Splunk Inc.

Patent Trials and Appeals Board

Mar 2, 2021

2019006313 (P.T.A.B. Mar. 2, 2021)

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.
15/224,651 07/31/2016 Philip John Vander Broek SP0050.02US.C1/272750 6083
128058 7590 03/02/2021
SHOOK, HARDY & BACON L.L.P.
(Splunk Inc.)
INTELLECTUAL PROPERTY DEPARTMENT
2555 GRAND BLVD
KANSAS CITY, MO 64108
EXAMINER
LHYMN, SARAH
ART UNIT PAPER NUMBER
2613
NOTIFICATION DATE DELIVERY MODE
03/02/2021 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):
patentofficecorrespondence@splunk.com
shbdocketing@shb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PHILIP JOHN VANDER BROEK
Appeal 2019-006313
Application 15/224,651
Technology Center 2600
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
PHILLIP A. BENNETT, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1–20, all of the pending claims. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as Splunk Inc. Appeal Br. 4.
Appeal 2019-006313
Application 15/224,651

2
STATEMENT OF THE CASE2
The claims are directed to a system and methods to visualizing values
over time of a field identified in events that may be derived from data
including, e.g., machine data. See Spec. ¶ 33.
Exemplary Claims
Claim 1 reproduced below, is representative of the subject matter on
Appeal (emphases added to contested prior-art limitations):
1. A method comprising:
accessing a set of time stamped, searchable events from a
set of raw data, each event in the set of time stamped, searchable
events includes a portion of the set of raw data from which the
time stamped, searchable event was derived, the set of raw data
related to security or performance aspects of one or more
information technology systems;
identifying a set of unique values included in a particular
field that is present in one or more time stamped, searchable
events in the set of time stamped, searchable events, the
particular field being at a location, within the one or more time
stamped, searchable events, defined by an extraction rule;
causing display, via a graphical user interface, of a
plurality of rows that each correspond to one unique value
among the set of unique values,
each row having a plurality of indicators displayed along
a timeline,

2 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed
May 13, 2019); Reply Brief (“Reply Br.,” filed Aug. 26, 2019); Examiner’s
Answer (“Ans.,” mailed June 26, 2019); Final Office Action (“Final Act.,”
mailed Dec. 10, 2018); and the original Specification (“Spec.,” filed July
31, 2016).
Appeal 2019-006313
Application 15/224,651

3
each indicator among the plurality of indicators
indicating a number of time stamped, searchable events that
have:
the one unique value in the particular field among
the set of time stamped, searchable events, and
a time stamp corresponding with a certain time
period,
wherein each indicator of the plurality of indicators is
positioned along the timeline according to the certain time
period;
wherein the method is performed by one or more
computing devices.
REFERENCES
The prior art relied upon by the Examiner as evidence is:
Name Reference Date
Dowd et al. (“Dowd”) US 2002/0078131 A1 June 20, 2002
Ingrassia et al. (“Ingrassia”) US 2008/0091757 Al April 17, 2008
Cardno et al. (“Cardno”) US 2011/0261049 Al Oct. 27, 2011
Sukhenko et al. (“Sukhenko”) US 2011/0289475 Al Nov. 24, 2011
Garr et al. (“Garr”) US 2012/0262472 A1 Oct. 18, 2012
Perez et al. (“Perez”) US 2014/0340407 Al Nov. 20, 2014
David Carasso, “Exploring Splunk – Search Processing Language
(SPL) Primer and Cookbook,” April 2012. (“Carasso”).

Appeal 2019-006313
Application 15/224,651

4
REJECTIONS3
Rejection Claim(s) Rejected
35 U.S.C.
§ Reference(s)/Basis
R1
(FOA 11)
1–5, 9, 10, 12–
14, 16, 18, 20 103
Obviousness
Carasso, Perez, Garr
R2
(FOA 35) 6, 7 103
Obviousness
Carasso, Perez, Garr,
Ingrassia
R3
(FOA 39) 8 103
Obviousness
Carasso, Perez, Garr,
Dowd
R4
(FOA 41) 11, 17, 19 103
Obviousness
Carasso, Perez, Garr,
Cardno
R5
(FOA 43) 15 103
Obviousness
Carasso, Perez, Garr,
Sukhenko
CLAIM GROUPING
Based on Appellant’s arguments (Appeal Br. 18–23) and our
discretion under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of
obviousness Rejection R1 of claims 1–5, 10, 13, 14, 16, 18, and 20 on the
basis of representative claim 1; and we decide the appeal of obviousness
Rejection R4 of dependent claims 11, 17, and 19 on the basis of
representative claim 11. We address separately argued claims 9 and 12
under obviousness Rejection R1, infra.

