Ex Parte LAKRITZDownload PDFPatent Trials and Appeals BoardMay 28, 201913734161 - (D) (P.T.A.B. May. 28, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/734, 161 01/04/2013 David LAKRITZ 26111 7590 05/30/2019 STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C. 1100 NEW YORK A VENUE, N.W. WASHINGTON, DC 20005 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. 3132.0050006 1002 EXAMINER SMITH, BENJAMIN J ART UNIT PAPER NUMBER 2144 NOTIFICATION DATE DELIVERY MODE 05/30/2019 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): e-office@stemekessler.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID LAKRITZ 1 Appeal2017-008125 Application 13/734,161 Technology Center 2100 Before ERIC S. FRAHM, STACY B. MARGOLIES, and MICHAEL T. CYGAN, Administrative Patent Judges. FRAHM, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Introduction Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of claims 11-16, 18-25, 27-34, and 36-46. Claims 1-10, 17, 26, and 35 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing was conducted on April 15, 2019. 2 1 According to Appellant, the real party in interest is Transperfect Global, Inc., which is an assignee of the instant application (App. Br. 3). 2 Appellant was represented at oral hearing by Gabriel S. Gross, USP TO Registration No. 52,973; and Salvador M. Bezos, USPTO Registration No. 60,889. Mr. Gross and Mr. Bezos also presented oral arguments for related Appeal No. 2017-008085 (U.S. Application No. 13/734,153) and Appeal No. 2017-008087 (U.S. Application No. 13/734, 168), which both, like the Appeal2017-008125 Application 13/734,161 We affirm. Appellant's Disclosed Invention Appellant's disclosed and claimed invention concerns a method for the multilingual translation of documents into target languages in a computer environment, and a computer-readable medium and translation management system for performing the translation method (Title; Abs.; Spec. 1: 13-27, 3:7--4:9; independent claims 11, 20, 29). Appellant's Specification discloses using a visitor module (Fig. 2, 202) for communicating between a visitor's browser (Fig. 2,201) and a web server (Fig. 2,203) in a network environment (see Spec. 4: 19-22, 6:27-8:24; Figs. 2, 3). Exemplary Claim An understanding of the invention can be derived from a reading of claim 11, which is reproduced below with bracketed lettering and emphases added to disputed portions of the claim: 11. A method comprising: receiving, by a visitor module, a request for content served by a web server, wherein the web server operates independently of the visitor module, and wherein the visitor module is configured to intercept web server requests; identifying, by the visitor module, a language associated with the request; retrieving, by the visitor module, the content from the web server, the content comprising markup elements including a comment configured to be ignored when the markup elements are interpreted; [A] detecting, by the visitor module. a directive within the instant application, (i) are continuation applications of U.S. Application No. 10/313,518 filed on December 5, 2002 (see Spec. 1 :4--7), and (ii) claim the benefit of U.S. Provisional Application No. 60/075,740 filed on February 23, 1998. 2 Appeal2017-008125 Application 13/734,161 comment that specifies an operation intended for the visitor module. and ignored when the markup elements are interpreted, for performing language processing on the content specifically by the visitor module; generating, by the visitor module, a localized version of the content based on the operation and the language associated with the request; and responding to the request, by the visitor module, with the localized version of the content. The Examiner's Rejections (1) Claims 11, 20, and 29 stand rejected based on the judicially created doctrine of non-statutory obviousness-type double patenting, over claims 1, 4, and 7 of Lakritz (US 6,526,426 B 1, issued Feb. 25, 2003; or US 6,623,529 Bl, issued Sept. 23, 2003; or US 7,207,005 B2, issued April 17, 2007) in view ofKobayakawa (US 6,119,078; issued Sept. 12, 2000) and Barry (US 7,225,249 Bl; issued May 29, 2007). 3 Final Act. 2--4. (2) The Examiner rejected claims 11, 20, 29, and 44--46 under 35 U.S.C. § 112, first paragraph, as failing to provide adequate written description of the claimed invention so as to reasonably convey to one skilled in the relevant art that the inventor had possession of the claimed invention at the time the application was effectively filed (Final Act. 4--5). 