Ex Parte Simone

Board of Patent Appeals and Interferences

Jul 2, 2009

09658298 (B.P.A.I. Jul. 2, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte KENNETH D. SIMONE JR.
____________
Appeal 2008-004865
Application 09/658,2981
Technology Center 2400
____________
Decided:2 July 2, 2009
____________

Before JOHN C. MARTIN, HOWARD B. BLANKENSHIP, and JEAN R.
HOMERE, Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

DECISION ON APPEAL

1 Filed on September 8, 2000. The real party in interest is Coral Corporation.
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1 through 10, 12, and 14. Claims 11 and 13 have been
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellant’s Invention
Appellant invented a method and computer-readable medium that
facilitates the automated processing of multiple items of data in a manner
which reduces the level of human involvement. (Spec. 5, ll. 2-5.) In
particular, project definitions are utilized to maintain and process computer
files containing numerous images of items available for sale in a product
catalog. (Spec. 14, ll. 25-32.) In order to ensure general conformity of
images from various sources, each image is processed to adjust its respective
size, shape, resolution, and tint. (Spec. 15, ll. 7-12.) As depicted in Figure
1, the project definition (14) obtains an image from subdirectory (12).
(Spec. 10, ll. 1-6.) The image is outputted (22) by source module (21) to an
input port of branch module (26). (Spec. 10, ll. 23-24.) Branch module (26)
checks the size of the file associated with each image. (Spec. 10, ll. 24-26.)
Depending on the size of the image, branch module (26) either: 1) outputs
the image through an output port (27) to an input port of action module (31);
or 2) outputs the image through an output port (28) to an input port of action
module (32). (Spec. 10, ll. 27-33.) Both action modules (31, 32) have
additional input ports that receive a text string containing the file associated
with each image (23). (Spec. 11, ll. 1-6.) The action modules (31, 32)
superimpose the text string (23) on the associated image data and output the
results (33, 34) through an output port to an input port of respective
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destination modules (37, 38). (Spec. 11, ll. 6-13.) After executing the
projection definition (14), and in response to a predefined condition, an
electronic mail message is transmitted to a remote device. (Spec. 56, ll. 16-
34.)
Illustrative Claim
Independent claim 1 further illustrates the invention as follows:
1. A method, comprising the steps of:

providing a set of predetermined function definitions which are
different, at least one of said predetermined function definitions defining a
function for editing image data;

storing a project definition that is operable when executed to edit said
image data and which includes: a plurality of function portions which each
correspond to one of said function definitions in said set, and which each
define at least one input port and at least one output port that are functionally
related according to the corresponding function definition; a further portion
which includes a source portion identifying a data source and defining an
output port through which said image data from the data source can be
produced, and which includes a destination portion identifying a data
destination and defining an input port through which said image data can be
supplied to the data destination; and binding information which includes
binding portions that each associate a respective said input port with one of
said output ports;

executing said project definition; and

automatically transmitting a communication to a remote device
through a communication link after editing said image data during execution
of said project definition, wherein transmitting said communication occurs
after editing a predetermined number of images.

Prior Art Relied Upon
The Examiner relies on the following prior art as evidence of
unpatenability:
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Ferrel US 5,907,837 May 25, 1999
Belanger US 6,628,824 B1 Sep. 30, 2003

David Hollingsworth, Workflow Management Coalition, The
Workflow Reference Model, Document Number TC00-1003, 1-55
(1995).

Rejection on Appeal3
The Examiner rejects the claims on appeal as follows:
Claims 1 through 10, 12, and 14 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over the combination of Hollingsworth, Ferrel,
and Belanger.
Appellant’s Contentions
1. Appellant contends that the Examiner erred in concluding that
the combination of Hollingsworth, Ferrel, and Balenger renders independent
claim 1 unpatentable. In particular, Appellant argues that:
a) Hollingsworth’s disclosure of process definitions fails to teach the
claimed set of predetermined function definitions. (App. Br. 15; Reply Br.
3-4.)
b) Ferrel’s disclosure of an image editor used to create and modify
images fails to teach at least one of said predetermined function definitions
defining a function for editing image data. (App. Br. 15-16.)
c) Belanger’s disclosure of an alarm or notification utilized, when
comparing images using pattern matching, fails to teach transmitting said
communication to a remote device wherein said communication occurs after
editing a predetermined number of images. (App. Br. 17-18; Reply Br. 4.)

3 The Examiner withdrew the final rejection of claim 1 as being directed to
non-statutory subject matter under 35 U.S.C. § 101. (Ans. 3.)

