Ex Parte Kane et al

Patent Trial and Appeal Board

Mar 11, 2016

11966780 (P.T.A.B. Mar. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111966,780 12/28/2007
20995 7590 03/15/2016
KNOBBE MARTENS OLSON & BEAR LLP
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
FIRST NAMED INVENTOR
Francis J. Kane
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.
MIPS.186A 5715
EXAMINER
BAIRD, EDWARD J
ART UNIT PAPER NUMBER
3692
NOTIFICATION DATE DELIVERY MODE
03/15/2016 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):
j ayna.cartee@knobbe.com
efiling@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANCIS J. KANE and CORY HICKS
Appeal2013-008199
Application 11/966,780
Technology Center 3600
Before THU A. DANG, JAMES R. HUGHES, and JEFFREYS. SMITH,
Administrative Patent Judges.
DANG, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2013-008199
Application 11/966,780
I. STATEivIENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-9 and 11-26. Claim 10 has been canceled. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
A. INVENTION
According to Appellants, the claimed invention relates to a "content
provider system" that "interacts with a network of web sites to provide
behavior-based content to users" (Abst.).
B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary:
1. A computer-implemented method, comprising:
by a computer-implemented content provider system that
communicates over a network with computing devices of users:
receiving and aggregating event data reported to said
content provider system by the computing devices of users, said
event data reported to the content provider system by execution
by said computing devices of widget code included in pages of
a plurality of web sites, said event data revealing, for at least a
first user, multiple web sites accessed by the first user among
said plurality of web sites;
detecting behavioral associations between particular web
sites of said plurality of web sites based on the aggregated event
data, said behavioral associations based on web site access
events, said detecting comprising determining, for each of a
plurality of pairs of web sites, how frequently the two web sites
of the pair co-occur in access event histories of users;
storing data reflective of the detected behavioral
associations in computer storage; and
receiving, by a server of the content provider system,
from a user computing device that has loaded a page of a first
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web site of said plurality of web sites, a request for content to
display on said page, said request generated by the user
computing device by execution of widget code included in the
loaded page; and
responding to said request at least partly by transmitting,
from the server to the user computing device, a content object
for display on the page, said content object including links to
other web sites that, based on the detected behavioral
associations, are behaviorally related to the first web site.
C. REJECTIONS
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Kocol
Cardno
Error
Linden
Martino
Chambers
US 2002/0116494 Al
US 2003/0107575 Al
US 2004/0122943 Al
US 6,912,505 B2
US 2007 /0208729 Al
US 2008/0126515 Al
Aug.22,2002
June 12, 2003
June 24, 2004
June 28, 2005
Sept. 6, 2007
May 29, 2008
Claims 1, 3---6, 11-13, 15, 22, and 24--26 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Martino, Cardno, Error, and
Kocol.
Claims 2, 17-19, and 23 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Martino, Cardno, Error, Kocol, and Chambers.
Claims 7-9, 14, 16, 20, and 21 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Martino, Cardno, Error, Kocol, and
Linden.
II. ISSUES
The principal issue before us is whether the Examiner erred in finding
the combination of Martino, Cardno, Error, and Kocol teaches or would
have suggested "receiving ... from a user computing device that has loaded
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a page ... , a request for content to display on said page," the request being
"generated by the user computing device by execution of widget code
included in the loaded page;" and "responding to said request at least partly
by transmitting ... a content object for display on the page ... including
links to other web sites that ... are behaviorally related to the first web site"
(claim 1 (emphasis added)).
III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Martino
1. Martino discloses a relationship server that tracks end-user
interactions across multiple web sites, and generates recommendations
(Abst.). In particular, the relationship server provides recommendations to
end-users by including the recommendations on web pages served to the
end-user clients, wherein the recommendations include items an end-user
might want to purchase, news stories the end-user might want to read,
discussion groups in which the end-user might want to participate, etc.
(ii 26). A remote aggregation module requests, receives, and presents the
recommendations to the end-user by including them on a web page
displayed (ii 38). The end-user uses the local browser module to select links
or other items displayed on the page created and provided by the remote
aggregation module, wherein the links on the page are coded to notify the
remote aggregation module of the end-user's action before the page is
displayed and uses these notifications to track the end-user's activities and
create relationships between the end-user and the items accessed (ii 41 ).