3 Appellant does not present specific arguments for claims 11, 20, and 29, rejected based on the judicially created doctrine of non-statutory obviousness-type double patenting, or otherwise rebut the Examiner's prima facie case in regards to the obviousness-type double patenting rejection of claims 11, 20, and 29 (see App. Br. 8). Therefore, no issue is presented by Appellant as to this rejection, and we summarily sustain the provisional obviousness-type double patenting rejection of claims 11, 20, and 29. 3 Appeal2017-008125 Application 13/734,161 (3) The Examiner rejected claims 11, 12, 18, 20, 21, 27, 29, 30, and 36 under 35 U.S.C. § I03(a) as being unpatentable over the combination of Kobayakawa, Barry, and Raggett, Dave, Client-side Scripting and HTML, W3C Working Draft, pp. 1-10 (March 14, 1997), http://www.w3.org/pub/\\T\V\V/TR/\VD-script-9703_l_4 (hereinafter, "Raggett"). Final Act. 5-10. (4) The Examiner rejected claims 13, 19, 22, 28, 31, 37, and 41--43 under 35 U.S.C. § I03(a) as being unpatentable over the combination of Kobayakawa, Barry, Raggett, and Levy (US 5,944,790; issued Aug. 31, 1999). Final Act. 10-12. (5) The Examiner rejected claims 14, 23, and 32 under 35 U.S.C. § I03(a) as being unpatentable over the combination of Kobayakawa, Barry, Raggett, and Flanagan (US 6,993,471 Bl; issued Jan. 31, 2006). Final Act. 12-13. (6) The Examiner rejected claims 15, 16, 24, 25, 33, and 34 under 35 U.S.C. § I03(a) as being unpatentable over the combination of Kobayakawa, Barry, Raggett, and Chow (US 6,029,175; issued Feb. 22, 2000). Final Act. 14--15. (7) The Examiner rejected claims 38--40 and 44--46 under 35 U.S.C. § I03(a) as being unpatentable over the combination of Kobayakawa, Barry, Raggett, and Capek (US 6,112,192; issued Aug. 29, 2000). Final Act. 15- 17. 4 Appeal2017-008125 Application 13/734,161 ISSUES First Issue: Written Description Rejection Under§ 112, First Paragraph Based on Appellant's arguments (App. Br. 9-10; Reply Br. 2-6), the following written description issue is presented: (1) Did the Examiner err in rejecting claims 11, 20, 29, and 44--46 under 35 U.S.C. § 112, first paragraph, as lacking written description support for certain recitations on the basis that the Specification as originally filed did not reasonably convey to one skilled in the relevant art that the inventor had possession of the claimed invention at the time the application was effectively filed? Second Issue: Obviousness Rejections Under§ 103 (a) Based on Appellant's arguments (App. Br. 10-11; Reply Br. 6-9) with regard to the obviousness rejection of claims 11, 12, 18, 20, 21, 27, 29, 30, and 36, we select claim 11 as representative of the group of claims rejected over the base combination of Kobayakawa, Barry, and Raggett. Notably, Appellant only presents arguments as to claim 11, and relies on the arguments for claim 11 with regard to the patentability of claims 12, 18, 20, 21, 27, 29, 30, and 36. Because Appellant argues remaining dependent claims 13-16, 19, 22-25, 28, 31-34, and 37--46 on a similar basis as presented for claims 11, 20, and 29 from which they ultimately depend, we decide the outcome of the appeal of the obviousness rejections of claims 13- 16, 19, 22-25, 28, 31-34, and 37--46 on the same basis as claims 11, 20, and 29, from which these claims depend. Therefore, based on Appellant's arguments (App. Br. 8-13; Reply Br. 5 Appeal2017-008125 Application 13/734,161 4--9), the following obviousness issue is presented: (2) Did the Examiner err in rejecting claims 11-16, 18-25, 27-34, and 36-46 under 35 U.S.C. § 103(a) over the base combination of Kobayakawa, Barry, and Raggett, because (a) the base combination fails to teach or suggest limitation [A] recited in representative claim 11; and/ or (b) the Examiner did not sufficiently explain why one of ordinary skill in the art would combine the teachings of Kobayakawa, Barry, and Raggett? ANALYSIS We have reviewed the Examiner's rejections (Final Act. 2-17) in light of Appellant's contentions in the Appeal Brief (App. Br. 8-13) and the Reply Brief (Reply Br. 2-10) that the Examiner has erred, as well as the Examiner's response to Appellant's arguments in the Appeal Brief (see Ans. 4--13). Double Patenting Rejection The Examiner rejected claims 11, 20, and 29 based on the judicially created doctrine of non-statutory obviousness-type double patenting, over claims 1, 4, and 7 of Lakritz in view of Kobayakawa and Barry (Final Act. 2--4). In the Examiner's Answer, the Examiner states that"[ e ]very ground of rejection set forth in the Office action dated 10/21/2015 from which the appeal is taken is being maintained by the examiner except for the grounds of rejection (if any) listed under the subheading 'WITHDRAWN REJECTIONS"' (Ans. 2). Because the Examiner's Answer (see generally Ans. 2-14) does not contain any section entitled "Withdrawn Rejections," nor does the Examiner's Answer list