2020002658 (P.T.A.B. Jun. 24, 2021)

VMware, Inc.

Patent Trials and Appeals BoardJun 24, 2021

2020002658 (P.T.A.B. Jun. 24, 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. 15/138,102 04/25/2016 Christopher Knowles C588 8643 152606 7590 06/24/2021 Olympic Patent Works PLLC 4979 Admiral Street Gig Harbor, WA 98332 EXAMINER FIORILLO, JAMES N ART UNIT PAPER NUMBER 2444 MAIL DATE DELIVERY MODE 06/24/2021 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 CHRISTOPHER KNOWLES and JEFFERY CRUKLEY ____________________ Appeal 2020-002658 Application 15/138,102 Technology Center 2400 ____________________ Before, THU A. DANG, JOHNNY A. KUMAR, and NORMAN H. BEAMER, Administrative Patent Judges. KUMAR, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–20.2 We have jurisdiction under 35 U.S.C. § 6(b). We affirm the rejections of claims 1–7, and 20. We reverse the rejections of claims 8–19, and additionally exercise our discretion under 37 C.F.R. § 41.50(b), and enter a NEW GROUND OF REJECTION under 35 U.S.C. § 103, for claims 8–19, which we conclude are obvious over the cited references. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. According to Appellant, VMWARE, INC., is the real party in interest. Appeal Br. 1. 2 The Examiner withdrew 35 U.S.C. § 112 rejection of claims 2–5 in Non- Final Office Action mailed April 12, 2019. Non-Final Act. 3. Appeal 2020-002658 Application 15/138,102 2 We AFFIRM IN PART. STATEMENT OF THE CASE Appellant’s invention relates to methods and systems for frequency- domain analysis of time-ordered operational and performance metric values within computer systems. Spec. ¶ 1.3 Claims 1 and 8, reproduced below, are representative of the subject matter on appeal (emphasis, formatting, and bracketed material added): 1. An automated subsystem of a computer system, the automated subsystem comprising: one or more processors; one or more memories; one or more mass-storage devices; and computer instructions stored in one or more of the one or more memories that, when retrieved from memory and executed by one or more of the one or more processors, control the automated subsystem to identify time-ordered metric-value data stored within the computer system, [L1] partition a total time spanning the earliest-in-time metric value to the latest-in-time metric value into multiple time intervals, [L2] for each time interval, transform the metric-value data associated with times within the time interval from the time domain to the frequency domain to generate corresponding frequency-domain data for the time interval, 3 We refer to Appellant’s Published Specification, Application No. US 2017/0310556 A1, published on October 26, 2017. Appeal 2020-002658 Application 15/138,102 3 [L3] assemble the frequency-domain data for the multiple time intervals into a metric surface within a frequency-amplitude-time space, and [L4] store, in one or more of the one or more memories and mass-storage devices, a representation of the metric surface in association with an indication of a metric with respect to which the time-ordered metric-value data was generated. 8. An automated subsystem of a computer system, the automated subsystem comprising: one or more processors; one or more memories; one or more mass-storage devices; and computer instructions stored in one or more of the one or more memories that,' when retrieved from memory and executed by one or more of the one or more processors, control the automated subsystem to [L5]identify two metric surfaces stored within the computer system; compare the two metric surfaces to generate a comparison-metric value and [L6] at least one transfer function that, when applied to a first metric surface of the two metric surfaces, transforms the first metric surface into the other of the two metric surfaces; and store a representation of the comparison- metric value in one or more of the one or more memories and mass-storage devices. Appeal Br. 29, 31 (Claims App.) Rejections Claims 1–10, 12, 16 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Adiba et al. (US 2011/0153603 Al; published June 23, Appeal 2020-002658 Application 15/138,102 4 2001(“Adiba”) in view of Gee (US 2008/0052335 Al; published Feb. 28, 2008 (“Gee”) in further view of Smith et al. (US 2013/0191062 Al; published July 25, 2013 (“Smith”). Non-Final Act. 4–25. Claim 11 is rejected under 35 U.S.C. § 103 as being unpatentable over Adiba, Gee and Smith as applied to claims 1–10, 12, 16 and 20 in further view of Sinha (US 2009/0078049 Al; published Mar, 26, 2009 (“Sinha”). Non-Final Act. 25–30. Claims 13–15 are rejected under 35 U.S.C. § 103 as being unpatentable over Adiba, Gee and Smith as applied to claims 1–10, 12, 16, and 