Ex Parte PickelsimerDownload PDFPatent Trial and Appeal BoardNov 22, 201713187878 (P.T.A.B. Nov. 22, 2017) Copy Citation 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. 13/187,878 07/21/2011 Lisa A. Pickelsimer 0910-01177 7073 116025 7590 Culhane Meadows PLLC 534 Medlock Road Suite 103 Decatur, GA 30030 EXAMINER OWYANG, MICHELLE N ART UNIT PAPER NUMBER 2168 NOTIFICATION DATE DELIVERY MODE 11/27/2017 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): sanderson@culhanemeadows.com patent @ culhanemeadows .com eOfficeAction@AppColl.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LISA A. PICKELSIMER (Applicant: Lisa A. Pickelsimer) Appeal 2017-005820 Application 13/187,878 Technology Center 2100 Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and DAVID J. CUTITTAII, Administrative Patent Judges. CUTITTA, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1—4, 6—8, and 21—41, which are all of the claims pending in the application.1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Claims 5 and 9—20 are cancelled. Appeal 2017-005820 Application 13/187,878 STATEMENT OF THE CASE According to Appellant, the claims are directed a system and method for recommending wine by correlating individual taste profiles, which are created based on food flavor preferences, to wine flavor characteristics. Abstract, Spec. 34. Claim 1, reproduced below, is representative of the claimed subject matter: 1. A system for recommending wines, comprising: a master wine database for storing a set of intrinsic wine flavor characteristics for each of a plurality of wines, wherein said set of intrinsic wine flavor characteristics comprises values correlated to each of one or more of sweet, oaked, acidic, light bodied, earthy, and tannic, and wherein said values are determined without input from subjective wine tasting experiences; a wine category database for storing a plurality of wine categories, each characterized by a unique subset of said values that is unique relative to others of said unique subsets; a master user database for storing an individual taste profile for a user of said system, wherein said individual taste profile comprises one or more scores indicating said user’s preferences for one or more human-detectable flavors that are both found in wine and found in foods or in beverages other than wine, wherein said individual taste profile is determined without input from said user’s wine tasting experiences, and wherein said one or more scores is correlated to said set of intrinsic wine flavor characteristics; and a computing device comprising: one or more processors; and a wine recommendation engine communicatively coupled with said master wine database, said wine category database, and said master user database, said wine recommendation engine comprising a non-transitory computer-readable medium 2 Appeal 2017-005820 Application 13/187,878 containing program instructions for recommending wines to said user, wherein execution of said program instructions by said one or more processors of said computing device causes said one or more processors to: (a) retrieve said individual taste profile for said user from said master user database; (b) select at least a first wine category from said wine category database that matches said individual taste profile, wherein a first unique subset of values for said first wine category matches said one or more scores of said individual taste profile; and (c) recommend to said user one or more wines from said master wine database having values that match said first unique subset of values for said first wine category. REFERENCES AND REJECTIONS Claims 1—4, 6—8, and 21—41 stand rejected under 35 U.S.C. § 101 as being directed to non-patentable subject matter. Final Act. 20—23. Claims 1—4, 6, 21, 24—28, and 33—37 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Sutton (US 2009/0043640 Al; published Feb. 12, 2009) and Rapp (US 2009/0210321 Al; published Aug. 20, 2009). Final Act. 2A40. Claims 7, 8, 22, 23, 29—32, and 38-41 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Sutton, Rapp, and Eggink (US 7,958,119 B2; issued June 7, 2011). Final Act. 40—56. Our review in this appeal is limited only to the above rejections and the issues raised by Appellant. Arguments not made are waived. See MPEP § 1205.02; 37 C.F.R. §§ 41.37(c)(l)(iv) and 41.39(a)(1). 