any rejections that have been 6 Appeal2017-008125 Application 13/734,161 withdrawn, the non-statutory obviousness-type double patenting rejection is before us on appeal. Appellant does not provide specific arguments showing error in the Examiner's double patenting rejection (see App. Br. 8). In addition, no terminal disclaimer has been filed. Accordingly, we affirm the double patenting rejection of claims 11, 20, and 29. First Issue: Written Description Rejection Under§ 112, First Paragraph The Examiner rejected claims 11, 20, 29, and 44--46 under 35 U.S.C. § 112, first paragraph, as lacking written description support for the following recitations in the claims: (a) limitation [A] recited in claim 11, 4 and as similarly recited in claims 20 and 29 (Final Act. 5; Ans. 5-7); and (b) "wherein generating the localized version of the content comprises generating the localized version of the content in place of the comment" recited in claims 44 and 45, and as commensurately recited in claim 46 (Final Act. 5; Ans. 7-8). Claims 11, 20, and 29: The Examiner finds that "[t]he [S]pecification describes commands in comments, but not for the visitor module and not in the way claimed" (Final Act. 5). The Examiner finds that "nowhere does the [S]pecification describe 4 Limitation [A] of claim 11 recites, "detecting, by the visitor module, a directive within the comment that specifies an operation intended for the visitor module, and ignored when the markup elements are interpreted, for performing language processing on the content specifically by the visitor module" ( claim 11) ( emphasis added). 7 Appeal2017-008125 Application 13/734,161 that the HTML comment tags are 'intended for' the 'visitor module'," nor does the Specification "discuss the claimed 'visitor module' performing the HTML comment tag processing" (Ans. 5). The Examiner finds that the Specification does not discuss interpreting a document using a visitor module, but instead discusses that "[a] web server logs a browser notification[]" (Ans. 7), and/or the Specification describes that the WebPlexer and/or Developer Module perform certain comment processing duties, but not the visitor module (Ans. 6-7). The Examiner further finds "there is no support for the 'intended for' limitation in the claim[ s ]5 and there is no[] support for the 'visitor module' performing the HTML comment processing" (Ans. 7). Appellant contends (App. Br. 9; Reply Br. 2--4) the Specification supports operation by the visitor module, and describes certain functionality of the W ebPlexer and developer module being performed by the visitor module. We agree. Specifically, we agree with Appellant (App. Br. 9) that the Specification (see Spec. 8:26-28) supports the developer module and visitor module being interchangeable, and each capable of performing all of the features of the other. In this light, we agree with Appellant's contention that the "W ebPlexer serves as the Visitor or Developer modules depending on how it is configured" (Reply Br. 3, citing Spec. 24:22-24, 25:6-14), and "both the 5 The Examiner bases this finding, regarding the lack of support for "specif[ying] an operation intended for the visitor module" ( claims 11, 20, 29) ( emphasis added), on "the fact that the term 'intend,' along with its variants ( e.g. intended, intending, intends), is not recited in the [S]pecification" (Ans. 6). 8 Appeal2017-008125 Application 13/734,161 Visitor and Developer modules share the same feature set, under the name WebPlexer" (Reply Br. 4, citing Spec. 24:22-24); see also Hr'g Tr. 46:1-18 ("all of that text after page 24 [ of the Specification] is occurring in either the visitor or developer modules"). In view of the foregoing, we agree with Appellant's conclusion that the Examiner erred in rejecting claims 11, 20, and 29 under 35 U.S.C. § 112, first paragraph, as failing to provide an adequate written description of the invention recited in claims 11, 20, and 29. Claims 44--46: The Examiner finds that in the Specification, "[b ]oth [the] localized version and comment are described[,] but never together and never where the localized version replaces the comment" (Final Act. 5). The Examiner further finds that page 60, lines 33 through page 69, line 32 of Appellant's Specification "disclose[ s] replacing certain terms in a HTML document with localized terms, but the terms that are replaced are not within the comment or as the claims state[] 'in place of the comment"' (Ans. 7). The Examiner also finds that page 61, line 6 through page 63, line 5 of the Specification describes that "[t]he word 'hello' that is replaced with 'bonjour' is not in the HTML comments," and does not describe replacing the comment with the localized version of