Ex Parte Maresca

Patent Trial and Appeal Board

Nov 8, 2018

14199950 (P.T.A.B. Nov. 8, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/199,950 03/06/2014
141697 7590 11/13/2018
HARNESS, DICKEY & PIERCE, P.L.C. (Microsoft)
P.O. BOX 828
BLOOMFIELD HILLS, MI 48303
Louis Maresca
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.
323499-US-CNT 2826
EXAMINER
OWY ANG, MICHELLE N
ART UNIT PAPER NUMBER
2168
NOTIFICATION DATE DELIVERY MODE
11/13/2018 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):
troymailroom@hdp.com
usdocket@microsoft.com
sto-ptomail@hdp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LOUIS MARESCA
Appeal2017-001639
Application 14/199,950 1
Technology Center 2100
Before MAHSHID D. SAADAT, NORMAN H. BEAMER, and
MICHAEL J. ENGLE, Administrative Patent Judges.
ENGLE, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-8, 10-20, and 22. Claims 9 and 21 were indicated as allowable by
the Examiner. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Technology
The application relates to "interfacing an application to data sources
via a web service interface." Spec. Title (capitalization omitted).
Illustrative Claim
Claim 1 is illustrative and reproduced below with certain recitations at
issue emphasized:
1 Appellant states the real party in interest is Microsoft Corp. App. Br. 1.
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Application 14/199,950
1. A computer-readable medium contammg computer-
executable instructions for controlling a computing device to add
a web service as a data source to an application, by a method
compnsmg:
identifying, from a universal description, discovery, and
integration server, one or more web services provided by servers
that are available, wherein each web service is registered with the
universal description, discovery, and integration server by an
available server that provides the web service;
sending to an available web service a request for a web
service description language (WSDL) document describing
services provided by the available web service;
after receiving a WSDL document from the available web
service:
identifying, from the WSDL document, methods
and parameters of the methods that implement services of
the available web service;
receiving a mapping of original names of methods
and parameters to display names of methods and
parameters;
receiving a selection of methods from the display
names and a specification of bindings of input and output
parameters of the methods to data of the application
contained in a data document;
storing an indication of the available web service,
the received mapping of names, and the selected methods
and the specified bindings as a web service profile; and
storing the web service profile as part of the data
document such that the data document contains both the
data of the application and the web service profile; and
updating data of the application based on the web service
profile by:
sending a request to the available web service,
wherein the request includes for a selected method a value
of an input parameter retrieved from the data of the
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application as indicated by the specified bindings for the
selected method;
receiving a response from the available web service,
wherein the response includes a value of an output
parameter for the selected method; and
storing the received values of the output parameters
as data of the application contained in the data document
as indicated by the specified bindings.
Rejections
Claims 1-8, 10-22, and 22 stand rejected under 35 U.S.C. § 101 as
being directed to ineligible subject matter. Final Act. 11.
Claim 22 stands rejected under 35 U.S.C. § 112, first paragraph as
failing to comply with the written description requirement. Final Act. 17.
ISSUES
1. Did the Examiner err in concluding that under § 101 the
following recitations and claims were directed to signals per se:
a. "A computer-readable medium" ( claim 1 );
b. The medium is "a storage medium" ( claim 5);
c. The medium is "a storage device" ( claim 14 );
d. The medium is "a memory" ( claim 1 O);
e. The medium is "an article of manufacture" ( claim 22);
f. The medium is "tangible" (claims 8, 13, 17, and 20);
g. The medium is "not a signal" ( claims 6, 11, 15, and 18);
h. The medium is "not a propagating signal" ( claims 7, 12,
16, and 19)?
2. Did the Examiner err in finding the "article of manufacture"
recited in claim 22 lacks written description under 35 U.S.C. § 112?