3 The Examiner withdrew the § 101 subject matter eligibility rejection of
claims 1–20. Ans. 3.
Appeal 2019-006313
Application 15/224,651

5
Remaining claims 6–8, and 15 in obviousness Rejections R2, R3 and
R5, not argued separately, fall with the respective independent claim from
which they depend.4
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. To the extent Appellant has not
advanced separate, substantive arguments for particular claims, or other
issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv).
We are not persuaded of Examiner error by Appellant’s arguments
with respect to obviousness Rejections R1 through R5 of claims 1–20 and,
unless otherwise noted, we incorporate by reference herein and adopt as our
own: (1) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken, and (2) the reasons and rebuttals set forth in
the Examiner’s Answer in response to Appellant’s arguments. We highlight
and address specific findings and arguments regarding Rejection R1 of
claims 1, 9, and 12 and Rejection R4 of claim 11 for emphases as follows.

4 “Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv).
In addition, when Appellant does not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
Appeal 2019-006313
Application 15/224,651

6
1. § 103 Rejection R1: Claims 1–5, 9, 10, 12–14, 16, 18, and 20
Issue 1
Appellant argues (Appeal Br. 18–25; Reply Br. 2–9) the Examiner’s
rejection of claim 1 under 35 U.S.C. § 103 as obvious over the combined
teachings of Carasso, Perez, Garr is in error. These contentions present us
with the following issue:
Did the Examiner err in finding the cited prior-art combination
teaches or suggests a method that includes, inter alia, the steps of:
causing display, via a graphical user interface, of a
plurality of rows that each correspond to one unique value
among the set of unique values,
each row having a plurality of indicators displayed along
a timeline,
each indicator among the plurality of indicators
indicating a number of time stamped, searchable events that
have:
the one unique value in the particular field among
the set of time stamped, searchable events, and
a time stamp corresponding with a certain time
period,
as recited in claim 1?
Principles of Law
“[O]ne cannot show non-obviousness by attacking references
individually where . . . the rejections are based on combinations of
references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981). “The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference . . . . Rather,
Appeal 2019-006313
Application 15/224,651

7
the test is what the combined teachings of those references would have
suggested to those of ordinary skill in the art.” Id. at 425.
The test for obviousness is what the combined teachings of the prior
art would have suggested to the hypothetical person of ordinary skill in the
art. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
In KSR, the Court stated “[t]he combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
416 (2007).
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill . . . . [A] court
must ask whether the improvement is more than the predictable
use of prior art elements according to their established
functions.
Id. at 417.
Further, the relevant inquiry is whether the Examiner has set forth
“some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006) (cited with approval in KSR, 550 U.S. at 418).
Appeal 2019-006313
Application 15/224,651

8
Analysis
The Examiner finds Carasso teaches most of the limitations of claim 1
(Final Act. 11–16 (citing Carasso 14, 15, 18, 19, 22–29, Table 2–1, Fig. 2,
Fig. 2.5)); Perez teaches “causing display, via a graphical user interface, of
a plurality of rows that each correspond to one unique value among the set
of unique values,” (Final Act. 13 (citing Perez ¶¶ 24, 26, 28, fig. 2)); and
Perez also teaches “each row having a plurality of indicators” and “each
indicator among the plurality of indicators indicating a number of time
stamped, searchable events” (Final Act. 13 (citing Perez ¶¶ 26–32, Fig. 2)).
The Examiner further finds:
It would have been obvious for one of ordinary skill in the art to
have combined and modified Carasso, in view of Perez, to have
included the above, and further modified the applied references
such that server messages, as taught by Perez, are included in
the raw data that is time stamped/indexed by Carasso. Such a
modification would have been obvious and predictable to one
of ordinary skill in the art. See MPEP §2143(A).
Final Act. 13.
In response to the Examiner’s findings, Appellant contends:
The user interface in Perez, however, fails to teach or suggest
each row having a plurality of indicators, displayed along a
timeline, that indicate a number of time stamped, searchable
events that have (1) the one unique value in the particular
field among the set of time stamped, searchable events, and
(2) a time stamp corresponding with a certain time period,
as in claim 1. This enables a user to view, via the indicator, how
many events within a certain time period have a particular
unique value in a particular field within the set of events.
Appeal Br. 20.
Appeal 2019-006313
Application 15/224,651

