Ex Parte Zommers

Board of Patent Appeals and Interferences

May 18, 2011

11245229 (B.P.A.I. May. 18, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte OLEG ZOMMERS
____________________

Appeal 2009-013434
Application 11/245,229
Technology Center 3600
____________________

Before: MURRIEL E. CRAWFORD, ANTON W. FETTING, and JOSEPH
A. FISCHETTI, Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Appellant seeks our review under 35 U.S.C. § 134 from a final
rejection of claims 321, 323-325, 328, 345, 349- 353, 358, 359, 365, 366,
378, 379, 383, and 388. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part and enter a new grounds of rejection under 35
U.S.C. § 101.

Appellant claims an interactive personal information system and
method for the delivery of information items collected from various sources
to users by a publisher and/or secondary publisher. (Specification 1:4-7).
Claim 321 is illustrative of the claimed subject matter:
321. A method of delivering personalized information to users,
comprising:
collecting information items from a plurality of
information sources;
storing said information items on a database;
associating a plurality of users as a group based on a
common attribute;
establishing a group profile for said group and storing
said group profile on at least one database;
periodically delivering a collection of information items
to each user as personalized information, wherein at least a
portion of information items from said collection is chosen
based on said group profile;
collecting group information responses other than
information item usage from said group related to group
information items; and
refining said group profile based, at least in part, on said
group information responses.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
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Liu US 6,839,680 B1 Jan. 4, 2005

REJECTIONS
The following rejections are before us for review.
The Examiner rejected claims 321, 323-325, 328, 345, 349-351, 353,
358, 359, 365, 366, 378, 379, 383, and 388 under 35 U.S.C. § 102(e) over
Liu.
The Examiner rejected claim 352 under 35 U.S.C. § 103(a) over Liu
and Official Notice.

ISSUES
Did the Examiner err in rejecting claim 321 under 35 U.S.C. § 102(e)
over Liu as disclosing collecting group information responses other than
information item usage since Liu discloses collecting, and aggregating into
group profiles, information about categories of content in a user’s web
activity?
Did the Examiner err in rejecting claim 321 under 35 U.S.C. § 102(e)
over Liu as disclosing periodically delivering a collection of information
items to each user as personalized information, since Liu discloses targeting
banner ads based on user profiles at each user visit to a web site?

