Ex Parte Zhou et al

Patent Trial and Appeal Board

Jan 25, 2018

13273714 (P.T.A.B. Jan. 25, 2018)

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.
13/273,714 10/14/2011 RongZhou 20110021USNP-XER2664US01 4485
61962 7590 01/25/2018
FAY SHARPE LLP / XEROX - PARC
1228 EUCLID AVENUE, 5TH FLOOR
THE HALLE BUILDING
CLEVELAND, OH 44115
EXAMINER
KIM, CHRISTY Y
ART UNIT PAPER NUMBER
2158
MAIL DATE DELIVERY MODE
01/25/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONG ZHOU, MINH BINH DO,
TIM C. SCHMIDT, and SERDARUCKUN
Appeal 2017-007742
Application 13/273,714
Technology Center 2100
Before MAHSHID D. SAADAT, JOHN P. PINKERTON, and
JAMES W. DEJMEK, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the final rejection
of claims 1—17, which constitute all of the claims pending in the application.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Palo Alto Research Center Inc. as the real party in
interest. App. Br. 1.
Appeal 2017-007742
Application 13/273,714
STATEMENT OF THE CASE
Introduction
Appellants’ disclosed and claimed invention is generally directed to
“graph searching in the planning area, and more particularly planning in
non-deterministic environments, which arise in many real-world
applications, including business process management (BPM).” Spec. 11.2
Claim 1 is representative and reproduced below:
1. A parallel AND/OR graph search method to search an
AND/OR graph performed in an electronic computing
environment, the method comprising:
constructing from an AND/OR graph in an original state
space, an abstract representation of the AND/OR graph in an
abstract state space, by use of state-space abstraction, which
includes a many-to-one mapping process;
partitioning duplicate detection scopes by edge
partitioning including consideration of alternative outcomes;
expanding nodes in a current search layer using outcome
adjusted operator groups;
chaining together multiple successor OR nodes to a same
AND node;
updating f-costs, wherein the updating of f-costs includes
updating f-costs on ancestor nodes to reflect f-costs of
2 Our Decision refers to the Final Office Action mailed Feb. 19, 2016 (“Final
Act.”); Appellants’ Appeal Brief filed Nov. 18, 2016 (“App. Br.”) and Reply
Brief filed Apr. 27, 2017 (“Reply Br.”); the Examiner’s Answer mailed Feb.
27, 2017 (“Ans.”); and the original Specification filed Oct. 14, 2011
(“Spec.”).
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Application 13/273,714
successor nodes, and wherein the f-costs include an edge cost or
operator cost and a node cost;
progressing to a next search layer once all the outcome
adjusted operator groups of a present search layer are used; and
repeating at least some of the foregoing steps until a
termination condition is reached,
wherein the method is performed using at least one
electronic processing device.
App. Br. 21 (Claims App’x).
Rejections on Appeal
Claims 1—17 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to a judicial exception (i.e., an abstract idea)
without significantly more.3
Claims 1—3, 16, and 17 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Zhou (US 7,805,454 B2; issued Sept. 28, 2010),
Hathaway (US 5,535,145; issued July 9, 1996), and Zien (US 6,556,984 Bl;
issued Apr. 29, 2003).
Claims 4—15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Zhou and Hathaway.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments in the Briefs. For the reasons discussed infra, we are not
persuaded by Appellants’ arguments that the Examiner erred in rejecting
3 This is a new ground of rejection made for the first time by the Examiner
in the Answer. See Ans. 2—A.
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claims 1—17 under 35 U.S.C. § 101. We are, however, persuaded the
Examiner erred in rejecting claims 1—17 under 35 U.S.C. § 103(a).