the content as claimed, but instead describes placing the localized content between two HTML comment tags (Ans. 8). Appellant contends (App. Br. 9-10; Reply Br. 5-6) that page 60, line 33 through page 69, line 32 provide support for the claimed feature of "generating the localized version of the content in place of the comment" as recited in claims 44--46. We agree. Specifically, we agree with Appellant that, as the Examiner notes at page 8 of the Answer, "after replacement of 9 Appeal2017-008125 Application 13/734,161 the text between the comments, the HTML comment tags are removed" (Reply Br. 5, citing Spec. 62:32). We also agree with Appellant that (i) "[ t ]he Examiner's description of the exemplary process described in the [S]pecification, while technically accurate, fully supports the claimed feature - the comments and text between the comments are removed, and the localized content appear[ s] in their place" (Reply Br. 5); and (ii) as a result, "a person of skill in the art would understand with reasonable clarity that the inventor was in possession of the claim feature" (Reply Br. 6). In view of the foregoing, we also agree with Appellant's conclusion that the Examiner erred in rejecting claims 44--46 under 35 U.S.C. § 112, first paragraph, as failing to provide an adequate written description of the invention recited in claims 44--46. Summary Because Appellant's arguments are persuasive of Examiner error, and for the reasons provided above, we do not sustain the Examiner's written description rejection of claims 11, 20, 29, and 44--46. Second Issue: Obviousness Rejection of Representative Claim 11 We disagree with Appellant's arguments with regard to the obviousness rejection of claim 11 over the base combination of Kobayakawa, Barry, and Raggett. As to the obviousness rejection of representative claim 11, we 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. 5-9), and (2) the reasons set forth by the Examiner in the Examiner's Answer in response to Appellant's Appeal Brief (Ans. 9-13), except for the 10 Appeal2017-008125 Application 13/734,161 Examiner's reliance on Capek and Murphy6 as "[a]ltemate rejections" (Final Act. 8; see also Ans. 2), 7 and the Examiner's determination that the "intended for" language in limitation [A] "could be interpreted as intended use or as nonfunctional descriptive material" (Ans. 11). We agree with the Examiner's conclusion of obviousness as to claim 11 over the combination ofKobayakawa, Barry, and Raggett. We provide the following for emphasis only, and highlight and amplify certain arguments and teachings and suggestions of Kobayakawa, Barry, and Raggett as follows. New Arguments Presented in the Reply Brief and at Oral Hearing As an initial matter, it is noted that Appellant's representative, both in the Reply Brief (Reply Br. 8) and at the Oral Hearing, presented arguments not previously relied on in the Appeal Brief (see Hr'g Tr. 9:6-11, 10: 17-21; 19:6-20:24 (arguing that the base combination ofKobayakawa, Barry, and 6 Murphy, Jr., US 6,343,328 Bl, issued Jan. 29, 2002. 7 "Where a reference is relied on to support a rejection, whether or not in a 'minor capacity,' there would appear to be no excuse for not positively including the reference in the statement of the rejection." In re Hoch, 428 F.2d 1341, 1342 n.3 (CCPA 1970). The Examiner (see Final Act. 8-9; Ans. 10-11) ( discussing Capek and Murphy) has not presented a prima facie case for claim 11 using the Capek and/ or Murphy references based on the failure to discuss (i) how the teachings of Capek and/or Murphy are combined with Kobayakawa, Barry, and/or Raggett; (ii) the differences in the prior art references; and (iii) the motivation to combine the teachings of Kobayakawa (or Barry or Raggett) with Capek and/or Murphy. As a result, we agree with Appellant's argument (Reply Br. 9) that "[t]he Capek and Murphy references were never properly presented in combination with any attempt to satisfy the prima facie burden of an obviousness showing," and therefore the Examiner has not shown that any purported combination with Capek and/or Murphy would render the invention recited in any of claims 11, 12, 18, 20, 21, 27, 29, 30, or 36 obvious. 