Ex Parte Vailaya et al

Patent Trial and Appeal Board

Dec 28, 2015

11963684 (P.T.A.B. Dec. 28, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111963,684 12/21/2007 Aditya Vailaya
107909 7590 12/30/2015
B&N I Finch & Maloney PLLC
50 Commercial Street
Manchester, NH 03101
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
BN01.806US 1473
EXAMINER
NELSON, FREDA ANN
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
12/30/2015 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):
docketing@finchmaloney.com
nmaloney@finchmaloney.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ADITY A V AILA YA and JIANG WU
Appeal2013-003356 1
Application 11/963,684 2
Technology Center 3600
Before NINA L. MEDLOCK, BRUCE T. WIEDER, and
TARA L. HUTCHINGS, Administrative Patent Judges.
HUTCHINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-15 and 17-28. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM-IN-PART.
1 Our decision references Appellants' Appeal Brief ("Appeal Br.," filed
June 13, 2012) and Reply Br. ("Reply Br.," filed Dec. 21, 2012) and the
Examiner's Answer ("Ans.," mailed Oct. 24, 2012) and Final Office Action
("Final Act.," mailed September 16, 2011 ).
2 Appellants identify Retrevo, Inc. as the real party in interest. Appeal
Br. 3.
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Application 11/963,684
CLAIMED fNVENTION
Appellants' claimed invention relates to displaying product
information. Spec. i-f 2.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal:
1. A method for generating value-based information,
compnsmg:
under control of a computer:
generating statistical data for each of at least some
features of a plurality of products based on prices of the
products having the feature;
generating a base score for each of the features based on
the statistical data;
for each of at least some of the products, computing a
product feature score for the product based on the base scores
of the features that the product has; and
outputting, for the at least some of the products, a
representation of a value of each of the at least some of the
products in relation to each other, the representation of the
value being based on the product feature score and the price for
each of the products.
Appeal Br. 32 (claims App.).
REJECTIONS
Claim 1 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Caldwell (US 7 ,418,44 7 B2, iss. Aug. 26, 2008) and Faltings
(US 2006/0106809 Al, pub. May 18, 2006).
Claims 2-13 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Caldwell, Faltings, Gardner (US 2007/0050201 Al, pub. Mar. 1, 2007),
and Fogg (US 2005/0171940 Al, pub. Aug. 4, 2005).
Claims 14, 15, 18-23, and 25 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Caldwell and Fogg.
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Application 11/963,684
Claim 17 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Caldwell, Fogg, Keith Chrzan, The Options Pricing Model: An Application
of Best-Worst Measurement, 1-10 (2005), available at
https://www.sawtoothsoftware.com/download/techpap/chrzanbw.pdf (last
visited on December 19, 2015) (hereinafter "Chzran").
Claim 24 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Caldwell, Fogg, and Chang (US 2008/0082479 Al, pub. Apr. 3, 2008).
Claims 26---28 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Caldwell, Gardner, Chang, and Madduri (US 6,567,830 Bl,
iss. May 20, 2003).
ANALYSIS
Independent claim 1 and dependent claims 2-7
We are persuaded by Appellants' argument that the Examiner erred in
rejecting claim 1 under 35 U.S.C. § 103(a) because the proposed
combination of Caldwell and Faltings does not disclose or suggest
"generating statistical data for each of at least some features of a plurality of
products based on prices of the products having the feature," as recited in
claim 1. Appeal Br. 10---16.
In rejecting claim 1 the Examiner finds that Caldwell at column 4,
lines 6---9 discloses "generating statistical data for particular features of a
plurality of products based on prices of the products." Final Act. 7. The
Examiner acknowledges that Caldwell "does not explicitly disclose
generating data for each of at least some features of products" (id. at 8), and
relies on Faltings to cure the deficiency. Id. at 8-9 (citing Faltings i-fi-129,
34).