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d) There is no motivation for the proffered combination. (App. Br.
19-21; Reply Br. 5-6.)
e) Ferrell is non-analogous art and cannot be properly used in the
proffered combination. (App. Br. 21; Reply Br. 6-7.)
Examiner’s Findings and Conclusions
1. The Examiner concludes that the combination of
Hollingsworth, Ferrel, and Balenger renders independent claim 1
unpatentable. In particular, the Examiner finds that:
a) Hollingsworth’s disclosure of process definitions executed on a
computer teaches predetermined function definitions. (Ans. 10-12.)
b) Ferrel’s disclosure of an image editor that creates and modifies
image content teaches at least one of said predetermined function definitions
defining a function for editing image data. (Ans. 12-14.)
c) Ferrel’s disclosure of creating, editing, releasing, and storing
images in a public storage teaches transmitting a communication to a remote
device through a communication link after editing said image data during
execution of said project definition. (Ans. 14-15.) Further, the Examiner
finds that Belanger’s disclosure of providing an alarm or notification based
upon the occurrence of a particular event, in conjunction with Ferrel’s
disclosure of creating, editing, releasing, and storing images in a public
storage, teaches wherein said communication occurs after editing a
predetermined number of images. (Ans. 15-16.)
d) Hollingsworth’s disclosure of automated image processing via
process definitions, Ferrel’s disclosure of an image editor, and Belanger’s
alarm or notification feature conditioned upon the occurrence of a particular
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event provides a record of objective evidence that teaches motivation for the
proffered combination. (Ans. 17-20.)
e) Ferrel is analogous art because it falls within Appellant’s field of
endeavor. (Ans. 21.) In particular, Ferrell’s disclosure of indexing,
querying, and retrieving content objects in an online network generally
relates to Appellant’s disclosure of automated processing of multiple items
of data. (Ans. 18, 20-21.)

II. ISSUES
1. Has Appellant shown that the Examiner erred in concluding
that the combination of Hollingsworth, Ferrel, and Belanger renders
independent claim 1 unpatentable? In particular, the issues are whether:
a) Hollingsworth teaches providing a set of predetermined function
definitions.
b) Ferrel teaches at least one of said predetermined function
definitions defining a function for editing image data.
c) The combination of Ferrel and Belanger teaches automatically
transmitting a communication to a remote device through a communication
link after editing said image data during execution of said project
definitions, wherein transmitting said communication occurs after editing a
predetermined number of images.
d) An ordinarily skilled artisan would have found sufficient rationale
for the proffered combination.
e) Ferrel is analogous art and can be properly used in the proffered
combination.