FINDINGS OF FACT
We find the following facts by a preponderance of the evidence.
1. Liu discloses non-content specific internet web activity usage namely,
view, clickthrough, purchase etc. (Col.12 ll. 14-15).
2. Liu discloses that content related information which is other than item
usage information is captured from a user’s web activity, because “the
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web event 101 includes information that identify one or more
categories 105 into which the web content visited by the web visitor
belongs and a measure of the user's interest in each of the one or more
category.” (Col. 9 ll. 25-37).
3. Liu discloses collecting group information responses through
combining “web events for a user group and a category between two
dates. This combination provides a model of the group’s interest in
the specified category.” (Col. 10 ll. 40-42).
4. Liu discloses collecting information items from a plurality of
information sources and storing said information items on a database
by way of a “tool used by the web master to pre-categorize all of the
web pages on the site before it goes into production.” (Col. 68 ll. 6-
8).
5. The Specification does not define or describe the term periodically.
6. The ordinary and customary definition of the term periodically, as
defined by Merriam Webster’s Collegiate Dictionary (10th ed.), is:
“from time to time: frequently.”
7. Liu discloses aggregating user profiles to permit targeted web content,
which “in turns allows a given ProReach system 100 to more
accurately target web content to the w web visitor when the visitor
visits the ProReach system 100 that is an alliance member.” (Col. 23
ll. 56-62).
8. Liu discloses refining the group profile based on responses, stating,
“A user may be member of multiple user groups. The group
membership is automatically updated, as the users interact with web
content over time, and as their interests change as expressed by the
changing levels of categories weights.” (Col. 5 ln. 65 – Col. 6 ln. 2).
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9. The Specification discloses that users interests and preferences
represent the same type of information based on user content
selections, stating:
In order to adapt new issues of personalized information as
much as possible to the interests and preferences of the users, a
user profile will be generated on the primary or secondary
publisher's server for each registered user or group of users.
Initially, such a profile may be defined by the topical sections
selected by the user and by the core topic of the specialized
publication. It will further be adjusted, first, on the basis of a
review of processed data on the items previously collected by
the user and, second, on the basis of a review of any responses
received from the user concerning the quality of the items and
their conformity with the field of his interest.
(Specification 37:10-17).
10. Liu discloses using user and group profiles to affect page composition
of web pages directed to a user, stating, the “profile of the user (or
other profiles that are effected by the user's visits) can be used for
marketing purposes, for page composition or for driving banner ads.”
(Col. 14 ll. 6-9).
11. Liu discloses web content that users view by interacting with web
sites (Col. 2 ln. 62 – Col. 3 ln. 2).
12. Liu discloses targeted banner ads as one type of information items
which are deemed by the publisher to be most important at the time of
generation, using a “database of web visitor profiles that can be
explored by web marketers, as well as being used for other purpose[s]
(selecting banner ads, personalizing content or services).” (Col. 17 ll.
6-10).
13. Liu discloses tracking user purchase events, stating, “(other factors
may also be used to scale the level of interest, such as the type of
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interaction, e.g., a simple viewing of a page versus a purchase)” (Col.
9 ll. 45-49).
14. Liu discloses the desirability of including psychology-type
information in user profiles, stating, “[t]he data about a web visitor's
activities is valuable, but ProReach can distill more meaning from this
data. Electronic commerce decision makers are interested in the
psychographic and demographic profile of the user.” (Col. 4 ll. 14-
17).