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ANALYSIS
§ 101
(Claims 1---8, 10-20, and 22)
Claim 1, the only independent claim on appeal, recites: "A computer-
readable medium containing computer-executable instructions." The
dependent claims then add further recitations to that medium, such as
specifying that the medium is "a storage medium" ( claim 5); "a storage
device" ( claim 14 ); "a memory" ( claim 1 O); "an article of manufacture"
(claim 22); "tangible" (claims 8, 13, 17, and 20); "not a signal" (claims 6,
11, 15, and 18); or "not a propagating signal" (claims 7, 12, 16, and 19).
The Examiner rejects claims 1-8, 10-20, and 22 under § 101 "because
the claimed invention is directed to non-statutory subject matter." Final Act.
11. In particular, the Examiner determines that under the broadest
reasonable interpretation, the claims are not limited to a "non-transitory
tangible medium" and instead can include a "transitory propagating signal."
Id.
The Federal Circuit has held that "transitory forms of signal
transmission such as radio broadcasts, electrical signals through a wire, and
light pulses through a fiber-optic cable .... are not directed to statutory
subject matter." In re Nuijten, 500 F.3d 1346, 1353 (Fed. Cir. 2007). More
recently, a precedential PT AB decision held that, absent disclosure to the
contrary in the specification, "those of ordinary skill in the art would
understand the claim term 'machine-readable storage medium' would
include signals per se." Ex parte Mewherter, 107 USPQ2d 1857, 1862
(PTAB 2013) (precedential). "[W]here, as here, the broadest reasonable
interpretations of ... the claims ... covers a signal per se, the claims must
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be rejected under 35 U.S.C. § 101 as covering non-statutory subject matter."
Id. at 1862; see also Nuijten, 500 F.3d at 1352.
In its training materials for examiners, the USPTO has said, "It is
acceptable to amend the claims to exclude the signal embodiment by adding
'non-transitory' to modify the computer readable media." USPTO Office of
Patent Legal Administration, Evaluating Subject Matter Eligibility Under 35
USC§ 101: August 2012 Update ("August 2012 Update"), at 14, available at
http://www.uspto.gov/patents/law/exam/10l_training_aug2012.pdf.
However, the training also explains, "'Non-transitory' is not a requirement,
but simply one option" and "Applicant can choose other ways to amend the
claim in accordance with the original disclosure." Id. Our task today is
determining whether Appellant's "other ways" are sufficient.
In determining whether a claim is directed to signals per se, the
specification may provide insight into the meaning of the claim terms. For
example, in one recent Federal Circuit decision, "the specification defined
the claimed machine-readable medium as including read-only memory,
random-access memory, CDROMs, magnetic tape, optical data storage
devices, and carrier waves." Mentor Graphics Corp. v. EVE-USA, Inc., 851
F.3d 1275, 1294 (Fed. Cir. 2017) (emphasis added). "Even though carrier
waves differ greatly from the other disclosed mediums (such as CD-ROMs
or magnetic tape), we are bound by the patentee's lexicography." Id. "Thus,
the claims cover carrier signals themselves" and were "not eligible subject
matter." Id.
Here, both Appellant and the Examiner rely on the same paragraph of
the Specification, which discloses:
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The computing device on which the data source interface system
is implemented may include a central processing unit, memory,
input devices ( e.g., keyboard and pointing devices), output
devices (e.g., display devices), and storage devices (e.g., disk
drives). The memory and storage devices are computer-readable
media that may be encoded with computer-executable
instructions that implement the data source interface system,
which means a computer-readable medium that contains the
instructions. In addition, the instructions, data structures, and
message structures may be stored or transmitted via a data
transmission medium, such as a signal on a communication link.
Spec. ,r 19 ( emphasis added). Below, we address each disputed claim term
in view of this disclosure.
A) "A computer-readable medium" (claim 1)
Claim 1 recites, "A computer-readable medium containing computer-
executable instructions ... by a method comprising: [ multiple recited
method steps]." Thus, claim 1 is directed to a "computer-readable medium."
Appellant argues that paragraph 19 of the Specification "uses the
terms 'computer-readable media' and 'data transmission medium"' to
"distinguish [between] devices that contain instructions such as storage
devices [i.e., a form of computer-readable media], and signals that can be
used to transmit instructions [i.e., a form of data transmission medium]."