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III. FINDINGS OF FACT
Appellant’s Invention
1. Appellant’s claimed invention generally relates to automated
processing of multiple items of data. In particular, Appellant invented a
method and apparatus for automatically transmitting a communication
during automated data processing. (Spec. 1, ll. 2-6.)
2. Figure 1 depicts project definition (14) that defines how data
from the files in the subdirectory (12) should be processed. (Spec. 8, ll. 6-7.)
Conceptually, one way to view the project definition (14) of Figure 1 is that
execution proceeds on a module-by-module basis through the project
definitions from the source module (21) to the branch module (26), and then
to either the action module (31) followed by the destination module (37), or
alternatively to the action module (32) followed by the destination module
(38). (Spec. 10, ll. 11-18.) Another way to view the project definition (14)
is that each of the modules is ready at all times to carry out its respective
functions. (Spec. 10, ll. 18-20.) The projection definition (14) may include
two or more mutually exclusive sets of modules, which are each referred to
as a process. (Spec. 12, ll. 3-5.)
3. Figure 14 depicts that the module area (514) of the screen (501)
includes a “source” icon (526), a “branches” icon (527), an “actions” icon
(528), and a “destination” icon (529). (Spec. 88, ll. 29-31.) To the right of
the column containing areas (513) and (514) is a further column (536),
which contains a list, in a standard tree format (537), of available source,
branch, action, and destination definitions. (Spec. 89, ll. 3-6.) In this regard,
the tree (537) includes nodes (541-544) adjacent to each category of
definitions. (Spec. 89, ll. 6-8.)
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Hollingsworth
4. Workflow generally relates to the automated procedures where
documents, information, or tasks are passed between participants according
to a defined set of rules to achieve an overall business goal. (P. 6, ll. 1-2.)
Workflow management systems use Build-time functions to define and
model the workflow process. (P. 6, l. 26 through Pg. 7, l. 2.) Build-time
functions are business processes translated from the real world to formal,
computer process definitions by the use of one or more analysis, modeling,
and system definition techniques. (P. 7, ll. 10-12.) A process definition
comprises a number of activity steps, with associated computer and human
operations that invoke rules governing the progression of the process
through the various activity steps. (P. 8, ll. 1-2.) The process definition
contains all the necessary information about the process to enable it to be
executed by software. (P. 12, ll. 25-26.)
5. Workflow technology encompasses a number of different
product areas, including image processing, document management, and
electronic mail and directories. (P. 9, l. 18 through P. 10, l. 23.) In regards
to image processing, once information is captured electronically as image
data, it may be passed between different participants and other IT
applications, thereby creating a need for workflow functionality. (P. 10, ll.
4-7.)
Ferrell
6. Ferrell discloses a system and method for indexing, querying,
and retrieving content objects, including images, in an online network. (Col.
4, ll. 2-4.)
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7. Figure 2 depicts a Multimedia Publication System (“MPS”)
(100) that includes a set of tools for designing, developing, and viewing
multimedia online applications. (Col. 10, ll. 17-20.) A publisher (102)
utilizes a computer (180) and a Design software environment (194) to create
and publish the title layout (110) and content objects (112). (Col. 12, ll. 20-
24.) The Designer (194) includes an image editor (192) that creates and
modifies images. (Col. 10, ll. 34-45.)
8. When a publisher creates a page layout and associated content
objects, the title layout and content objects are published together and may
be downloaded by consumers using the MPS software. (Col. 8, ll. 61-67.)
Figure 1 depicts a public storage (120) implemented as a network (122)
where the title layout and content objects are released and stored. (Col. 9, ll.
52-58.) In particular, Figure 5 depicts an MPS Caching Object Store
(“COS”) server (246) that publishes the title layout and content objects.
(Col. 17, ll. 29-32.) A publisher can just publish a content folder having one
or more content objects to the COS server (246). (Col. 17, ll. 32-34.) The
COS server (246) copies the published title layout and content objects to the
Information Retrieval (“IR”) system (398). (Col. 17, ll. 38-40.)
Belanger
9. Belanger generally relates to a computer-implemented method
for analyzing, identifying, and comparing images. (Col. 1, ll. 8-10.)
10. Belanger discloses a spider or search engine that can be used to
search an electronic network for copies of an identified image. (Col. 8, ll.
58-60.) The spider or search engine includes an alarm or notification
feature. (Col. 9, ll. 32-33.) The alarm or notification feature can be
conditioned upon the occurrence of a particular event, such as identifying
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the total number of images on a site or electronic network, determining the
selected characteristics of an image or group of images, and locating and
identifying all images at a particular site. (Col. 9, ll. 43-64.)

IV. PRINCIPLES OF LAW
Claim Construction
"[T]he words of a claim 'are generally given their ordinary and
customary meaning.'" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.
Cir. 2005) (en banc) (internal citations omitted). "[T]he ordinary and
customary meaning of a claim term is the meaning that the term would have
to a person of ordinary skill in the art in question at the time of the invention,
i.e., as of the effective filing date of the patent application." Id. at 1313
(citations omitted).
"[T]he 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)). "Moreover, limitations are not to be read
into the claims from the specification." In re Van Geuns, 988 F.2d 1181,
1184 (Fed. Cir. 1993) (citing In re Zletz, 893 F.2d 319, 321 (Fed. Cir.
1989)). Our reviewing court has repeatedly warned against confining the
claims to specific embodiments described in the specification. Phillips, 415
F.3d at 1323.

Obviousness
"On appeal to the Board, an applicant can overcome a rejection [under
§ 103] by showing insufficient evidence of prima facie obviousness or by
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rebutting the prima facie case with evidence of secondary indicia of
nonobviousness." In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998).
Section 103 forbids issuance of a patent when "the differences
between the subject matter sought to be patented and the prior
art are such that the subject matter as a whole would have been
obvious at the time the invention was made to a person having
ordinary skill in the art to which said subject matter pertains."

KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007).
In KSR, the Supreme Court emphasized "the need for caution in
granting a patent based on the combination of elements found in the prior
art," and discussed circumstances in which a patent might be determined to
be obvious. Id. at 415 (citing Graham v. John Deere Co., 383 U.S. 1, 13-14
(1966)) (citation omitted). The Court reaffirmed principles based on its
precedent that "[t]he combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results." Id. at 416. The operative question in this "functional approach" is
thus "whether the improvement is more than the predictable use of prior art
elements according to their established functions." Id. at 415, 417.
The Federal Circuit recently recognized that "[a]n obviousness
determination is not the result of a rigid formula disassociated from the
consideration of the facts of a case. Indeed, the common sense of those
skilled in the art demonstrates why some combinations would have been
obvious where others would not." Leapfrog Enters., Inc. v. Fisher-Price,
Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 416).
The Federal Circuit relied in part on the fact that Leapfrog had presented no
evidence that the inclusion of a reader in the combined device was “uniquely
challenging or difficult for one of ordinary skill in the art” or “represented an
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unobvious step over the prior art.” Id. at 1162 (citing KSR, 550 U.S. at 417-
18).
One cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
The test for obviousness is what the combined teachings of the
references would have suggested to one of ordinary skill in the art. See In re
Kahn, 441 F.3d 977, 987-988 (Fed. Cir. 2006), In re Young, 927 F.2d 588,
591 (Fed. Cir. 1991); In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Moreover, in evaluating such references it is proper to take into account not
only the specific teachings of the references but also the inferences which
one skilled in the art would reasonably be expected to draw therefrom. In re
Preda, 401 F.2d 825, 826 (CCPA 1968) (citation omitted).
In identifying a reason that would have prompted a person of ordinary
skill in the relevant field to combine the prior art teachings, the Examiner
must show some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness. KSR, 550 U.S. at 418.

V. CLAIM GROUPING
Appellant argues that the combination of Hollingsworth, Ferrel, and
Belanger does not render independent claim 1 unpatentable. Appellant does
not specifically argue the other rejected claims. In accordance with the
provisions of 37 C.F.R. § 41.37(c)(1)(viii), we will consider claims 2
through 10, 12, and 14 as standing or falling with claim 1.

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VI. ANALYSIS
Claim 1
Independent claim 1 recites in relevant parts: 1) providing a set of
predetermined function definitions which are different, at least one of said
predetermined function definitions defining a function for editing image
data; 2) storing a project definition . . . which includes: a plurality of
function portions which each correspond to one of said function definition in
said set; and 3) wherein transmitting said communication occurs after
editing a predetermined number of images.
We first consider the scope and meaning of the terms “predetermined
function definitions” and “project definition,” which must be given their
broadest reasonable interpretation consistent with Appellant’s disclosure, as
explained in In re Morris, 127 F.3d 1048 (Fed. Cir. 1997):
[T]he PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in
the art, taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant's specification.

Id. at 1054. See also In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) (stating
that “claims must be interpreted as broadly as their terms reasonably
allow.”). Appellant’s Specification states the following:
[Figure 14 depicts that] [t]he modules area 514 of the screen 501
includes a “sources” icon 526, a “branches” icon 527, an “actions”
icon 528, and a “destination” icon 529.

(Spec. 88, ll. 29-31; see also FF 3; see also Supp. App. Br. 3.)
To the right of the column containing areas 513 and 514 is a further
column 536, which contains a list, in a standard tree format 537, of
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available source, branch, action, and destination definitions. In this
regard, the tree 537 includes nodes 541-544 adjacent [sic] each
category of definitions.

(Spec. 89, ll. 3-8; see also FF 3; see also Supp. App. Br. 3.)
FIGURE 1 is a block diagram of a configuration 10 which embodies
features of the present inventions, and which includes . . . a project
definition 14 that defines how data from the files in the subdirectory
12 should be processed . . . .

(Spec. 8, ll. 2-7, see also FF 2.) (Emphasis added.)

Conceptually, one way to view the project definition 14 of FIGURE 1
is that execution proceeds on a module-by-module basis through the
project definitions…from the source module 21 to the branch module
26, and then to either the action module 31 followed by the
destination module 37, or alternatively to the action module 32
followed by the destination module 38. Another way to view project
definition 14 is that each of the modules is ready at all times to carry
out its respective function . . . .

(Spec. 10, ll. 11-20; see also FF 2.)
A projection definition of the general type shown at 14 in FIGURE 1
may include two or more mutually exclusive sets of modules, which
are each referred to as a process.