ANALYSIS
Rejection of Claims under 35 U.S.C. § 102(e)
Claims 321 and 324
The rejection is affirmed as to claims 321 and 324. The Appellant
does not provide a substantive argument as to the separate patentability of
claim 324 that depends from claim 321, which is the sole independent claim
among those claims. Therefore, we address only claim 321, and claim 324
falls with claim 321. See, 37 C.F.R. § 41.37(c)(1)(vii)(2004).
Appellant argues:
Liu et al. discloses that web sites are assigned category weights
and users are tracked as they surf these sites so as to categorize
the users based on these category weights. Even if considered
an "information response" (which it isn't), this is "information
item usage" that is excluded from the claim, i.e., tracking
content and visit time are forms of tracking "information item
usage."
(Appeal Br. 4).
We are not persuaded by Appellant’s argument because we find that
Liu discloses collecting information from the web activity of a user that is
other than information item usage, because the information item usage in
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Liu is non-content specific internet web activity usage namely, view,
clickthrough, purchase, etc. (FF 1). But, Liu also discloses content specific
responses (FF 2) which are other than non-content specific internet web
activity usage because we find that measuring interest in a given subject
matter is different, and hence other than simply tracking whether one clicks
through screens to a purchase on an Internet transaction. In other words, in
the former case, the usage tracking does not ask what was purchased,
whereas in the latter the content is examined to determine the user’s
interest(s) - hence each is other than information of the other.
Liu additionally discloses combining web events from members of a
group (FF 3), and therefore meets the claim language collecting group
information responses other than information item usage from said group
related to group information items.
Appellant next argues:
collection of content (i.e., information items) is not disclosed,
and collection of content from a plurality of information
sources is also not disclosed. Indeed, in Liu et al., the ProReach
software is merely deployed on web servers and web clients to
categorize and track users activities. Since no information items
are collected, they cannot possibly be stored, as per the next
step of the claim.
(Appeal Br. 7).
We are not persuaded by Appellant’s argument, because we find Liu
discloses that a web master collects all the web page content in a web site
and pre-categorizes it using a tool before the site goes into production (FF
4), therefore meeting the claim language collecting information items from a
plurality of information sources and storing said information items on a
database.
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Appellant further argues, “Appellant respectfully submits that
marketing offers and dynamically customized web content are not
‘periodically delivering a collection of information items to each user as
personalized information’ within the meaning of the claims …” (Appeal Br.
7).
We are not persuaded by Appellants’ argument. We first find that the
Specification does not define the term periodically (FF 5), so we rely on the
usual and customary meaning, which is “from time to time: frequently” (FF
6). We find Liu discloses frequent content targeting of ads, based on user
and group profiles, at web site visits (FF 7), thus meeting the claim language
periodically delivering a collection of information items to each user as
personalized information, wherein at least a portion of information items
from said collection is chosen based on said group profile.
Appellant argues, “since no group information responses are ever
collected in Liu et al., they cannot possibly be used to refine the group
profile, as required” (Appeal Br. 8).
We are not persuaded by Appellant’s argument, because we find Liu
discloses capturing web events from groups of users, which events are
responses, as found above. We further find that Liu discloses updating
group profiles (FF 8), thus meeting the claim language refining said group
profile based, at least in part, on said group information responses.
Claim 323
Claim 323 recites, in pertinent part, wherein group topical interests,
preferences and psychological-types of a plurality of users are fixed in said
group profile.
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Appellant argues, “Liu et al. discloses psychographic profiles and
interest tracking, but since users in Liu et al. do not subscribe, it cannot
include user preferences, and as such, does not anticipate” (Appeal Br. 8).
We are not persuaded by Appellant’s argument, because we find the
Specification describes interests and preferences as similar information
based on user content selections (FF 9), and we further find that Liu
discloses collecting content information about user interest (FF 2) and
aggregating this information for groups (FF 3), thus meeting the claim
language.
Claim 325
Claim 325 recites, in pertinent part, wherein said group information
responses are collected by a channel selected from the group consisting of
Internet web pages, e-mail, facsimile transmission, delivered paper
hardcopy, and voice mail.
Appellant argues, the “application of Liu et al. to this claim to say the
responses are collected by web page in Final Office action only serves to
confirm that the only information collected in Liu et al. is usage
information.” (Appeal Br. 8).
We disagree with the Appellant, because we find that Liu discloses
collecting information other than information item usage, as set forth above
as discussed in claim 321. We further find that Liu discloses monitoring
web activity (FF 2), which is a response collected by Internet web pages.
Claim 328
Claim 328 recites, in pertinent part, wherein a filtering algorithm
reduces a size of an information item by a method selected from the group
consisting of : reducing size of said information item to a specific value
while preserving general content of said information item, generating a
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synopsis for an information item on the basis of semantic analysis of said
information item, and reducing a size of an information item by preserving
only a part of said information item related to a topical field designated in
group profile.
Appellant argues, the “alleged filtering of information items disclosed
by Liu et al. is related to categorizing, yet the web pages and ads displayed
in Liu et al. are not disclosed as sending this category data to the users, so
the citation of columns 51-54 in Liu et al. is irrelevant to the claim
limitation.” (Appeal Br. 8-9).
We are not persuaded by Appellant’s argument, because we find Liu
discloses user and group profiles being used to determine “page
composition” (FF 7, 10), which we find inherently leads to reduction in
content size for some information over others to effect page composition,