3 Appeal 2017-005820 Application 13/187,878 ISSUES 1. Does the Examiner err in concluding the invention as recited, is directed to non-patentable subject matter? 2. Does the Examiner err in finding Sutton teaches a “set of intrinsic wine flavor characteristics comprises values . . . wherein said values are determined without input from subjective wine tasting experiences,” as recited in claim 1 and similarly recited in claims 24 and 33? 3. Does the Examiner err in finding the combination of Sutton and Rapp teaches an individual taste profile comprises one or more scores indicating said user’s preferences for one or more human-detectable flavors that are both found in wine and found in foods or in beverages other than wine, wherein said individual taste profile is determined without input from said user’s wine tasting experiences, and wherein said one or more scores is correlated to said set of intrinsic wine flavor characteristics, as recited in claim 1 and similarly recited in claims 24 and 33? 4. Does the Examiner err in finding Eggink teaches “a dominant taste trait” as recited in claim 4 and similarly recited in claims 6—8 and 28—30? 5. Does the Examiner err in finding Eggink teaches “a fourth wine category]” as recited in claim 22 and similarly recited in claims 31 and 40 and in finding Eggink teaches “a fifth wine category]” as recited in claim 23 and similarly recited in claims 32 and 41? CONTENTIONS AND ANALYSIS We disagree with Appellant’s contentions and adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken; and (2) the reasons set forth by the Examiner in 4 Appeal 2017-005820 Application 13/187,878 the Answer in response to the Appeal Brief. With respect to the claims argued by Appellant, we highlight and address specific findings and arguments for emphasis as follows. 35 U.S.C. § 101: Claims 1—4, 6—8, and 21—41 Issue 1 Section 101 provides that “[wjhoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U.S.C. § 101. The provision, however, “contains an important implicit exception: [l]aws of nature, natural phenomena, and abstract ideas are not patentable.” Alice Corp. Pty. Ltd. v. CLS Bank Inti, 134 S. Ct. 2347, 2354 (2014) (quoting Assoc, for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116 (2013)). The “abstract ideas” category embodies the longstanding rule that an idea, by itself, is not patentable. Alice, 134 S. Ct. at 2355 (quoting Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). In Alice, the Supreme Court sets forth an analytical “framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Alice, 134 S. Ct. at 2355 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1296—97 (2012)). The first step in the analysis is to “determine whether the claims at issue are directed to one of those patent-ineligible concepts,” and if so, the second step in the analysis considers the elements of the claims “individually and ‘as an ordered combination’” to determine whether there are additional elements that 5 Appeal 2017-005820 Application 13/187,878 ‘“transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 132 S. Ct. at 1298, 1297). Step One In applying the first step of Alice, the Examiner determines the claimed invention is directed to the abstract idea of “analyzing wines, user taste profile[s] and recommending/show[ing] wines based upon individual tastes or taste profile[s]” (Final Act. 20), i.e., “provid[ing] recommendation[s] based on matching stored information” (Ans. 4). Appellant argues “the Examiner erred by failing to consider the impact of all the claim limitations in determining whether the claims are ‘directed to’ an abstract idea” (App. Br. 11) and instead, the Examiner improperly “[r]e-writ[es] the claims in a simplified version, and then analyzes] the simplified version” (Reply Br. 3). Further, Appellant argues the claims “specify how the interactions among (and the correlations between) the [claimed] data sets are manipulated in order to produce the desired result — specifically, a recommendation that is based on intrinsic wine characteristics and the scores of an individual taste profile that are determined without input from subjective wine tastings” (App. Br. 14 (emphasis omitted); Reply Br. 3^4; see App. Br. 11—12). Additionally, Appellant argues “the claims will not preempt others from using any abstract idea or set of ideas.” Id. at 15. Appellant’s arguments that the claims are not abstract because the claims recite relationships or correlations between stored data sets to form recommendations (App. Br. 12, 14; Reply Br. 3) are not persuasive. Our reviewing court has held that correlating between data sets, i.e., the “concept 6 Appeal 2017-005820 Application 13/187,878 of data collection [and] recognition” is directed to an abstract idea. Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat. Ass ’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014). Indeed, analyzing information by steps people may go through in their minds, without more, are essentially mental processes within the abstract-idea category. See Bancorp Services, L.L. C. v. Sun Life Assurance Co. of Canada (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012). Moreover, our reviewing court has confirmed that systems which generate recommendations for a user by correlating a user preference profile to a database of items to be recommended is patent ineligible. Netflix, Inc. v. Rovi Corporation, 114 F.Supp.3d 927 (N.D.Cal. 2015), affd, 670 Fed. Appx. 704 (Fed. Cir. 2016) (Rule 36) (affirming the district court’s holding that “generating a viewing history database . . . determining at least one of the associated program criteria from the viewing history database that meets a user preference profile . . . [and] applying the at least one of the associated program criteria” in order “to generate at least one personal viewing recommendation” is directed to an abstract idea that is patent ineligible); Hemopetv. Hill’s Pet Nutrition, Inc., 2014 WL 10317302 (C.D. Cal. 2014), affd, 617 Fed. Appx. 997 (Fed. Cir. 2015) (Rule 36) (affirming the district court’s holding that comparing sets of data to determine a relationship and providing a recommendation based on the relationship is directed to an abstract idea that is patent ineligible), cert, denied, 136 S.Ct. 1679 (2016), rehearing denied, 136 S.Ct. 2481 (2016). Furthermore, that the claims do not preempt all forms of the abstraction or may be limited to product recommendation settings, such as product pricing, does not make them any less abstract. See OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362-63 (Fed. Cir. 2015). 7 Appeal 2017-005820 Application 13/187,878 Still further, Appellant’s arguments that the claimed invention “recites a number of intricate relationships between and among a set of discrete and concrete claim elements” (App. Br. 12; Reply Br. 3 4) and that the Examiner “analyzes] [a] simplified version” of the claimed invention (Reply Br. 3), are not persuasive. The “discrete and concrete claim elements” which Appellant highlights are databases and the types of data stored in those databases. App. Br. 11—12. In particular, Appellant’s arguments directed to the architecture of the claimed system, i.e., the databases {id.), are more suited to the second step of the Alice analysis and are, therefore, discussed at Step Two below. Moreover, Appellant’s invention is not directed to improvements to database technology. Instead, Appellant’s invention describes the type of data stored in databases and the use of that data. Namely, as the Examiner finds, Appellant’s invention uses stored data to recommend wines. Ans. 4; Final Act. 20. Accordingly, we are not persuaded the Examiner erred in determining the claims are directed to an abstract idea. Step Two Turning to the second step, the Examiner determines the claims “do not include additional elements that are sufficient to amount to significantly more than” the abstract idea itself. Final Act. 22. Appellant argues the Examiner “is inappropriately reading limitations out of the claims” and “identif[ies] text that is not recited anywhere in the claims.” App. Br. 17 (emphases omitted); Reply Br. 4—5. Appellant further argues the Examiner “does not consider or analyze any of the additional elements, or combinations of elements, that are explicitly recited in the 8 Appeal 2017-005820 Application 13/187,878 claims.” App. Br. 18; Reply Br. 5—6. According to Appellant, the claims “represent[] a technical advance in the field of wine and food science” and “create an entirely new technical field of endeavor.” App. Br. 19. Additionally, Appellant argues the claims “recite a series of steps that amount to ‘significantly more’ than the execution of an abstract idea or a series of steps that could