Ex Parte LE

Patent Trial and Appeal Board

May 22, 2017

12054820 (P.T.A.B. May. 22, 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.
12/054,820 03/25/2008 BILL D. LE CAM920070236US1_8150-0654 6754
112978 7590 05/24/2017
Cuenot, Forsythe & Kim, LLC
20283 State Road 7, Suite 300
Boca Raton, EL 33498
EXAMINER
YESILDAG, LAURA G
ART UNIT PAPER NUMBER
2844
NOTIFICATION DATE DELIVERY MODE
05/24/2017 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):
ibmptomail@iplawpro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BILL D. LE
Appeal 2016-004096
Application 12/054,8201
Technology Center 2800
Before GEORGE C. BEST, WESLEY B. DERRICK, and
BRIAN D. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1—7, 9-18, and 21—24. We have jurisdiction. 35
U.S.C. § 6(b).
We AFFIRM.
1 According to the Appellant, the real party in interest is International
Business Machines Corporation. Appeal Br. 3.
Appeal 2016-004096
Application 12/054,820
STATEMENT OF THE CASE2
Appellant describes the invention as relating to “meeting management
software that distinguishes staff from other meeting invitees and permits
staff based programmatic actions.” Spec. 11. Claim 1, reproduced below
with emphases added to certain key recitations, is illustrative of the claimed
subject matter:
1. A method for designating staff of a meeting comprising:
identifying, via a computing device comprising hardware
that executes computer program code, a staffs2 [3] element of a user
interface for editing or adding meeting software objects, wherein
said staffs element is one of a plurality of different interface
element, wherein said staffs element distinguishes meeting
staff users from other meeting participants, wherein the staff
users of the meeting is a set of one or more humans who are
responsible for one or more facets for conducting the meeting;
receiving, via a computing device comprising hardware
that executes computer program code, input from a user entered
into the staffs element;
distinguishing, via a computing device comprising
hardware that executes computer program code, meeting
staff users from other meeting participants using the input
entered into the staff s[4] element;
acquiring, via a computing device comprising hardware
that executes computer program code, a user selection to save
details of a currently presented meeting object, wherein said
2 In this decision, we refer to the Final Office Action dated February 28,
2014 (“Final Act.”), the Appeal Brief filed October 28, 2014 (“Appeal Br.”),
and the Examiner’s Answer dated October 23, 2015 (“Ans.”).
3 The claim usually recites “staffs element” (without an apostrophe) but the
Specification, at least at times, refers to “staffs element” (with an
apostrophe). See, e.g., Spec. 126. We discern no difference between “staffs
element” and “staffs element” in the context of the Specification. Except
where providing a quotation, we use the term “staffs element” in this opinion
for consistency with the claim’s most typical spelling of the term.
4 See Note 3 supra.
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details comprise establishing a staff group for the meeting, said
staff group consisting of those users defined as staff using the
staffs element;
parsing, via a computing device comprising hardware that
executes computer program code, a set of at least one user
considered staff from the received input entered into the staffs
element;
determining, via a computing device comprising hardware
that executes computer program code, a unique identifier for
each staff user in the parsed set; and
storing, via a computing device comprising hardware that
executes computer program code, at least one record in a meeting
data store that indexes each of the determined unique identifiers
against a meeting identifier such that these determined unique
identifiers signify that associated users are to be considered by
the computing device to be staff for the meeting object.
The Examiner relies upon the prior art below in rejecting the claims
Dec. 11, 2013, Amendment, 2—3.
REFERENCES
on appeal:
Conmy et al.
(hereinafter “Conmy”)
Strick et al.
(hereinafter “Strick”)
Nguyen et al.
(hereinafter “Nguyen”)
O’Sullivan
US 2001/0014866 Al Aug. 16, 2001
US 6, 732,103 B1 May 4, 2004
US 2005/0209914 Al Sep. 22, 2005
US 2006/0271419 Al Nov. 30, 2006
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Application 12/054,820
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1. Claims 1—7, 14—18, and 21—23 pursuant to the written
description requirement of 35 U.S.C. § 112. Ans. 3; see also Final Act. 3.5
Rejection 2. Claim 24 as indefinite under 35 U.S.C. § 112. Ans. 3;
see also Final Act. 5.
Rejection 3. Claims 9-11, 13—16, and 21—23 under 35 U.S.C. § 103
as unpatentable over Strick in view of Nguyen. Ans. 3; see also Final
Act. 6.6
Rejection 4. Claims 1—5 and 24 under 35 U.S.C. § 103 as
unpatentable over Strick in view of O’Sullivan and in further view of
Nguyen. Ans. 3; see also Final Act. 24.