11 Appeal2017-008125 Application 13/734,161 Raggett does not teach a web server that "operates independently" of the visitor module). The new arguments have not been considered because they are untimely. See 37 C.F.R. § 4I.47(e)(l) ("At the oral hearing, appellant may only rely on Evidence that has been previously entered and considered by the primary examiner and present argument that has been relied upon in the brief or reply brief except as permitted by paragraph ( e )(2) of this section"); 37 C.F.R. § 4I.47(e)(2) ("Upon a showing of good cause, appellant ... may rely on a new argument based upon a recent relevant decision of either the Board or a Federal Court"); see also 37 C.F.R. § 4I.37(c)(l)(iv) ("Except as provided for in§§ 41.41, 41.47 and 41.52, any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal"). "Any bases for asserting error, whether factual or legal, that are not raised in the principal brief are waived." Ex parte Borden, 93 USPQ2d 1473, 1474 (BP AI 2010) (informative). See also Optivus Tech., Inc. v. Ion Beam Appl'ns. S.A., 469 F.3d 978, 989 (Fed. Cir. 2006) ("[A]n issue not raised by an appellant in its opening brief ... is waived.") ( citations and quotation marks omitted). Further, Appellant has neither shown good cause for the new arguments, nor relied upon a recent relevant decision of either the Board or a Federal Court. Therefore, because we do not have the benefit of the Examiner's response to arguments that were not presented in the Appeal Brief, we do not further consider Appellant's new and untimely arguments presented in the Reply Brief and at the Oral Hearing. 8 8 See 37 C.F.R. § 41.41(b)(2) (arguments raised in a Reply Brief that were 12 Appeal2017-008125 Application 13/734,161 Limitation [Al of Claim 11 Appellant contends (App. Br. 10-11; Reply Br. 6-8) that the base combination of Kobayakawa, Barry, and Raggett fails to teach or suggest limitation [A] recited in claim 11 for the following reasons: ( 1) Barry does not teach the "directives" recited in limitation [A] "in the context of a proxy server" (App. Br. 10-11); (2) "none of the cited references teach or suggest a visitor module capable of identifying a directive containing an operation intended specifically for the visitor module within a comment" (App. Br. 11 ); (3) "the functionality of a visitor module[] capable of identifying a directive containing an operation intended specifically for the visitor module as recited in claim 11 is unique behavior to the visitor module" (Reply Br. 6-7); ( 4) neither Kobayakawa nor Barry teach or suggest limitation [A] (Reply Br. 7); and ( 4) the detecting operation of limitation [A] of claim 11 is not a mere design choice (Reply Br. 7-8); and ( 5) "[ t ]he ability [ of the visitor module] to handle these directives and present dynamic data on the page requires no alteration to the web server in order to serve cached multilingual content - an unexpected result, to be sure" (Reply Br. 8). 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 also Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,768 (Aug. 14, 2012) ("No new evidence or arguments may be presented at the oral argument."). 13 Appeal2017-008125 Application 13/734,161 We first note that each reference cited by the Examiner must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) ( one cannot show non-obviousness by attacking references individually where the rejections are based on combinations of references) ( citation omitted). In general, Appellant's arguments (App. Br. 10-11; Reply Br. 6-9) are drawn to Barry and Kobayakawa individually, and not to the combination articulated by the Examiner. With regard to representative claim 11, Appellant's contentions that Kobayakawa and Barry individually fail to disclose detecting a directive as recited in limitation [A] are not persuasive in light of the Examiner's' application of a combination of the teachings and suggestions of Kobayakawa, Barry, and Raggett. The Examiner finds (see Ans. 10), and we agree, that both Kobayakawa (see col. 4, 11. 50-52) ("[a] server may be a proxy that receives requests from a number of clients and routes the requests to the appropriate server") and Barry (Ans. 10, citing Barry col. 99, 11. 23-39; col. 123, 11. 50- 60; col. 142, 11. 33--44) disclose a proxy server. Although Appellant may be correct that "Kobayakawa never actually uses the term 'proxy server"' (Hr' g Tr. 13:3--4), one of ordinary skill in the art would understand Kobayakawa's disclosure as a whole to teach or suggest a translation proxy (Fig. 3, 110; see Kobayakawa col. 8, 11. 41---67) and/or a proxy server for performing translation service functionality (see, e.g., Kobayakawa col. 4, 11. 