thus meeting the claim limitation reducing a size of an information item by
preserving only a part of said information item related to a topical field
designated in group profile.
Claims 345 and 358-359
The rejections are affirmed as to claims 345 and 358-359. The
Appellant does not provide a substantive argument as to the separate
patentability of claims 358 and 359 that depend from claim 345. Therefore,
we address only claim 345, and claims 358 and 359 fall with claim 345.
See, 37 C.F.R. § 41.37(c)(1)(vii)(2004).
Claim 345 recites, in pertinent part, wherein said group of users
registers to receive said group information with a publisher or secondary
publisher by a method selected from the group consisting of: users in said
group registering to receive said group information by filling in a standard
form, said group of users choosing at least one information collection from
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a plurality of information collections released by said publisher or
secondary publisher, and each user in said group supplying an initial field
of topical interest.
Appellant argues, the “web events (columns 9-10 of Liu et al.) and
tracking (column 14 of Liu et al.) assign topics based on the content of the
web page, but the user does not fill in forms with a publisher, as required by
the claims. The member information (column 27 of Liu et al.) does not alter
this omission.” (Appeal Br. 9).
We are not persuaded by Appellant’s argument, because the claim
group registering by filling in forms is a just one member of a Markush
claim group, and we find that at least another member of the group is
disclosed in Liu. That is, Liu discloses a user visiting a web site and
selecting information with which to interact (FF 11), and we find that when
a user chooses a web site or portion of a web site from among a plurality of
information choices from a web publisher, the user is choosing at least one
information collection from a plurality of information collections released
by said publisher or secondary publisher, thus meeting the claim language.
Claim 349
Claim 349 recites, in pertinent part, wherein each user in said group
supplies an initial field of topical interest by selecting some topical sections
from a given predefined set.
Appellant argues:
The web events (columns 9-10 of Liu et al.) and tracking
(column 14 of Liu et al.) assign topics based on the content of
the web page, but the user does not supply "an initial field of
topical interest by selecting some topical sections from a given
predefined set" as required by the claim. The member
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information (column 27 of Liu et al.) does not alter this
omission.
(Appeal Br. 9).
We are not persuaded by Appellant’s argument, because Liu discloses
that a user’s activity at a web site is monitored (FF 2), and we find that since
a user navigates a web site by selecting content in the form of links and other
web navigation tools, the user’s initial selection inherently meets the claim
limitation because navigating the content of a web site involves making an
initial selection of topical interest.
Claim 350
Claim 350 recites, in pertinent part, wherein each user in said group
supplies an initial field of topical interest by a method chosen from the
group consisting of choosing a group profile of one of the earlier registered
groups, combining group profiles of any number of groups, specifying a
group profile generated by a publisher of said group information, and
combinations of anyone of these methods with additional selection of some
topical sections from a given predefined set.
Appellant argues, the “Final Office action only alleges profiles
defined by monitored web behavior, which fails to meet the limitation” of
the claim. The Examiner reasoned, “the user effectively selects an initial
field of topical interest based on his/her initially monitored web behavior”
(Answer 7).
We agree with the Appellant, because although Liu discloses users
selecting content (FF 11) and profiles being created based on these content
selections (FF 2), Liu fails to disclose a user choosing a group profile or
combining group profiles, as required by the claim, because we find the user
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in Liu does not interact directly with group profiles. We therefore do not
sustain the rejection of claim 350.
Claim 351
Claim 351 recites, in pertinent part, wherein each user in said group
supplies an initial field of topical interest by referencing to other
information sources or information publications.
Appellant argues, the “Final Office action only alleges profiles
defined by monitored web behavior, which fails to meet the limitation”
(Appeal Br. 9).
We agree with Appellant. Liu discloses monitoring web activity of a
user in order to determine interests (FF 2), such web activity using
information sources that are on the web site. However, Liu does not
disclose a user referencing other information sources or information
publications in order to supply an initial field of topical interest that is
captured. Therefore, we do not sustain the rejection of claim 351.
Claim 353
Claim 353 recites, in pertinent part, wherein each user in said group
chooses a condition determinative of a periodic delivery of said group
information selected from the group consisting of: a user's request for
specific information, a user-defined schedule, a specific event chosen by a
user, and an accumulation of a user-defined amount of undelivered
information items.
Appellant argues, the “Final Office action alleges delivery upon user
request in the form of surfing to a web page, apparently to anticipate ‘a
user's request for specific information.’ However, surfing to a web page is
not a request for specific information and is an unreasonable interpretation in
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accordance with MPEP 2111; see Appellant's specification, page 5, lines 9-
11.” (Appeal Br. 10).
We are not persuaded by Appellants' argument, because we find that
when a user makes a specific choice of content to view at a website (FF 2),
that user is making a request for specific information, thus meeting the claim
language.
Claims 365-366
The rejection is affirmed as to claims 365 and 366. The Appellant
does not provide a substantive argument as to the separate patentability of
claim 366 that depends from claim 365. Therefore, we address only
claim 365, and claim 366 falls with claim 365.
See, 37 C.F.R. § 41.37(c)(1)(vii) (2004).
Claim 365 recites, in pertinent part, wherein said group information
responses are selected from the group consisting of subjective views on said
information items, user requests, inquiry responses, and formalized user
statements.
Appellant argues, the Final Office action “alleges that the disclosed
passive monitoring of interest (the height of objective feedback) somehow
corresponds to the” claim limitation, but “Liu et al. clearly fails to disclose
any such limitation and subjective views cannot be inferred, especially when
the claim requires specific explicit forms of expression (i,e., by quality scale,