App. Br. 5. Appellant further argues that "computer-readable medium"
should be "construed as referring to things of the same kind as those
specifically mentioned," specifically a "memory" and "storage device." Id.
at 6 (quoting Purdue Pharma L.P. v. Epic Pharma, LLC, 811 F.3d 1345,
1356 (Fed. Cir. 2016)).
Here, we agree with the Examiner that "paragraph [0019] merely
describes examples of what a computer-readable medium may be (e.g.,
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memory, storage devices[])" but "does not define" or "limit[] to examples
provided." Ans. 4. Thus, we are required to apply the precedential holding
in Mewherter that "those of ordinary skill in the art would understand the
claim term 'machine-readable storage medium' would include signals per
se." Mewherter, 107 USPQ2d at 1862. Because the "computer-readable
medium" itself can be a signal per se, we affirm the Examiner's rejection of
claim 1.
B) "a storage medium" (claim 5)
Claim 5 depends from claim 1 and further recites "the medium is a
storage medium." Thus, claim 5 is directed to a "storage medium."
Appellant provides dictionary definitions to argue that "storage"
implies non-transitory holding of information. App. Br. 11-12.
As other PT AB panels have noted, a specification can provide
evidence limiting a storage medium to exclude signals per se. 2 Here,
however, the Specification does not use the term "storage medium." See
Spec. ,r 19. Thus, as with claim 1, we are required to apply the precedential
Mewherter holding that "those of ordinary skill in the art would understand
the claim term 'machine-readable storage medium' would include signals
per se." Mewherter, 107 USPQ2d at 1862. Because the "storage medium"
itself can be a signal per se, we affirm the Examiner's rejection of claim 5.
2 E.g., Ex parte Callanan, Appeal No. 2015-004416, 2016 WL 6216631, at
*3 (PTAB Oct. 14, 2016) ("While this [computer-readable storage] medium
is not explicitly recited as being non-transitory, we find paragraphs 19 and
20 of Appellants' Specification sufficiently distinguish between a hardware-
based computer readable storage medium and transitory forms of a computer
readable signal medium.").
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C) "a storage device" (claim 14)
Claim 14 depends from claim 1 and further recites "the medium is a
storage device." Thus, claim 14 is directed to a "storage device."
Appellant argues that "the specification specifically states that a
'storage device' is a computer-readable medium and that a 'signal on a
communication link' is a data transmission medium," which creates an
"explicit distinction" between a "storage device" and a "transmission
medium." App. Br. 15.
In context, however, we are not persuaded that the Specification is so
"explicit." Paragraph 19 of the Specification merely describes examples
from paragraph 18 's "the data source interface system in some
embodiments." Paragraph 19 then explains that the computing device of
such a system "may include" various components such as "memory" and
"storage devices (e.g., disk drives)." The next sentence then explains: "The
memory and storage devices are computer-readable media that may be
encoded with computer-executable instructions that implement the ...
system." Thus, contrary to Appellant's argument, the Specification does not
state that all memory and storage devices are "computer-readable media"
rather than "data transmission media." At most, paragraphs 18 and 19
merely explain that "the" sample components "in some embodiments" may
be "computer-readable media."
Moreover, there is no "explicit distinction" between a "storage
device" and a "signal." The Specification explains: "In addition, the
instructions, data structures, and message structures may be stored or
transmitted via a data transmission medium, such as a signal on a
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communication link." Spec. ,r 19 ( emphasis added). Thus, the explicit
disclosure is that data may be "stored" via a signal.
Appellant also provides dictionary definitions to argue that a "storage
device" requires an "apparatus" with "permanent or semipermanent"
recording of data, and therefore is statutory subject matter. App. Br. 16
( quotation omitted).
The Examiner concludes that an "explicit and limiting definition as to
what 'a storage device' is or must include is not provide[d]"; "the storage
device is not necessar[il]y directed to a hardware component such as disk
drives"; and "the 'storage device' is merely a storage medium and could be
interpreted as transmission medium, as stated above." Ans. 9.