9
The Examiner further finds
Perez teaches that the concept of having a plurality of indicators
in a row, each indicator indicating a number of time stamped,
searchable events, that have the one unique value in the
particular field, is known. For instance, in row 6 of Figure 2,
there are at least 4 indicators (a plurality) in that row These
four indicators are: (1) an indicator using a color code to show
how many messages correspond to a specific severity color
code 1; (2) an indicator using a different color code to show
how many messages correspond to severity color code 2; (3) an
indicator using a different color to show how many messages
correspond to a specific severity code 2; and (4) an indicator of
the total number of messages, here 4. See also paras. 26–32 of
Carasso.
Each of these indicators in the row indicate a number of
events (i.e. messages), that have the one unique value in the
particular field among the set of events (i.e. unique value
corresponds to number of severity type of message in the field
of server data among the set of message events) all which are
time stamped, per Carasso above.
Ans. 5–6.
Appellant argues in response:
In the Answer, the Office equates the number of events to
“messages” and further specifies that the unique value
corresponds to “number of severity type of message in the field
of server data among the set of message events.” See Answer,
pg. 6. Appellant submits, however, that even assuming events
equate to “messages” (which Appellant does not agree), such
messages in Perez do not have a unique value in a particular
field in the event. At best, the different severities may be
associated with an error message, but there is no teaching or
suggestion in Perez that such severity is included in a particular
field in the event.
The Answer also mentions the phrase “field of server
data.” Such a “field of server data,” however, is not even
discussed in the Perez reference, nor is there (1) any indication
Appeal 2019-006313
Application 15/224,651

10
that severity type of messages would be within such a “field of
server data” or that (2) field of server data is a particular field
of a time stamped, searchable event, as in claim 1. Moreover,
there is no teaching or suggestion in Perez that such “messages”
include a time stamp corresponding with a certain time period.
Not only, is there a lack of discussion in Perez regarding time
stamps, but there is also no teaching regarding a display of a
number of events that have a time stamp corresponding with a
certain time period, as in claim 1.
Reply Br. 5–6.
We are not persuaded by Appellant’s arguments because the test for
obviousness is what the combined teachings of the prior art would have
suggested to the hypothetical person of ordinary skill in the art. See Keller,
642 F.2d at 425. As cited above, while Appellant focuses on the Perez
reference, the Examiner finds Carasso teaches “time stamped, searchable
events” and “identifying a set of unique values included in a particular
field that is present in one or more time stamped, searchable events.”
Final Act. 11–12. The Examiner cites Perez for teaching rows of (unique)
values to be displayed via a GUI and for teaching indicators. Final Act. 13.
Appellant’s Specification describes the term “indicator” as similar to a
“reference.” Spec. ¶ 61. However, Appellant’s Specification is silent on a
specific definition for the term “unique value.”
In reviewing the record, we are not persuaded the Examiner’s claim
interpretation is overly broad or unreasonable or inconsistent with the
Specification, because Appellant does not point to any limiting definition, in
the claim, or in the Specification, that would preclude the Examiner’s broad
but reasonable construction of the term “unique value,” and the reading of
Appeal 2019-006313
Application 15/224,651