20 in further view of Rawlins et al. (US 2008/0133982 Al; published June 5, 2008 (“Rawlins”). Non-Final Act. 30–35. Claim 17 is rejected under 35 U.S.C. § 103 as being unpatentable over Adiba, Gee and Smith as applied to claims 1–10, 12, 16, and 20 in further view of Bonanni et al. (US 2007/0198215 Al; published Aug. 23, 2007 (“Bonanni”). Non-Final Act. 35–37. Claims 18 and 19 are rejected under 35 U.S.C. § 103 as being unpatentable over Adiba in view of Gee and Smith as applied to claims 1– 10, 12, 16, and 20 in further view of Louise et al. (US 2009/0195536 Al; published Aug. 23, 2007 (“Louise”) and in further view of Nielsen (US 2009/0175543 Al; published July 9, 2009 (“Nielsen”). Non-Final Act. 37– 41. ANALYSIS In reaching this Decision, we consider all evidence presented and all arguments actually made by Appellant. We have reviewed Appellant’s arguments in the Appeal Brief, the Examiner’s rejections in the Final Office Action, and the Examiner’s responses in the Answer to Appellant’s Appeal 2020-002658 Application 15/138,102 5 arguments. We highlight and address specific findings and arguments for emphasis as follows:4 35 U.S.C. § 103 Rejection of Exemplary Claim 15 We have reviewed the Examiner’s rejections in light of Appellant’s contentions that the Examiner has erred. See Appeal Br. 5–28; Reply Br. 1– 31. A. Claim 1: Limitation L1 The Examiner finds Adiba teaches limitation L1 because paragraph 18 of Adiba describes that the formatting of the metric data can be split-up according to source, timestamp, metric type and other factors; and paragraph 27 of Adiba describes enabling the metrics to be accessed in specific intervals of time. Ans. 6–7. The Examiner concludes that the cited paragraphs 18 and 27 of Adiba are related because they are the starting and the ending paragraphs of a section that discusses collecting and storing large volumes of time-series data. Id. at 6. Appellant argues that the Examiner does not fairly identify a teaching in Adiba because the cited two paragraphs are separated by almost a full page of text and discuss entirely different entities (i.e., the cited paragraph 18 discusses a processing entity and the cited paragraph 27 discusses the organization of the metric databases). Appeal Br. 17. Appellant also argues that Adiba does not teach limitation L1 because the cited paragraph 18 of Adiba is not related to partitioning a total time into time intervals and the 4 Throughout this Decision, we refer to the Reply Brief filed February 10, 2020 (“Reply Br.”); the Appeal Brief filed August 19, 2019 (“Appeal Br.”); Non-Final Office Action mailed April 12, 2019 (“Non-Final Act.”); and the Examiner’s Answer mailed December 2, 2019 (“Ans.”). 5 Independent claim 20 recites similar subject matter. Appeal 2020-002658 Application 15/138,102 6 cited paragraph 27 of Adiba has no relation to partitioning a time during which metric values have been collected into time intervals. Id. at 17–18. According to Appellant, “splitting of the data” in paragraph 18 of Adiba has nothing to do with time and the word “splitting” is not necessarily a synonym of the word “partition.” Id. at 17. Appellant contends that paragraph 27 of Adiba only discloses the system may retain data points corresponding to a particular sample interval, but not partitioning a time during which metric values have been collected into time intervals. Id. at 18. Based on the record before us, Appellant’s arguments do not persuade us that the Examiner erred in finding that the Adiba teaches the disputed limitation L1. More particularly, Appellant’s arguments with respect to Adiba do not reflect the specific findings made by the Examiner. We agree with the Examiner that that paragraph 18 of Adiba teaches the formatting of the metric data can be partitioned according to timestamp and paragraph 27 of Adiba teaches enabling the metrics to be accessed in specific intervals of time. Ans. 6–7. We also agree with the Examiner that both paragraph 18 and paragraph 27 are related to collecting and storing large volumes of time-series data. Id. at 6. Appellant’s arguments above ignore the combined teachings of paragraphs 18 and 27 of Adiba. Specifically, we find no error with the Examiner’s proffered findings to combine the teachings of paragraph 18 of Adiba — to partition the metric data according to timestamp (see Non-Final Act. 6; Ans. 6) — and the teachings of paragraph 27 of Adiba — to enable the metric data to be accessed in specific intervals of time (Non-Final Act. 6; Ans. 7) — collectively to arrive at the claimed limitation L1. Appeal 2020-002658 Application 15/138,102 7 Accordingly, based on the evidence before us, we are not persuaded that the Examiner