Rejection 5. Claims 6 and 7 under 35 U.S.C. § 103 as unpatentable
over Strick in view of O’Sullivan and further in view of Conmy and
Nguyen. Ans. 3; see also Final Act. 38.
Rejection 6. Claims 12, 17, and 18 under 35 U.S.C. § 103 as
unpatentable over Strick in view of Nguyen and in view of Conmy. Ans. 3;
see also Final Act. 42.
Appellant states that it only seeks review of rejections 4, 5, and 6.
Appeal Br. 10. The statement appears to be in error, however, as Appellant
explicitly argues claim 9, argues rejections 1 and 2 explicitly, and ultimately
argues that rejection of claims “1—24” is in error. Appeal Br. 15—17, 22, 26.
5 We note that claim 24 depends from claim 1. It thus appears that the
Examiner inadvertently did not state that this rejection applies to claim 24.
6 The heading at page 6 of the Final Office Action does not reference claims
21—23, but claims 21—23 are addressed as part of this rejection at pages 19—
24. The error is therefore harmless.
4
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Application 12/054,820
We thus understand that all pending claims and all rejections are on appeal.
We note that Appellant cancelled claims 8 and 19-20. These claims,
therefore, are not on appeal. See December 11, 2013, Applicant Remarks
at 14.7
On appeal, we consider claims as they stand. Thus, we refer to and
consider the claims as provided with Appellant’s December 11, 2013,
amendment and addressed by the Examiner’s February 2, 2014, Final
Action. (We note that the claims recited in both Appellant’s original and
December 23, 2014, Claims Appendix are not consistent with the pending
claims as they now stand.)
ANAFYSIS
Rejection 1, 35 U.S.C. $ 112, written description. The Examiner
rejects claims 1—7, 14—18, and 21—23 pursuant to the written description
requirement of 35 U.S.C. § 112. Ans. 3; see also Final Act. 3. In particular,
the Examiner maintains that Appellant’s original specification does not
demonstrate Appellant’s possession of the instant invention “wherein said
staffs element distinguishes meeting staff users from other meeting
participants, and distinguishing meeting staff users from other meeting
participants using the input entered into the staff’s element.” Final Act. 3^4.
We note that claim 1 recites “wherein said staffs element distinguishes
meeting staff users from other meeting participants,” independent claim 14
7 The Final Action states “[cjlaims 8, 9—10 have been cancelled or
previously cancelled.” Final Act. 2. This statement appears to include a
typographical error. Claims 8, 19, and 20 were cancelled. This error is
harmless because the Examiner correctly states that “[cjlaims 1—7, 9—18, 21—
24 are currently pending” (id.) and, on the merits, addresses the claims
identified as currently pending including claims 9 and 10 (id. at 6—12).
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Application 12/054,820
recites “wherein said staffs element distinguishes meeting staff from other
meeting participants,” and independent claim 21 recites “said user interface
comprising a staffs element that distinguishes staff of a meeting managed by
the meeting management software from other meeting participants.” Dec.
11, 2013, Amendment 2, 9, 11. Claim 1 also recites “distinguishing, via a
computing device . . . , meeting staff users from other meeting participants
using the input entered into the staff’s element.” Id. at 2. We begin our
analysis of the Examiner’s rejection with claim construction related to these
recitations.
Appellant defines staff as humans responsible for conducting some
aspect of a meeting. Spec. 14 (“Meeting staff are members who are
responsible for one or more facets of a meeting.”). In the context of claims
1, 14, and 21 and Appellant’s Specification, the staffs element “distinguishes
staff’ by providing a designation that permits a human to be able to identity
staff as compared to other meeting participants. Spec. Tflf 4—5, 13.
Appellant argues that the Figure 1 shows staff members being
distinguished from others and thus demonstrates Appellant’s possession of
the “distinguishes” recitations. Appeal Br. 14—15. We agree. A portion of
the Specification’s Figure 1 is reproduced below and depicts User Interface
126.
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Application 12/054,820
Figure 1 is a schematic diagram of a system 100 for meeting management
that distinguishes staff from other meeting participants. The Specification
explains that “[o]ne of the interface elements of view 142 can be a staffs
element 144, within which a set of users (e.g., users 132) are able to be
defined as staff for a specific meeting.” Spec. 126. In other words, once a
user enters the names of the staff into staffs element 144, the system has now
distinguished staff from non-staff because a user can readily identify staff by
reviewing who is listed in the Staffs field 144.
The Examiner finds that “GUI input box claimed as ‘staffs element’ is
merely a data field labeling certain data (names of staff members) as staff,
but in no way precludes other labels being assigned to the users.” Ans. 7.