Rejection of Claims 1—17 under §101
Applicable Law
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101
to include an implicit exception: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. See, e.g., Alice Corp. Pty Ltd. v. CLS
Banklnt’l, 134 S. Ct. 2347, 2354 (2014) (internal quotation marks and
citation omitted).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66, 75—77 (2012), “for distinguishing patents
that claim laws of nature, natural phenomena, and abstract ideas from those
that claim patent-eligible applications of those concepts.” Alice, 134 S. Ct.
at 2355. The first step in the analysis is to “determine whether the claims at
issue are directed to one of those patent-ineligible concepts.” Id. For
example, abstract ideas include, but are not limited to, fundamental
economic practices, methods of organizing human activities, an idea of
itself, and mathematical formulas or relationships. Id. at 2355—57. If, at the
first stage of the Alice analysis, we conclude that the claim is not directed to
a patent-ineligible concept, it is considered patent eligible under § 101 and
the inquiry ends. RapidLitig. Mgmt. Ltd. v. CellzDirect, Inc., 827 F.3d 1042,
1047 (Fed. Cir. 2016).
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If the claims are directed to a patent-ineligible concept, the second
step in the analysis is to consider the elements of the claims “individually
and ‘as an ordered combination’” to determine whether there are additional
elements that “‘transform the nature of the claim’ into a patent-eligible
application.” Alice, 134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at 79, 78).
In other words, the second step is to “search for an “‘inventive concept’”—
i.e., an element or combination of elements that is ‘sufficient to ensure that
the patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself.’” Id. (brackets in original) (quoting Mayo, 566
U.S. at 72—73). The prohibition against patenting an abstract idea “‘cannot
be circumvented by attempting to limit the use of the formula to a particular
technological environment’ or adding ‘insignificant postsolution activity.’”
Bilski v. Kappos, 561 U.S. 593, 610-11 (2010) (internal citation omitted).
In determining whether a process claim recites an abstract idea, we
must examine the claim as a whole, keeping in mind that an invention is not
ineligible just because it relies upon a law of nature or mathematical
algorithm. Digitech Image Tech. LLC v. Electronics for Imaging Inc., 758
F.3d 1344, 1350 (Fed. Cir. 2014). As noted by the Supreme Court, “an
application of a law of nature or mathematical formula to a known structure
or process may well be deserving of patent protection.” Diamond v. Diehr,
450 U.S. 175, 187 (1981). The “directed to” inquiry asks not whether “the
claims involve a patent-ineligible concept,” but instead whether, “considered
in light of the specification,. . . ‘their character as a whole is directed to
excluded subject matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327,
1335 (Fed. Cir. 2016) (internal citations omitted). In that regard, we
determine whether the claims “focus on a specific means or method that
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improves the relevant technology” or are “directed to a result or effect that
itself is the abstract idea and merely invoke generic processes and
machinery.” McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299,
1314 (Fed. Cir. 2016).
Appellants’ Arguments4 5
Appellants contend the decisions in Flook5 and Benson,6 which are
cited by the Examiner, are not applicable here because the inventions in
those cases do not improve “the operation of an electronic processing device
of the electronic computing environment, as in the present case.” Reply
Br. 2. According to Appellants, “the present claims are more particularly
related to concepts such as in connection with the Enfish case” in which the
claims were found to be directed to improvements in computer-related
technology based on the teachings of the specification and, therefore, non­
abstract. Id. In that regard, Appellants argue the time to perform searching
“is a negative aspect of existing systems” and, therefore, “the present
disclosure describes concepts for parallelizing AND/OR graph searching,
called herein PEP-AO* (i.e., Parallel Edge Partitioning with AO*
algorithms).” Id. at 3 (citing Spec. 2, 7, 12, 14). Appellants note that
paragraph 68 of the Specification discloses that “PEP-AO* has unique
memory access patterns” and paragraph 69 further describes “improvements
in the operation of the computing environment.” Id. Appellants also argue
4 Appellants argue these claims as a group. See Reply Br. 2—5. We consider
claim 1 to be representative of the claimed subject matter on appeal and,
therefore, we decide the rejection of claims 1—17 on the basis of
representative claim 1. See 37 C.F.R. § 41.37(c)(l)(iv)(2016).
