Ex Parte Westphal et al

Board of Patent Appeals and Interferences

Dec 10, 2010

11699147 (B.P.A.I. Dec. 10, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GEOFFRY A. WESTPHAL and THOMAS J. CARROLL
____________

Appeal 2009-014187
Application 11/699,147
Technology Center 3600
____________

Before: MURRIEL E. CRAWFORD, HUBERT C. LORIN, and JOSEPH A.
FISCHETTI, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-014187
Application 11/699,147

2
STATEMENT OF THE CASE
This is an appeal from the final rejection of claims 16-30. We have
jurisdiction to review the case under 35 U.S.C. §§ 134 and 6 (2002).
The claimed invention is directed to systems and methods for
providing customized catalogs through the use of cluster analysis (Spec. 1:3-
5). Claim 16, reproduced below, is further illustrative of the claimed subject
matter.
16. A computer readable media having embedded
computer executable instructions for creating a customized
catalog, the instructions performing steps comprising:
collecting information from a single target customer;
using the information collected from the single target
customer and a cluster analysis algorithm to select from a
plurality of customers a single reference customer for the single
target customer;
using previously captured purchasing behaviors specific
to the single reference customer to select items from a universe
of items; and
aggregating the selected items to thereby create the
customized catalog for the single target customer.
Claims 16-19, 22, and 25 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Linden (US Pub. 2005/0102202 A1, pub. May 12, 2005)
in view of Aggarwal (US Pub. 2001/0049623 A1, pub. Dec. 6, 2001) and
Chislenko (US Pat. 6,041,311, iss. Mar. 21, 2000); claim 20 stands rejected
under 35 U.S.C. § 103(a) as unpatentable over Linden in view of Aggarwal,
Chislenko, and Su (US Pub. 2002/0026380 A1, pub. Feb. 28, 2002); claim
21 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Linden in
view of Aggarwal, Chislenko, Kargman (US Pub. 2002/0049644 A1, pub.
Apr. 25, 2002), and Calaway (US Pat. 7,124,939 B2, iss. Oct. 24, 2006);
Appeal 2009-014187
Application 11/699,147

3
claims 23 and 24 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Linden in view of Aggarwal, Chislenko, and Calaway; claims 26-30
stand rejected under 35 U.S.C. § 103(a) as unpatentable over Linden in view
of Aggarwal, Chislenko, and Herz (US Pub. 2001/0014868 A1, pub. Aug.
16, 2001).
We AFFIRM.

ISSUES
Did the Examiner err in asserting that a combination of Linden,
Aggarwal, and Chislenko renders obvious the subject matter of independent
claim 16?
Did the Examiner err in asserting that a combination of Linden,
Aggarwal, Chislenko, Su, Kargman, and Callaway renders obvious the
subject matter of dependent claims 20 and 21?1

FINDINGS OF FACT
We adopt the Examiner’s findings of fact, as set forth on pages 4-11
of the Examiner’s Answer.

ANALYSIS
Claims 16-19, 22, and 25
We are not persuaded that the Examiner erred in asserting that a
combination of Linden, Aggarwal, and Chislenko renders obvious the
subject matter of claims 16-19, 22, and 25 (App. Br. 6-10; Reply Br. 2-5).

1 Appellants do not separately argue the rejections of dependent claims 17-19
and 22-30.
Appeal 2009-014187
Application 11/699,147

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We adopt the Examiner’s reasoning as set forth on pages 8-10 of the
Examiner’s Answer. Specifically, col. 11, ll. 25-32 of Chislenko is cited as
disclosing that “a user or [a] set [of] users” is interchangeable in a general
user correlation context. The fact that this particular disclosure in Chislenko
is directed to user recommendation, and not clustering, is not relevant, as
Linden and Aggarwal are cited for clustering. See In re Keller, 642 F.2d
413, 426 (CCPA 1981) (one cannot show non-obviousness by attacking
references individually where the rejections are based on combinations of
references). In other words, Chislenko is essentially cited for the sole
concept of “a user is equal to a set of users,” and thus the user
recommendation context is relevant only as background. The Examiner
combines this concept with the teachings of Linden and Aggarwal to render
obvious the subject matter of independent claim 16. We do not find any
error in the Examiner’s logic.
Appellants assert that “to suggest removing this required aspect of the
systems of Linden and Aggarwal in favor of using a discerned single
customer to single customer relationship can only be said to be suggesting
that the very principle upon which the systems of Linden and Aggarwal
operate be abandoned and changed” (App. Br. 9). We do not agree. The
principle purposes of the inventions of Linden and Aggarwal are to
recommend items for a user to purchase based on their stated preferences.
We believe that it is immaterial whether these recommendations are based
on the preferences of a group of similar users, as set forth Linden and
Aggarwal, or a single similar user, as suggested by Chislenko and the
Examiner.

Appeal 2009-014187
Application 11/699,147

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Claims 20 and 21
We are not persuaded that the Examiner erred in asserting that a
combination of Linden, Aggarwal, Chislenko, Su, Kargman, and Callaway
renders obvious the subject matter of dependent claims 20 and 21 (App. Br.
10-11). We adopt the Examiner’s reasoning as set forth on pages 5-6 and
response to Appellants’ arguments on pages 10-11 of the Examiner’s
Answer. Specifically, we note that the Examiner has combined certain
aspects of Su, Kargman, and Callaway with other aspects of Linden and
Aggarwal to render obvious the claimed aspects. See Keller, 642 F.2d at
426.
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) (2007).
AFFIRMED

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