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Application 11/963,684
Caldwell is directed to "[a] Natural Language Product Comparison
Guide Synthesizer [(hereinafter "Synthesizer")] that lets developers create
web-based comparison guides for a given type of product." Caldwell,
Abstract, see id. at col. 2, 11. 13-16. In one embodiment, the Synthesizer
compares a scalar feature (i.e., a feature represented by a numerical scale) of
a digital camera, such as an LCD display size in inches, or a price in dollars.
Id. at col. 4, 11. 6-9, col. 4, 11. 16-17.
We agree with Appellants that the cited portion of Caldwell discloses
directly comparing product features, such as price or screen size, not
generating statistical data for a feature, such as a certain screen size, based
on prices of the products having the certain screen size. See Appeal Br. 11.
In the Response to Arguments section of the Answer, the Examiner
further cites Caldwell at column 4, lines 40-51 and column 4, line 60-
column 5, line 7. Ans. 4--8. But we fail to see, and the Examiner does not
explain, how any of the portions of Caldwell relied on by the Examiner
discloses generating statistical data of a feature based on prices of products
having the respective feature, as called for in claim 1.
The Examiner, thus, does not establish on this record that the
proposed combination of Caldwell and Faltings discloses or suggests
"generating statistical data for each ... feature[] ... based on prices of the
products having the feature," as recited in claim 1.
In view of the foregoing, we do not sustain the Examiner's rejection
of claim 1under35 U.S.C. § 103(a).
Dependent claims 2-7
Each of claims 2-7 depends from claim 1. The Examiner does not
establish on this record that the combination of Gardner and Fogg, relied on
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Application 11/963,684
in rejecting claims 2-7, cures the deficiency of Caldwell and Gardner, as set
forth above with respect to claim 1. Therefore, we do not sustain the
Examiner's rejection of claims 2-7 under 35 U.S.C. § 103(a).
Independent claim 8 and dependent claims 9-13
We are not persuaded by Appellants' argument that the Examiner
erred in rejecting independent claim 8 under 35 U.S.C. § 103(a) because
Caldwell does not disclose or suggest "approximating a feature to price
distribution for each of a plurality of features of a plurality of products," as
recited in independent claim 8. Appeal Br. 20-21. Appellants' argument is
not persuasive because the Examiner relies on paragraphs 73-75 of Gardner
as disclosing the argued limitation. Final Act. 13-14.
We are not persuaded of Examiner error by Appellants' argument that
the combination of Caldwell and Fogg relied on by the Examiner does not
disclose or suggest "outputting data corresponding to a visual representation
of the at least a subset of the products in relation to each other on a chart
based on the product feature scores in one axes and prices of each of the at
least a subset of the products in another axis," as recited in independent
claim 8. Appeal Br. 21-23. Appellants' argument is not persuasive at least
because the feature that Appellants argue is not disclosed in the cited
references, i.e., the outputting limitation, merely describes the nature of the
information displayed. Such mere descriptions of data are not entitled to
patentable weight unless the information functionally affects, or otherwise
alters, the manner in which the claimed method is performed. See Ex parte
Nehls, 88 USPQ2d 1883, 1888-89 (BPAI 2008) (precedential).
Here, that the data output corresponds to "a visual representation of
the at least a subset of products ... [with] feature scores in one axis and
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prices ... in another axis," as recited in claim 8 does not affect, nor in any
way alter the manner in which the claimed method is performed. As such,
the claimed limitation constitutes non-functional descriptive material that
may not be relied on to distinguish the claimed invention from the prior art
in terms of patentability.
In view of the foregoing, we sustain the Examiner's rejection of
claim 8 under 35 U.S.C. § 103(a). We also sustain the Examiner's rejection
of dependent claims 9-13, which are not argued separately. Appeal
Br. 20-23.
