Ex Parte Ren et al

Board of Patent Appeals and Interferences

Nov 14, 2008

09834701 (B.P.A.I. Nov. 14, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte TOM REN and YING XIONG
________________

Appeal 2008-1326
Application 09/834,701
Technology Center 2100
________________

Decided: November 14, 2008
________________

Before JOSEPH L. DIXON, JAY P. LUCAS, and
ST. JOHN COURTENAY III, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s rejection of claims 1-12, 17, and 19-28. Claims 13-16 and 18
are cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm. We also enter new grounds of rejection against claims 1-
12, 17, and 19-28 under the provisions of 37 C.F.R. § 41.50(b).
Appeal 2008-1326
Application 09/834,701

THE INVENTION
The disclosed invention relates generally to a web-based database.
More particularly, the invention relates the automatic population of a
database, automatic notification to the individual account members of the
database, and automatic maintenance of the database. (Spec. 1, Para. 2).
Independent claim 1 is illustrative:
1. A method of automatically populating, maintaining and
updating a web-based database, the method comprising the
steps of:

(a) transferring multiple records of individuals from an
existing database to the web-based database automatically and
without express registration action in the web-based database;

(b) populating a web-based database with the multiple
records of the individuals from the existing database without
express registration action in the web-based database;

(c) creating access accounts for the multiple individuals
without express registration action in the web-based database
by the individuals;

(d) transmitting at least one access account to at least one
of the multiple individuals; and

(e) enabling remote maintenance of the individual
records by the individuals by use of the access account.

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THE REFERENCES
The Examiner relies upon the following references as evidence in
support of the rejections:
Champagne US 6,925,477 B1 Aug. 2, 2005
(filed Mar. 31, 1998)
Dean US 6,182,131 B1 Jan. 30, 2001
(filed Jul. 17, 1998)
Weinreich US 6,175,831 B1 Jan. 16, 2001
(filed Jan. 17, 1997)
Ramasubramani US 6,233,577 B1 May 15, 2001
(filed Feb. 17, 1998)
Lee US 6,108,691 Aug. 22, 2000
(filed Apr. 17, 1998)
Ram US 6,625,258 B1 Sep. 23, 2003
(filed Dec. 27, 1999)
THE REJECTIONS
1. Claims 1-4, 6, 7, 9, 11, 12, 17, and 21 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Dean in view
of Weinreich.
2. Claims 24, 25, 27, and 28 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Dean in view of
Weinreich and Ramasubramani.
3. Claim 5 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dean in view of Weinreich and
Champagne.
4. Claims 8, 10, 20, 22, and 23 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Dean in view of
Weinreich and Ram.
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5. Claim 26 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dean in view of Weinreich and
Ramasubramani and Ram.
6. Claim 19 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dean in view of Weinreich and Lee.

APPELLANTS’ CONTENTIONS
1. Appellants contend that the Examiner failed to provide a
teaching or motivation to combine Dean with Weinreich.
(App. Br. 20). In addition, Appellants contend that Dean
and Weinreich teach away from their combination, and the
proposed modification renders the references unsatisfactory
for their intended purpose. (App. Br. 25)

2. Appellants contend that the Examiner erred in rejecting
claims 1-4, 6, 7, 9, 11, 12, 17, and 21 because the cited
references and the present invention are significantly
different and teach away from each other. (App. Br. 27-31).

3. Appellants contend that the Examiner erred in rejecting
claims 24, 25, 27, and 28 because one skilled in the art
would not be motivated to combine the teachings of
Ramasubramani with Dean/Weinreich. (App. Br. 34).

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4. Appellants contend that the Examiner erred in rejecting
claim 5 because the rejection is a result of piecemeal
analysis. (App. Br. 37).

5. Appellants contend that the Examiner erred in rejecting
claims 8, 10, 20, 22, 23, and 26 because the Examiner has
not shown how the cited references are combined. (App. Br.
38-39).

6. Appellants contend that the Examiner erred in rejecting
claim 19 because the rejection is a result of piecemeal
analysis. (App. Br. 39-40).