5 Parker v. Flook, 437 U.S. 584 (1978).
6 Gottschalkv. Benson, 409 U.S. 63 (1972).
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that discussions related to improvement in the electronic computing
environment are provided in connection with Figure 11 when compared to
Figure 10, as shown by the chart of Figure 12. Id. at 3^4. Appellants further
argue the Examiner’s mere reference to Norman Biggs, Algebraic Graph
Theory, Cambridge University Press (2nd ed. 1993),7 in finding that the
“AND/OR graph is a mathematical construct (or object) and is not limited to
a data structure,” without supplying the reference and identifying the
relevant portions “is insufficient to be accepted as evidence and should be
disregarded.” Id. at 4. In addition, Appellants argue “the claims of the
application are directed to specific operations of a particular manner to
address AND/OR graph searching,” and the claims “do not pre-empt others
from undertaking operations in this area.” Id.
Step One of Alice
The Examiner finds the claims are directed to “a mathematical
algorithm based on a mathematical construct (the AND/OR graph).” Ans.
2—3. Specifically, the Examiner finds the claims recite limitations, with
varying degree of detail, directed to “the construction and search of an
abstracted AND/OR graph,” including steps of constructing, partitioning,
expanding, chaining, updating f-costs, progressing, repeating, assigning, and
searching. Id. The Examiner finds “[tjhese steps describe an iterative
logical process of traversing and manipulating a mathematical construct.”
Id. at 2. The Examiner further finds as follows:
The AND/OR graph is a mathematical construct (or object) and
is not limited to a data structure. (See, for example, Norman
Biggs “Algebraic Graph Theory (2nd ed.)”, Cambridge
University Press, 1993). The present specification discloses that
7 This reference is hereinafter referred to as “Biggs.”
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the “duplicate-detection scope of an abstract edge is defined as
the set of nodes that map to the destination of the abstract edge”
([0030]), i.e., it is a mathematical object. The concept of using a
mathematical construct corresponds to concepts identified as
abstract ideas by the courts, such as a formula for computing an
alarm limit in Flook, and an algorithm for converting binary
coded decimal to pure binary in Benson. The concept described
in claims 1,4, 13 and 15 is not meaningfully different than those
found by the courts to be abstract ideas. As such, the description
in claims 1,4, 13 and 15 of using a mathematical construct is an
abstract idea.
Id. at 2—3.
Considering the focus of claim 1 as a whole, in view of the
Specification, we agree with the Examiner that claim 1 is directed to an
abstract idea—solving a problem8 using a mathematical algorithm based on
a mathematical construct or object, an AND/OR graph. Consistent with the
Examiner’s findings (see Ans. 2), we find claim 1 is directed to the
construction and search of an abstracted AND/OR graph, including the steps
of (1) “constructing from an AND/OR graph in an original state space, an
abstract representation of the AND/OR graph,” (2) “partitioning duplicate
detection scopes by edge partitioning,” (3) “expanding nodes in a current
search layer using outcome adjusted operator groups,” (4) “chaining together
multiple successor OR nodes to a same AND node,” (5) “updating f-costs,
wherein the updating of f-costs includes updating f-costs on ancestor nodes
to reflect f-costs of successor nodes,” (6) “progressing to a next search layer
once all the outcome adjusted operator groups of a present search layer are
8 The Specification states that “[gjraphs are used to represent problems and
are employed to find solutions to problems, wherein finding a path through a
graph represents a solution to a represented problem.” Spec. 14.
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used,” (7) “repeating at least some of the foregoing steps until a termination
condition is reached,” and (8) “the method is performed using at least one
electronic processing device.” App. Br. 21 (Claims App’x). Also consistent
with the Examiner’s findings (see Ans. 2), we find claim 1 “is an iterative
logical process of traversing and manipulating a mathematical construct” or
object, an AND/OR graph. We also note that in regard to “updating f-costs
... to reflect f-costs of successor nodes,” as recited in claim 1, mathematical
calculations are performed, as described in paragraphs 52—56 of the
Specification with reference to Figures 5A-5D, and as described in
paragraph 8 of the Specification, as follows:
To update the f-cost of a state s, set f(s) = mins'[c(s, s')+f(s')]
where s' is a successor state of s and c(s, s') is the cost of going
from state s to state s'. The action that takes s to its best successor,
argminS' [c(s, s')+f(s')], is marked as the best action for states
(where argmins stands for the arguments of the minimum).
