Ex Parte Welker

Patent Trial and Appeal Board

May 25, 2017

12849562 (P.T.A.B. May. 25, 2017)

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.
12/849,562 08/03/2010 Gerhard Welker 2010P00181US 8084
62730 7590
SAP SE
3410 HILLVIEW AVENUE
PALO ALTO, CA 94304
05/30/2017 EXAMINER
SHEIKH, ASFAND M
ART UNIT PAPER NUMBER
3627
NOTIFICATION DATE DELIVERY MODE
05/30/2017 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):
APRIL.MENG@SAP.COM
GIPinhouse@sap.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GERHARD WELKER
Appeal 2016-003486
Application 12/849,562
Technology Center 3600
Before: CARL W. WHITEHEAD JR., MICHAEL J. STRAUSS, and
MICHAEL J. ENGLE, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-003486
Application 12/849,562
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1—16. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
THE INVENTION
The claims are directed to a visual pathfinder for product structure
recursions. Spec., Title. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1 A method comprising:
analyzing, in a computer, a virtual product structure, the
virtual product structure corresponding to a physical product, to
identify a recursion in the product structure, a recursion existing
when a lower level item in the product structure is the same as a
higher level item in the product structure;
generating a graphical representation of the product
structure exposing the recursion; and
displaying the graphical representation within a graphical
user interface on an electronic display.
REFERENCE
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
2BizBox Documentation: Audit Recursive BOM,
http://doc.servasoftware.com/ (Dec. 31, 2008) (“2BizBox”).
REJECTIONS
The Examiner made the following rejections:
Claims 1—14 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by 2BizBox. Final Act. 6—10.
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Claims 15 and 16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over 2BizBox and the Examiner’s Official Notice. Final Act.
10-12.
ANALYSIS
Appellant’s contentions of error in connection with dependent claims
3, 5, 6, 9, and 13 are persuasive of Examiner error. However, we are not
persuaded in connection with the rejections of the remaining claims.
Claims 1 and 11
In connection with the independent claims 1 and 11, Appellant argues
“[t]he Examiner’s reliance on . . . varying interpretations of a graphical
depiction without any supporting text as allegedly disclosing at least four
distinct features of Appellant’s claim set reflects ... a misunderstanding of
the Office’s obligations under 35 U.S.C. § 102.” App. Br. 8. Appellant
further contends the Examiner’s application of 2BizBox’s color-coded listing
of components is improperly relied upon for disclosing multiple differing
elements recited by the respective claims. Id. The Examiner responds by
finding the 2BizBox drawings (including text appearing within the drawing)
in combination with associated supporting text (e.g., text describing clicking
“Start” to “show all the recursive BOMS”) disclose the argued features of
the claims. Final Act. 6—7; 2BizBox 3. The Examiner further explains how
the claims are interpreted such that color-coding of listed components
discloses the argued elements. Ans. 2-4.
For claims 1 and 11, Appellant’s contention concerning the lack of
supporting text is unpersuasive, both factually and as a matter of law. In
particular, the 2BizBox drawings include text within the figures in addition
to supporting text adjacent the figures. Furthermore, drawings, like
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references in any other form, are “evaluated] and applied] ... on the basis
of what they reasonably disclose and suggest to one skilled in the art.” In re
Aslanian, 590 F.2d 911, 914 (CCPA 1979) (quoting In re Baum, 374 F.2d
1004, 1009 (CCPA 1967)). Accordingly, “[description for the purposes of
anticipation can be by drawings alone as well as by words.” In re Mraz, 455
F.2d 1069, 1072 (CCPA 1972) (quotation omitted). We also are not
persuaded of error by the Examiner’s reliance on 2BizBox’s color-coding for
purposes of claims 1 and 11 because, under a broad but reasonable
interpretation of the claims, the color-coding can properly disclose multiple
limitations as recited by the claims.
Appellant further contends “[t]he mere act of displaying a graphic
predefined in a file thereby revealing those previously tagged recursions [as
disclosed by 2BizBox] would not constitute analysis of the product structure
by the computer to identify the recursions” as required by claims 1 and 11.
App. Br. 9. In particular, Appellant argues the identification and display of
recursive BOMs does not require or imply the recited computer analysis of
the underlying structure. App. Br. 9. According to Appellant, the
Examiner’s interpretation of the recited limitation is unduly broad in view of
Appellant’s proffered dictionary definition that the word “analyze” means
“to examine (something) methodically and in detail, typically in order to
explain and interpret it.” Id.