We note that some PT AB panels have held that, absent broadening in
the specification, the ordinary meaning of "device" or "storage device"
would have excluded signals per se. 3 Other PT AB panels have reached the
opposite conclusion and held that, absent narrowing in the specification, the
ordinary meaning of "device" would have included signals per se. 4 We
therefore look to the Specification for any guidance.
Here, other than the claims, the only use of the term "storage device"
in the Specification discloses that "[t]he computing device ... may include
3 E.g., Ex parte Davis, Appeal No. 2015-006679, 2016 WL 6995171, at *3-
4 (PTAB Nov. 28, 2016) ("[T]he ordinary meaning of the term device ....
does not, however, encompass a ... 'transitory, propagating signal"' and
"the Specification has been amended to eliminate examples in order to avoid
expanding the scope of 'device' beyond its ordinary meaning").
4 E.g., Ex parte Rincon, Appeal No. 2017-006111, 2018 WL 4356961, at *5
(PT AB Aug. 22, 2018) ("Numerous decisions of the Board similarly
conclude that a recitation of 'computer-readable storage devices' also
encompasses transitory signals, absent contrary disclosure in the
specification.").
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... storage devices (e.g., disk drives)" and "[t]he ... storage devices are
computer-readable media that may be encoded with computer-executable
instructions." Spec. ,r 19. As discussed above, "computer-readable media"
includes signals per se, and "e.g." indicates that "disk drives" are a non-
limiting example of "storage devices." Thus, other than the claims, the
Specification does not impose limits on a "storage device" beyond its
ordinary meaning.
The claims, however, do provide guidance as to the meaning of
"storage device." In particular, claim 15 depends from claim 14 and further
recites "the storage device is not a signal." Claim differentiation therefore
suggests that claim 14 lacks the "not a signal" limitation of dependent claim
15 (i.e., that claim 14 includes a signal). See Curtiss-Wright Flow Control
Corp. v. Velan, Inc., 438 F.3d 1374, 1380 (Fed. Cir. 2006).
"While we recognize that the doctrine of claim differentiation is not a
hard and fast rule of construction, it does create a presumption that each
claim in a patent has a different scope." Comark Commc 'ns, Inc. v. Harris
Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998). "For example, the presence of
a dependent claim that adds a particular limitation gives rise to a
presumption that the limitation in question is not present in the independent
claim." Phillips v. AWH Corp., 415 F.3d 1303, 1314--15 (Fed. Cir. 2005)
( en bane). "This presumption is especially strong where the limitation in
dispute is the only meaningful difference" between the two claims, as is the
case here. Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1374 (Fed.
Cir. 2014).
Appellant argues that "[ t ]hese dependent claims simply explicitly state
what is implicit in independent claim 1" and therefore "cover substantially
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the same subject matter as independent claim 1." App. Br. 11. According to
Appellant, these dependent claims "are included in the event a court would
ultimately disagree with appellant's interpretation of claim 1." Id.
The Federal Circuit, however, has held that "the statute [35 U.S.C.
§ 112, fourth paragraph] stresses that a dependent claim must add a
limitation to those recited in the independent claim. Thus, reading an
additional limitation from a dependent claim into an independent claim
would not only make that additional limitation superfluous, it might render
the dependent claim invalid." Curtiss-Wright, 438 F.3d at 1380 (citation
omitted). Appellant's argument-which would render dependent claim 15
superfluous and invalid-therefore is not persuasive in overcoming the
especially strong presumption here.
Accordingly, we affirm the Examiner's rejection of claim 14.
D) "a memory" (claim 10)
Claim 10 depends from claim 1 and further recites "the medium is a
memory." Thus, claim 10 is directed to a memory.
