Ex Parte CUOMO et al

Patent Trial and Appeal Board

Jan 15, 2019

14817415 (P.T.A.B. Jan. 15, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/817,415 08/04/2015
77212 7590 01/17/2019
Cantor Colburn LLP - IBM Endicott
20 Church Street
22nd Floor
Hartford, CT 06103
FIRST NAMED INVENTOR
GENNARO A. CUOMO
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
RSW920140128US2 3842
EXAMINER
KINCAID, LESTER G
ART UNIT PAPER NUMBER
2646
NOTIFICATION DATE DELIVERY MODE
01/17/2019 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):
usptopatentmail @cantorcolburn.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GENNARO A. CUOMO, GARI R. SINGH, and
MEETA YADAV
Appeal2018-006415
Application 14/817 ,415
Technology Center 2600
Before JOSEPH L. DIXON, JAMES W. DEJMEK, and
STEPHEN E. BELISLE, Administrative Patent Judges.
BELISLE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from a final rejection of
all pending claims, namely, claims 1, 2, and 4--9. App. Br. 2--4. 2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify International Business Machines Corporation as the
real party in interest. App. Br. 2.
2 This Decision refers to the Final Office Action mailed September 1, 2017
("Final Act."); Appellants' Appeal Brief filed January 31, 2018 ("App.
Br."); the Examiner's Answer mailed May 10, 2018 ("Ans."); Appellants'
Reply Brief filed June 5, 2018 ("Reply Br."); and Appellants' Specification
filed August 4, 2015 ("Spec.").
Appeal2018-006415
Application 14/817 ,415
STATEMENT OF THE CASE
The Claimed Invention
Appellants' application relates to "method products for publishing
messages within a geographic area." Abstract. In general, exemplary
embodiments include "receiving a location from each of a plurality of user
devices [ e.g., "internet connected devices"] and creating a geo-hash tree
based on the location of each of a plurality of user devices;" "receiving a
message with [a] geographic area;" "computing a geo-hash grid for a region
that includes the geographic area and identifying one or more nodes of the
geo-hash tree that correspond to the geo-hash grid;" and "transmitting the
message to one or more of the plurality of user devices associated with the
one or more identified nodes." Spec. ,r,r 3 and 5. In addition, exemplary
embodiments include "performing a point in a polygon algorithm to
determine if any of the one or more user devices are located inside the
associated geographic area," and more specifically, to determine "whether a
given point [e.g., user device] is located inside, outside, or on the boundary
of a polygon." Spec. ,r 3 7.
In the Specification, Appellants state it is known that many
"[ c ]urrently available messaging systems ... use a technique known as geo-
hashing, which divides geographical areas into fixed size rectangles that are
associated with a geo-hash code," but state that because "actual geographic
areas of interest are seldom rectangles that perfectly align with a rectangle
associated with a specific geo-hash code, geo-hashing suffers from both
false positives and false negatives which can cause negative consequences."
Spec. ,r 4.
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Application 14/817 ,415
Appellants state that their method for routing messages based on
geolocation, on the other hand, "is capable of routing a large volume of
geolocation messages at predictably low latency with extremely high
accuracy," and that in certain embodiments, "the method for routing
messages based on geolocation achieves 100% accuracy and has a 0% false
positive and 0% false negative rate." Spec. ,r 38. Moreover, according to
the Specification, "the messaging system is configured to allow the accuracy
of the definition of the geographic area to be tuned to meet desired
performance characteristics." Spec. ,r 39.
Claim 1, reproduced below, is illustrative of the claimed subject
matter on appeal:
1. A method for publishing messages within a
geographic area, the method comprising;
receiving a location from each of a plurality of user
devices;
creating a geo-hash tree based on the location of each of
a plurality of user devices;
receiving a message with the geographic area;
computing a geo-hash grid for a region that includes the
geographic area, wherein the region includes an entirety of the
geographic area and one or more areas that are not within the
geographic area;
identifying one or more nodes of the geo-hash tree that
correspond to the geo-hash grid as candidate nodes;
performing a point in a polygon algorithm for each of the
candidate nodes to determine if the one or more of the plurality
of user devices associated with the candidate nodes are located
inside or outside a boundary of the geographic area, wherein the
point in the polygon algorithm is only performed for the
candidate nodes and wherein the determination if the one or
more of the plurality of user devices associated with the
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Application 14/817 ,415
candidate nodes are located inside the geographic area is not
based on the geo-hash grid of candidate nodes; and
transmitting the message to one or more of the plurality
of user devices associated with the candidate nodes that are
determined to be located inside the geographic area.
References
The Examiner relies on the following references as evidence of
unpatentability of the claims on appeal:
Baldwin
Harrington
Rahnama
Rana
Chow
US 2006/0068762 Al
US 2012/0327837 Al
US 2013/0212065 Al
US 2014/0274154 Al
US 2015/0215409 Al
Rejections
Mar. 30, 2006
Dec. 27, 2012
Aug. 15, 2013
Sept. 18, 2014
July 30, 2015
The Examiner made the following rejections of the claims on appeal:
Claims 1, 2, and 4--9 stand provisionally rejected on the ground of
nonstatutory double-patenting as being unpatentable over claims 8, 9, 11-16,
and 18-24 of co-pending U.S. Patent Application No. 14/563,107.