We disagree with Appellant. The Examiner finds, and we agree, that
when viewed from the perspective of a person of ordinary skill in the art,
2BizBox’s disclosure of clicking a “Start” button to “Audit Recursive BOM”
and “show all the recursive BOMS in the list UI” discloses the analyzing
step of claims 1 and 11. Ans. 4; 2BizBox 1—3. In contrast, Appellant fails to
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provide persuasive evidence that the “analyzing” step imposes requirements
beyond achieving the recited result of “identify[ing] a recursion in the
product structure.” App. Br. 9. Further, even if we were to accept
Appellant’s definition for analyzing as requiring a detailed, methodical
examination to explain and interpret the product structure, Appellant fails to
explain why 2BizBox’s “Audit” fails to disclose such an examination.
Accordingly, we sustain the rejection of claims 1 and 11 under 35 U.S.C.
§ 102(b).
Claim 7
Appellant’s contention of error in connection with the rejection of
independent claim 7 is similar to that presented in connection with
independent claims 1 and 11, with Appellant further arguing the recursions
identified by 2BizBox may be identified manually rather than by a module
executing on a computer as required by claim 7. App. Br. 10. The Examiner
finds, by clicking 2BizBox’s “Start” button to “Audit Recursive BOM,” a
system processor identifies and displays recursive BOMs, thereby disclosing
the argued recursion analysis module. Ans. 4—5. We agree with the
Examiner. One skilled in the art at the time of the invention would have
understood 2BizBox’s user interface start button would cause a system
processor to audit and identify recursions in a BOM, thereby disclosing the
recursion analysis module of claim 7. Therefore we sustain the rejection of
claim 7 under 35 U.S.C. § 102(b).
Claims 2 and 12
Appellant contends the Examiner fails to identify in 2BizBox any
disclosure of a relationship causing the identified recursion. App. Br. 10.
Appellant argues identification of a recursion does not identify the
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relationship that caused the recursion. Id. According to Appellant,
2BizBox’s color-coded identification of recursively listed components is
ambiguous in connection with the relationship causing the recursion, e.g.,
whether it is a direct parent-child relationship between components or a
grandchild-grandparent relationship. Id. Appellant argues that 2BizBox’s
dotted lines between components is the same whether connecting recursive
or non-recursive components and, therefore, cannot disclose identification of
a relationship causing the recursion as required by claim 2. App. Br. 12.
According to Appellant, rather than the system identifying or highlighting
the argued relationship, “identification ... is left as an activity for a user.”
Id. The Examiner responds by finding under a broad but reasonable
construction that 2BizBox’s “waterfall listing displaying [item number]
‘054563045’ twice and coloring it [red to indicate recursion] would be an
identification of a relationship that causes the recursion.” Ans. 5.
We are not persuaded by Appellant’s contention. Claim 2 recites
“identifying a relation that causes the recursion.” By identifying the
recursively-related parent and child components in a waterfall listing, not
only is the recursion identified but the relationship causing the recursion as
represented by the waterfall diagram is also identified. That is, 2BizBox’s
waterfall diagram begins and ends with a red-colored icon indicating the
recursive component, with intervening dotted lines and blue-colored icons
identifying the relationship that causes the recursion (e.g., each new dotted
line moving further down and to the right to indicate a successive
generation). Accordingly, we sustain the rejection of claims 2 and 12 under
35U.S.C. § 102(b).
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Claims 3 and 13
The Examiner finds 2BizBox’s updating of a BOM discloses severing
the relationship that causes the recursion. Final Act. 7—8; Ans. 6. Appellant
contends “nothing in the reference discloses explicitly that which the
Examiner has characterized as the relation (the dotted line reflected in the
waterfall listing) is severed by virtue of the editing of the recursive BOM.”
App. Br. 13. We agree with Appellant. In the absence of any specific detail
concerning what is meant by updating the BOM, modification of a BOM as
disclosed by 2BizBox by deleting or severing relationships causing a
recursion is not anticipated under § 102, regardless of whether it would have
been obvious under § 103. Accordingly, we do not sustain the rejection of
claims 3 and 13 under 35 U.S.C. § 102(b) as being anticipated by 2BizBox.
Claims 4 and 14
The Examiner finds 2BizBox’s message description that “You can
click on the link ‘BOM’, go to the BOM Detail and update it” discloses the
step of accepting modifications to the virtual product structure through the
“graphical user interface” as recited by clams 4 and 14. Final Act. 8.
Appellant contends any modifications are made through a separate
environment and not through the graphical user interface displaying the
waterfall representation. App. Br. 14. The Examiner finds “the ability to
audit and then update a Recursive BOM would as reasonably constructed by
one of ordinary skill require the use of a GUI and accepting the
modification.” Ans. 6.