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Kocol
2. Kocol discloses a content provider that embeds link-tracking code in
each Web page (Abst.). Web pages include code, such as an HTTP image
tag, that causes an Internet browser to automatically request a file from an
identified Internet server (i-f 38). The user, via a browser, requests a page
from the content provider server by clicking on a Web page already
displayed on the browser's window (i-f 46). When a content provider server
receives the request, it sends the appropriate tracking-enabled page, as a
response, back to the user's browser, and a link-tracking code embedded
therein is read and run by the Web browser which then runs an initial
function that creates an array containing, pointing, or referencing links
contained in the received Web page (i-f 4 7). Thus, when the user clicks on a
link within a tracking-embedded page, the link-tracking code is triggered
and the source image file request is then sent from the user's browser to the
link-tracking server (i-f 48).
IV. ANALYSIS
Appellants contend "Kocol discloses link-tracking code embedded in
a web page" but "nothing in Kocol suggests that this link-tracking code is
used by the browser/user computing device to generate a request for content
to display on the page" (App. Br. 8). Although Appellants concede "the
tracked link selection events may themselves be requests for content,"
Appellants contend "these tracked requests are not generated by execution of
the linked tracking code" (id.). According to Appellants, "[ n ]othing in these
paragraphs [of Kocol] suggests that the user device generates, by execution
of the link-tracking code, a request for content to display on a page loaded
by the device" (Reply Br. 2). In particular, "[t]he referenced 'request for
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page,' however, is not a request for content to display on a page loaded by
the device" but "rather, it is a request for a new page" (Reply Br. 3).
Further, although Appellants concede "Martino discloses the detection
of behavioral associations between sites," Appellants contend "Martino
never suggests, for example, using a detected behavioral association between
a first site and a second site to cause a page of the first site to display a link
to the second site" (App. Br. 9). According to Appellants, "nothing in
Martino suggests that any of the 'links displayed on the page' ... is a link to
another site that has a detected behavioral association with the site being
viewed" but rather "the 'links displayed on the page' are merely links to
items being recommended for the user" (Reply Br. 5).
Appellants' contentions appear to tum on what Kocol or Martino
individually fail to disclose or suggest (App. Br. 8-9; Reply Br. 2-5).
However, since the Examiner rejects the claims as obvious over the
combined teachings of Martino, Cardno, Error, and Kocol under 35 U.S.C.
§ 103(a), the test for obviousness is what the combination of references
would have suggested to one of ordinary skill in the art. See In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
We have considered all of Appellants' arguments and evidence
presented. However, we disagree with Appellants' contentions regarding the
Examiner's rejections of the claims. We agree with the Examiner's findings,
and find no error with the Examiner's conclusion that the claims would have
been obvious over the combined teachings.
Martino discloses a relationship server that provides recommendations
to end-users by including the recommendations on web pages served to the
end-user clients, wherein the end-user uses the local browser module to
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select links or other items displayed on the page created (FF 1 ). As
Appellants concede, "Martino discloses the detection of behavioral
associations between sites" (App. Br. 9), wherein links are displayed on the
page which are "links to items being recommended for the user" (Reply Br.
5). As the Examiner finds, "links displayed on the page as disclosed by
Martino ... is indicative of content object including links to other web sites
as claimed" (Ans. 14 (emphasis omitted)).
Thus, although Appellants contend "nothing in Martino suggests that
any of the 'links displayed on the page' ... is a link to another site that has a
detected behavioral association with the site being viewed" (Reply Br. 5),
we agree with the Examiner that Martino's links displayed on the page that
are being recommended for the user (FF 1) are indeed links recommended
based on the detected behavioral association with the site being viewed on
the loaded page (Ans. 4). Accordingly, we find no error with the
Examiner's reliance on Martino for teaching, or at least suggesting,
"receiving ... from a user computing device that has loaded a page ... , a
request for content to display on said page," the request being "generated by
the user computing device" and "responding to said request at least partly by
transmitting ... a content object for display on the page ... including links
to other web sites that ... are behaviorally related to the first web site" as
recited in claim 1.