Independent claim 14 and dependent claims 18-23 and 25
We are not persuaded by Appellants' argument that the Examiner
erred in rejecting independent claim 14 under 35 U.S.C. § 103(a) because
Caldwell fails to disclose or suggest "assigning a value to each of a plurality
of features of a plurality of products," as recited in claim 14. Appeal Br. 24.
In particular, Appellants argue that Caldwell's Synthesizer takes, as input, a
list of values of features for each product from a database complete with
product features and associated values and, thus, has "no need to assign
values to those features." Id.
However, we find nothing in the claim language, nor do Appellants
point to anything in the claim language, that excludes a database having a
list of product features and associated values, as disclosed by Caldwell, from
being used as a source during the step of assigning. We also find no
indication in the Specification that Appellants have given the term "assign" a
meaning different from the ordinary and customary meaning. To the
contrary, Appellants' Specification describes that "feature information may
be obtained and/or extracted from one or more sources." Spec. i-f 93. As
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Application 11/963,684
such, we agree with the Examiner that Caldwell's Synthesizer discloses the
step of "assigning," as recited in claim 14.
Therefore, we do not sustain the Examiner's rejection under 35 U.S.C.
§ 103(a) of independent claim 14.
Independent claim 15
We are not persuaded by Appellants' argument that the Examiner
erred in rejecting independent claim 15 under 35 U.S.C. § 103(a) because
Caldwell fails to disclose or suggest "determining a value of each of a
plurality of products relative to the other products, the values being based on
features and prices of the products," as recited in claim 15. Appeal Br. 25-
27. Instead, we agree with the Examiner that Caldwell discloses this feature.
Final Act. 19 (citing Caldwell col. 3, 11. 5-60, col. 3, 1. 66-col. 4, 1. 19).
Appellants argue that the claimed determining step distinguishes over
Caldwell's disclosure of scalar features at column 4, lines 6-9, because
Caldwell's scalar features "are always based upon a single feature ... and
never upon the features and prices of the products, as required by claim 15."
Appeal Br. 26. Appellants' argument is unpersuasive because Caldwell
describes using a plurality of features when developing a product
comparison guide-not a single feature. See, e.g., Caldwell, col. 3, 11. 6-7,
col. 3, 11. 66----67, col. 4, 11. 34--36.
Appellants further argue that Caldwell does not disclose the claimed
determining step because Caldwell's ranking of products is based on user
preferences, features, and scoring functions, not "features and prices of the
products," as recited in claim 15. Appeal Br. 25-26.
Caldwell's Synthesizer compares prices of products and various other
features of each of the products, such as display size and convenience.
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Caldwell, col. 4, 11. 3-22. The Synthesizer's Ranking Engine computes an
overall score for a given product based, in part, on individual features of the
product (id. at col. 8, 11. 48-52), and "products are ranked according to their
overall scores" (id. col. 8, 11. 60-61 ).
We find nothing in the claim language, nor do Appellants point to
anything in the claim language, that excludes user preferences and scoring
functions from being used, together with prices and other features of the
products, as disclosed by the Caldwell reference, to determine a value of
each product. As such, we agree with the Examiner that Caldwell's
Synthesizer discloses the claimed determining limitation, as recited in
claim 15.
Therefore, we sustain the Examiner's rejection under 35 U.S.C.
§ 103(a) of independent claim 15. We also sustain the Examiner's rejection
of dependent claims 18-23 and 25, which are not argued separately.
Dependent claim 17
Claim 1 7 depends from claim 15. Appellants do not present any
arguments for the separate patentability of claim 1 7, except to assert that
Chzran does not cure the alleged deficiencies of Caldwell and Fogg, and that
claim 17 is, therefore, not rendered obvious. Appeal Br. 27. We are not
persuaded for the reasons outlined above that the Examiner erred in rejecting
claim 15 under 35 U.S.C. § 103(a). Therefore, we sustain the Examiner's
rejection under 35 U.S.C. § 103(a) of claim 17 for the same reasons.