Appellant provides insufficient evidence or argument to persuade us
any modifications are made without going through the graphical user
interface. Mere attorney arguments and conclusory statements, which are
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unsupported by factual evidence, are entitled to little probative value. 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). Instead, we find the
Examiner’s findings to be reasonable and supported by the cited portions of
2BizBox. Accordingly, we sustain the rejection of claims 4 and 14 under 35
U.S.C. § 102(b).
Claim 5
The Examiner finds 2BizBox’s display of part numbers discloses
defining a distinct representation for each source type of data contributing to
the virtual product structure as required by claims 5 and 9. Final Act. 20.
Appellant contends “one of ordinary skill in the art would understand
different source types to refer to the type of source from which the data
contributing to the virtual product structure was derived” and “[njothing in
the [2BizBox] reference teaches or suggests that the different colors, red and
blue, used for elements in the waterfall listing is in any manner indicative of
the source from which the data was derived.” App. Br. 14. The Examiner
responds by finding the “[product] numbers that identify the various items
(i.e., description of the element) . . . can represent, as reasonably constructed,
source type of data that contributes to the virtual product structure.” Ans. 3.
We agree with Appellant. The Examiner fails to provide sufficient
evidence or reasoning explaining why the disputed source type is disclosed
by a product identification number or any of the coloring or symbology
described by 2BizBox. For example, Appellant correctly points out that the
same part number (0300000151) is blue in some instances and red in others.
2BizBox 3; App. Br. 15—16. Absent sufficient evidence that the Examiner’s
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broad construction is reasonable and consistent with the Specification, we do
not sustain the rejection of claim 5 under 35 U.S.C. § 102(b).
Claim 6
Our decision not to sustain the rejection of claim 5 is dispositive of
the rejection of claim 6 which is dependent from claim 5. Accordingly, we
likewise do not sustain the rejection of claim 6 under 35 U.S.C. § 102(b).
Claim 8
Appellant argues the patentability of claim 8 on the same basis as that
of claim 3 (App. Br. 16), i.e., failure of 2BizBox to disclose severing of a
relation as an option of an update (App. Br. 13). However, in contrast to
claim 3, claim 8 instead recites a tool to modify a relationship, not sever a
relationship as recited by claim 3. Accordingly, Appellant’s severing
argument is not commensurate in scope with claim 8 and is, therefore,
unpersuasive of Examiner error. Instead, we agree with the Examiner in
finding 2BizBox’s feature of updating a BOM discloses the argued tool to
modify a relationship within the representation of the virtual product
structure. See Final Act. 9. Therefore, we sustain the rejection of claim 8
under 35 U.S.C. § 102(b).
Claim 9
Claim 9 recites limitations corresponding to those recited by claim 5.
Accordingly, we do not sustain the rejection of claim 9 under 35 U.S.C.
§ 102(b) for the reasons discussed above in connection with claim 5.
Claim 10
The Examiner finds 2BizBox’s waterfall listing with the same red-
colored product at the beginning and end along with intervening dotted lines
and blue-colored components discloses the claimed highlighting module to
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highlight a relationship in the virtual product structure causing the recursion.
Final Act. 10. Appellant argues the rejection is improper because “[a]t no
point is any of the dotted lines highlighted in the [2BizBox] reference.”
App. Br. 16.
Appellant’s argument is unpersuasive of Examiner error. The
Specification explains that “as used herein, highlighting is deemed to include
any manner in which the recursion can be made to stand out from the
remainder of the structure. For example, color changes, font changes, style
changes, etc.” Spec. 116. Appellant provides insufficient evidence or
reasoning explaining why 2BizBox’s waterfall fails to disclose the argued
highlighting module. Accordingly, we sustain the rejection of claim 10
under 35 U.S.C. § 102(b).
Claims 15 and 16
Appellant contends the rejection of claims 15 and 16 under 35 U.S.C.
§ 103(a) is improper because, in 2BizBox, “there is no disclosure that the
elements represented as either red or blue can reasonably be construed as a
different source type or a different source group” as respectively required by
the claims. Addressing the Examiner’s taking of Official Notice that the
argued limitations of claims 15 and 16 are “notoriously old and well known
in the computing arts” (Final Act. 11), Appellant argues “the Examiner is
obligated to provide documentary support for things that are not of an
unquestionable nature.” App. Br. 18. In response, the Examiner cites to
Hinton et al. (US 2009/0138843 Al; May 28, 2009). Ans. 8. Appellant fails
to address the Examiner’s provision of documentary support for the Official
Notice. Accordingly, in the absence of persuasive rebuttal, we sustain the
rejection of claims 15 and 16 under 35 U.S.C. § 103(a).
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DECISION
We reverse the Examiner’s decision to reject claims 3, 5, 6, 9, and 13.
We affirm the Examiner’s decision to reject claims 1, 2, 4, 7, 8, 10-
12, and 14—16.
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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