Claims 1, 2, and 4--7 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Rana in view of Chow and further in view of Harrington.
Claim 8 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Rana, Chow, and Harrington as applied to independent claim 1, and
further in view of Rahnama.
Claim 9 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Rana, Chow, and Harrington as applied to independent claim 1, and
further in view of Baldwin.
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Appeal2018-006415
Application 14/817 ,415
ANALYSIS
Provisional Obviousness-type Double Patenting Rejection
Appellants do not respond to the Examiner's provisional rejection of
claims 1, 2, and 4--9 under the doctrine of obviousness-type double patenting
other than to request during prosecution that the rejection "be held in
abeyance." App. Response After Final Action, filed Oct. 31, 2017, at 7.
Appellants neither list nor address this provisional rejection in their Appeal
Brief or Reply Brief as one of the grounds of rejection to be reviewed on
appeal. App. Br. 3--4; see Reply Br. Appellants also have not filed a
terminal disclaimer in the subject application or in co-pending U.S. Patent
Application No. 14/563,107, which is a parent of the subject application. In
the Examiner's Answer, however, the Examiner maintained "[ e ]very ground
of rejection set forth in the Office action dated September 1, 2017 from
which the appeal is taken," including this provisional rejection. Ans. 2.
Because the rejection is still maintained (i.e., the Examiner has not
withdrawn the rejection), it is still properly before the Board.
To the extent Appellants have not advanced separate, substantive
arguments for particular claims or issues, such arguments are considered
waived. See 37 C.F.R. § 4I.37(c)(l)(iv) (2017); see also Hyatt v. Dudas,
551 F.3d 1307, 1314 (Fed. Cir. 2008) ("When the appellant fails to contest a
ground of rejection to the Board, ... the Board may treat any argument with
respect to that ground of rejection as waived."). Additionally, "[i]f a ground
of rejection stated by the examiner is not addressed in the appellant's brief,
appellant has waived any challenge to that ground of rejection and the Board
may summarily sustain it unless the examiner subsequently withdrew the
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Application 14/817 ,415
rejection in the examiner's answer." Manual of Patent Examining Procedure
("MPEP") § 1205.02 (9th ed. Rev. 08.2017, Jan. 2018).
Accordingly, we summarily sustain the Examiner's provisional
rejection of claims 1, 2, and 4--9 under the doctrine of obviousness-type
double patenting.
Rejections under 35 USC§ 103
The Examiner finds Rana teaches all elements of independent claim 1,
except for the elements shown in italics in the two limitations reproduced
below:
(A) "computing a geo-hash grid for a region that includes the
geographic area, wherein the region includes an entirety of the geographic
area and one or more areas that are not within the geographic area"
("Limitation A"); and
(B) "performing a point in a polygon algorithm for each of the
candidate nodes to determine if the one or more of the plurality of user
devices associated with the candidate nodes are located inside or outside a
boundary of the geographic area, wherein the point in polygon algorithm is
only performed for the candidate nodes and wherein the determination if the
one or more of the plurality of user devices associated with the candidate
nodes are located inside the geographic area is not based on the geo-has
[sic: geo-hash] grid of candidate nodes" ("Limitation B"). Final Act. 8-9.
However, the Examiner finds Chow teaches Limitation A. Final
Act. 8 (Chow's "geohash boxes encompass subscription circle 400
(i.e., geographic area), wherein parts of the geohash boxes encompass areas
not within the subscription circle 400") ( emphasis omitted); Ans. 2-3 ( citing
Chow Figure 4). The Examiner concludes that one of ordinary skill in the
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Application 14/817 ,415
art would have been motivated to combine Rana and Chow to allow
location-based subscriptions and publications to be managed more
efficiently. Final Act. 8. Although Appellants initially assert that Chow
fails to teach Limitation A, see App. Br. 4--5, Appellants subsequently
acknowledge Chow teaches "identifying a single geo-hash grid that includes
an entire geographic region, and some areas not within the region," Reply
Br. 1, thus leaving only Limitation B at issue in this appeal.
The Examiner finds Harrington teaches Limitation B. Final Act. 8-9;
Ans. 3---6. As support, the Examiner relies on Harrington's Figures 3A-3C
and certain related disclosure, namely, paragraphs 41 and 47--49. Final
Act. 9. Figure 3C is reproduced below:
Figure 3C of Harrington illustrates the determination of a region to
which an emergency alert is to be provided, and includes a partial map of
North Carolina divided by county (e.g., Durham (68), Orange (70), Chatham
(72) and Wake (74) counties), along with an overlaid array of equally-sized
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Application 14/817 ,415
squares ( 66). 3 Figure 3 C also depicts a region (7 6), which is a single region
established by all of the overlaid grid portions ( 66) that contact targeted
counties. Harrington ,r 48. The Examiner finds Harrington teaches that user
devices located within region (7 6) will receive emergency alerts and user
devices located outside of the region (7 6) may still receive alerts if desired,
and that this teaches "performing a point in a polygon algorithm to
determine if the user devices are located inside or outside a boundary."
