Ex Parte Sereville

Patent Trial and Appeal Board

Oct 31, 2013

11272299 (P.T.A.B. Oct. 31, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte ETIENNE DE SEREVILLE
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Appeal 2011-011111
Application 11/272,299
Technology Center 3600
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Before JOSEPH A. FISCHETTI, MEREDITH C. PETRAVICK, and
MICHAEL W. KIM, Administrative Patent Judges.

PER CURIAM.

DECISION ON APPEAL
Appeal 2011-011111
Application 11/272,299

2
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 21-361. Claims 1-20 have been cancelled. We have
jurisdiction to review the case under 35 U.S.C. §§ 134 and 6(b).
The invention relates generally to estimating risk of a future disaster
of an infrastructure by generating a polynomial linking severity and time of
occurrence of each of the previous disasters (Abs.).
Claim 21, reproduced below, is further illustrative of the claimed
subject matter.
21. A method of estimating risk of a future failure of a
computer system and taking remedial action, the method
comprising the steps of:
a computer identifying, as coordinates of data points, (a)
severities of previous, respective failures of the computer
system and (b) respective times of occurrences of the previous,
respective failures of the computer system, wherein the
severities are coordinates on a severity axis and the respective
times of the occurrences are coordinates on a perpendicular
time axis;
the computer generating a Tchebychev polynomial curve
based on the data points representing the previous failures of
the computer system; and
the computer identifying and displaying as a high risk
failure event a peak of the Tchebychev polynomial curve.

Claims 21, 22, 24-26, and 28 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Iliff (U.S. 5,594,638, iss. Jan. 14, 1997), Legault (U.S.
2005/0154561 A1, pub. Jul. 14, 2005), Lindstrom (U.S. 7,221,975 B2, iss.

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed April 15, 2011) and Reply Brief (“Reply Br.,” filed June 24,
2011), and the Examiner’s Answer (“Ans.,” mailed May 18, 2011).
Appeal 2011-011111
Application 11/272,299

3
May 22, 2007), and Tawil (U.S. 5,500,529, iss. Mar. 19, 1996).
Claims 23, 27 and 29-36 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Iliff, Legault, Lindstrom, Tawil, and Washington (U.S.
2005/0096953 A1, pub. May 5, 2005).
We AFFIRM.

ANALYSIS
After careful consideration of all of Appellant’s arguments concerning
all rejections and all claims (App. Br. 9-28), we agree with and adopt the
Examiner’s findings and rationales in response to those arguments, as set
forth on pages 4-20 of the Examiner’s Answer. In particular, pages 15-17 of
the Examiner’s Answer are fully responsive to Appellant’s arguments
regarding whether the four prior art references cited by the Examiner to
address independent claims 21, 25, 29, and 33 are considered analogous
prior art.
Additionally, we point out that the analogous arts test is a two-part
test:  (1) whether the art is from the same field of endeavor, regardless of the
problem addressed and, (2) if the reference is not within the field of the
inventor’s endeavor, whether the reference still is reasonably pertinent to the
particular problem with which the inventor is involved. See In re Bigio, 381
F.3d 1320, 1325 (Fed. Cir. 2004). While we acknowledge, as the Examiner
has done, that Iliff, Legault, Lindstrom, and Tawil may not be in the same
field of endeavor, the claimed invention, Iliff, Legault, Lindstrom, and Tawil
nevertheless satisfy the second prong of this test. That is, while each of the
references may not be specifically related to the primary problem addressed
by Appellant, the second prong is met if it is a reasonably pertinent problem
Appeal 2011-011111
Application 11/272,299

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addressed by Appellant.
On page 15 of the Answer, the Examiner found that each of the
references were considered analogous art to the claimed invention because
they relied upon statistical principles and techniques associated with
graphical statistical analysis. We agree with the Examiner and find that this
was indeed a problem facing the inventor, given that Appellant’s
Specification considers the computational expense in terms of computer
resources for approximating a curve based on available data points (see
Spec. 6; see also fig. 1), and thus, for the reasons discussed by the Examiner
on pages 15-17 of the Answer, the cited references would “logically [] have
commended [themselves] to [the] inventor’s attention in considering his
problem.” See In re Icon Health & Fitness, Inc., 496 F.3d 1374, 1379-80
(Fed. Cir. 2007) (quoting In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992).
And, to the extent that Appellant is arguing that the Examiner’s rationale for
combining the references must coincide with Appellant’s primary problem,
we note that “any need or problem known in the field of endeavor at the time
of invention and addressed by the patent can provide a reason for combining
the elements in the manner claimed.” See KSR Int'l Co. v. Teleflex Inc., 550
U.S. 398, 420 (2007).
DECISION
The decision of the Examiner to reject claims 21-36 is 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED
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