be taken by humans.” App. Br. 20-21. We are not persuaded. We agree with the Examiner that “[u]sing a computer to store data of any type ... [is a] basic fimction[] of a computer, which [is a] well-understood, routine, conventional activity] previously known to the industry.” Final Act. 9, 22. We further agree with the Examiner’s determination that “selecting] information via matching, and providing] (i.e. recommend[ing]) information via matching” are “well- understood, routine, [and] conventional computing functions.” Ans. 6; Final Act. 9. Appellant’s argument that the Examiner “is inappropriately reading limitations out of the claims” by “identifying text that is not recited anywhere in the claims” (App. Br. 17) is not persuasive. Specifically, contrary to Appellant’s argument that Examiner ignores certain features, we determine the Examiner does consider these features, i.e., the “combination of three databases and a wine recommendation engine,” the “correlation of [individual taste profile] scores to the wine flavor characteristics,” and the “correlation of [that] data.” Id. at 18. More specifically, we agree with the Examiner’s determination that those features — storing data and correlating between the stored data — are “basic functions of a computer, which are well-understood, routine, conventional activities previously known to the industry” (Final Act. 8—9), which do not transform the claimed invention 9 Appeal 2017-005820 Application 13/187,878 into significantly more than the abstract idea itself. The claim “does no more than require a generic computer to perform generic computer functions” to implement the abstract idea. Alice, 134 S. Ct. at 2359. Nor are we persuaded by Appellant’s argument that the claim “create[s] an entirely new technical field of endeavor” in the field of analyzing wines and developing taste profiles. App. Br. 19. Rather than creating a new technical field, Appellant’s claimed invention applies existing computer technology to recommend wines based on user taste preferences. In particular, the recitation of databases storing a particular type of data — here, wine, flavor, and taste data —applies generic database technology to store a specific type of data. Further, the claimed feature of identifying specific wines stored in a database based on wine categories stored in a database and based on an individual’s taste preferences stored in a database applies generic computer functionality — correlating and comparing data between databases — to identify the specific wine. Additionally, Appellant’s arguments that “humans cannot assign the values for a set wine flavor characteristics, and store those values, for a plurality of wines — possibly thousands of wines or more” and that “[hjumans also cannot assign the scores for a plurality of users, and store an individual taste profile for each user — especially for thousands or millions of users” (App. Br. 21) are not persuasive. Initially, the claims do not recite storing thousands or millions of wines or users. Moreover, “the inability for the human mind to perform each claim step does not alone confer patentability.” FairWarningIP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1098 (Fed. Cir. 2016) {citing Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012)). As discussed 10 Appeal 2017-005820 Application 13/187,878 above, storing data in a database recites generic computer functionality that does not transform the abstract idea into significantly more than the idea itself. Accordingly, we are not persuaded the Examiner erred in concluding claims 1—4, 6—8, and 21—41 are directed to non-patentable subject matter. Therefore, we sustain the Examiner’s rejections of claims 1—4, 6—8, and 21— 41. 35 U.S.C. f 103(a): Claims 1—3, 21, 24—27, and33—39 Issue 2 Appellant contends the Examiner erred in finding Sutton teaches a “set of intrinsic wine flavor characteristics comprises values . . . wherein said values are determined without input from subjective wine tasting experiences,” as recited in claim 1 and similarly recited in claims 24 and 33. App. Br. 23—24; Reply Br. 6—7. Specifically, Appellant argues the wine flavor characteristics in Sutton’s user preference table are “entered by a user, based on a user’s subjective wine tasting experience.” App. Br. 23 (citing Sutton 1161, 68) (emphasis omitted); see Reply Br. 6—7. Further, Appellant argues the wine flavor characteristics in Sutton’s genome table “are established ... by collecting input from a user’s subjective wine tasting experiences.” App. Br. 23 (citing Sutton 167); Reply Br. 6—7 (citing Sutton 1 61). Additionally, Appellant argues “the Examiner[’s] assertion]” that wine flavor characteristics can be determined without wine tasting is not supported by “reference to any patent, literature, article, or other source.” Reply Br. 7. 