Thus, we see no meaningful difference in claim 1 and similar claims
in other cases that our reviewing court has found are directed to an abstract
idea. For example, our reviewing court has concluded, absent additional
limitations, “a process that employs mathematical algorithms to manipulate
existing information to generate additional information is not patent
eligible.” Digitech, 758 F.3d at 1351. Further, “analyzing information by
steps people go through in their minds, or by mathematical algorithms,
without more, [are] essentially mental processes within the abstract-idea
category.” Electric Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354
(Fed. Cir. 2016); see also Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d
1138, 1146 (Fed. Cir. 2016). “[T]he fact that the required calculations could
be performed more efficiently via a computer does not materially alter the
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patent eligibility of the claimed subject matter.” Bancorp Servs., LLC v. Sun
Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012).
Further, merely combining several abstract ideas does not render the
combination any less abstract. RecogniCorp, LLC v. Nintendo Co., Ltd., 855
F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract idea ... to another
abstract idea . . . does not render the claim non-abstract.”); see also
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1094 (Fed. Cir.
2016) (determining the pending claims were directed to a combination of
abstract ideas).
Appellants’ arguments that the “present claims match the reasoning of
Enfish in improving the operation of an electronic computing environment”
are unpersuasive. Reply Br. 2—\. First, the claims at issue in Enfish focused
not on asserted advances in uses to which existing computer capabilities
could be put, but on a specific type of data structure, i.e., a self-referential
table for a computer database, designed to improve the way a computer
carries out its basic functions of storing and retrieving data. Enfish, 822
F.3d at 1335—36. We find no parallel between claim 1 and the claims in
Enfish, nor any comparable aspect in claim 1 that represents “an
improvement to computer functionality.” Second, Appellants’ arguments
that (1) the Specification describes improved operational time for searching
based on parallelizing AND/OR graph searching (Reply Br. 3, citing Spec.
117, 12, 14), (2) “PEP-AO* has unique memory access patterns” (id., citing
Spec. 1 68), and (3) paragraph 69 of the Specification further describes
“improvements in the operation of the computing environment” (id.) are
unpersuasive because they are not commensurate with the scope of claim 1.
That is, to the extent any “improvement” is described in Appellants’
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Specification, no such improvement to computer memories or functionality
is recited in claim 1. See Accenture Global Servs., GmbH v. Guidewire
Software, Inc., 728 F.3d 1336, 1345 (Fed. Cir. 2013) (admonishing that “the
important inquiry for a § 101 analysis is to look to the claim”; “the
complexity of the implementing software or the level of detail in the
specification does not transform a claim reciting only an abstract concept
into a patent-eligible system or method”). In that regard, our reviewing
court’s holding in In re Warmerdam, 33 F.3d 1354, 1360 (Fed. Cir. 1994), is
also instructive:
Warmerdam’s other argument, that the manipulation of data as
described in the claims constitutes or represents a sufficient level
of physical activity to impart patentability to the claim, is not
convincing. It is true, particularly with ideas expressed in
mathematical form, that if a claim requires more than the
manipulation of ideas so that the process described in the claim
produces something quite different, then the process might
indeed describe statutory subject matter. The problem with
Warmerdam’s argument is that the claims here do not have that
effect. It is the claims which define the metes and bounds of the
invention entitled to the protection of the patent system. Zenith
Lab. Inc. v. Bristol-Myers Squibb Co., 19 F.3d 1418, 1424, 30
USPQ2d 1285, 1290 (Fed.Cir.1994). Thus, the argument is
unavailing. We conclude the Board did not err in sustaining the
rejection of claims 1—4 under § 101.