The Examiner determines that "[ m ]emory is not explicitly defined"
and "may be properly interpreted as" (A) "a virtualized memory which is
merely software per se" or (B) a "transmission medium" ( e.g., a signal per
se). Ans. 8. "Further, dependent claims 11-12 are claiming that the
'memory is not a signal' and 'the memory is not a propagating signal'
respectively, which implies that the 'memory' in claim 10 could include
signal[s]." Id.
Appellant relies on dictionary definitions to argue that "memory" is
limited to "circuitry" and that "[a] claim directed to a 'computer-readable
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medium' cannot reasonably be interpreted to cover a 'technique"' such as
"virtual memory." App. Br. 13-14.
We agree with Appellant that a "computer-readable medium" cannot
reasonably be interpreted to cover a "software per se" virtual memory.
Nevertheless, we agree with the Examiner that claim differentiation from
dependent claim 11 ("the memory is not a signal") creates a rebuttable
presumption that "a memory" in claim 10 can include a signal. For the
reasons discussed above, Appellant has not rebutted this presumption.
Accordingly, we affirm the Examiner's rejection of claim 10.
E) "an article of manufacture" (claim 22)
Claim 22 depends from claim 1 and further recites "the computer-
readable medium is an article of manufacture." Thus, claim 22 is directed to
an article of manufacture.
The Examiner concludes that "' an article of manufacture' is given the
broadest reasonable interpretation, which is directed to any item or object
produced from raw or prepared materials." Ans. 11 ( citing MPEP
§ 2106(1) ). According to the Examiner, a "[ d]ata transmission medium and
signal are directed to item or objects produced (i.e. article of manufacture)."
Id.
Section 101 expressly lists a "manufacture" as a permissible form of
patentable subject matter. The Supreme Court "has read the term
'manufacture' in§ 101 in accordance with its dictionary definition to mean
'the production of articles for use from raw or prepared materials by giving
to these materials new forms, qualities, properties, or combinations, whether
by hand-labor or by machinery."' Diamond v. Chakrabarty, 447 U.S. 303,
308 (1980) (quoting Am. Fruit Growers v. Brogdex Co., 283 U.S. 1, 11
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(1931)); see also Samsung Elecs. Co. v. Apple Inc., 137 S. Ct. 429,435
(2016) (citing Chisum on Patents§ 23.03[2] (2014)). Thus, the term
"manufacture" is "used in the statute in its noun form and therefore refers to
'articles' resulting from the process of manufacture." Nuijten, 500 F .3 d at
1356 ( citation omitted).
We acknowledge that some PT AB panels have held that "articles of
manufacture" include signals per se, 5 whereas others have held that "articles
of manufacture" exclude signals per se. 6 In a precedential decision,
however, the Federal Circuit held that "Nuijten's signals, standing alone, are
not 'manufacture[s]' under the meaning of that term in§ 101." Nuijten, 500
F.3d at 1357; see also id. at 1356 ("These definitions address 'articles' of
'manufacture' as being tangible articles or commodities. A transient electric
or electromagnetic transmission does not fit within that definition."). We
agree with the Federal Circuit that the ordinary meaning of "article of
manufacture" excludes signals per se. Here, the Examiner has not provided
sufficient explanation to deviate from that ordinary meaning in Nuijten.
Thus, we reverse the Examiner's rejection of claim 22 under § 101.
5 E.g., Ex parte Carpio, Appeal No. 2012-000050, 2014 WL 1370444, at *3
(PTAB Apr. 2, 2014) ("Merely labeling the storage medium as an article [of
manufacture ]--yet omitting the essential non-transitory language--does not
guarantee that the claim only covers non-transitory media, particularly in
light of Appellants' non-limiting and open-ended description of the recited
medium in the Specification."); Ex parte Hwang, Appeal No. 2014-005927,
2016 WL 4240332, at *7 (PTAB Aug. 8, 2016) (citing In re Abele, 684 F.2d
902, 909 (CCPA 1982) as refusing to treat a claim for an "[a]pparatus for
displaying data" as an apparatus claim).
