Ex Parte Wabyick et alDownload PDFPatent Trial and Appeal BoardAug 23, 201612325344 (P.T.A.B. Aug. 23, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/325,344 12/01/2008 72058 7590 08/25/2016 Kilpatrick Townsend & Stockton LLP Adobe Systems, Inc. 58083 Mailstop: IP Docketing - 22 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 FIRST NAMED INVENTOR Daniel Wabyick 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. 58083-368603 (B922) 1318 EXAMINER JOSEPH, SHAWN S ART UNIT PAPER NUMBER 2176 NOTIFICATION DATE DELIVERY MODE 08/25/2016 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): ipefiling@kilpatrickstockton.com j lhice@kilpatrick.foundationip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANIEL W ABYICK and JUSTIN VAN SLEMBROUCK Appeal2015-000920 Application 12/325,344 Technology Center 2100 Before MAHSHID D. SAADAT, MELISSA A. HAAPALA, and MATTHEW J. McNEILL, Administrative Patent Judges. RAAP ALA, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1, 5, 7, 10-16, 19, 27, 28, and 30-42, which are all of the claims currently pending in the application. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. Appeal2015-000920 Application 12/325,344 TI'-JVENTION Appellants' invention "relates to rendering visual representations of content, particularly arranging content units in a display area." Spec. i-f 1. Claim 1 is exemplary of the subject matter on appeal: 1. A computer-implemented method comprising: accessing, by a display application executed by a processor, a data feed identifying a first plurality of content units and a second plurality of content units to be displayed; determining, by the display application, a first priority for the first plurality of content units and a second priority for the second plurality of content units, wherein the first priority is higher than the second priority; generating, by the display application, a layout specifying positions in a page for the first plurality of content units and the second plurality of content units, the page of the layout having a page size corresponding to a display area size for a display area, wherein generating the layout comprises: identifying a first design rule specifying a first placement of content units corresponding to the first priority and a second design rule specifying a second placement of content units corresponding to the second priority, and positioning the first plurality of content units based on the first design rule, and positioning the second plurality of content units differently from the first plurality of content units based on the second design rule; and outputting, by the display application, data for rendering the first plurality of content units and the second plurality of content units in the display area based on the layout. 2 Appeal2015-000920 Application 12/325,344 REJECTION ON APPEAL 1 Claims 1, 5, 7, 10-16, 19, 27, 28, and 30-42 stand rejected under 35 U.S.C. § 103(a) as being obvious over the combination of Salesin (US 7,568,154 B2; July 28, 2009), Moore (US 2008/0120534 Al; May 22, 2008), and A. Sherrod, Data Structures and Algorithms for Game Developers (2007) ("Sherrod"). ISSUES Appellants' contentions present us with the following issues: A) Did the Examiner err in finding the combination of Salesin, Moore, and Sherrod teaches or suggests positioning the first plurality of content units based on the first design rule, and positioning the second plurality of content units differently from the first plurality of content units based on the second design rule ("positioning" limitations), as recited in independent claims 1? B) Did the Examiner err in finding the combination of cited references teach or suggest based on determining that the page includes insufficient space ... generating a layout spanning multiple pages ("multiple page" limitation), as recited in dependent claim 7? C) Did the Examiner err in finding the combination of cited references teach or suggest at least one of the first design rule ... specifies placing orphans on a first page ("orphan" limitation) and adjusting the layout comprises reducing an amount of space occupied by the content units already placed on the first page such that the at least one content unit can be 1 The Examiner withdrew the 35 U.S.C. § 112, second paragraph, rejection of claims 34 and 35. See Ans. 4; Final Act. 2-3. 3 Appeal2015-000920 Application 12/325,344 placed on the first page ("adjusting'' limitation), as recited in dependent claim 11? D) Did the Examiner err in finding the combination of cited references teach or suggest determining that the first design rule or the second design rule further specifies that image objects are to be omitted for the display area having the display area size ("omit image objects" limitation) recited in dependent claim 28? E) Did the Examiner establish a prima facie case that the combination of cited references teach or suggest the limitations of claims 37--42? F) Did the Examiner err in finding the combination of cited references teach or suggest the limitations recited in dependent claim 41? ANALYSIS We have reviewed the Examiner's rejections in consideration of Appellants' contentions and the evidence of record. We disagree with Appellants' conclusions that the Examiner's rejections of claims 1, 5, 7, 10- 16, 19, 27, 30-39, 41, and 42 are in error. Appellants have persuaded us the Examiner has failed to establish that claims 28 and 40 are unpatentable over the cited prior art. Issue A: Claims 1, 5, 10, 12-16, 27, 30, 32-36 Appellants contend the combination of Salesin, Moore, and Sherrod does not teach or suggest the "positioning" limitations recited in claim 1. App. Br. 11-14; Reply Br. 2-7. In particular, Appellants argue the combination discloses features related to omitting lower priority-content and/or retrieving particular content in a prioritized order, which is not the same as or suggestive of positioning different pluralities of content units 4 Appeal2015-000920 Application 12/325,344 differently based on their respective priorities. App. Br. 14. Appellants also argue "nothing in Moore discloses that the 'section headers' and 'headlines' depicted in Moore FIG. 7 are positioned differently based on these items having different priorities." Reply Br. 5. Additionally, Appellants argue the combination of references is improper because the Examiner fails to provide a sufficient rationale, the combination of Moore with Salesin would improperly change Salesin's principle of operation and render Salesin inoperable for its intended purpose, and the combination of Sherrod with Salesin would also improperly change Salesin' s principle of operation. App. Br. 14--21. We are not persuaded by these arguments. The Examiner finds, and we agree, Moore teaches the "positioning" limitations. Ans. 7-8 (citing Moore Fig. 7, i-fi-164---65). 