opinions, or comments).” (Appeal Br. 10).
We are not persuaded by Appellants' argument, because we find Liu
discloses a user’s web interests (FF 2), and we find a user’s selection of
content with which to interact is a form of user request, and/or subjective
views as reflected by interest in a given web address, which meets the claim
requirements.
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Claim 378
Claim 378 recites, in pertinent part, wherein each said collection of
information items, in addition to information items fitting the group profile,
includes some information items which are deemed by the publisher to be
most important at the time of generation of said collection.
Appellant submits that “the web marketers in Liu et al. are not
disclosed as being publishers or disclosed as generating collections of
information items, as required by the claim.” (Appeal Br. 10).
We are not persuaded by Appellant’s argument. First, we find a party
controlling web site content is a publisher, because that party publishes
content on the web site. We further find Liu discloses a “database of web
visitor profiles that can be explored by web marketers, as well as being used
for other purpose[s] (selecting banner ads, personalizing content or
services).” (FF 12). We find that the most important “banner ads” are
selected by the publisher to have the most likely desired effect on a user’s
subsequent actions, and therefore we find the collection of banner ads in Liu
meets the claim language.
Claim 379
Claim 379 recites, in pertinent part, wherein a group of users may
export their group profile for use by another group.
Appellant argues, “Liu et al., and the cited portions in particular, fail
to disclose or fairly suggest a method ‘wherein a group of users may export
their group profile for use by another group’ as required by the claim. The
reasoning cited in the Final Office action further only has a new user
adopting the group's profile, not one group adopting another group's profile.
(Appeal Br. 10).
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We agree with the Appellant, because although Liu discloses users
selecting content (FF 11) and profiles being created based on these content
selections (FF 2), and aggregating user profiles to create group profiles (FF
3), Liu fails to disclose a user or group of users exporting their group
profile, as required by the claim. This is because we interpret this claim to
require the capability of exporting a profile by each user in a group, and we
find the user in Liu does not have the ability to interact with or export group
profiles, because users in Liu do not have access directly to group profiles.
We therefore do not sustain the rejection of claim 379.
Claim 383
Claim 383 recites, in pertinent part, wherein access to certain
information items requires said user to provide a certain response, and said
certain response is selected from the group consisting of authorizing
payment, authorizing release of user information, viewing advertisements,
viewing and registering responses to advertisements, viewing information,
viewing and registering responses to information, responding to a
questionnaire, and responding to a poll.
Appellant argues, the “[t]he portions of Liu et al. cited against this
claim disclose user-category complexes and fail to disclose any form of
access control, let alone a specific form as claimed” (Appeal Br. 10-11).
We are not persuaded by Appellants' argument, because Liu discloses
tracking purchase events in user web activity (FF 13), and we find that
completing a purchase inherently includes a certain response of authorizing
payment, which therefore meets the claim language.
Claim 388
Claim 388 recites, in pertinent part, wherein a logical model of group
information is established by a publisher, comprising: methods for group
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information responses analysis; interfaces of users' workplaces; algorithms
for taking into account group profiles during generation of collections of
information items for common use; and algorithms for prediction of
necessities of users of group information in goods and services through
analysis of group information responses.
Appellant argues, the claim “requires specific limitation with respect
to ‘group information responses,’ that are limited to ‘other than information
item usage’ in parent claim 321. However, Liu et al. fails to disclose any
such responses, instead teaching against the invention by explicitly teaching
collection of usage data.” (Appeal Br. 11).
We are not persuaded by Appellant’s argument, because we found, as
set forth above at claim 321, that Liu discloses aggregating group
information responses that are other than information item usage. We
therefore adopt the Examiner’s findings as to claim 388 (Answer 9-10) as
our own, and affirm the rejection on the basis of these undisputed findings.
Rejection under 35 U.S.C. § 103(a)
Claim 352
Claim 352 recites, in pertinent part, wherein psychological-type of
each user in said group is evaluated by applying psychological tests for
input into the group profile.
Appellant argues, “while psychological testing may be known in the
art, as a whole, Liu et al. is drawn to passive monitoring and criticizes the
prior art wherein user-supplied information is used (see column 1, lines 44-
48), such that it teaches against actively soliciting information (such as
psychographic data) from web surfers, and thus teaches against any such
combination with (user-supplied) results of psychological testing.” (Appeal
Br. 11).
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We are not persuaded by Appellant’s argument, because we find Liu
discloses that electronic commerce decision makers are interested in
“psychographic” profile information, and we find that Liu’s system can
“distill more meaning” than just web activity data (FF 14). We therefore
find that one of ordinary skill in the art would understand Liu teaches
applying psychological tests, because that is a common form of determining
“psychographic” information, thus meeting the claim language.
Rejection under 35 U.S.C. § 101
Pursuant to 37 CFR § 41.50(b) (2006) we enter a new grounds of
rejection of claims 321, 323-325, 328, 345, 349-353, 358, 359, 365, 366,
378, 379, 383, and 388.
We find the claimed method of claim 321 can be performed
substantially mentally, and that the remainder of the claimed method
represents insignificant extra-solution activity. Specifically, we find the
collecting, storing, associating, establishing, collecting, and refining steps
can be performed through entirely abstract mental thought, and the
delivering step can be oral or through delivering paper hardcopy content
using human work. We interpret broadly the database into which
information items are stored to be capable of being merely human memory
or human collected notes. Therefore, we find the method of claim 321 and
its dependent claims, through similar analysis, recites non-patent eligible
abstract subject matter.