Final Act. 9. The Examiner also finds Harrington teaches that "specific user
devices located substantially in the region 7 6" may be identified, and that
"the location determination is based on a third party access point or GPS
[global positioning system]." Final Act. 9; Ans. 4--5. The Examiner
concludes Harrington teaches location determination not being based on a
geo-hash grid. Final Act. 9.
Appellants contend that, unlike the art of record:
[T]he determination of whether a node is located with [ sic:
within] the region of interest is not based on the geo-hash of the
node or the geo-hash grid that includes the entire geographic
area. Rather, the point in polygon algorithm utilizes the
location of the candidate nodes and the boundary of the
geographic area. By performing the point in polygon
algorithm, the method can determine whether the nodes are
located inside the geographic area and not within the one or
more areas that are not within the geographic area that are
included in the region.
App. Br. 5 ( emphasis added).
3 Although Harrington's Specification does not correlate "an overlaid array
of equally-sized squares" with a particular drawing feature number, we find
the corresponding feature to be No. 66 in Figure 3C.
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Application 14/817 ,415
Harrington teaches a method for providing notification for
devices in a geographic area that forces a user to select whether
to be over/under inclusive by either distributing the notice to
devices outside of their desired are [ sic: area] or to not
distribute the message to some devices in the desired area.
In the claimed system, the user is not forced to make such a
choice, rather the claimed two step process peiforms a method
similar to the over inclusive method of Harrington and then
peiforms a point in polygon algorithm to identify the devices
that are not actually in the desired region but which were found
in the over inclusive estimate of the region.
App. Br. 7 (emphasis added).
According to Appellants, "what [the combination of Rana, Chow, and
Harrington] fails to teach is that only the devices within [the] single geo-
hash grid are then subject to the point in polygon algorithm to determine if
the devices are actually within the geographic region." Reply Br. 1-2. We
agree.
Rana teaches a geographic area ("[a] polygon can refer a geographic
demarcation of an area"), and creating a geo-hash grid pattern to
approximate the geographic area ("area of the polygon 200 is taken to be the
collective area defined by all the [geo-hash] tiles that form the polygon").
Rana ,r,r 68---69. Rana teaches that some of the geo-hash tiles, if of a
minimum size, may fall at least partially outside the geographic area.
Rana ,r 7 5 ("If a tile is reduced to the minimum size ( e.g., the maximum
precision) but still intersects the desired polygon, it is considered to be inside
the polygon and included in the index."). Rana also teaches identifying
whether a client (or received location identifier) is within the geo-hash grid
pattern. Rana ,r,r 95-97, Fig. 9. Because the grid pattern of Rana is
generally optimized to approximate the geographic area, Rana does not
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Application 14/817 ,415
perform a second determination of whether the identified candidate nodes
also fall only within the geographic area. See Rana ,r,r 95-97, Fig. 9.
As discussed above, Harrington also teaches identifying user devices
(i.e., candidate nodes) within the single region (76) established by overlaid
grid portions ( 66). However, the Examiner has not provided sufficient
evidence or technical reasoning to support a finding that Harrington
subsequently performs a point in a polygon algorithm to determine whether
the identified candidate nodes are located only within the geographic area,
which is contained within the grid region (7 6). Additionally, the Examiner
has not shown how Harrington (or Chow) in combination with Rana teaches
or reasonably suggests performing a point in a polygon algorithm for each of
the identified candidate nodes to determine whether they are located only
within the claimed geographic area. Accordingly, we find that the Examiner
has not shown by a preponderance of the evidence that the combination of
Rana, Chow, and Harrington teaches or suggests Limitation B of illustrative
independent claim 1. 4
For the reasons discussed supra, we do not sustain the Examiner's
rejection of independent claim 1 under 35 U.S.C. § 103. Additionally, we
do not sustain the Examiner's rejections under 35 U.S.C. § 103 of claims 2
and 4--7, which depend directly or indirectly from claim 1.
4 We do not opine herein on whether Appellants have identified sufficient
support in the Specification for Limitations A and B as presently amended
and leave it to the Examiner to further consider this issue in any further
prosecution on the merits. Although the Board is authorized to reject claims
under 37 C.F.R. § 4I.50(b), no inference should be drawn when the Board
elects not to do so. See MPEP § 1213.02.
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Moreover, the Examiner has not identified how any of the additional
references, namely, Rahnama and Baldwin, remedy the noted deficiency
above. As a result, we do not sustain the Examiner's rejection of claims 8
and 9 under 35 U.S.C. § 103.
DECISION
We summarily affirm the Examiner's decision provisionally rejecting
claims 1, 2, and 4--9 under the doctrine of obviousness-type double
patenting.
We reverse the Examiner's decision rejecting claims 1, 2, and 4--9
under 35 U.S.C. § 103.
Because we affirm at least one ground of rejection with respect to
each claim on appeal, the Examiner's decision rejecting claims 1, 2, and 4--9
is affirmed. See 37 C.F.R. § 4I.50(a)(l).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). See
37 C.F.R. § 4I.50(f).
AFFIRMED
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