This labeling, however, is enough to demonstrate Appellant’s possession of
the recited “distinguishes” features. Although the Examiner is correct that a
participant labeled “staff’ could also be in a different contact field, those
persons are still distinguished as staff by virtue of their name appearing in
the staffs field. We therefore do not sustain the Examiner’s rejection of
claims 1—7, 14—18, and 21—23 based upon the written description
requirement of 35 U.S.C. § 112.
Rejections 2—6, generally. We review the appealed rejections for
error based upon the issues identified by Appellant and in light of the
arguments and evidence produced thereon. Cf. Ex parte Frye, 94 USPQ2d
1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung,
637 F.3d 1356, 1365 (Fed. Cir. 2011) (“it has long been the Board’s practice
to require an applicant to identify the alleged error in the examiner’s
rejections”)). After considering the evidence presented in this Appeal and
each of Appellant’s arguments, we are not persuaded that Appellant
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Application 12/054,820
identifies reversible error. Thus, we affirm the Examiner’s rejections for the
reasons expressed in the Final Office Action and the Answer. We add the
following primarily for emphasis.
Rejection 2, 35 U.S.C. $ 112, indefiniteness. The Examiner rejects
claim 24 as indefinite under 35 U.S.C. § 112. Ans. 3; see also Final Act. 5.
Claim 24 recites, with emphasis added, “[t]he method of claim 1, wherein
the staffs element comprises a top level of a decomposable hierarchy, which
can be selectively expanded or contracted to show or hide respectively, sub­
categories of staff members for the meeting object.” Dec. 11, 2013,
Amendment 13. The Examiner states that “[t]he claim and the specification
lack any clarification for the proper metes and bounds of what exactly
constitutes [a] decomposable hierarchy.” Ans. 9.
Our reviewing court has explained the process for resolving
indefiniteness rejections during patent prosecution as follows:
We conclude that, when the USPTO has initially issued a well-
grounded rejection that identifies ways in which language in a claim is
ambiguous, vague, incoherent, opaque, or otherwise unclear in
describing and defining the claimed invention, and thereafter the
applicant fails to provide a satisfactory response, the USPTO can
properly reject the claim as failing to meet the statutory requirements
of § 112(b). The satisfactory response by the applicant can take the
form of a modification of the language identified as unclear, a
separate definition of the unclear language, or, in an appropriate case,
a persuasive explanation for the record of why the language at issue is
not actually unclear.
In re Packard, 751 F.3d 1307, 1311 (Fed. Cir. 2014)
Here, the Examiner has identified the term “decomposable” as recited
in claim 24 as unclear. The Specification uses the word “decomposable”
only once, and its usage of the word does not provide further clarity to what
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Appeal 2016-004096
Application 12/054,820
“decomposable” means in the context of claim 24. Spec. | 52. The
Examiner has thus initially issued a well-grounded objection.
Appellant has not met the burden under In re Packard of either
modifying the word decomposable, providing a separate definition of the
word decomposable, or providing a persuasive explanation as to why the
word decomposable is not unclear in the context of claim 24. Rather,
Appellant merely explains that the idea of an expandable and contractable
hierarchy is known in the art. Appeal Br. 15—17. Appellant’s focus on
claim 24’s recitation that the hierarchy “can be selectively expanded or
contracted to show or hide” does not address the core question at hand:
what does the word “decomposable” mean as it is recited in claim 24?
Appellant does not answer this question and does not provide any evidence
as to how a person of skill would understand a “decomposable” hierarchy.
To the extent Appellant’s implied position is that “decomposable”
means nothing more than having an expandable and contractable hierarchy
as recited later in claim 24 (i.e., a collapsible hierarchy), such a position does
not distinguish a “top level of a decomposable hierarchy, which can be
selectively expanded or contracted to show or hide respectively” from “a top
level of a hierarchy, which can be selectively expanded or contracted to
show or hide respectively.” In other words, Appellant’s position renders the
recitation “decomposable” superfluous. Because “claims are interpreted
with an eye toward giving effect to all terms in the claim” {Bicon, Inc. v.
Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006)), we must presume that
the term “decomposable” is intended to further define the scope of claim 24
beyond just a hierarchy which can be selectively expanded or contracted.
On the present record, however, we cannot discern what “decomposable”
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Application 12/054,820
means in this context or how it further defines claim scope. Accordingly, we
sustain the Examiner’s rejection of claim 24 as indefinite.