EXAMINER’S FINDINGS
1. The Examiner determined that the present application is
related to transferring multiple records of individuals from
an existing database to the web-based database
automatically and automatically populating and maintaining
a web-based database. (Ans. 22)

2. The Examiner determined that Dean is directed to
transmitting account information including a plurality of
usernames in each user account 32 of account registry 30
from LAN 10 to account manager 38. The Account
manager 38 utilizes the received account information to
automatically create individual user accounts. (Ans. 22-23).
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3. The Examiner determined that Weinreich provides user
profiles (accounts) in a network database and uses a network
database to perform a search for information about a
registered user. (Ans. 23)
4. The Examiner determined that Dean, Weinreich and
Ramasubramani are related to the same fields of storing user
accounts or user records or user profiles on a database. (Ans.
38)

ISSUES
1. Did the Appellants show that the Examiner failed to establish
that one skilled in the art would combine the teachings of the cited
references?
2. Did the Appellants show that the Examiner erred in combining
Dean and Weinreich because the cited references teach away from
each other?
3. Did the Appellants show that the Examiner erred in combining
Dean, Weinreich and Ram?
4. Did the Appellants show that the Examiner erred in combining
Dean, Weinreich and Ramasubramani?

PRINCIPLES OF LAW
Obviousness
In rejecting claims under 35 U.S.C. § 103, “[w]hat matters is the
objective reach of the claim. If the claim extends to what is obvious, it is
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invalid under § 103.” KSR Int’l Co. v. Teleflex, Inc., 127 S. Ct. 1727, 1742
(2007). To be nonobvious, an improvement must be “more than the
predictable use of prior art elements according to their established
functions.” Id. at 1740.
The reasoning given as support for the conclusion of obviousness can
be based on “interrelated teachings of multiple patents; the effects of
demands known to the design community or present in the marketplace; and
the background knowledge possessed by a person having ordinary skill in
the art.” KSR, 127 S. Ct. at 1740-41.
We note our reviewing court has recently reaffirmed that:
[A]n implicit motivation to combine exists not only when a suggestion
may be gleaned from the prior art as a whole, but when the
‘improvement’ is technology-independent and the combination of
references results in a product or process that is more desirable, for
example because it is stronger, cheaper, cleaner, faster, lighter,
smaller, more durable, or more efficient. Because the desire to
enhance commercial opportunities by improving a product or process
is universal-and even common-sensical-we have held that there exists
in these situations a motivation to combine prior art references even
absent any hint of suggestion in the references themselves. In such
situations, the proper question is whether the ordinary artisan
possesses knowledge and skills rendering him capable of combining
the prior art references.

Dystar Textilfarben GmbH v. C.H. Patrick Co., 464 F.3d 1356, 1368
(Fed. Cir. 2006). See also Leapfrog Enters., Inc. v. Fisher-Price Inc., 485
F.3d 1157, 1162 (Fed. Cir. 2007)(holding it “obvious to combine the Bevan
device with the SSR to update it using modern electronic components in
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order to gain the commonly understood benefits of such adaptation, such as
decreased size, increased reliability, simplified operation, and reduced
cost.”)
“[T]he prior art's mere disclosure of more than one alternative does
not constitute a teaching away from any of these alternatives because such
disclosure does not criticize, discredit, or otherwise discourage the solution
claimed …” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (underline
added).
Appellants have the burden on appeal to the Board to demonstrate
error in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86
(Fed. Cir. 2006). Therefore, we look to Appellants’ Briefs to show error in
the proffered prima facie case.
We note that arguments which Appellants could have made but chose
not to make in the Brief have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(1)(vii)(2006). See also In re Watts, 354
F.3d 1362, 1368 (Fed. Cir. 2004).

Findings of Facts
The following findings of fact are supported by a preponderance of
the evidence.
Dean
1. Dean is directed to automating the creation of accounts in a
network. (Abst., ll. 1-2).
2. Dean teaches transmitting extracted account information from the
LAN 10 to account manager 38 in ISP 22. (Col. 3, ll. 30-32)
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3. Dean teaches that the extracted account information is utilized to
automatically create accounts for the selected users. (Col. 3, ll.
26-29) (underline added).

Weinreich
4. Weinreich is directed to a networking database in which the
individual records that are connected by defined relationships.
(Abst., ll. 1-3)
5. Weinreich teaches allowing a user to edit or delete their
information in a web-based database. (Col. 18, ll. 25-27 and
43-55).
6. Weinreich teaches that the database server 45 updates the database
70 to edit information teaches an access right control unit. The
access right control unit checks the access right on the file and the
link provided to the user and changes the status of the access right
if necessary. (Col. 4, ll. 32-38).

Ramasubramani
7. Ramasubramani is directed to a central certificate management
system for thin client devices in data networks. (Abst., ll. 1-2).

Champagne
8. Champagne is directed to transferring records between two
databases. (Abst., ll. 1-2)
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9. Champagne teaches that a computer program automatically
establishes a field map between the record structures of the two
databases. (Id.)

Ram
10. Ram is directed to a unified communication services support
via a virtual assistant system (VAS). (Abst., ll. 1-2).