11 Appeal 2017-005820 Application 13/187,878 We are not persuaded. Initially, we note Appellant has not defined explicitly the term “subjective wine tasting experiences” in their Specification. The portions of the Specification cited by Appellant (App. Br. 2—3), are directed to a wine classification system and “an individual [being] asked questions about wines and/or about foods and drinks other than wine” to ascertain taste preferences (Spec. 23, 35—38, Fig. 7). The Examiner finds (Final Act. 12, 24; Ans. 13), and we agree, Sutton teaches a “[gjenome table 240 comprises fields for both objective and subjective information about the complex product” (Sutton 164, Fig. 3). The Examiner further finds (Final Act. 12, 25; Ans. 13), and we agree, Sutton teaches the genome table’s subjective fields include values for wine flavor characteristics, e.g., “fruit notes 316[,] sweetness 317 .. . oak, scent, body style, smoothness, butteriness” (Sutton | 67). These characteristics are the same as discussed by Appellant in the Specification (Spec. 35—36). Moreover, the Examiner finds, and we agree, the “subjective [flavor] information” about a wine “may not necessarily] be derived from [a user’s] wine tasting experiences but rather from other sources” (Final Act. 12), such as the knowledge of “one of ordinary skill in the art of wines” (Ans. 12—13), i.e., “expert-supplied subjective information” (Sutton 161). Appellant’s argument that Sutton’s user preference table 246 does not teach “wine flavor characteristics. . . determined without input from subjective wine tasting experiences” (App. Br. 23; see Reply Br. 6—7) does not address the Examiner’s finding that Sutton’s genome table 240 teaches, or at least suggests, wine flavor characteristics determined without input from subjective wine tasting experiences (Sutton || 64, 67, Fig. 3). 12 Appeal 2017-005820 Application 13/187,878 Further, we disagree with Appellant’s argument that the wine flavor characteristics Sutton’s genome table 240 “are established ... by collecting input from a user’s subjective wine tasting experiences.” App. Br. 23; Reply Br. 6—7. The user’s wine tasting experiences that Appellant discusses are “rating[s] that the user supplies for” a wine in Sutton’s user preference table 246, not Sutton’s genome table 240. Sutton || 61, 63, 72—73, Fig. 3. Sutton’s genome table 240 stores “expert-supplied subjective information about” a wine’s flavor {id. Tflf 61, 67—69, Fig. 3). We agree with the Examiner’s finding that “expert-supplied subjective information” about a wine is provided without “input from subjective wine tasting experiences” because “one of ordinary skill in the art of wines” can determine flavor characteristics without tasting a wine. Ans. 12—13. Accordingly, we are not persuaded the Examiner erred in finding Sutton teaches, or at least suggests, a “set of intrinsic wine flavor characteristics comprises values . . . wherein said values are determined without input from subjective wine tasting experiences,” as recited in claim 1 and similarly recited in claims 24 and 33. Issue 3 Appellant contends the Examiner erred in finding the combination of Sutton and Rapp teaches an individual taste profile comprises one or more scores indicating said user’s preferences for one or more human-detectable flavors that are both found in wine and found in foods or in beverages other than wine, wherein said individual taste profile is determined without input from said user’s wine tasting experiences, and wherein said one or more scores is correlated to said set of intrinsic wine flavor characteristics, 13 Appeal 2017-005820 Application 13/187,878 as recited in claim 1 and similarly recited in claims 24 and 33. App. Br. 24— 29; Reply Br. 7—8. Specifically, Appellant argues Sutton’s taste profile is “based on user ratings only” (App. Br. 24 (emphasis omitted)) that are the result of “tasting