(Spec. 12, ll. 3-5; see also FF 2.)
Upon reviewing Appellant’s Specification, we find that the term
“predetermined function definitions” includes respective source, branch,
action, and destination definitions. Further, we find that the term “project
definition” includes source, branch, action, and destination modules.
Therefore, we conclude that the claim term “project definition” includes
“predetermined function definitions,” such as source, branch, action, and
destination definitions. Additionally, we conclude that the claim term
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“project definition” may be broadly, but reasonably construed as a process
or task for performing a specific function.
As set forth in the Findings of Fact section, Hollingsworth discloses
automated procedures, where documents, information, or tasks are passed
between participants according to a defined set of rules to achieve an overall
business goal. (FF 4.) In particular, Hollingsworth discloses that a process
definition comprises a number of activity steps, with associated computer
and human operations that invoke rules governing the progression of the
process through the various activity steps. (Id.) The process definition
contains all the necessary information about the process to enable it to be
executed by software. (Id.) Further, one of the process definitions disclosed
in Hollingsworth includes capturing and processing electronically image
data. (FF 5.) Therefore, consistent with the broadest reasonable
interpretation adopted above, the process definitions that encompass image
processing disclosed in Hollingsworth teach processes or tasks for
performing a specific function.
Further, we find that Ferrel discloses a system and method for
indexing, querying, and retrieving images in a network. (FF 6.) Ferrel
discloses a set of tools for designing, developing, and viewing title layouts
(110) and content objects (112), including a Designer (194) that contains an
image editor (192) for creating and modifying images. (FF 7.) We find that
Ferrel teaches a tool for creating and modifying images. In particular, we
find that Ferrel’s disclosure of a tool for creating and modifying images, in
conjunction with Hollingsworth’s disclosure of various process definitions,
including image processing, teaches providing a set of predetermined
function definitions which are different, at least one of said predetermined
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function definitions defining a function for editing image data, as recited in
independent claim 1.
Additionally, we find that Ferrel discloses a publisher that creates a
page layout and associated content objects; stores the title layout and content
objects; publishes or releases the title layout and content objects to an
Information Retrieval system; and allows consumers to download the title
layouts and content objects using the associated software. (FF 8.) We find
that Ferrel’s disclosure of transmitting title layouts and content objects to an
Information Retrieval system, in conjunction with allowing a consumer to
download title layouts and content objects using the associated software,
teaches transmitting a communication. Further, we find that Belanger
discloses a computer-implemented method for analyzing, identifying, and
comparing images that includes an alarm or notification feature that may be
conditioned upon the occurrence of a particular event. (FF 9, 10.) We find
that Belanger’s disclosure of a notification feature conditioned upon the
occurrence of a particular event teaches transmitting a communication in
response to a predefined condition. As set forth above, we find that Ferrel
teaches a tool for creating and modifying images. In summary, we find that
Ferrel’s disclosure of a tool for creating images, modifying images, and
transmitting a respective communication, in conjunction with Belanger’s
disclosure of transmitting a communication in response to a predefined
condition, teaches wherein transmitting said communication occurs after
editing a predetermined number of images, as recited in independent claim
1. It follows that Appellant has not shown that the Examiner erred in finding
that the combination of Hollingsworth, Ferrel, and Belanger renders
independent claim 1 unpatentable.
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Rationale to Combine
As set forth in the Findings of Fact section, Hollingsworth discloses
process definitions that define how documents, information, or tasks are
passed between participants in order to achieve an overall business goal.
(FF 4.) In particular, one of the numerous process definitions disclosed in
Hollingsworth includes capturing and processing electronically image data.
(FF 5.) Ferrel complements Hollingsworth by disclosing a system and
method for indexing, querying, and retrieving images that include a tool for
creating and modifying images, and allows respective title layouts and
content objects to be transmitted to an information retrieval system. (FF 6,
7, 8.) Further, Belanger complements the combination of Hollingsworth and
Ferrel by disclosing a computer-implemented method for analyzing,
identifying, and comparing images that include an alarm or notification
feature conditioned upon the occurrence of a particular event. (FF 9, 10.)
Thus, we find that Hollingsworth, Ferrel, and Belanger disclose prior art
elements that perform their ordinary functions to predictably result in a
method and apparatus for processing multiple items of data comprising
various project definitions, including defining a function for editing images,
storing the project definitions, executing the project definitions, and
transmitting an electronic message in response to a predefined condition.
See KSR, 550 U.S. at 418-419.
Analogous Art
Upon reviewing Appellant’s Specification, we find that the claimed
invention generally relates to automated processing of multiple items of
data, and, in particular, transmitting a communication during automated data
processing. (FF 1.) We find that Appellant’s field of endeavor is processing
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and transmitting data. Further, Ferrel discloses a system and method for
indexing, querying, and retrieving title layouts and content objects in an
online network. (FF 6.) We find that Ferrel is within the same field of
endeavor as the claimed invention, because both concern processing and
transmitting data.

VII. CONCLUSION OF LAW
Appellant has not shown that the Examiner erred in concluding that
the combination of Hollingsworth, Ferrel, and Belanger renders claims 1
through 10, 12, and 14 unpatentable under 35 U.S.C. § 103(a).

VIII. DECISION
We affirm the Examiner’s decision to reject claims 1 through 10, 12,
and 14 as being unpatentable under 35 U.S.C. § 103(a).
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
erc
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