We also are not persuaded by Appellants’ arguments regarding the
Examiners finding that the “AND/OR graph is a mathematical construct (or
object) and is not limited to a data structure.” Reply Br. 4. Although we
agree with Appellants that Biggs should be disregarded because the
Examiner did not identify the relevant portions of the reference, Appellants
have not provided persuasive evidence or argument that the AND/OR graph
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or abstracted AND/OR graph of claim 1 is a “data structure.” Appellants
state that an internet search of the words “graph data structure” identifies “a
multitude of concepts that identify a graph as being a type of data structure.”
Id. Appellants have not, however, cited or identified any of such “multitude
of concepts.” Nor have Appellants identified any portion of the
Specification describing the claimed “AND/OR graph” or “abstract
representation of the AND/OR graph” as a “data structure,” and we also
have not identified any such portion of the Specification. Further,
Appellants have not provided persuasive evidence or reasoning that claim 1,
viewed in light of the Specification, describes a specific type of data
structure designed to improve the way the computer processing device
carries out its basic functions of constructing an abstract AND/OR graph and
traversing, manipulating, and analyzing the graph, including updating f-
costs. Appellants’ argument that the Examiner’s position “is in opposition
to the USPTO’s guidance against arguing too high a level of abstraction”
(see Reply Br. 4) is also not persuasive because the Examiner considered all
of the limitations of claim 1 in finding it is directed to the abstract idea of “a
mathematical algorithm based on a mathematical construct (the AND/OR
graph).”
Step Two of Alice
Regarding step two of the Alice analysis, the Examiner finds the
claims do not included additional elements that amount to significantly more
than the abstract idea. Ans. 3. Although the Examiner finds claims 1,4, 13,
and 15 recite an “electronic processing device” for performing the steps, and
claim 13 additionally recites a “memory,” the Examiner also finds these
components “are recited at a high level of generality and are recited as
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performing generic computer functions routinely used in computer
applications.” Id. The Examiner further finds “[tjhere is no indication that
the combination of elements improves the functioning of a computer or
improves any other technology.” Id. We agree with these findings and, for
the reasons discussed above, are not persuaded by Appellants’ arguments
that the claims “match the reasoning of Enfish in improving the operation of
an electronic computing environment.” See Reply Br. 2—A.
Claim 1 does not “focus on a specific means or method that improves
the relevant technology,” but is “directed to a result or effect that itself is the
abstract idea and merely invoke[s] generic processes and machinery.”
McRO, 837 F.3d at 1314. Instead, claim 1 essentially recites a generic
electronic processing device that performs functions specified at high levels
of generality. This is not enough to transform an abstract idea into patent-
eligible subject matter. See, e.g., Alice, 134 S. Ct. at 2360 (explaining that
claims that “amount to ‘nothing significantly more’ than an instruction to
apply the abstract idea . . . using some unspecified, generic computer” “is
not ‘enough ’ to transform an abstract idea into a patent-eligible invention”
(quoting Mayo, 566 U.S. at 77, 79)); Intellectual Ventures ILLC v. Capital
One Fin. Corp., 850 F.3d 1332, 1342 (Fed. Cir. 2017) (“[T]he claim
language here provides only a result-oriented solution, with insufficient
detail for how a computer accomplishes it. Our law demands more.”).
Thus, we see nothing in the limitations of claim 1, considered “both
individually and as an ordered combination,” that transforms the claimed
abstract idea into patent-eligible subject matter.
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Preemption
We also are not persuaded by Appellants’ arguments that the claims
are directed to specific operations for AND/OR graph searching and “do not
pre-empt others from undertaking operations in this area.” Reply Br. 4.
“While preemption may signal patent ineligible subject matter, the absence
of complete preemption does not demonstrate patent eligibility. . . . Where a
patent’s claims are deemed only to disclose patent ineligible subject matter
under the Mayo framework, as they are in this case, preemption concerns are
fully addressed and made moot.” Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015); see also OIP Techs. Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1362—63 (Fed. Cir. 2015) (“that the
claims do not preempt all price optimization or may be limited to price
optimization in the e-commerce setting do not make them any less
abstract”).