the [wine] product” (Reply Br. 7). Further, Appellant argues Rapp “teaches or suggests a system based on user ratings” of tasted wines, and so the taste profile and the flavor preference scores in Rapp are determined based on tasted wines. App. Br. 25 (citing Rapp ^fl[ 33—34), 27; see Reply Br. 8. Appellant contends Rapp’s personal taste profile is “a single numerical value,” rather than “multiple values (scores).” App. Br. 25—26. Additionally, Appellant argues that “[n]o prior art reference” teaches that user taste preference scores are scores for flavors found in both wine and food/non-wine beverages and none of the prior art teaches a “correlation . . .between non-wine flavors and intrinsic wine flavor characteristics” with scores. Id. at 27. We are not persuaded. The Examiner finds, and we agree, Rapp creates a personal taste profile (PTP) which “indicate^] user preferences.” Final Act. 28 (citing Rapp ^fl[ 32—33) (emphasis omitted). The Examiner further finds, and we agree, Rapp’s PTP “is determined based on the assigned weight values from answers” to questions about food preferences. Final Act. 14; Ans. 16; see Rapp 133. Appellant’s arguments that Sutton’s taste profile is based on user ratings of tasted wines and that Rapp’s taste profile is based on a user’s preferred wine flavors in tasted wines (App. Br. 24—25; Reply Br. 7) does not address the Examiner’s finding that Rapp’s taste profile is based on food preferences (Final Act. 28—29 (citing Rapp ^fl[ 32—34). Rapp creates a taste profile, i.e., Rapp’s PTP, based on an “interactive interview” which asks a 14 Appeal 2017-005820 Application 13/187,878 “question regarding user’s affinity for a particular type of food at step 236.” Rapp 32—33. Because Rapp’s PTP is based on food preferences, Rapp teaches determining the PTP without input from wine tasting experiences. Further, Appellant’s arguments that “[t]here is no teaching or suggestion of multiple values (scores) in Rapp” and that Rapp’s “PTP is a single numerical value” (Appeal Br. 25) are not persuasive. The claim recites “one or more scores” and so does not require multiple scores. Additionally, the Examiner finds the respectively assigned weight values from Rapp’s interview questions teach at least one score (Ans. 14 (“weight value (i.e., score)”); see Rapp 133). Moreover, we disagree with Appellant that the prior art does not teach scores for flavors found in both wine and food/non-wine beverages (App. Br. 27) and does not teach a correlation between flavors and scores (id.). Rapp’s assigned weight value, resulting from interview questions about a user’s food preferences, “corresponds to one of [Rapp’s] bins.” Rapp 133. Rapp’s bins map to “taxonomic categories” which are flavors in both food and wine, e.g., “crisp/light, tangy/zesty, floral/aromatic, floral/lush, sweet. . . fresh/fruity, smooth/elegant, earthy, Jimmy, spicy, big/powerful. . . dry/delicate, full/fresh fruit. . . dry/crisp, on the sweet side, elegant/complex, etc.; for dessert wines: honey/caramel, chocolaty/smooth, big fruit/pow!” Rapp 128. That is, the answers to Rapp’s food preference questions correspond to weights (i.e., scores) which are correlated to wine flavors via Rapp’s bins. 15 Appeal 2017-005820 Application 13/187,878 Accordingly, we are not persuaded the Examiner erred in finding the combination of Sutton and Rapp teaches an individual taste profile comprises one or more scores indicating said user’s preferences for one or more human-detectable flavors that are both found in wine and found in foods or in beverages other than wine, wherein said individual taste profile is determined without input from said user’s wine tasting experiences, and wherein said one or more scores is correlated to said set of intrinsic wine flavor characteristics, as recited in claim 1 and similarly recited in claims 24 and 33. We, therefore, sustain the 35 U.S.C. § 103(a) rejection of independent claims 1, 24, and 33, as well as dependent claims 2, 3, 21, 25—27, 33—39 which are not argued separately. See App. Br. 22—32. 