Specification
11. The Specification is silent with regards to the limitation of
“without express registration.”

ANALYSIS
The Examiner failed to provide a teaching or motivation to combine
the cited references, the cited references teach away from their combination.
Appellants contend that for all claims the Examiner failed to provide a
teaching or motivation to combine from the references. (App. Br. 20)
(emphasis added).
As discussed above, the motivation to combine two or more
references may stem not only from the references themselves, but also from
“the background knowledge possessed by a person having ordinary skill in
the art.” KSR, 127 S. Ct. at 1740-41 (emphasis added). Thus, the only
source of motivation to combine the teachings of references does not have to
be provided by the references themselves.

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In the present case, as admitted by Appellants, the Examiner provided
a motivation to combine the teachings of Dean and Weinreich. (App. Br.
21-22). However, we further note that Appellants’ have also argued how the
cited references differ from the present invention, rather than why the two
references are not combinable. With regards to Appellants’ contention that
the cited references teach away from each other, we disagree.
In the present case, we do not find and Appellants have not shown,
that either of Dean or Weinreich expressly teaches away from a combination
with the other, because neither of the references criticizes, discredits or
discourages the proposed combination. See In re Fulton, 391 F.3d at 1201.
Thus, we do not find Appellants’ argument that the cited references teach
away from each other to be persuasive.
Based on the above, we do not find Appellants’ arguments to be
persuasive in proving error in the Examiner’s cited combination of
references.

Claims 1-4, 6, 7, 9, 11, 12, 17, and 21
The Examiner erred in rejecting claims 1-4, 6, 7, 9, 11, 12, 17, and 21
because the cited references and the present invention are significantly
different and teach away from each other.
We next consider the Examiner’s rejection of claims 1-4, 6, 7, 9, 11,
12, 17, and 21 as being unpatentable over Dean and Weinreich. Since
Appellants’ arguments have treated these claims as a single group which
stand or fall together, we select independent claim 1 as the representative
claim for this rejection. See 37 C.F.R. § 41.37(c)(1)(vii)(2006).
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Appellants contend that the Examiner erred in rejecting claims 1-4, 6,
7, 9, 11, 12, 17, and 21 because the cited references and the present
invention are significantly different, and teach away from each other. (App.
Br. 27-31). More specifically, Appellants contend that neither of the
references teaches or suggests performing the steps of claim 1
“automatically” and “without express registration” in the web-based
database.

Claim Construction
During prosecution, “the PTO gives claims their ‘broadest reasonable
interpretation.’” In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004) (quoting
In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)).
We note that the feature of performing the steps of claim 1 “without
express registration” is interpreted as a negative limitation.
We find that Appellants’ Specification does not expressly support the
feature of “without express registration.”
Silence in the Specification does not meet the written description
requirement for a negative limitation. The Court of Appeals for the Federal
Circuit has determined that an express intent to confer on the claim language
the novel meaning imparted by the negative limitation is required, such as an
express disclaimer or independent lexicography in the written description
that provides support for the negative limitation. Omega Engineering, Inc, v.
Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003) (citations omitted).

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Beyond the words of the claim, neither the district court
nor Raytek has identified any express disclaimer or independent
lexicography in the written description that would justify
adding that negative limitation. See CCS Fitness, Inc. v.
Brunswick Corp., 288 F.3d 1359, 1366-67, 62 USPQ2d 1658,
1662-63 (Fed.Cir.2002). Our independent review of the patent
document, see Bell Atl. Network Servs., Inc. v. Covad
Communications Group, Inc., 262 F.3d 1258, 1266, 59
USPQ2d 1865, 1869 (Fed.Cir.2001), reveals no express intent
to confer on the claim language the novel meaning imparted by
this negative limitation. Accordingly, we must conclude that
there is no basis in the patent specification for adding the
negative limitation.

In the present case, Appellants cite Fig. 4 and page 6, l. 26 – page 7 l.
16 in the “Summary of the Claimed Subject Matter” section, for support of
the negative limitation. (App. Br. 11). However, our review of Appellants’
Specification does not reveal any express support for the negative limitation
argued by Appellants. Therefore, we find no basis or express intent in the
Specification that supports the negative limitation, and we do not know how
to interpret it. (See “New Grounds of Rejection” infra).
Because Appellants’ arguments regarding the difference between the
cited references and the present invention are based on the unsupported
negative limitation, we do not find Appellants’ arguments to be persuasive.
Accordingly, we conclude that Appellants’ have not show error in the
Examiner’s rejection of claim 1 and claims 2-4, 6, 7, 9, 11, 12, 17, and 21
which fall therewith, as being obvious over the cited references.

