Ex Parte SegelDownload PDFPatent Trial and Appeal BoardSep 16, 201412167225 (P.T.A.B. Sep. 16, 2014) 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. 12/167,225 07/02/2008 Jonathan Segel LCNT/801760 5086 46363 7590 09/16/2014 WALL & TONG, LLP/ ALCATEL-LUCENT USA INC. 25 James Way Eatontown, NJ 07724 EXAMINER PULLIAM, CHRISTYANN R ART UNIT PAPER NUMBER 2164 MAIL DATE DELIVERY MODE 09/16/2014 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 JONATHAN SEGEL ___________ Appeal 2012-004480 Application 12/167,225 Technology Center 2100 ____________ Before JEAN R. HOMERE, JOHNNY A. KUMAR, and DANIEL N. FISHMAN, Administrative Patent Judges. FISHMAN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) of finally rejected claims 1–23. 1 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 In this Opinion, we refer to Appellant’s Appeal Brief (“App. Br.,” filed October 19, 2011), Appellant’s Reply Brief (“Reply Br.,” filed January 17, 2012), and the Examiner’s Answer (“Ans.,” mailed December 15, 2011). Appeal 2012-004480 Application 12/167,225 2 STATEMENT OF THE CASE THE INVENTION Appellant’s invention relates to predicting value of caching content items and selecting content items to be cached using respective caching value estimates. See generally Abstract. Claim 1, reproduced below, is illustrative: 1. A method for selecting ones of a plurality of content items to be cached, comprising: determining, for each of the content items, a probability of use of the content item comprising a probability that the content item will be used if cached; determining, for each of the content items, a value of caching the content item; computing, for each of the content items, a caching value estimate associated with the content item using the probability of use of the content item and the value of caching the content item; and selecting ones of the content items to be cached at least using the respective caching value estimates of the content items. THE REJECTIONS Claims 1–3, 5, 6, 10, 17, and 19–23 are rejected under 35 U.S.C. § 102(b) as anticipated by Komarla (US 2005/0144394 A1; June 30, 2005), Claims 4, 7–9, and 11–16 are rejected under 35 U.S.C. § 103(a) as unpatentable over Komarla and Katz (US 2003/0217113 A1; Nov. 20, 2003). Claim 18 is rejected under 35 U.S.C. § 103(a) as unpatentable over Komarla and Lynnes (Christopher Lynnes et al., “Application of Bayesian Classification to Content-based Data Management,” paper presented at Appeal 2012-004480 Application 12/167,225 3 NASA’s Earth Science Technology Conference 2004, Palo Alto, CA, June 2003). ISSUE Has the Examiner erred finding Komarla teaches, “probability of use if cached,” “value of caching,” and “caching value estimate” as recited in claim 1? ANALYSIS ANTICIPATION REJECTION Only those arguments actually made by Appellant are considered in this Decision. Arguments that Appellant did not make in the Briefs are not considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). We have reviewed the Examiner’s rejections in light of Appellant’s arguments the Examiner erred. App. Br. 12–20; Reply Br. 2–6. We are not persuaded by Appellant’s contentions. We adopt as our own the findings and reasons set forth by the Examiner in the action from which this appeal is taken and as set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief (see Ans. 17–19). However, we highlight and address specific arguments and findings for emphasis as follows. The Examiner finds Komarla discloses a probability of use if cached as determining a probability that a next block will be accessed if a prior block was accessed. Ans. 5 (citing Komarla Figs. 5B–5D; ¶¶ 46, 47). Appellant argues Komarla merely discloses “a probability of how likely a second data block may be accessed based on the access of a first data block” Appeal 2012-004480 Application 12/167,225 4 (App. Br. 12) and discloses “a probability that a data block may be accessed out of all available data blocks” (App. Br. 13). Appellant further contends: [A] probability that a data block may be accessed out of all available data blocks is not a probability that a data block will be used if it is cached. Similarly, . . . a probability that one data block may be accessed because another data block was accessed is not a probability that a data block will be used if it is cached. App. Br. 13. We disagree. The Examiner explains the interpretation equating the recited “probability of use if cached” and Komarla’s disclosure finding: Access is use by the computer. The determination of the probability of access is done to determine whether to put an item into cache. It decides what the probability is that data will be accessed if it is placed into the cache. The probability that data will be accessed if cached is the same the probability that data will be used if cached. Komarla teaches probability that data will be accessed if placed in cache. Therefore, Komarla teaches “probability that a content item will be used if cached[.]” Ans. 17. We agree. Appellant’s Reply Brief essentially reiterates the same arguments. Reply Br. 2–3. Other than concluding the claimed use and Komarla’s access are different, Appellant provides no persuasive argument or evidence that the Examiner has erred. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Attorney argument is not evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such argument take the place of evidence lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977). Therefore, we find Appellant’s arguments unpersuasive that the Examiner erred in finding Komarla teaches, “probability of use if cached” as recited in claim 1. Appeal 2012-004480 Application 12/167,225 5 The Examiner finds Komarla discloses a value of caching as the read ahead threshold value used in determining whether a block should be cached. Ans. 5 (citing Komarla ¶¶ 46, 47, 51, 52, 55–58). Appellant’s arguments amount to quoting or paraphrasing each of the cited paragraphs of Komarla and concluding that each paragraph fails to teach the claimed “determining, for each of the content items, a value of caching a content item.” App. Br. 14–16. For the reasons discussed supra, we find such conclusory remarks, unsupported by evidence, unpersuasive of Examiner error. Appellant’s Reply Brief fails to rebut the Examiner’s position but rather focuses on a different threshold value (hope count and a related threshold) rather than the read ahead threshold. Reply Br. 3–4. Therefore, we find Appellant’s arguments unpersuasive that the Examiner erred in finding Komarla teaches, “value of caching” as recited in claim 1. The Examiner finds Komarla discloses “computing, for each of the content items, a caching value estimate associated with the content item using the probability of use of the content item and the value of caching the content item” as the comparison of a probability with the threshold. Ans. 5– 6 (citing Komarla ¶¶ 46, 47, 55). As above, Appellant argues the probability of access is not the same as the probability of use to be used in the computation and argues the value of caching is not taught by Komarla. App. Br. 16–18. Appellant, therefore, contends the Examiner “fails to indicate how the portions of Komarla cited to show the ‘probability of use’ and ‘value of caching’ values of Appellant’s claim 1 are related within the context of computing the ‘caching value estimate’ of Appellant’s claim 1.” App. Br. 18. Appellant further argues, “A comparison of a probability to a Appeal 2012-004480 Application 12/167,225 6 threshold as asserted by the Examiner and disclosed in Komarla, clearly does not teach or suggest computing.” App. Br. 18. We disagree. Initially, we find Appellant’s argument does not explain why comparison of a value with a threshold value is not “computing” as recited in claim 1. A comparison of two numeric values would seem to clearly be computational given a broad, but reasonable interpretation of “computing” in claim 1. Appellant’s argument does not propose an alternative definition of “computing” but rather concludes, without providing persuasive evidence, that a comparison of not computing. Further, the Examiner has carefully explained how the determining probability of access (read as the recited probability of use) and the read ahead threshold (read as the recited value of caching) are used to compute whether to place the data in the cache (the determination read as the recited caching value estimate). Ans. 18–19. The Examiner has explained that the claim, even read in light of the Specification, requires no other narrower interpretation of the recited computation or elements used in the computation. Ans. 18. We agree and find Appellant’s arguments to the contrary unpersuasive. See Reply Br. 4–6. In view of the above discussion, we are not persuaded the Examiner erred finding Komarla teaches, “probability of use if cached,” “value of caching,” and “caching value estimate” as recited in claim 1. Independent claims 22 and 23 include limitations similar to claim 1. Appellant does not argue claims 22 and 23 or dependent claims 2, 3, 5, 6, 10, 17, and 19–21 separately with particularity. App. Br. 19–20. We, therefore, sustain the rejection of claims 1–3, 5, 6, 10, 17, and 19–23 as anticipated by Komarla. Appeal 2012-004480 Application 12/167,225 7 OBVIOUSNESS REJECTIONS Appellant does not present any argument regarding the obviousness rejection of dependent claim 18 and we, therefore, summarily sustain the rejection of claim 18. Appellant does not separately argue with particularity the obviousness rejection of dependent claims 4, 7–9, and 11–16 and we therefore sustain the obviousness rejection of these dependent claims. DECISION For the above reasons, the Examiner’s decisions rejecting claims 1–23 are affirmed. 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 ELD Copy with citationCopy as parenthetical citation