35 U.S.C. f 103(a): Claims 4, 6—8, and28—30 Issue 4 Appellant contends the Examiner erred in finding Eggink teaches a “dominant taste trait” as recited in claim 4 and claims 28—30 or a “categorical dominant taste trait” as recited in claims 6—8. App. Br. 30-31; see Reply Br. 9. Specifically, Appellant argues Eggink’s “surprise [product] recommendation to a user has no applicability and no relevance to the dominant taste trait” recited by the claims. App. Br. 30—31. Appellant further argues that there is “no support for the legal conclusion that a surprise recommendation can possibly make the ‘categorical dominant taste trait’ claims obvious.” Id. Appellant’s arguments that Eggink does not teach or render obvious a “dominant taste trait” {id.), do not address the Examiner’s findings that Sutton and Rapp teach dominant taste traits (Final Act. 38 (citations 16 Appeal 2017-005820 Application 13/187,878 omitted)). Initially, we note the Examiner’s rejection of claims 4, 28, and 37 is only over the combination of Sutton and Rapp. Id. Furthermore, the Examiner finds, and we agree, that “one of the values in [Sutton’s] genome table ... is identified as a dominant taste trait compared] to other values . . . e.g., for [the] wine ‘d’Arenberg[,’] value ‘mod.dry’ is identified as dominant taste trait for sweetness.” Id. (citing Sutton || 67—69, 97—98, Fig. 3). The Examiner also finds, and we agree, Rapp teaches that “wine is classified into . . . taxonomic categories including sweet for white wine, and sweet is considered ... a dominant taste.” Id. (citing Rapp 128). Appellant does not provide sufficient persuasive argument addressing Sutton or Rapp’s dominant taste traits. Accordingly, we are not persuaded the Examiner erred in finding the combination of Sutton and Rapp teaches a “dominant taste trait” as recited in claim 4 and claims 28—30 or a “categorical dominant taste trait” as recited in claims 6—8. We, therefore, sustain the 35 U.S.C. § 103(a) rejection of claims 4, 6—8, and 28—30. 35 U.S.C. § 103(a): Claims 22, 23, 31, 32, 40, and 41 Issue 5 Appellant contends that the Examiner erred in finding Eggink teaches “a fourth wine category” as recited in claim 22 and similarly recited in claims 31 and 40 and that the Examiner erred in finding Eggink teaches “a fifth wine category” as recited in claim 23 and similarly recited in claims 32 and 41. App. Br. 31—32. Specifically, Appellant argues Eggink’s “concept of making a surprise recommendation ... to a user has no applicability and no relevance to the concept of’ a fourth or fifth wine category. Id. 17 Appeal 2017-005820 Application 13/187,878 Additionally, Appellant argues Sutton does not teach “recommending a wine that does not match the member profile in every characteristic.” Id. at 32. We are not persuaded. The Examiner finds, and we agree, Sutton teaches multiple wine categories. Final Act. 49 (citing Sutton || 95, 102), 52—53. The Examiner further finds, and we agree, Rapp teaches “multiple wines from multiple group s/categories can be selected.” Id. (citing Rapp 28, 36—37). The Examiner concludes that in light of Rapp’s teaching, an ordinarily skilled would have found it obvious to include fourth and fifth wine categories. Id. The Examiner further finds, and we agree, Eggink teaches a “surprise recommendation,” i.e., a recommendation of a “category having characteristics [that do] not match with the user[’s] profile.” Id. at 50, 54 (citing Eggink 2:35—67, 12:50—53). Appellant’s argument that Eggink’s surprise recommendations do not teach a fourth or fifth wine category (App. Br. 31—32), does not address the Examiner’s conclusion that an ordinarily skilled artisan would have found it obvious in light of Sutton and Rapp, to include fourth or fifth wine categories (Final Act. 49, 52—53). Additionally, Appellant’s argument that Sutton does not recommend wines that do not match a member profile (App. Br. 32), does not address the Examiner’s finding that Eggink teaches providing recommendations that do not match member profiles (Final Act. 50, 54). Accordingly, we are not persuaded the Examiner erred in finding Eggink teaches “a fourth wine category” as recited in claim 22 and similarly recited in claims 31 and 40 or “a fifth wine category” as recited in claim 23 18 Appeal 2017-005820 Application 13/187,878 and similarly recited in claims 32 and 41. We, therefore, sustain the 35 U.S.C. § 103(a) rejection of claims 22, 23, 31, 32, 40, and 41. DECISION For the reasons above, we affirm the Examiner’s decision rejecting claims 1—4, 6—8, and 21^41. 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. § 41.50(f). AFFIRMED 19 Copy with citationCopy as parenthetical citation