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Claims 24, 25, 27, and 28
The Examiner erred in rejecting claims 24, 25, 27 and 28 because one
skilled in the art would not be motivated to combine the teachings of
Ramasubramani with Dean/Weinreich.
We next consider the Examiner’s rejection of claims 24, 25, 27, and
28 as being unpatentable over Dean, in view of Weinreich and
Ramasubramani. Appellants contend that the Examiner erred in rejecting
claims 24-25, 27 and 28 because one skilled in the art would not have been
motivated to combine the teachings of Ramasubramani with
Dean/Weinreich. (App. Br. 34-35). Since Appellants’ arguments have
treated these claims as a single group which stand or fall together, we select
independent claim 24 as the representative claim for this rejection. See 37
C.F.R. § 41.37(c)(1)(vii)(2006).
As discussed above, to be nonobvious, an improvement must be
“more than the predictable use of prior art elements according to their
established functions.”
In the present case, we do not find, nor have Appellants shown, that
the cited combination of references is more than a predictable use of prior art
elements according to their established functions. Thus, Appellants’
argument that a greater explanation of Ramasubramani should be required is
not persuasive. Therefore, we find that the Examiner provided a proper
motivation to combine the teachings of the references. Accordingly, we
sustain the Examiner’s rejection of claim 24 and claims 25, 27, and 28 which
fall therewith as being unpatentable over Dean, in view of Weinreich and
Ramasubramani.

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Claim 5
The rejection of claim 5 is the result of piecemeal analysis.
We next consider the Examiner’s rejection of claim 5 as being
unpatentable over Dean, in view of Weinreich and Champagne. Appellants
contend that the rejection of claim 5 is the result of piecemeal analysis. The
Examiner relied on Champagne to teach the limitation recited in claim 5.
(Ans. 17).
We also note that Appellants admit that the elements recited in
dependent claim 5 are well-known in the art. (App. Br. 37 citing Para. 24 of
the Spec.).
Having acknowledged that certain claimed elements are taught by the
prior art, Appellants cannot now defeat an obviousness rejection by asserting
that the cited references fail to teach or suggest these elements. See
Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1570 (Fed. Cir.
1988) (“A statement in a patent that something is in the prior art is binding
on the applicant and patentee for determinations of anticipation and
obviousness.”); In re Nomiya, 509 F.2d 566, 571 n.5 (CCPA 1975) (It is a
“basic proposition that a statement by an applicant, whether in the
application or in other papers submitted during prosecution, that certain
matter is ‘prior art’ to him, is an admission that that matter is prior art for all
purposes . . . .”).
Thus, based on the administrative record before us including the
discussion above regarding claim 1 from which claim 5 depends and
Appellants’ admission, we conclude that Appellants’ have not show that the
Examiner erred in rejecting claim 5. Accordingly, we sustain the
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Examiner’s rejection of claim 5 as unpatentable over Dean, in view of
Weinreich and Champagne.

Claims 8, 10, 20, 22, 23, and 26
The Examiner has not shown how the cited references are combined.
We next consider the Examiner’s rejection of claim 8, 10, 20, 22, 23
and 26 as being unpatentable over Dean, in view of Weinreich and Ram.
Since Appellants’ arguments have treated these claims as a single group
which stand or fall together, we will select independent claim 8 as the
representative claim for this rejection. See 37 C.F.R. §
41.37(c)(1)(vii)(2006).
Appellants contend that the Examiner erred in rejecting claim 8
because the Examiner failed to establish how the cited references are
combined.
It is our view that Appellants’ arguments do not take into account
what the collective teachings of the prior art would have suggested to one of
ordinary skill in the art and is therefore ineffective to rebut the Examiner’s
prima facie case of obviousness. See In re Keller, 642 F.2d 413, 425 (CCPA
1981).
The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference; nor is it that the claimed invention must be expressly
suggested in any one or all of the references. Rather, the test is what
the combined teachings of the references would have suggested to
those of ordinary skill in the art.) (citations omitted, emphasis added).
Keller, 642 F.2d at 425.

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This reasoning is applicable in the present case. For example,
Appellants contend that “Ram does not permit modification of account
characteristics through a web portal to a specific web page to modify rate
plans and the like . . .” However, Appellants have not shown error in the
Examiner’s determination that the teachings of Ram would result in a
reduced routing cost for sending access accounts or any other type of
information to users. (Ans. 42). Thus, Appellants’ arguments are not found
to be persuasive. Accordingly, we sustain the Examiner’s rejection of claim
8 and claims 10, 20, 22, 23, and 26 which fall therewith, as being
unpatentable over Dean, in view of Weinreich and Ram.