Dependent claim 2 4
Claim 24 depends from claim 15. Appellants do not present any
arguments for the separate patentability of claim 24, except to assert that
Chang does not cure the alleged deficiencies of Caldwell and Fogg, and that
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claim 24 is, therefore, not rendered obvious. Appeal Br. 28. We are not
persuaded for the reasons outlined above that the Examiner erred in rejecting
claim 15 under 35 U.S.C. § 103(a). Therefore, we sustain the Examiner's
rejection under 35 U.S.C. § 103(a) of claim 24 for the same reasons.
Independent claim 26 and dependent claim 27
Independent claim 26 recites a determining step similar to the
determining step recited in claim 15. Appellants assert that the Examiner
erred in rejecting claim 26 under 35 U.S.C. § 103(a) for the same reasons
discussed with reference to claim 15. Appeal Br. 29. As discussed above,
we are not persuaded that the Examiner erred in rejecting claim 15 under
35 U.S.C. § 103(a). Therefore, we are not persuaded that the Examiner
erred in rejecting claim 26 under 35 U.S.C. § 103(a) for the same reasons.
We also are not persuaded by Appellants' argument that the Examiner
erred in rejecting independent claim 26 under 35 U.S.C. § 103(a) because
Caldwell fails to disclose or suggest "receiving user input specifying a
subset of the products, and outputting data corresponding to a visual
representation of the subset of products," as recited in claim 26. Appeal Br.
29--30. Instead, we agree with the Examiner that Caldwell discloses this
limitation at column 3, lines 40-60. Ans. 22-23.
Caldwell discloses that after a product comparison guide is developed,
an end user may interact with the Synthesizer. Caldwell, col. 3, 11. 40-43.
The user makes a request by specifying preferred values for individual
product features, and the Synthesizer's Ranking engine uses the preferred
values, the product feature data and feature scoring functions to generate a
ranked list of products. Id. at col. 3, 11. 43-53. The Ranking Engine displays
the product rankings to the user, and the user can begin the cycle again by
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requesting different recommendations or comparisons. Id. at col. 3,
11. 53-60.
In the Reply Brief, Appellants argue that a user's selection of
preferred values for individual product features, as disclosed by Caldwell, is
distinct from a "user input specifying a subset of products," as recited in
claim 26. Reply Br. 26. Appellants further maintain that the claimed user
input recited in claim 26 "is always received after a set of products [has
been] evaluated and categorized, and specifies a 'subset of [the evaluated
and categorized] products."' Id.
However, we find nothing in the claim language, nor do Appellants
point to anything in the claim language, that excludes a user's preferred
values for individual features, as disclosed by Caldwell, from being "user
input." Similarly, we find nothing in the claim language, nor do Appellants
point to anything, that excludes a new subset of products from an existing
product guide, as disclosed by Caldwell, from being the claimed subset.
Therefore, we sustain the Examiner's rejection under 35 U.S.C.
§ 103(a) of independent claim 26. We also sustain the Examiner's rejection
of dependent claim 27, which is not argued separately. See Appeal Br. 30.
Dependent claim 28
Claim 28 ultimately depends from claim 15. Appellants do not
present any arguments for the separate patentability of claim 28, except to
assert that Chang and Madduri do not cure the alleged deficiencies of
Caldwell and Fogg, and that claim 28 is, therefore, not rendered obvious.
Appeal Br. 30-31. We are not persuaded for the reasons outlined above that
the Examiner erred in rejecting claim 15 under 35 U.S.C. § 103(a).
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Therefore, we sustain the Examiner's rejection under 35 U.S.C. § 103(a) of
claim 28 for the same reasons.
DECISION
The Examiner's rejections of claims 1-7 under 35 U.S.C. § 103(a) are
reversed.
The Examiner's rejections of claims 8-15 and 17-28 under 35 U.S.C.
§ 103(a) 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)(l )(iv).
AFFIRMED-IN-PART
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