11
the disputed limitation on the cited references.5 We find the scope of the
construed and contested limitation encompasses the teachings in Perez’s
Figure 2 and Carasso’s paragraphs 26–32. Ans. 5–7.
The Appellant also argues a lack of motivation to combine the
references. Appeal Br. 22–23. We are not persuaded by Appellant’s
arguments because the Examiner finds modifying Carasso’s time stamped
raw data to include Perez’s server messages along Garr’s timeline would
have merely yielded predictable results. Final Act. 13–16. See In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006). See also 35 U.S.C. § 132.
We are guided by the Supreme Court’s view of the prior art as a
combination of teachings from different sources and the use of those
teachings by a practitioner in the art. See KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 401 (2007):
To determine whether there was an apparent reason to combine
the known elements in the way a patent claims, it will often be
necessary to look to interrelated teachings of multiple patents;
to the effects of demands known to the design community or
present in the marketplace; and to the background knowledge
possessed by a person having ordinary skill in the art.
Id.
The Supreme Court further guides: an improved product in the art is
obvious if that “product [is] not [one] of innovation but of ordinary skill and
common sense.” KSR, 550 U.S. at 421. We find this reasoning is applicable

5 Because “applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
Appeal 2019-006313
Application 15/224,651

12
here because the Examiner’s proffered combination of Carasso, Perez, Garr
would have merely been a “predictable use of prior art elements according to
their established functions.” KSR, 550 U.S. at 417.
Moreover, Appellant has not provided any evidence that combining
the familiar elements and/or practices described in the Examiner’s proffered
combination of Carasso, Perez, Garr would have been “uniquely challenging
or difficult for one of ordinary skill in the art” (Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007)), or would have
yielded unexpected results.
Based upon the findings above, on this record, we are not persuaded
of error in the Examiner’s reliance on the cited prior art combination to teach
or suggest the disputed limitations of claim 1, nor do we find error in the
Examiner’s resulting legal conclusion of obviousness. Therefore, we sustain
the Examiner’s obviousness rejection of independent claim 1, and grouped
claims 2–5, 10, 13, 14, 16, 18, and 20 which fall therewith. See Claim
Grouping, supra.
2. § 103 Rejection R1: Dependent Claim 9
Issue 2
Appellant argues (Appeal Br. 24; Reply Br. 7–8) the Examiner’s
rejection of claim 9 under 35 U.S.C. § 103 as obvious over the combined
teachings of Carasso, Perez, Garr is in error. These contentions present us
with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the method of claim 1,
Appeal 2019-006313
Application 15/224,651

13
wherein each indicator among the plurality of indicators . . . is
displayed using a color or shade, . . . the color or shade is
applied to each intersection using a scale based on a maximum
event count and a minimum event count determined from
(i) intersections within a row including the intersection for
which the color or shade is being applied, (ii) intersections
within a column including the intersection for which the color
or shade is being applied, or (iii) all displayed intersections,
as recited in claim 9?
Analysis
Appellant argues:
The Office appears to recite to Garr for ostensibly teaching this
claimed aspect. In particular, the Office points to FIG. 4 and
para. [0032], which states “[a] color bar 75 above the graph
may be used to interpret the information in the graph. Bar 75
may have a scale which ranges from -1.0 to + 1.0. The scale
may be represented by a variation of color.” Simply using scale
ranging from -1.0 to + 1.0, as in Garr, is very different from a
color or shade applied to an intersection using a scale based on
a maximum event count and a minimum event count
determined from (i) intersections within a row including the
intersection for which the color or shade is being applied,
(ii) intersections within a column including the intersection for
which the color or shade is being applied, or (iii) all displayed
intersections, as in claim 9. Initially, Garr fails to teach or
suggest a color applied to an intersection using a scale based on
a maximum event count and a minimum event count. Instead,
Garr simply provides a range from -1.0 to+ 1.0, which is not an
event count. Second, Garr fails to teach or suggest that color is
applied using a scale based on a maximum event count and a
minimum event count determined from (i) intersections
within a row including the intersection for which the color or
shade is being applied, (ii) intersections within a column
including the intersection for which the color or shade is being
applied, or (iii) all displayed intersections. Appellant cannot
find any teaching or suggestion in Barr of applying a color
Appeal 2019-006313
Application 15/224,651