erred in finding that Adiba teaches limitation L1. B. Claim 1: Limitation L2 The Examiner finds that the combination of Adiba and Gee teaches limitation L2 because Adiba teaches identifying data as metric data within a time interval and Gee teaches transforming data from the time domain to the frequency domain. Non-Final Act. 6–8; Ans. 8 (citing Adiba ¶¶ 18, 27; Gee ¶ 21). Appellant argues that Gee does not teach limitation L2 because Gee does not teach partitioning the time span for the input data into time intervals and carrying out a time-domain-to-frequency-domain conversion of each portion of a data set corresponding to one of the time intervals into which the overall time span has been partitioned. Appeal Br. 18. Appellant further argues that Gee does not teach limitation L2 because Gee is directed to processing RF signals, and not related to “metric-value data,” as recited in limitation L2. Id. Appellant’s arguments with respect to Gee do not address the specific findings made by the Examiner. In particular, the Examiner finds that the combination of Adiba and Gee, rather than Gee alone that teaches limitation L2. See Ans. 8. Again, Appellant’s arguments above have ignored the combined teachings and suggestions of Adiba and Gee. Specifically, we find no error with the Examiner’s finding that an ordinarily skilled artisan would have had sufficient motivation to combine the teachings of Adiba — to identify data as metric data within a time interval (see Ans. 8) — and the teachings of Gee Appeal 2020-002658 Application 15/138,102 8 — to transform data from the time domain to the frequency domain (id.) — collectively to arrive at the claimed limitation L2. Accordingly, based upon a preponderance of the evidence before us, we are not persuaded that the Examiner erred in finding that the combination of Adiba and Gee teaches or suggests limitation L2. C. Claim 1: Limitation L3 The Examiner finds that the combination of Adiba and Gee teaches limitation L3 because Adiba teaches the required metric data in time interval and Gee teaches the spectrogram to assemble the frequency-domain data into a metric surface with a frequency-amplitude-time space. Non-Final Act. 7; Ans. 9–10. In particular, the Examiner determines that a surface is defined in mathematics as a two-dimensional collection of points (i.e., flat surface), a three dimensional connection of points whose cross-section is a curve (i.e., curved surface). Ans. 9–10 (citing Encyclopedia Britannica). The Examiner also concludes that a surface is essentially two-dimensional and has an area, while the region that the surface encloses is three-dimensional and has a volume. Id. The Examiner finds that Gee’s spectrogram teaches or suggests the claimed metric surface because Gee describes the spectrogram as a displayable surface having a frequency axis, time axis and an amplitude representing a metric of power. Non-Final Act. 7; Ans. 10 (citing Gee ¶ 81). Gee teaches: A spectrogram is a frequency versus time versus amplitude display where the frequency is represented on the x-axis and time on the y-axis. Non-Final Act. 7; Ans. 10 (citing Gee ¶ 81) (emphasis added). Appeal 2020-002658 Application 15/138,102 9 Appellant argues that Gee’s spectrogram is not a “metric surface” because the spectrogram is a two-dimensional plot and the metric surface is a surface with three dimensional volume. Appeal Br. 19. Appellant argues that Gee does not teach limitation L3 because the cited paragraph 81 of Gee does not teach multiple time intervals and assembling frequency-domain data for multiple time intervals. Id. We agree with the Examiner because Gee describes the spectrogram as a displayable surface having a frequency axis, time axis and an amplitude representing a metric of power, which corresponds to the limitation “a metric surface within a frequency-amplitude-time space” recited in claim 1. Non-Final Act. 7; Ans. 10 ( citing Gee ¶ 81). In addition, Appellant’s arguments with respect to Gee do not address the specific findings made by the Examiner. In particular, the Examiner finds that the combination of Adiba and Gee, rather than Gee alone teaches limitation L3. See Ans. 9. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Again, Appellant’s arguments above have ignored the combined teachings and suggestions of Adiba and Gee. Specifically, we find no error with the Examiner’s finding that an ordinarily skilled artisan would have had sufficient motivation to combine the teachings of Adiba — the metric data in time interval (see Non-Final Act. 6) — and the teachings of Gee — the spectrogram to assemble the frequency-domain data into a metric surface with a frequency-amplitude-time space (id. at 7) — collectively to arrive at the claimed limitation L3. Appeal 2020-002658 Application 15/138,102 10 Accordingly, based upon a preponderance of the evidence before us, we are not persuaded that the Examiner erred in finding that the combination of Adiba and Gee teaches or suggests limitation L3. D. Reasons for combining Adiba and Gee The Examiner determines that it is well established in the art that frequency domain analysis is a useful tool for the analysis of complex data, as it provides a way to measure and compare the frequency and amplitude of individual components. Ans. 12. The Examiner concludes that it would have obvious to a person having ordinary skill in the art at the time of invention to transform the time data of Adiba to the frequency domain using the mechanism taught by Gee to improve the analysis of the metric data in testing and measuring systems. Non-Final Act. 7; Ans. 11–12 (citing Gee ¶ 81). Appellant argues that the Examiner provides no indication of how Adiba and Gee could be combined, why such a combination would be successfully and provides no justification or explanation of why one skilled in the art would have thought to make the combination because the Examiner merely insert meaningless statement such as “incorporation improves upon the invention of Adiba by adding the capabilities of Gee to transform the data into the frequency domain so that the analysis of the metric data can be performed using testing and measuring systems.” Appeal. Br. 22. According to Appellant, neither Adiba nor one skilled in the art would not have reason to incorporate RF-signal analysis techniques discussed by Gee into Adiba’s data collection and data storage system. Id. We agree with the Examiner’s findings because the Examiner’s conclusion relies on paragraph 81 of Gee for the combination with Adiba. Appeal 2020-002658 Application 15/138,102 11 Non-Final Act. 7 (citing Gee ¶ 81). The above-noted teachings suggest that the combination involves the predictable use of prior art elements according to their established functions. The Supreme Court has held that in analyzing the obviousness of combining elements, a court need not find specific teachings, but rather may consider “the background knowledge possessed by a person having ordinary skill in the art” and “the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). To be nonobvious, an improvement must be “more than the predictable use of prior art elements according to their established functions,” id. at 417, and the basis for an obviousness rejection must include an “articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” Id. at 418 (citation omitted). Here, the Examiner has provided a rationale for the combination, which is to improve the analysis of the metric data in the testing and measuring systems. Non-Final Act. 7; Ans. 11–12 (citing Gee ¶ 81). Accordingly, we find that the Examiner has provided sufficient motivation for Gee with the teachings of Adiba. Moreover, Appellant has not provided persuasive evidence that combining the respective teachings of the references (as proffered by the Examiner — improve the analysis of the metric data in the testing and measuring systems. Non-Final Act. 7; Ans. 11–12.) would have been “uniquely challenging or difficult for one of ordinary skill in the art,” or that such a combination would have “represented an unobvious step over the prior art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). Nor has Appellant provided any objective evidence of secondary considerations, which, as our reviewing court explains, “operate[] Appeal 2020-002658 Application 15/138,102 12 as a beneficial check on hindsight.” Cheese Systems, Inc. v. Tetra Pak Cheese and Powder Systems, Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013). Accordingly, Appellant does not persuade us of error in the Examiner’s findings that a person having of ordinary skill in the art at the time of the invention would have combined Adiba and Gee. E. Claim 1: Limitation L4 The Examiner concludes that the combination of Adiba, Gee, and Smith teaches limitation L4. Non-Final Act. 4–8; Ans. 12–13. The Examiner finds that Smith’s Precision Measuring Matrix (PMM) comprises cells containing amplitudes for particular times and frequencies with marked correlated maxima, which teaches “a representation of the metric surface” recited in the claim 1 because PMM represents a technique of storing data transferring from a time domain to a frequency domain. Non- Final Act. 7–8; Ans. 13. (citing Smith ¶¶ 9, 65, 95). Appellant argues that Smith does not teach limitation L4 because Smith’s matrix is a two-dimensional matrix containing numeric values that do not represent