Rejections 3—6, “staffs element” argument. For the third rejection,
the Examiner rejects claims 9—11, 13—16, and 21—23 as obvious over Strick
in view of Nguyen. Ans. 3; see also Final Act. 6. The Examiner’s fourth,
fifth, and sixth rejections also reference Strick and Nguyen while relying on
additional references as well. Ans. 3; see also Final Act. 24, 38, 42.
With respect to the Examiner’s obviousness rejections, Appellant
argues rejections three through six as a group in asserting that the cited
references do not teach the “staffs element” recited by each independent
claim. See Appeal Br. 18, 22—25. Appellant also argues that various
combinations of references are improper. Appeal Br. 19—21. Therefore,
consistent with the provisions of 37 C.F.R. § 41.37(c)(l)(iv) (2013), we
focus our discussion below on claim 1 and also address, under separate
headings, each of Appellant’s arguments where, for example, Appellant
argues against a combination of references that does not apply to claim 1.
The Examiner finds that Strick discloses a system for managing
meetings where staff is distinguished from other meeting participants. Final
Act. 6—8 (providing citations to Strick). The Examiner finds that “[t]he GUI
from which invitees can be selected comprises ‘the staffs element configured
to accept input defining at least one user who is to be considered a staff
member.’” Id. at 8 (quoting claim 9). The Examiner finds that Strick
discloses that invitees may be chosen by designated group, affiliation, or
category and that it would be “apparent to one of ordinary skill in the art that
a staff category could easily be created as disclosed by Strick’s teachings.”
Id. at 8.
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Application 12/054,820
The Examiner finds that “under a strictly conservative interpretation,
Strick may not appear to explicitly specify said user interface comprising a
staffs element verbatim as ‘staff although it does distinguish invitees by
different positions, such as‘employee.’” Ans. 13. The Examiner finds that
Nguyen, however, teaches event planner software that explicitly teaches
distinguishing between staff and non-staff. Id. at 13—14 (providing citations
to Nguyen); see also Final Act. 8—10 (providing citations to Nguyen). The
Examiner thus concludes that “it would have been obvious to one of
ordinary skill in the art to modify Strick who already discloses that attendees
or invitees of an event can be categorized, to further extend the
categorization to distinguish between staff attendees and other types of
attendees for optimized event management and communication in order to
improve workflow and logistics regarding staff scheduling for the event.”
Ans. 14; see also Final Act. 10. A preponderance of the evidence supports
the Examiner’s findings and conclusion.
Appellant argues (Appeal Br. 23—26) that each claim requires a staffs
element such as that depicted in Figure 3 of the Specification and
reproduced in part below.
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Application 12/054,820
Figure 3 shows an interface 310 for establishing a meeting. Spec. 146. The
staffs field 332 permits a set of meeting attendees designated as staff to be
defined. Spec. 1 50. In other words, the user can enter the names of staff
into field 332 to identify who is staff (persons responsible for some facet of
the meeting).
The Examiner finds that Strick discloses a GUI (graphic user
interface) from which invitees from different categories may be selected.
Ans. 10. For example, employees could be selected. Id.', see also Strick Fig.
10, 6:13—30. We note that, in the case where employees of a company are
responsible for providing a presentation for customers and/or other non­
employees (in the real world, a common scenario that would occur, for
example, in a classroom setting) the list of employees associated with the
meeting would be the same as “staff.” The Examiner further finds that
Nguyen permits defining attendee roles “such as speaker, VIP, vendor, staff,
executives, planner, etc. Ans. 13; see also Nguyen || 244—246. Based on
this evidence, the Examiner concludes that it would have been obvious to
extend Strick’s categorization to distinguish staff members. Ans. 14. In
other words, it would have been obvious to use one of Strick’s customizable
fields for categories of attendees to identify (i.e., distinguish) staff.
Appellant’s argument that neither Strick nor Nguyen individually teach the
staffs element does not persuasively rebut against the Examiner’s conclusion
that the staffs element recitation is obvious in view of the combined
references. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non­
obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references.”).
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Appellant also argues that the Examiner has not adequately identified
what elements of Strick and/or Nguyen are asserted as equivalent to the
recited “staffs element” and request a claim mapping pursuant to MPEP
§ 1207.02(e). Appellant’s citation to MPEP § 1207.02(e) appears to be out
dated. The Ninth Edition of the MPEP applicable as of March 2014 does not
include the language quoted by Appellant. Moreover, decisions an examiner
makes during examination of a discretionary, procedural, or nonsubstantive
nature not directly connected with the merits of issues involving rejections
are reviewable by petition under 37 CFR § 1.181 to the Director, not by
appeal. In re Berger, 279 F.3d 975, 984-85 (Fed. Cir. 2002). In any event,
the Examiner adequately explains why the combination of Strick and
Nguyen renders the staffs element recitation obvious as explained above.
