Ex Parte Levine

Patent Trial and Appeal Board

Jul 22, 2013

10789331 (P.T.A.B. Jul. 22, 2013)

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.
10/789,331 02/27/2004 Brian Levine LOT920040014US1 (045) 9399
46321 7590 07/22/2013
CAREY, RODRIGUEZ, GREENBERG & O''''KEEFE, LLP
STEVEN M. GREENBERG
7900 Glades Road
SUITE 520
BOCA RATON, FL 33434
EXAMINER
DICKERSON, TIPHANY B
ART UNIT PAPER NUMBER
3623
MAIL DATE DELIVERY MODE
07/22/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BRIAN LEVINE
___________

Appeal 2011-010128
Application 10/789,331
Technology Center 3600
____________

Before JOSEPH A. FISCHETTI, MEREDITH C. PETRAVICK, and
PHILIP J. HOFFMANN, Administrative Patent Judges.

PETRAVICK, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-010128
Application 10/789,331

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STATEMENT OF THE CASE
Brian Levine (Appellant) seeks our review under 35 U.S.C. § 134 of
the rejection of claims 1-13. We have jurisdiction under 35 U.S.C. § 6(b).

SUMMARY OF DECISION
We AFFIRM. 1

THE INVENTION
This invention relates to calendaring systems. Spec. para. [0001].
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A method for applying order modifications to
recurring event instances, the method comprising
the steps of:
identifying an event exception in a
calendaring system executing in memory by a
processor of a computer, the event exception
corresponding to a separately defined and
separately stored recurring event instance in the
calendaring system; and,
modifying within the calendaring system at
least one property of said recurring event instance
based upon said separately stored event exception.

1 Our decision will make reference to the Appellant’s Appeal Brief (“Br.,”
filed Dec. 27, 2010) and the Examiner’s Answer (“Ans.,” mailed Mar. 14,
2011).

Appeal 2011-010128
Application 10/789,331

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THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Hall
Matousek
US 2003/0061433 A1
US 7,440,961 B1
Mar. 27, 2003
Oct. 21, 2008
Dawson et al., RFC 2445: Internet Calendaring and Scheduling Core
Object Specification (iCalendar) (Nov. 1998), retrieved from:
http://delivery.acm.org [Hereinafter, Dawson.]

The Examiner took official notice that “at the time of the invention,
iCalendar was a standard file format for calendar data exchange.”
Ans. 8. [Hereinafter, Official Notice.]

The following rejections are before us for review:
1. Claims 1-7 and 9-13 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Matousek and Hall.
2. Claim 8 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Matousek, Hall, and Official Notice, as
evidenced by Dawson.

ISSUE
The issue is whether the Examiner has unreasonably broadly
construed “event exception.”

FINDINGS OF FACT
We find that the following enumerated findings of fact (FF) are
supported by at least a preponderance of the evidence. Ethicon, Inc. v.
Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general
evidentiary standard for proceedings before the Office).
Appeal 2011-010128
Application 10/789,331

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1. The Specification does not contain a lexicographic definition of
“event exception.”
2. The Specification’s paragraph [0015] states: “Notably,
modifications to the event instances can [be] specified separately
for specific event properties in the event instance. Only the
modified properties can be stored as an ‘event exception.’”

ANALYSIS
The rejection of claims 1-7 and 9-13 under 35 U.S.C. § 103(a) as being
unpatentable over Matousek and Hall
The Appellant argues that the Examiner has unreasonably broadly
construed “event exception” to encompass the exceptions disclosed in
Matousek and Hall (Br. 5-10). The Appellant seems to argue that an “event
exception” can only be in the form of stored modified properties of an event
instance, because paragraph [0015] of the Specification (see FF 2) “makes it
clear that an event exception refers to modified properties of an event
instance.” Br. 9-10.
We find this argument unpersuasive as to error in the Examiner’s
rejection because the Appellant is reading limitations from the Specification
into the claims. During examination of a patent application, a pending claim
is given the broadest reasonable construction consistent with the
specification and should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). “[W]e look to the specification
to see if it provides a definition for claim terms, but otherwise apply a broad
interpretation. As this court has discussed, this methodology produces
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Application 10/789,331

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claims with only justifiable breadth.” In re Yamamoto, 740 F.2d 1569, 1571
(Fed. Cir. 1984). Limitations appearing in the specification but not recited
in the claim are not read into the claim. E-Pass Techs., Inc. v. 3Com Corp.,
343 F.3d 1364, 1369 (Fed. Cir. 2003). Neither paragraph [0015] nor the
remainder of the Specification contains a lexicographic definition of “event
exception.” FF 1. Therefore, we are not persuaded by the Appellant’s
argument that the Examiner has applied an unreasonably broad construction
of “event exception” in rejecting claim 1.
The Appellant does not provide separate arguments for claims 2-7 and
9-13, and therefore, these claims will stand or fall with claim 1. 37 C.F.R. §
41.37(c)(1)(vii). Accordingly, the rejection of claims 1-7 and 9-13 under 35
U.S.C. § 103(a) as being unpatentable over Matousek and Hall is reversed.

The rejection of claim 8 under 35 U.S.C. § 103(a) as being unpatentable
over Matousek, Hall, and Official Notice, as evidenced by Dawson
We also shall sustain the standing 35 U.S.C. § 103(a) rejection of
dependent claim 8 as being unpatentable over Matousek, Hall, and Official
Notice, as evidenced by Dawson, because the Appellant has not challenged
such with any reasonable specificity, thereby allowing claim 8 to stand or
fall with its parent claim (see In re Nielson, 816 F.2d 1567, 1572 (Fed. Cir.
1987)).

DECISION
The decision of the Examiner to reject claims 1-13 is affirmed.
Appeal 2011-010128
Application 10/789,331

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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