50-52). The Examiner also finds (Ans. 7), and we agree, that (i) Barry discloses detecting a directive within a comment that specifies an operation 14 Appeal2017-008125 Application 13/734,161 intended for a proxy server (i.e., visitor module); and (ii) Raggett discloses retrieving content including markup elements from a web server, ignoring a comment when the markup elements are interpreted (Final Act. 8, citing Raggett pp. 9-10). Therefore, Appellant's contentions (App. Br. 10-11; Reply Br. 7) that Kobayakawa or Barry alone fails to teach or suggest limitation [A] are not persuasive because the combination of Kobayakawa, Barry, and Raggett teaches the claimed features, including a visitor module detecting a directive within a comment that specifies an operation intended for the visitor module. Appellant's argument that "none of the cited references teach or suggest a visitor module capable of identifying a directive containing an operation intended specifically for the visitor module within a comment" (App. Br. 11), is not persuasive in view of the Examiner's well-reasoned explanation that the combination of references teaches or suggests directives "intended specifically for the visitor module" as claimed, because, as the Examiner explains, "commands are 'intended' for any system that can interpret them," and the combination teaches that the commands in the HTML comments are "'intended' for any system that can interpret the commands in HTML comments" (see Ans. 12). Thus, we agree with the Examiner that the combination of Kobayakawa ( which teaches a proxy server) and Barry (which teaches detecting a directive within a comment) teaches "detecting, by the visitor module, a directive within the comment that specifies an operation intended for the visitor module." In view of the foregoing, Appellant has not shown the Examiner erred in determining that the base combination of Kobayakawa, Barry, and Raggett teaches or suggests limitation [A] recited in claim 11. 15 Appeal2017-008125 Application 13/734,161 Motivation to Combine Appellant contends the functionality provided by Barry and/or Raggett, including the recited "directives," is "not obviously combinable with Kobayakawa" (App. Br. 11 ), and the Examiner uses "impermissible hindsight bias" (Reply Br. 8). Although there must be "a reason to combine prior art references" (Kinetic Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d 1342, 1367 (Fed. Cir. 2012) (internal citations omitted)), and an obviousness determination cannot rest upon impermissible hindsight reasoning, our reviewing court "flexibly seeks evidence from before the time of the invention in the form of some teaching, suggestion, or even mere motivation ( conceivably found within the knowledge of an ordinarily skilled artisan) to make the variation or combination" to guard against impermissible hindsight reasoning. Rolls- Royce, PLC v. United Techns. Corp., 603 F.3d 1325, 1338 (Fed. Cir. 2010)(. In the instant case before us, we agree with the Examiner's findings as to the individual references applied (Final Act. 5-8), as well as the Examiner's reasoning articulated set forth in the Answer in response to Appellant's arguments in the Appeal Brief (Ans. 9-10). Appellant's contentions that the Examiner's obviousness determinations are hinged upon impermissible hindsight, and that the claimed invention demonstrates unexpected results, (see Reply Br. 8) are conclusory, unsupported by factual evidence, and unpersuasive to show the non-obviousness of the subject matter of claim 11. See, e.g., In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) ("It is well settled that unexpected results must be established by factual evidence. Mere argument or conclusory statements in the specification does not suffice."). Also, while 16 Appeal2017-008125 Application 13/734,161 not required to, Appellant has not submitted evidence of unexpected results that would not naturally and predictably result from using a proxy server in a translation web browser environment. Therefore, we are not persuaded by Appellant's unsupported statement that processing certain translation functions in a proxy server (i.e., the recited "visitor module"), working in tandem with a customer's existing Web server, provides a single point of entry for delivering multilingual content and eliminates the need for complex CGI scripts or interlinked pages. We also note that this functionality is not recited in the claim. Appellant's arguments (App. Br. 11; Reply Br. 8) that there is no motivation to combine Barry and Raggett with Kobayakawa are not persuasive because we agree with the Examiner's reasoning found at pages 10-11 of the Answer and pages 7-8 of the Final Rejection. Specifically, we agree with the Examiner that one of ordinary skill in the art would have been motivated to combine Kobayakawa's teachings of web page translation with Barry's teaching of detecting directives in comments to provide better handling and control of messages for better problem resolution. See Final Act. 7; Barry col. 54, 11. 4--12 (disclosing a web-based network management product that enables customers to manage services requests to an enterprise service provider through a client application); col. 102, 11. 