See, e.g., Ans. 9-15. Accordingly, Appellant’s arguments regarding the
“staffs element” do not establish reversible error.
Rejections 3—6, combination of Strick and Nguyen. Appellant argues
that the Examiner provides no proper motivation for combining Strick and
Nguyen. Appeal Br. 19—20. We presume Appellant applies this argument to
each rejection that makes use of this combination of references (i.e.,
rejections 3—6).
As addressed above, the Examiner provides a thorough explanation of
how and why the teachings of these references would be combined. Ans.
13—15. Appellants do not present argument or evidence persuasively
disputing the Examiner’s findings or specific reasoning for combining the
references. Accordingly, this argument does not persuasively identify
Examiner error.
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Rejections 4 and 5, combination of Stride, O’Sullivan, and Nguyen.
Appellant argues that the Examiner provides no proper motivation for
combining Strick, O’Sullivan, and Nguyen. Appeal Br. 20.8 The Examiner,
however, explains why the teachings of these references would have been
combined. Ans. 13—15 (explaining combination of Strick and Nguyen);
Final Act. 28 (explaining further combination of O’Sullivan). In particular,
the Examiner finds that O’Sullivan discloses a meeting management system
“similar” to Strick that adds a feature of defining participants of the meeting
who are not considered staff. Final Act. 28. The Examiner finds that adding
this concept to Strick would make the Strick product “more useful to a
greater customer-base.” Id.
In other words, the Examiner finds that this feature of O’Sullivan
would improve Strick in the same manner it improves O’Sullivan.
Appellant presents no evidence or argument to rebut these findings of fact.
These findings support the Examiner’s obvious conclusion because they
demonstrate that combining O’Sullivan’s teachings with Strick would be no
more than predictable use of prior art elements according to established
functions. KSRInt’lv. Teleflex Inc., 550 U.S 398, 417 (2007). Accordingly,
Appellant’s argument does not identify Examiner error.
Rejections 5 and 6, combination of Strick and Conmy. Appellant
argues that the Examiner has not provided a proper motivation to combine
Strick and Conmy. Appeal Br. 21—22. The Examiner finds, however, that
O’Sullivan discloses presenting calendaring and scheduling software and
references calendar displays such as those of Lotus Notes and Lotus
8 Appellant mistakenly refers to claim 8 at page 20 of the Appeal Brief.
Claim 8 has been cancelled. Dec. 11, 2013, Amendment, 14.
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Organizer. Final Act. 40 (citing O’Sullivan 12). Appellants provide no
argument persuasively disputing the obviousness of incorporating the
calendar functionality taught by O’Sullivan into the meeting planning
software of Strick.
The Examiner further finds that Conmy teaches a selectable calendar
display that can enhance the functionality of Lotus Notes software. Id.
(providing citations to Conmy). The Examiner thus concludes it would have
been obvious to include Conmy’s functionality with the combination of
Strick and O’Sullivan because Conmy expressly teaches that it improves
upon calendaring software (such as Lotus Notes) referenced by O’Sullivan.
Use of Conmy in this fashion is no more than predictable use of prior art
element according to established function. KSR Int’l, 550 U.S. at 417.
Appellant presents no evidence or persuasive argument refuting this
reasoning and therefore do not identify reversible error.
Because Appellant’s arguments do not identify reversible error in any
of the Examiner’s obviousness rejections, we sustain those rejections.9
DECISION
For the above reasons, we reverse the Examiner’s rejection of (1)
claims 1—7, 14—18, and 21—23 pursuant to the written description
requirement of 35 U.S.C. § 112. We affirm the Examiner’s rejection of (2)
claim 24 as indefinite under 35 U.S.C. § 112, (3) claims 9—11, 13—16, and
9 In this instance, we can sustain the Examiner’s obviousness rejection of
claim 24 despite also ruling that the claim is indefinite because Appellant
does not argue that the recitations of claim 24 distinguish it from the prior
art. Claim 24 thus stands or falls with claim 1 which it depends from. 37
C.F.R. §41.37(c)(l)(iv) (2013).
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21—23 under 35 U.S.C. § 103 as unpatentable over Strick in view of Nguyen,
(4) claims 1—5 and 24 under 35 U.S.C. § 103 as unpatentable over Strick in
view of O’Sullivan and in further view of Nguyen, (5) claims 6 and 7 under
35 U.S.C. § 103 as unpatentable over Strick in view of O’Sullivan and
further in view of Conmy and Nguyen, and (6) claims 12, 17, and 18 under
35 U.S.C. § 103 as unpatentable over Strick in view of Nguyen and in view
of Conmy.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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