2 Moore describes a HideStackPanel that displays items it is given in order, top-to-bottom. Moore i1 64. Fig. 7 exemplifies HideStackPanel, in which section headings and headlines are given a higher priority than bylines and text. Moore i165; see Fig. 7 (illustrating the top-to-bottom placement of section headers, followed by headlines, followed by bylines and text). Thus, we agree with the Examiner that Moore teaches positioning a first plurality of content units (e.g., section headings, headlines) based on a first design rule specifying a 2 The Examiner's Answer includes a quote from Moore to support the findings, but does not include a cite to the specific paragraph numbers in which the quoted language appears. See Ans. 8. We were able to ascertain the quoted material appears in paragraphs 64 and 65 (cited in Final Act.). Compare Ans. 8 with Moore i-fi-1 64---65. There are other cited quotations in the Examiner's Answer that also do not include cites to specific paragraph or columns. See e.g., Ans. 15, 18. In order to assist the Board in the review of the record, we request the Examiner to provide detailed citations in future correspondences. We note that in the present application, Appellants do not identify any harm from the failure to provide the detailed citations. 5 Appeal2015-000920 Application 12/325,344 placement corresponding to a first priority (place highest priority on top) and positioning a second plurality of content units (e.g., text) based on a second design rule specifying a placement corresponding to the second priority (e.g., place the lower priority text underneath its headline). Furthermore, we disagree with Appellants' contentions that the combination is improper. Contrary to Appellants' argument (App. Br. 15- 17), the Examiner does not rely on the references being in the same field of endeavor as rationale for combining Salesin and Moore, but instead states it would have been obvious to combine Salesin and Moore "for the purposes of displaying as much content as possible, where the most important content is given preference." Final Act. 5---6. We determine this to be sufficient articulated reasoning to support the combination. Moreover, we agree with the Examiner (Ans. 10-11) that the combination is no more than a combination of familiar elements according to known methods that yields predictable results. See KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). Appellants also do not provide persuasive argument or evidence that the combination would change Salesin' s principle of operation or render it inoperable for its intended purpose. We agree with the Examiner that Appellants' arguments mischaracterize Salesin as only teaching creation, adaptation, or modification of content before rendering the content because Salesin explicitly describes "content is selected and formatted dynamically, on the fly, by a layout engine in order to best adapt to a given viewing situation." Ans. 18 (quoting Salesin, Abstract); see also App. Br. 18-20. And contrary to Appellants' arguments (App. Br. 21 ), the Examiner does not propose to replace Salesin's tree-type data structure with Sherrod's priority 6 Appeal2015-000920 Application 12/325,344 stack queue, but rather the Examiner finds the queue is used for a different purpose and can be used in conjunction with the document tree. Ans. 14. For the reasons stated above, Appellants do not persuade us of error in the rejection of claim 1. Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of: (1) claim 1; (2) independent claims 13 and 36, for which Appellants rely on the same arguments made for claim 1 (see App. Br. 11, 14); and (3) dependent claims 5, 10, 12, 14--16, 27, 30, and 32-35, which are not argued separately. Issue B: Claims 7 and 31 Appellants contend the cited references do not teach or suggest the "multiple page" limitation recited in dependent claim 7. App. Br. 22. Appellants argue Salesin merely discloses operations related to laying out content in a given page and includes no disclosure of laying out content across multiple pages. Id. We disagree. The Examiner finds, and we agree, that Salesin teaches the "multiple page" limitation. Ans. 15-16. Salesin teaches laying out (generating) pages of text, while conforming to the size and proportions of the display on which they appear. Salesin 2:54--59. For example, Salesin describes a sidebar that may look fine on a wide-screen display, but might need to be moved to a separate page on a PDA (page on PDA includes insufficient space for sidebar). Salesin 1 :54--60. Thus, Appellants do not persuade us of error in the 35 U.S.C. § 103(a) rejection of claim 7 and we accordingly sustain this rejection. With respect to dependent claim 31, Appellants similarly contend Salesin does not suggest generating a composite layout comprising the 7 Appeal2015-000920 Application 12/325,344 layout for the page and the layout for the additional page. App. Br. 25-26. 3 For the reasons stated above, we disagree. See Salesin 2:54--59; see also Ans. 24. Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of claim 31. Issue C: Claim 11 Appellants argue the references do not teach the "orphan" and "adjusting" limitations recited in claim 11. App. Br. 23. The Examiner provides a comprehensive response and finds Salesin and Moore teaches these limitations. Ans. 18-22. Appellants do not address these detailed findings and thus fail to present substantial argument and supporting evidence persuasive of Examiner error. See In re Loving, 652 F.3d 1349, 1357 (Fed. Cir. 201 l)("[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art."). Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of claim 11. Issue D: Claims 28 and 40 The Examiner finds Moore teaches the "omit objects" limitation recited in dependent claim 28. See Final Act. 17 (citing Moore Fig. 7, i-f 65); Ans. 23. Specifically, the Examiner finds Moore teaches excluding images 3 For the first time in the Reply Brief, Appellants contend the cited portions of Salesin do not include any disclosure of "generating a composite layout for multiple content units that are associated with one another and that are included in different pages." Reply Br. 8. In the absence of showing of good cause explaining why the argument could not have been presented in the in the principle Brief, we decline to consider this argument and deem it waived. See 37 C.F.R. § 41.41(b)(2) (2012); In re Hyatt, 211F.3d1367, 1373 (Fed. Cir. 2000) (noting that an argument not first raised in the brief to the Board is waived on appeal). 8 Appeal2015-000920 Application 12/325,344 when there is not sufficient room (display is determined to be a size too small). Ans. 23. Appellants argue Moore does not teach excluding an image object under the circumstances recited in claim 28 (i.e., when a design rule specifies image objects are omitted for display areas of a given size), but rather describes displaying content based on a priority between two groups. App. Br. 24--25. Thus, Appellants argue that in some cases in Moore all content is displayed (element 702), while in other cases only the section headings and headlines appear (element 706). App. Br. 24 (citing Moore ii 65). We agree with the Examiner that Moore describes when there is room, images are displayed and when there is not sufficient room, only section headings and headlines appear. Ans. 23; see Moore Fig. 7, i-f 65. However, the cited sections describe making the determination to exclude content based on a priority of parent and child objects (child object content is excluded if insufficient room), and not on a display area size for which the layout is generated.4 See Moore i-fi-164--65; see also Moore Fig. 7 (illustrating content in which there is room to display images and other content in which only the section heading and headlines appear). Accordingly, Appellants persuade us of error and we do not sustain the 35 U.S.C. § 103(a) rejection of claim 28. The Examiner similarly relies on Figure 7 and paragraph 64 of Moore to teach the limitations recited in dependent claim 40. See Ans. 30, 33. We 4 The "display area" recited in claim 28 obtains its antecedent basis from claim 1, which recites "generating ... a layout specifying positions in a page ... the page of the layout having a page size corresponding to a display area size for a display area" (emphasis added). 9 Appeal2015-000920 Application 12/325,344 agree with Appellants' argument (Reply Br. 10-11) that the Examiner does not establish Moore teaches excluding the second image from the layout based on the second design rule specifYing that images for secondary articles are to be included in the layout if no images are associated with primary articles as recited in claim 40. The cited sections of Moore describe making the determination based on a priority of parent and child objects, not on whether an image is associated with the primary article. See Moore i-fi-164---65; see also Moore Fig. 7. Accordingly, we do not sustain the 35 U.S.C. § 103(a) rejection of claim 40. Issue E: Claims 3 7-39, and 42 With respect to independent claim 37 and its dependent claims 38--42, Appellants contend the Final Action failed to establish prima facie obviousness because all of the words of these claims were not considered. App. Br. 26-27. However, the Examiner finds the same rationale as previously specified applies to these claims. Final Act. 22. Further, the Examiner provides a comprehensive response to Appellants' argument and provides a detailed explanation as to how the same findings apply to these claims. Ans. 24--32. Appellants do not rebut these findings; therefore, we are not persuaded of error. We are further not persuaded of error by Appellants' argument that the combined teachings fail to disclose or suggest determining placement of first content units based on a first design rule and a second placement of second plurality of content units based on a second design rule as recited in claim 37. App. Br. 28. This argument is substantially similar to that made for claim 1 and is not persuasive for the reasons discussed supra Issue A. Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of independent 10 Appeal2015-000920 Application 12/325,344 claim 37 and its dependent claims 28, 39, and 42, for which Appellants do not present separate arguments for patentability. Issue F: Claim 41 Appellants contend the combination of cited references does not disclose or suggest the recited features of claim 41. App. Br. 32. The Examiner provides detailed findings explaining how the combination of cited references teaches or suggests all of the limitations set forth in claim 41. Ans. 34. Appellants fail to address these findings and thus do not present substantial argument persuasive of Examiner error. See In re Loving, 652 F.3d at 1357. Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of claim 41. DECISION We affirm the Examiner's decision to reject claims 1, 5, 7, 10-16, 19, 27, 30-39, 41, and 42. We reverse the Examiner's decision to reject claims 28 and 40. 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. § 41.50(±). AFFIRMED-IN-PART 11 Copy with citationCopy as parenthetical citation