was relied on to teach
"wherein the pixels in the subset are placed in an order in the subregion
according to values of a sentiment attribute of the data records
corresponding to the pixels in the subset." (Claim 10).3 Appellants do not
contest the Examiner's finding (Final Act. 5-6) that Dolph (i-f 69) teaches or
suggests ''place a subset of the pixels sharing common geometric
coordinates in a subregion of nearby positions in the graphical
visualization." 4 (emphasis added).
We also agree with the Examiner that Chan's description of a map
which is colored based on popularity (col. 14, 11. 3---6), teaches or suggests,
"wherein the pixels in the subset are placed in an order in the subregion
according to values of a sentiment attribute of the data records
3 One cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. In re Merck &
Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
4 See Hyatt v. Dudas, 551F.3d1307, 1314 (Fed. Cir. 2008) ("When the
appellant fails to contest a ground of rejection to the Board, ... the Board
may treat any argument with respect to that ground of rejection as waived.").
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corresponding to the pixels in the subset, within the meaning of claim 10.
(Final Act. 8.) (emphasis added).
Although Appellants' Specification discloses exemplary embodiments
of the claimed invention, the scope of the claims is not limited to those
particular embodiments (e.g., see Spec. i-f 39).5 On this record, we are not
persuaded the Examiner's reading of claim 10 on the cited combination of
references is overly broad, unreasonable, or inconsistent with the
Specification. 6 We find placing colored pixels within the boundary of a
geographic region, such as a country or state (Chan, col. 14, 11. 3---6), teaches
or suggests the pixels are being placed in "an order in the subregion," within
the meaning of claim 10.
Further, by coloring the regions according to popularity (Chan, col.
14, 11. 3---6), we find those pixels are placed in an order in the subregion
"according to values of a sentiment attribute," within the meaning of claim
10. The Specification broadly describes "[a] 'sentiment' refers to an
attitude, opinion, or judgment of a human with respect to the offering."
(Spec. i-f 4.) Given this context (id.), we find Chan's ''popularity of a user's
videos" (Chan, col. 14, 11. 3-6) is an opinion or judgment of a user with
5 "[A ]lthough the specification often describes very specific embodiments of
the invention, we have repeatedly warned against confining the claims to
those embodiments ... [C]laims may embrace 'different subject matter
than is illustrated in the specific embodiments in the specification."'
Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en bane)
(citations and internal quotation marks omitted).
6 Because "applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee." In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
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respect to an offering (i.e., a video), and is therefore a "sentiment attribute"
within the meaning of claim 10.
For these reasons, and on this record, we find a preponderance of the
evidence supports the Examiner's underlying factual findings and ultimate
legal conclusion of obviousness regarding independent claim 10. Because
Appellants have not persuaded us the Examiner erred, we sustain rejection A
of representative claim 10 over the combination of Chan, Cunning, and
Dolph. Claims 1-3, 6, 11, 13, 17, and 23-26 fall with claim 10. 7 See
Grouping of Claims, supra.
Rejection A of Dependent Claim 14 under 35 U.S.C. § 103(a)
Claim 14 recites: "The article of claim 13, wherein the instructions
upon execution cause the system to assign colors to the pixels in the
subregion according to the sentiment attribute values, wherein the grouping
causes pixels sharing a same color to be grouped together in the subregion."
(emphasis added).8
Appellants contend claim 14 is allowable for the same reasons as
claim 10, and "claims 1-3 and 20-21 do not recite the language expressly
recited in claim 14," and thus, "the Examiner has failed to establish a prima
facie case of obviousness, since the Examiner has failed to address express
[claim] language." (App. Br. 11-12.)
7 Although Appellants nominally argued and grouped claims (17, 26), (1, 6,
20-22), and (2, 3) under separate headings (App. Br. 12-13), Appellants did
not advance separate, substantive arguments under 3 7 C.F .R.
§ 41.37(c)(l)(iv). See n.4, supra.
8 The Examiner finds the limitations of claim 14 correspond to similar or
commensurate limitations recited in claims 1-3, 20, and 21. (Final. Act. 8.)
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The Examiner finds Chan teaches or suggests the claimed features by
disclosing a popularity map that is colored by country, state, or other region,
"since the map is colored or shaded relative the popularity of the video on
the map, which corresponds with the claimed assigning colors based on
sentiment values." (Ans. 13 (citing Chan, col. 14, 11. 3---6).) The Examiner
further explains that "placing the pixels in a specific state and shading the
area of the state different based on popularity corresponds with grouping the
pixels sharing the same color in the sub region." (Id.)
We find Appellants' first contention is grounded on an erroneous
premise - that the combination of Chan, Cunning, and Dolph does not
teach or suggest the placing step with respect to limitation L, above. (App.
Br. 20 (claim 10).) We found this argument unpersuasive for the reasons
discussed above regarding contested limitation L of claim 10.
Regarding Appellants' second contention, we note the first clause of
claim 14 ("wherein the instructions upon execution cause the system to
assign colors to the pixels in the subregion according to the sentiment
attribute values"), essentially corresponds to claim 3. (emphasis added).
Additionally, we agree with the Examiner that placing identically colored
pixels in a specific country or state corresponds to "wherein the grouping
causes pixels sharing a same color to be grouped together in the subregion"
(claim 14 ), as the pixels are grouped by the country or state.