three-dimensional “metric surface.” Appeal Br. 22–23. Appellant also argues that Smith does not teach or suggest anything related to metric-value or metrics. Reply Br. 26. In addition, Appellant argues that Examiner does not provide sufficient reasoning to combine Adiba and Smith because Adiba and Smith are unrelated references. Id. We agree with the Examiner. As discussed above, Gee teaches the limitation “metric surface.” In addition, Smith’s PMM comprises cells containing amplitudes for particular times and frequencies, which teaches or suggest the limitation “a representation of the metric surface” recited in limitation L4. Appeal 2020-002658 Application 15/138,102 13 Appellant’s arguments that Smith does not describe a metric-value or metrics, are arguments that Smith does not teach limitation L4. But the Examiner finds that the combination of Adiba, Gee and Smith, teaches limitation L4. See Non-Final Act. 4–8; Ans. 12–13. Again, Appellant’s arguments above have ignored the combined teachings and suggestions of Adiba, Gee, and Smith. Specifically, we find no error with the Examiner’s finding that an ordinarily skilled artisan would have had sufficient motivation to combine the teachings of Adiba — metric data in a time interval (see Non-Final Act. 6) — and the teachings of Gee — a metric surface with a frequency-amplitude-time space (id. at 7) — and the teachings of Smith — storing a representation of the metric surface (id. at 7– 8) — collectively to arrive at the claimed limitation L4. We also agree with the Examiner’s rationale to combine with Adiba and Gee. Non-Final Act. 7–8 (citing Smith ¶¶ 65, 95). The above-noted teachings suggest that the combination involves the predictable use of prior art elements according to their established functions. The Supreme Court has held that in analyzing the obviousness of combining elements, a court need not find specific teachings, but rather may consider “the background knowledge possessed by a person having ordinary skill in the art” and “the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). To be nonobvious, an improvement must be “more than the predictable use of prior art elements according to their established functions,” id. at 417, and the basis for an obviousness rejection must include an “articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” Id. at 418 (citation omitted). Appeal 2020-002658 Application 15/138,102 14 Here, the Examiner has provided a rationale for the combination, which is to enable the spectrogram data represented in the time-frequency- amplitude graph. Final Act. 7–8. Accordingly, we find that the Examiner has provided sufficient motivation for combining Adiba and Gee with the teachings of Smith. Accordingly, Appellant does not persuade us of error in the Examiner’s finding that the combination of Adiba, Gee and Smith teaches the limitation L4 and a person having of ordinary skill in the art at the time of the invention would have combined Smith with Adiba and Gee. Based on this record, Appellant does not persuade us of error in the Examiner’s rejection of independent claims 1, 20, and dependent claims 2–7 falling therewith (Appeal Br. 6) over Adiba, Gee and Smith. 35 U.S.C. § 103 Rejection of Claim 8 Appellant raises the following argument in contending that the Examiner erred in rejecting claim 8 under 35 U.S.C. § 103. Frequency shifting time-domain data has absolutely nothing whatsoever to do with comparing two metric surfaces, or comparing any kind of surfaces, but is instead a simple mathematical technique for "shifting the frequency of the time- domains input data” as explicitly stated by Gee. Appeal Br. 24 (emphasis added). We agree with Appellant’s argument that Gee’s frequency shifting time-domain data does not teach the limitation “comparing two metric surfaces” recited in claim 8. Based on this argument, the Examiner’s reasoning of the Non-Final Rejection and Answer is not sufficient to show that the combination alone renders obvious claim 8. Because we have reversed the rejection of independent claim 8 on Appeal 2020-002658 Application 15/138,102 15 appeal, we also reverse the obviousness rejection of the associated dependent claims that depend therefrom. Under our authority pursuant to 37 C.F.R. § 41.50(b), we set forth a new ground of rejection of claim 8 under 35 U.S.C. § 103, as unpatentable over Adiba, Gee and Smith. We adopt the Examiner’s obviousness rejections of claims 8–19, modified as follows for independent claim 8: For the reasons below, we find that the disputed limitations L5 and L6 recited in claim 8 were known to a person of ordinary skill in the art in question at the time of the invention. As the Examiner sets