6 E.g., Ex parte Chang, Appeal No. 2012-008857, 2015 WL 471280, at *1
(PTAB Feb. 3, 2015) ("Because the claimed invention is directed to an
article of manufacture, the claimed invention does not encompass transitory
media.").
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F) "tangible" (claims 8, 13, 17, and 20)
Dependent claims 8, 13, 17, and 20 further recite that the medium is
"tangible." Thus, these claims are directed to a tangible medium.
Although we agree with Appellant (App. Br. 8) that in Nuijten the
Federal Circuit held that signals "do not themselves comprise some tangible
article or commodity," the Federal Circuit also held that "such a
transmission is ... physical-it exists in the real world and has tangible
causes and effects." Nuijten, 500 F.3d at 1356 (emphasis added).
"Moreover, any tangibility arguably attributed to a signal is embodied in the
principle that it is perceptible----e.g., changes in electrical potential can be
measured." Id.
In its training materials, the US PTO also has stated that it is "[ n Jot
acceptable to just add 'physical' or 'tangible' - Nuijten 's ineligible signals
were physical and tangible." August 2012 Update, at 14. Many PTAB
panels have reached the same conclusion. 7
Appellant has not persuaded us the Examiner erred in determining that
a "tangible" medium can be a signal per se. We therefore affirm the
Examiner's rejection of claims 8, 13, 17, and 20.
G) "not a signal" (claims 6, 11, 15, and 18)
Dependent claims 6, 11, 15, and 18 further recite that the medium "is
not a signal."
7 E.g., Ex parte Kar, Appeal No. 2013-006312, 2015 WL 4640361, at *3
(PTAB July 29, 2015) ("The Examiner correctly concludes that 'tangible'
encompasses physical phenomena that exist in the real world, such as
transitory carrier waves or carrier signals.").
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We agree with Appellant that these claims expressly exclude signals
per se. App. Br. 7. Although the term "non-transitory" is one way to
exclude signals per se, it is not the only way to exclude them. See August
2012 Update, at 14.
The Examiner determines that "[ t ]ransmission medium such as optical
fiber is used to transmit electric signal, and is considered as non-statutory
subject matter." Ans. 6-7. We agree with Appellants, however, that a fiber-
optic cable is an article of manufacture, not a signal per se. App. Br. 7.
Thus, the Examiner has not explained sufficiently why such a fiber-optic
cable would be non-statutory subject matter.
Accordingly, we reverse the Examiner's rejection of claims 6, 11, 15,
and 18.
H) "not a propagating signal" (claims 7, 12, 16, and 19)
Dependent claims 7, 12, 16, and 19 further recite that the medium "is
not a propagating signal."
As with claims 6, 11, 15, and 18 ("not a signal"), the Examiner has
not explained sufficiently how claims 7, 12, 16, and 19 are directed to non-
statutory subject matter.
Accordingly, we reverse the Examiner's rejection of claims 7, 12, 16,
and 19.
§ 112
(Claim 22)
Claim 22 depends from claim 1 and further recites "the computer-
readable medium is an article of manufacture."
The Examiner rejects claim 22 under§ 112, first paragraph for lack of
written description because "' article of manufacture' is not mentioned in the
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specification" and therefore should be considered "new matter." Final Act.
17.
We agree with Appellants, however, that the Specification's
discussion of "disk drives," for example, conveys with reasonable clarity to
persons of ordinary skill in the art that the inventor was in possession of the
invention being that the medium was an article of manufacture. See App.
Br. 18-19; Spec. ,r 19.
Accordingly, we do not sustain the Examiner's rejection of claim 22
under§ 112, first paragraph.
DECISION
For the reasons above, we affirm the Examiner's decision rejecting
claims 1-5, 8, 10, 13, 14, 17, and 20 under§ 101. We reverse the
Examiner's decision rejecting claims 6, 7, 11, 12, 15, 16, 18, 19, and 22
under§ 101 and claim 22 under§ 112, first paragraph.
No time for taking subsequent action in connection with this appeal
may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 4I.50(f).
AFFIRMED-IN-PART
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