Therefore, on this record, Appellants have not persuaded us the
Examiner erred. We find a preponderance of the evidence supports the
Examiner's legal conclusion of obviousness regarding dependent claim 14
rejected under rejection A. Therefore, we sustain the Examiner's rejection A
of dependent claim 14.
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Rejection D of claims 7-9 and 19 under 35 U.S.C. § 103(a)
Claim 7 recites: "The method of claim l,further comprising:
receiving input corresponding to a user-activatable control element that
specifies an amount of overlay of pixels sharing geometric coordinates,
wherein placing the plurality of pixels is according to the received input."
(emphasis added). 9
The Examiner finds paragraphs 103 and 118 of Baker teach or suggest
claim 7. (Final Act. 16-17.) Baker teaches that users may interact with a
data graph by "[u]tilizing drop-down boxes 33 and 35" to manipulate the X
and Y axes. (Baker i-f 103, describing Fig. 32.) Baker further teaches that,
based on the user's selection within the drop-down boxes, "there will likely
be more than one member that falls on the same point on the graph" in
situations "[ w ]hen there are only a limited number of possible outcomes" for
the chosen values. (Id.)
Appellants contend Baker provides no teaching or suggestion of a
control element that specifies "an amount of overlay of pixels sharing
geometric coordinates," because "[s]pecifying an amount of overlay of
pixels sharing geometric coordinates refers to specifying how many pixels
that share geometric coordinates can overlay each other." (App. Br. 15-16.)
The Examiner disagrees, and finds a "user can determine the amount
of overlay [in Baker] by changing the degrees of the view and viewing data
points concentrated in a certain area in various degrees." (Ans. 16.)
Furthermore, a user can specify the magnification via a user-initiated zoom
function. (Id. at 17 (citing Baker, Fig. 8).)
9 Claims 8 and 9 depend from claim 7, and claim 19 is commensurate in
scope with claim 7.
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Appellants reply, "[ z ]ooming in and zooming out of data points
merely refers to having a closer view or farther view of data points; there is
no indication that zooming in and zooming out specifies an amount of
overlay of pixels sharing geometric coordinates." (Reply Br. 14.)
We do not find support in the Specification that specifying the amount
of overlay "refers to specifying how many pixels that share geometric
coordinates can overlay each other," as urged by Appellants. (App. Br. 15-
16.) Instead, the Specification broadly discloses that "[a]llowing more
overlay means that some number of data records can share the same
position on the graphical visualization 100." (Spec. i-f 21.)(emphasis added.)
Therefore, we are not persuaded of error regarding the Examiner's
findings. Baker's drop-down boxes allow the user to adjust the X and Y
axes, which in tum, changes the likelihood that multiple data points will
"fall[] on the same point on the graph." (Baker i-f 103.) Thus, we find the
user in Baker (id.) is specifying the "amount of overlay of pixels sharing
geometric coordinates, wherein placing the plurality of pixels is according
to the received input," within the meaning of claim 7. (emphasis added.)
Further, by controlling the level of magnification (i.e., zooming) on an
area containing a set of data points, the user is controlling how, and to what
degree, the points overlap. If the user zooms in, the data points will have
less overlap (i.e., are placed farther apart in the visual field), while if the user
zooms out, the data points will have more overlap (i.e., are placed closer
together). Therefore, we find Baker's teaching of zooming in and zooming
out at least suggests, "receiving input corresponding to a user-activatable
control element that specifies an amount of overlay of pixels sharing
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geometric coordinates, wherein placing the plurality of pixels is according
to the received input," within the meaning of claim 7.
For these reasons, Appellants have not persuaded us the Examiner
erred. We find a preponderance of the evidence supports the Examiner's
legal conclusion of obviousness regarding representative dependent claim 7,
and grouped dependent claims 8, 9, and 19, also rejected under rejection D.
Therefore, we sustain the Examiner's rejection D of dependent claims 7-9
and 19. See Grouping of Claims, supra.
Rejection B, C, and E of claims 4, 5, 15, 16, and 18
Appellants advance no separate, substantive arguments for claims 4,
5, 15, 16, and 18, which are rejected under rejections B, C, and E.
Arguments not made are considered waived. See 37 C.F.R.
§ 41.37(c)(l)(iv). Therefore, we sustain rejections B, C, and E of dependent
claims 4, 5, 15, 16, and 18.
Reply Brief
To the extent Appellants advance new arguments in the Reply Brief
not in response to a shift in the Examiner's position in the Answer, we note
arguments raised in a Reply Brief that were not raised in the Appeal Brief or
are not responsive to arguments raised in the Examiner's Answer will not be
considered except for good cause. See 37 C.F.R. § 41.41(b)(2).
Conclusion
For at least the aforementioned reasons, and on this record, we are not
persuaded the Examiner erred. We find a preponderance of the evidence
supports the Examiner's underlying factual findings and ultimate legal
conclusion of obviousness for all claims on appeal.
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DECISION
We affirm the Examiner's rejections of claims 1-11 and 13-26 under
35 U.S.C. § 103(a).
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R. § 41.50(±).
AFFIRMED
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