Accordingly, for the reasons discussed above, we sustain the
Examiner’s rejection of claim 1 under § 101. For the same reasons, we
sustain the rejection of independent claims 4, 13, and 15, and dependent
claims 2, 3, 5—12, 14, 16, and 17, which are not separately argued, under
§101.
Rejection of Claims 1—17 under § 103(a)
In rejecting claims 1,4, 13, and 15, the Examiner finds “Hathaway
teaches [an] AND/OR graph, and constructing from an AND/OR graph in an
original state space, an abstract representation of the AND/OR graph.” Final
Act. 4, 8, 13, 16. Regarding claim 1, Appellants argue “Hathaway does not
teach or fairly suggest the use of an AND/OR graph and therefore
cannot/does not undertake the further alleged operations related thereto.”
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App. Br. 8. Appellants assert this argument is also relevant and applicable
to claims 4, 13, and 15. Id. at 16, 18, 19.
In particular, Appellants argue Hathaway does not teach an AND/OR
graph because, as shown in Figures 5 and 6 of Hathaway, there is no “arc”
element, and the AND node in all conventions of AND/OR graphs “must
have its successors connected with the ‘arc.’” App. Br. 8—9. Appellants also
argue an AND/OR graph is not even applicable to Hathaway because the
problem is not about achieving a goal modeled as a node in the graph, as in
the present application, but Hathaway is about trying to reduce the total
number of edges in the delay abstraction and the solution “is about which
edge should be merged with another edge or removed from the graph.” Id.
at 10. According to Appellants, “[t]he delay graph of Hathaway only
models the delay aspects of the circuit, which is a reason why Hathaway’s
graph has nothing to do with the actual logical operations performed by the
gates, be it AND, OR, or Negation.” Id. Appellants further argue:
Hathaway’s discussion of AND gates and OR gates is very
different from the claimed AND/OR graph of the present
application. The graph Hathaway is searching is still an ordinary
OR graph, which consists of vertices that correspond to AND
gates or OR gates. Appellants respectfully believe this
distinction has become confused based on an understanding of
the AND/OR graphs. Simply because the vertices of a graph
represented both AND gates and OR gates, does not make it an
AND/OR graph.
Id. at 13; see also Reply Br. 6.
The Examiner finds the “arc” denotes the existence of successors of
AND nodes in a graphical manner, “but bears no significance in the actual
algorithm which constructs and searches the abstracted AND/OR graph, as
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claimed.” Ans. 4. The Examiner interprets the claimed “AND/OR graph as
a graph with AND and OR gates/nodes.” Id. at 5. The Examiner further
finds “whether the presently claimed invention is applied to an AND/OR
graph or another type of graph does not alter its functionality.” Id.
We are persuaded by Appellants’ arguments that the Examiner erred.
First, we conclude the Examiner’s interpretation of the term “AND/OR
graph” is overly broad, and inconsistent with Appellants’ Specification,
because it includes any graph of a circuit with AND and OR gates,
regardless of whether the existence of successors of AND nodes are shown
in a graphical manner. Second, we agree with Appellants that the graph
Hathaway is searching is an ordinary OR graph and merely because the
vertices are represented by AND gates and OR gates does not make it an
AND/OR graph. App. Br. 13; Reply Br. 6.
Thus, on this record, the preponderance of the evidence does not
support the Examiner’s finding that Hathaway teaches or suggests the
claimed “AND/OR graph” and “constructing from an AND/OR graph in an
original state space, an abstract representation of the AND/OR graph,” as
recited in claim 1, and as similarly recited in claims 4, 13, and 15.
Accordingly, we do not sustain the Examiner’s rejection of independent
claims 1,4, 13, and 15, as well as dependent claims 2, 3, 5—12, 14, 16, and
17 under § 103(a). See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985)
(Examiner’s burden of proving non-patentability is by a preponderance of
the evidence).
DECISION
We affirm the Examiner’s decision rejecting claims 1—17 under
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35 U.S.C. § 101.
We reverse the Examiner’s decision rejecting claims 1—17 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). See 37 C.F.R.
§ 1.136(a)(l)(iv)(2016).
AFFIRMED
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