14
using a scale based on a maximum event count and a minimum
event count determined from the intersections within a row,
intersections within a column, or all displayed intersections.
Appeal Br. 24–25.
The Examiner responds to Appellant’s arguments explaining Garr
(claim 9) teaches applying color or shade as an absolute or relative
indication of data in a chart or display, such as by using a heatmap time
display. Ans. 9. The Examiner explains the colors on the heatmap for each
intersection is on a scale based on a min and a max determined from all
intersections. Id.
We are not persuaded by Appellant’s allegation that the reference
combination does not teach or suggest the contested limitation because
Appellant does not address the entirety of the Examiner’s factual findings.
The Examiner has cited to the combined teachings of Garr and Perez for
teaching and suggesting the disputed limitations of claim 9. Final Act. 20.
However, Appellant does not address the Examiner’s factual findings
relating to Perez, with which we agree. Appeal Br. 24. We are also not
persuaded of error in the Examiner’s findings because we agree that Garr’s
heatmap timelines that conveys time series data in colors and shades and
uses a scale represented by the shades and variations of color, and where a
vertical line drawn through any stacked plots may intersect time data values
teaches or at least suggests the disputed limitation. Garr, ¶¶ 32, 22, Fig.
4:75, cl. 9.
Based upon the findings above, on this record, we are not persuaded
of error in the Examiner’s reliance on the cited prior art combination to teach
or suggest the disputed limitation of claim 9, nor do we find error in the
Appeal 2019-006313
Application 15/224,651

15
Examiner’s resulting legal conclusion of obviousness. Therefore, we sustain
the Examiner’s obviousness rejection of dependent claim 9.
3. § 103 Rejection R1: Dependent Claim 12
Issue 3
Appellant argues (Appeal Br. 25; Reply Br. 8–9) the Examiner’s
rejection of claim 12 under 35 U.S.C. § 103 as obvious over the combined
teachings of Carasso, Perez, Garr is in error. These contentions present us
with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests
sorting the plurality of rows, wherein each row is positioned in
ascending or descending order based on a number of events
corresponding to an intersection of that row with the particular
time period,
as recited in claim 12?
Analysis
Dependent claim 12 recites:
12. The method of claim 1, further comprising:
receiving user input indicating a particular time period to
be used for sorting the plurality of rows; and
sorting the plurality of rows, wherein each row is
positioned in ascending or descending order based on a number
of events corresponding to an intersection of that row with the
particular time period.
Appellant argues “Although Perez describes a number of messages,
there is no teaching or suggestion that rows are positioned in ascending or
descending order based on such a number of ‘messages,’ and further,
Appeal 2019-006313
Application 15/224,651

16
corresponding to an intersection of that row with the particular time period.”
Appeal Br. 25.
We are not persuaded by Appellant’s argument because Appellant is
arguing the references separately when the rejection is for obviousness based
upon what the reference combination would have suggested to a person of
ordinary skill in the art. “[O]ne cannot show non-obviousness by attacking
references individually where . . . the rejections are based on combinations
of references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981). The
Examiner cites both Carasso and Perez for teaching or at least suggesting the
disputed sorting clause. Final Act. 22, Ans. 10. However, Appellant does
not address the Examiner’s findings regarding Carasso. We agree with the
Examiner’s findings because Carasso’s sorting results in ascending and
descending order by field 1 and field 2 teach or at least suggest the disputed
limitation. See Carasso, Table 4–2.
Based upon the findings above, on this record, we are not persuaded
of error in the Examiner’s reliance on the cited prior art combination to teach
or suggest the disputed limitation of claim 12, nor do we find error in the
Examiner’s resulting legal conclusion of obviousness. Therefore, we sustain
the Examiner’s obviousness rejection of dependent claim 12.
4. § 103 Rejection R4: Dependent Claim 11
Issue 4
Appellant argues (Appeal Br. 27; Reply Br. 10–11) the Examiner’s
rejection of claim 11 under 35 U.S.C. § 103 as obvious over the combined
teachings of Carasso, Perez, Garr, and Cardno is in error. These contentions
present us with the following issue:
Appeal 2019-006313
Application 15/224,651