forth in the rejection of claim 10, Smith explicitly teaches limitation L5. Non-Final Act. 18–19 (citing Smith ¶ 69). Particularly, Smith discloses: That method includes obtaining a digital signal from conversion of an analog signal or from data storage, constructing one or more MMs comprised of cells containing the amplitudes for particular times and frequencies, marking maxima in these matrices based on comparisons of the cell amplitudes, and relating those maxima to find correlated maxima, where multiple maxima agree in both time and frequency. In one disclosed embodiment of Application No. PCT/US2009/064120, two MMs may be created using FFTs of different dimensions and simple maxima and little brothers (in both time and frequency) may be marked with a 2 dB threshold for the little brothers. In that embodiment, all four types of maxima (i.e., time or frequency, and simple or little brother) may all be marked simply as “maxima.” The PMM is created by comparing cells in the two MMs with matching time and frequency and marking maxima in the PMM where both have maxima. The cells in the PMM are populated with the average amplitude of the corresponding cells in the original MMs. Smith ¶¶ 64, 69 (emphasis added). Appeal 2020-002658 Application 15/138,102 16 In other words, Smith teaches identifying two measuring matrices (MMs), comparing the two MMs and generating a Precision measuring matrix (PPM) as a comparison result, which teaches or suggests the limitation L5. See Non-Final Act. 18–19 (citing Smith ¶ 69). Based upon our review of the evidence of record, we adopt the Examiner’s findings that Gee teaches limitation L6. Non-Final Act. 15–16; Ans. 16–18. Particularly, Gee discloses: Converting from the time domain to the frequency domain may be accomplished using a Discrete Fourier Transform. Other embodiments may iteratively perform the producing frequency-shifted time-domain data, converting the frequency- shifted time-domain data, and combining the frequency-domain data with frequency-shifted frequency-domain data. The combined frequency-domain data may be stored as frequency domain data. Gee ¶¶ 24, 26 (emphasis added). We note, as found by the Examiner, Gee’s time-domain representation of metric data and the frequency-domain representation of metric data teaches two metric surface because a surface in mathematics can be represented in either two-dimension or in three dimensions. Ans. 16. We agree with the Examiner’s determination that the metric surface recited in claim 8 does not need to be a surface within a frequency-amplitude-time space, because the limitation “frequency-amplitude-time space” is not recited in claim 8. Id. In addition, we find, as the Examiner set forth in the rejection of claim 8, that Gee’s Discrete Fourier Transform teaches the limitation “at least one transfer function” recited in limitation L6 because the Discrete Fourier Transform is used in a transformation to create a second surface. Non-Final Act. 15–16; Ans. 16–18 (citing Gee ¶¶ 24, 26). Appeal 2020-002658 Application 15/138,102 17 Accordingly, we set forth a new ground of rejection under 35 U.S.C. § 103, for claims 8–19, based upon our aforementioned modification of the Examiner’s rejection of independent claim 8. CONCLUSION The Examiner did not err in rejecting claims 1–7, and 20 under 35 U.S.C. § 103 over the combined teachings and suggestions of the cited references. Appellant has demonstrated the Examiner erred in rejecting claims 8–19 as being unpatentable under 35 U.S.C. § 103. The Examiner’s rejections of claims 8–19 as being unpatentable are reversed. We newly reject claims 8–19 under 35 U.S.C. § 103 as being unpatentable. Appeal 2020-002658 Application 15/138,102 18 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed New Ground 1–7, 20 103 Adiba, Gee, Smith 1–7, 20 8–10, 12, 16 103 Adiba, Gee, Smith 8–10, 12, 16 11 103 Adiba, Gee, Smith, Sinha 11 13–15 103 Adiba, Gee, Smith, Sinha, Rawlins 13-15 17 103 Adiba, Gee, Smith, Sinha, Bonanni 17 18–19 103 Adiba, Gee, Smith, Sinha, Louise, Nielsen 18–19 8–10, 12, 16 103 Adiba, Gee, Smith 8–10, 12, 16 11 103 Adiba, Gee, Smith, Sinha 11 13–15 103 Adiba, Gee, Smith, Sinha, Rawlins 13-15 17 103 Adiba, Gee, Smith, Sinha, Bonanni 17 18–19 103 Adiba, Gee, Smith, Sinha, Louise, Nielsen 18–19 Overall Outcome 1–7, 20 8–19 8–19 TIME PERIOD FOR RESPONSE This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). 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.” Appeal 2020-002658 Application 15/138,102 19 37 C.F.R. § 41.50(b) also provides that 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. . . . Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 1214.01. AFFIRMED IN PART; 37 C.F.R. 41.50(b)