22-30 ( disclosing allowing customers to perform customized trending and analysis for maintaining better control and problem resolution schemes during the network management process). We also agree with the Examiner that one of ordinary skill in the art would have been motivated to combine the teachings ofKobayakawa and Barry with Raggett's teaching regarding scripts to provide faster translations. See Final Act. 8. We further agree with the 17 Appeal2017-008125 Application 13/734,161 Examiner that, when designing a system, an engineer weighs the disadvantages and advantages of incorporating processing steps in a proxy server versus having the processing steps in the main web server, and chooses where to put the functionality based on the needs and constraints of the system. See Ans. 9. The Examiner thus provides a well-articulated rationale for why one of ordinary skill in the art would use a proxy server ( as taught by Kobayakawa and Barry) as an intermediary between a client browser and a web server when performing translations (see Final Act. 7-8; Ans. 4--5, 9-11). Appellant's arguments to the contrary are unpersuasive, since one of ordinary skill in the art, weighing the advantages and disadvantages of using a proxy for certain translation processing functionality, would predictably find it beneficial to off-load database searching and the use of processing resources while providing translation services from the web server to a proxy server in order to maintain and/or improve processing speed and power at the web server. Summary In view of the foregoing, Appellant has not shown the Examiner erred in rejecting claims 11-16, 18-25, 27-34, and 36-46 under 35 U.S.C. § 103(a) over the base combination of Kobayakawa, Barry, and Raggett, because (a) the base combination fails to teach or suggest limitation [A] recited in representative claim 11; and/or (b) the Examiner properly modified Kobayakawa with Barry and Raggett. Therefore, we sustain the Examiner obviousness rejection of claim 11 over the base combination of Kobayakawa, Barry, and Raggett. For similar reasons as provided for claims 11, 20, and 29 from which claims 13-16, 19, 22-25, 28, 31-34, and 37--46 respectively depend, 18 Appeal2017-008125 Application 13/734,161 Appellant has also failed to show that the Examiner erred in determining that the remaining four combinations applying the base combination further in view of Levy, Flanagan, Chow, and/or Capek teach or suggest the method, computer-readable medium, and system recited in dependent claims 13-16, 19, 22-25, 28, 31-34, and 37--46. Thus, for similar reasons as already discussed as to independent claim 11 above, we also sustain the Examiner's obviousness rejections of claims 13-16, 19, 22-25, 28, 31-34, and 37--46. CONCLUSIONS (1) Appellant has not shown the Examiner erred in rejecting claims 11, 20, and 29 based on the judicially created doctrine of non-statutory obviousness-type double patenting over claims 1, 4, and 7 of Lakritz, in view of Kobayakawa and Barry. (2) The Examiner erred in rejecting claims 11, 20, 29, and 44--46 as being unpatentable under 35 U.S.C. § 112(a) for lack of written description support in the Specification. (3) The Examiner did not err in rejecting claims 11-16, 18-25, 27-34, and 36--46 under 35 U.S.C. § 103(a) as being unpatentable over the base combination of Kobayakawa, Barry, and Raggett because (a) the base combination of Kobayakawa, Barry, and Raggett teaches or suggests limitation [A], as recited in representative claim 11; and (b) the Examiner properly modified Kobayakawa with Barry and Raggett. DECISION (1) The Examiner's rejection of claims 11, 20, and 29 based on the judicially created doctrine of non-statutory obviousness-type double 19 Appeal2017-008125 Application 13/734,161 patenting over claims 1, 4, and 7 ofLakritz, in view ofKobayakawa and Barry, is affirmed. (2) The Examiner's rejection of claims 11, 20, 29, and 44--46 under 35 U.S.C. § 112(a) as failing to provide adequate written description of the claimed invention is reversed. (3) The Examiner's obviousness rejections of claims 11-16, 18-25, 27-34, and 36-46 under 35 U.S.C. § 103(a) over the base combination of Kobayakawa, Barry, and Raggett are affirmed. For the above reasons, we affirm the Examiner's decision to reject claims 11-16, 18-25, 27-34, and 36-46, because at least one ground of rejection has been affirmed for each claim. See 37 C.F.R. § 4I.50(a)(l) ("The affirmance of the rejection of a claim on any of the grounds specified constitutes a general affirmance of the decision of the examiner on that claim, except as to any ground specifically reversed"). 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 20 Copy with citationCopy as parenthetical citation