17
Did the Examiner err in finding the cited prior art combination teaches
or suggests “predicting what a plot of a number of events having a specified
value for the particular field would look like for future time periods based on
extrapolating from an actual number of events for previous time periods,” as
recited in claim 11?
Analysis
Regarding dependent claim 11, Appellant argues:
Cardno states that “[p]redictive modeling is used for forecasting
unknown data elements. These forecasts are used to predict
future events and provide estimates for missing data.” Cardno,
para. [0231]. Although Camo discusses predicting future
events, there is no teaching or suggestion of predicting what a
plot of a number of events having a specified value for the
particular field would look like for future time periods based
on extrapolating from an actual number of events for
previous time periods, as in claim 11.
Appeal Br. 27.
We are not persuaded by Appellant’s arguments because mere
attorney arguments and conclusory statements that are unsupported by
factual evidence are entitled to little probative value. In re Geisler, 116 F.3d
1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705
(Fed. Cir. 1984); and Ex parte Belinne, No. 2009-004693, slip op. at 7–8
(BPAI Aug. 10, 2009) (informative), available at
https://www.uspto.gov/sites/default/files/ip/boards/bpai/decisions/inform/
fd09004693.pdf. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)
(“[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
Appeal 2019-006313
Application 15/224,651

18
not found in the prior art.”); cf. In re Baxter Travenol Labs., 952 F.2d 388,
391 (Fed. Cir. 1991) (“It is not the function of this court to examine the
claims in greater detail than argued by an appellant, looking for [patentable]
distinctions over the prior art.”). Arguments not made are waived. See 37
C.F.R. § 41.37(c)(1)(iv).
We are not convinced the Examiner has erred because Cardno’s
predictive modeling interface assists in analyzing forecasted outcomes and
“what if” analyses, Cardno’s predictive modeling module 4135 is used for
forecasting unknown data elements used to predict future events and
estimates for missing data, and its plotting graphs at least suggest the
disputed limitation “predicting what a plot of a number of events having a
specified value for the particular field would look like for future time
periods.” See Cardno ¶¶ 176, 231, 1200, 474, 481, 539, Figs. 11A–11E;
Ans. 27.
Based upon the findings above, on this record, we are not persuaded
of error in the Examiner’s reliance on the cited prior art combination to teach
or suggest the disputed limitation of claim 11, nor do we find error in the
Examiner’s resulting legal conclusion of obviousness. Therefore, we sustain
the Examiner’s obviousness rejection of dependent claim 11, and grouped
claims 17 and 19, which fall therewith. See Claim Grouping, supra.
4. § 103 Rejections R2, R3, R5: Claims 6–8, and 15
With respect to the rejections of the dependent claims 6–8, and 15,
Appellant does not present substantive arguments. Appeal Br. 25–28. In
view of the lack of any substantive or separate arguments directed to
obviousness Rejections R2, R3, and R5 of claims 6–8, and 15 under § 103,
Appeal 2019-006313
Application 15/224,651

19
we sustain the Examiner’s rejection of these claims. See 37 C.F.R.
§ 41.37(c)(1)(iv).
REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 2–12) not in response to a shift in the Examiner’s position
in the Answer, arguments raised in a Reply Brief that were not raised in the
Appeal Brief or are not responsive to arguments raised in the Examiner’s
Answer will not be considered except for good cause, which we find
Appellant has not shown here. See 37 C.F.R. § 41.41(b)(2).
CONCLUSIONS
Appellant has not shown that the Examiner erred with respect to
obviousness Rejections R1 through R5 of claims 1–20 under 35 U.S.C.
§ 103 over the combinations of the teachings of the applied references, and
we sustain those rejections.

Appeal 2019-006313
Application 15/224,651

20
DECISION SUMMARY
Claim(s)
Rejected
35
U.S.C.
§
Reference(s)/Basis
Affirmed Reversed
1–5, 9, 10,
12–14, 16,
18, 20
103
Obviousness
Carasso, Perez,
Garr
1–5, 9, 10,
12–14, 16,
18, 20

6, 7 103
Obviousness
Carasso, Perez,
Garr, Ingrassia
6, 7
8 103
Obviousness
Carasso, Perez,
Garr, Dowd
8
11, 17, 19 103
Obviousness
Carasso, Perez,
Garr, Cardno
11, 17, 19
15 103
Obviousness
Carasso, Perez,
Garr, Sukhenko
15
Overall
Outcome 1–20
FINALITY AND RESPONSE
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)(iv). See
37 C.F.R. § 41.50(f).
AFFIRMED