CONCLUSIONS OF LAW
The Examiner did not err in rejecting claims 321, 323-325, 328, 345,
349, 353, 358, 359, 365, 366, 378, 383, and 388 under 35 U.S.C. § 102(e)
over Liu.
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The Examiner did not err in rejecting claim 352 under 35 U.S.C.
§ 103(a) over Liu and Applicant-Admitted Prior Art.
The Examiner erred in rejecting claims 350, 351, and 379 under 35
U.S.C. § 102(e) over Liu.

DECISION
For the above reasons, the Examiner’s rejection of claims 321, 323-
325, 328, 345, 349, 352, 353, 358, 359, 365, 366, 378, 383, and 388 is
AFFIRMED, and the Examiner’s rejection of claims 350, 351, and 379 is
REVERSED. Pursuant to 37 CFR § 41.50(b) (2006) we enter a new
grounds of rejection under 35 U.S.C. § 101 of claims 321, 323-325, 328,
345, 349-353, 358, 359, 365, 366, 378, 379, 383, and 388.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b) (2008). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 CFR § 41.50(b) also provides that the appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
• (1) Reopen prosecution. Submit an appropriate amendment of the
claims so rejected or new evidence relating to the claims so rejected, or both,
and have the matter reconsidered by the examiner, in which event the
proceeding will be remanded to the examiner . . . .
• (2) Request rehearing. Request that the proceeding be reheard under
§ 41.52 by the Board upon the same record . . . .
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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) (2006).

AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)

MP