Claim 19
The rejection of claim 19 is the result of piecemeal analysis
Appellants contend that the Examiner erred in rejecting claim 19
because the rejection is a result of piecemeal analysis. More specifically,
Appellants contend that the Examiner’s citation of Lee indicates an
“impermissible picking and choosing” of features to establish obviousness.
However, similar to our discussion above, without more, Appellants
have not shown how the cited combination of references would result in
more than an expected result. Thus, we conclude that Appellants have not
shown error in the Examiner’s rejection of claim 19. Accordingly, we
sustain the rejection of claim 19 as being unpatentable over Dean, in view of
Weinreich and Lee.

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NEW GROUNDS OF REJECTION
35 U.S.C. § 112, first paragraph
Using our authority under 37 C.F.R. § 41.50(b), we reject independent
claims 1-12, 17, and 19-28 under 35 U.S.C. § 112, first paragraph, as failing
to comply with the written description requirement.
To satisfy the written description requirement, a patent specification
must describe the claimed invention in sufficient detail that one skilled in the
art can reasonably conclude that the inventor had possession of the claimed
invention. See, e.g., Moba, B.V. v. Diamond Automation, Inc., 325 F.3d
1306, 1319, (Fed. Cir. 2003); Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555
1563. However, a showing of possession alone does not cure the lack of a
written description. Enzo Biochem, Inc. v. Gen-Probe, Inc., 323 F.3d 956,
969 (Fed. Cir. 2002). Much of the written description case law addresses
whether the specification as originally filed supports claims not originally in
the application.
The independent claims 1, 17 and 24 recite “. . . without express
registration action . . .”. Appellants’ Specification does not expressly
support this negative limitation. As a result, the Specification does not
describe the claimed invention in sufficient detail that one skilled in the art
would have reasonably concluded that the Appellants had possession of the
claimed invention.
Accordingly, we reject independent claims 1, 17, and 24 as well as
dependent claims 2-12, 19-23, and 25-28 under 35 U.S.C. § 112, first
paragraph as failing to comply with the written description requirement.

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CONCLUSIONS OF LAW
Based on the findings of facts and analysis above, we conclude the
following:
Appellants did not show that the Examiner failed to establish that one
skilled in the art would combine the teachings of the cited references.
Appellants did not show that the Examiner erred in combing Dean and
Weinreich because the cited references teach away from each other.
Appellants did not show that the Examiner erred in combining Dean,
Weinreich and Ram. Appellants did not show that the Examiner erred in
combining Dean, Weinreich, Ramasubramani and Ram.
Based on the findings of facts and analysis above, we conclude that
Appellants have not met their burden of showing that the Examiner erred in
rejecting claims 1-4, 6, 7, 9, 11, 12, 17, and 21 as being unpatentable over
Dean in view of Weinreich under 35 U.S.C. § 103(a).
Based on the findings of facts and analysis above, we conclude that
Appellants have not met their burden of showing that the Examiner erred in
rejecting claims 24, 25, 27, and 28 as being unpatentable over Dean in view
of Weinreich and Ramasubramani under 35 U.S.C. § 103(a).
Based on the findings of facts and analysis above, we conclude that
Appellants have not met their burden of showing that the Examiner erred in
rejecting claim 5 as being unpatentable over Dean in view of Weinreich and
Champagne under 35 U.S.C. § 103(a).
Based on the findings of facts and analysis above, we conclude that
Appellants have not met their burden of showing that the Examiner erred in
rejecting claims 8, 10, 20, 22, and 23 as being unpatentable over Dean in
view of Weinreich and Ram under 35 U.S.C. § 103(a).
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Based on the findings of facts and analysis above, we conclude that
Appellants have not met their burden of showing that the Examiner erred in
rejecting claim 26 as being unpatentable over Dean in view of Weinreich
Ramasubramani and Ram.
Based on the findings of facts and analysis above, we conclude that
Appellants have not met their burden of showing that the Examiner erred in
rejecting claim 19 as being unpatentable over Dean in view of Weinreich
and Lee.
Therefore, claims 1-12, 17, and 19-28 are not patentable.

DECISION
The decision of the Examiner rejecting claims 1-12, 17, and 19-28 is
affirmed.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides that “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise
one of the following two options with respect to the new ground of rejection
to avoid termination of the appeal as to the rejected claims:

(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the proceeding will be remanded to
the examiner. . . .

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(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same record. . . .

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

AFFIRMED

pgc

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