Furthermore, Kocol discloses web pages which include code (HTTP
image tag) that causes an Internet browser to request a file from a server,
wherein the user, via the browser, requests a page from the server by
clicking on a Web page already displayed on the browser's window, and
when a server receives the request, it sends the appropriate tracking-enabled
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page back to the user's browser (FF 2). As Appellants concede, "the tracked
link selection events may themselves be requests for content" (App. Br. 8).
As the Examiner finds, "the request for the page as selected by the user via a
link as disclosed by Kocol ... is indicative of a request for content to display
on said page, said request generated by the user computing device by
execution of widget code included in the loaded page as claimed" (Ans. 12-
13 (emphasis omitted)).
We find no error with the Examiner's reliance on Kocol for the
teaching, or at least suggestion, of a "request for content" that is "generated
by the user computing device by execution of widget code included in the
loaded page" as recited in claim 1. Although Appellants contend "[Kocol's]
referenced 'request for page,' however, is not a request for content to display
on a page loaded by the device" but "rather, it is a request for a new page"
(Reply Br. 3), we note that the Examiner relies on Martino for such teaching
and suggestion (Ans. 4; FF 1 ).
We find it would have been well within the level of skill of one skilled
in the art, upon reading Kocol' s teaching of a request being generated by
execution of code included in a loaded page (FF 2), to include code-
generated requests as Martino's requests for content to display on a page
loaded by a device (FF 1 ). The Supreme Court has determined the
conclusion of obviousness can be based on the interrelated teachings of
multiple patents, the effects of demands known to the design community or
present in the marketplace, and the background knowledge possessed by a
person having ordinary skill in the art. KSR Int 'l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007). The skilled artisan is "a person of ordinary creativity,
not an automaton." Id. at 421. Appellants have presented no evidence that
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providing a request that is code-generated as a request for content would
have been "uniquely challenging or difficult for one of ordinary skill in the
art." Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed.
Cir. 2007) (citing KSR, 550 U.S. at 418).
On this record, we find no error in the Examiner's rejection of
independent claim 1 and claims 3---6 depending therefrom (App. Br. 9) over
Martino, Cardno, Error, and Kocol.
As for independent claims 11 and 22, Appellants repeat arguments
that Kocol and Martino do not disclose or suggest the contested limitations
of claims 11 and 22, similar to that of claim 1 (App. Br. 10, 12). However,
as discussed above, we agree with the Examiner that the combination of
Martino and Kocol teaches or at least would have suggested the contested
limitations (FF 1-2). Accordingly, we also find no error in the Examiner's
rejection of independent claims 11 and 22, and dependent claims 12 and 24
falling therewith (App. Br. 9) over Martino, Cardno, Error, and Kocol.
Although Appellants provide separate arguments for dependent claims
13, 15, 25, and 26 (App. Br. 11-14), in the arguments, Appellants merely
repeat the claim language and contend that the cited reference( s) never
suggests the contested limitation (id.). However, a statement which merely
points out what a claim recites will not be considered an argument for
separate patentability of the claim. 37 C.F.R. § 41.37(c)(l)(iv). Moreover, a
conclusory statement asserting that the cited references do not disclose or
suggest the contested limitation but that is 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 De Blauwe, 736 F.2d 699, 705 (Fed. Cir.
1984); and Ex parte Belinne, No. 2009-004693, 2009 WL 2477843, slip op.
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at 7-8 (BP AI Aug. 10, 2009) (informative), available at
http://www.uspto.gov/web/offices/dcom/bpai/its/fd09004693.pdf.
Accordingly, we also affirm the rejection of claims 13, 15, 25, and 26
over Martino, Cardno, Error, and Kocol.
Appellants do not provide substantive arguments for claims 2, 7-9,
14, 16-21, and 23 separate from claims 1, 11, and 22 from which they
respectively depend (App. Br. 15). Accordingly, we also affirm the
rejections of claims 2, 17-19, and 23 over Martino, Cardno, Error, and
Kocol in further view of Chambers; and of claims 7-9, 14, 16, 20, and 21
over Martino, Cardno, Error, and Kocol in further view of Linden.
V. CONCLUSION AND DECISION
We affirm the Examiner's rejection of claims 1-9 and 11-26 under
35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED
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