Ex Parte Error

Patent Trial and Appeal Board

Apr 25, 2018

11374816 (P.T.A.B. Apr. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111374,816 03/13/2006
72058 7590 04/27/2018
Kilpatrick Townsend & Stockton LLP
Adobe Systems, Inc. 58083
Mailstop: IP Docketing - 22
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
FIRST NAMED INVENTOR
Brett M. Error
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.
058083/0857831 (00018) 1657
EXAMINER
DELI CH, STEPHANIE ZAGARELLA
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
04/27/2018 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):
ipefiling@kilpatricktownsend.com
KTSDocketing2@kilpatrick.foundationip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRETT M. ERROR
Appeal 2016-008756
Application 11/374,816 1
Technology Center 3600
Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-16 and 18-23, which are all of the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b ). Claim 17 has
been cancelled.
We AFFIRM.
1 According to Appellant, the real party in interest is Adobe Systems
Incorporated. App. Br. 3.
Appeal2016-008756
Application 11/374,816
CLAIMED SUBJECT MATTER
According to Appellant, the claims are directed to a web analytics tool
that generates visual reports, e.g., charts and graphs, which include
indications of events and target goals (Spec. i-f 7, Abstract). Claim 1,
reproduced below, is representative of the claimed subject matter:
1. A computer-implemented method for presenting web site
usage data, the method comprising:
receiving, at a computing device, input to display augment
information in association with a subset of web analytics data;
retrieving, by the computing device, the web analytics data
calculated by a web analytics tool, the web analytics data
comprising information measuring interactions with a website by
one or more visitors, wherein the subset of the web analytics data
is associated with an occurrence of an event relating to a metric
of interaction with the website;
retrieving the augment information from a calendar
module separate from the web analytics tool, the augment
information comprising one or more attributes of the event and
target information comprising a target value for the metric, the
attributes comprising a time period, wherein the augment
information is distinct from the web analytics data;
creating, by the web analytics tool, a web site usage report
by combining the augment information and the subset of the web
analytics data, the combining based at least in part on the time
period such that the target information is correlated with the
occurrence of the event; and
displaying, using a display device, the web site usage
report including the subset of the web analytics data, the target
information, and an indication of the occurrence of the event
such that the report is usable to compare the target information
to the web analytics data.
2
Appeal2016-008756
Application 11/374,816
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Omoigui
Pokorny
Cereghini
Fawcett
Pathak
US 2003/0126136 Al
US 2003/0154144 Al
US 2004/0174397 Al
US 2005/0108262 Al
US 7,349,890 Bl
REJECTIONS
July 3, 2003
Aug. 14, 2003
Sept. 9, 2004
May 19, 2005
Mar. 25, 2008
Claims 1-16 and 18-23 stand rejected under 35 U.S.C. § 101 as being
directed to patent-ineligible subject matter (Final Act. 6-8).
Claims 1-16 and 18-23 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Cereghini, Pokorny, Fawcett, Omoigui, and Pathak
(id. at 8-29).
Our review in this appeal is limited only to the above rejections and
the issues raised by Appellant. Arguments not made are waived. See MPEP
§ 1205.02; 37 C.F.R. §§ 41.37(c)(l)(iv) and 41.39(a)(l).
ISSUES
35 US.C. § 101: Claims 1-16 and 18-23
Appellant argues the invention as recited in claims 1-16 and 18-23, is
directed to patent-eligible subject matter (App. Br. 8-19). The issue
presented by the arguments is
Issue 1: Has the Examiner erred in concluding the claims are directed
to patent-ineligible subject matter?
3
Appeal2016-008756
Application 11/374,816
ANALYSIS
In Alice, the Supreme Court sets forth an analytical "framework for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts" (Alice Corp. Pty. Ltd. v. CLS Bank Int 'l, 134 S. Ct. 2347, 2355
(2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S.
Ct. 1289, 1296-97 (2012))). The first step in the analysis is to "determine
whether the claims at issue are directed to one of those patent-ineligible
concepts" (id.). If so, the second step is to consider the elements of the
claims "individually and 'as an ordered combination' to determine whether
the additional elements 'transform the nature of the claim' into a patent-
eligible application" (id. (quoting Mayo, 132 S. Ct. at 1297-98)). In other
words, the second step is to "search for an 'inventive concept' - i.e., an
element or combination of elements that is 'sufficient to ensure that the
patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself"' (id. (brackets in original) (quoting Mayo, 132 S.
Ct. at 1294)).
First Step
Appellant contends the Examiner erred in concluding the invention, as
recited in claims 1-16 and 18-23, is directed to an abstract idea (App. Br. 8-
17). Specifically, Appellant argues the Examiner provides an
"oversimplification of the claims and ignores most of the recitations of
independent claims" and "simply asserts that the claims are an abstract idea"
(id. at 11-12). Appellant further argues the claimed features "cannot be
dismissed as merely a fundamental economic practice" (id. at 13) and the
4
Appeal2016-008756
Application 11/374,816
Examiner "has failed to adequately categorize the claims as a fundamental
economic practice" (id. at 16).
We are not persuaded. Initially, independent claims 1 and 9 are
method claims, reciting steps for "presenting web site usage data." The
remaining independent claim, claim 18, recites a "non-transitory computer
readable storage medium having instructions" that "cause the processor to
produce a user interface for displaying web site usage." As such, claims 1,
9, and 18 are each directed to a statutory class of invention within 35 U.S.C.
§ 101.
Next, we analyze the claims to determine whether they are directed to
any judicial exception. We agree with the Examiner that the claims are
directed to the abstract idea of "gathering data, combining the data into a
report[,] and displaying the data" (Final Act. 2-3). In particular, as
determined by the Examiner, the claims recite a "series of data gathering or
retrieving and receiving steps in combination with ... report creation steps
that combine[] the gathered data based on a time period in order to correlate
the information with the occurrence of an event, [and] then output[] the
results"; therefore, the clams are directed to the abstract idea of
"compar[ing] new and stored information and utiliz[ing] rules to correlate
information for a designated time period and identif[ying] the correlated
information" (Ans. 5).
We disagree with Appellant that the Examiner oversimplifies the
claims without providing a rationale in concluding the claims are directed to
an abstract idea (App. Br. 11-12). Rather, the Examiner determines that the
claims recite steps for data gathering ("receiving ... input," "retrieving ...
the web analytics data," "retrieving the augment information ... target
5
Appeal2016-008756
Application 11/374,816
information ... attributes comprising a time period"), data analysis
("creating ... a web site usage report by combining the augment information
and the subset of the web analytics data ... such that the target information
is correlated with the occurrence of the event"), and displaying the results of
the analysis ("displaying ... the web site usage report") (Final Act. 3;
Ans. 5). Here, like in Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,
1353-54 (Fed. Cir. 2016), the "focus of the asserted claims ... is on
collecting information, analyzing it, and displaying certain results of the
collection and analysis," and is accordingly, directed to an abstract idea (see
also Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat.
Ass 'n, 776 F.3d 1343, 1347 (Fed. Cir. 2014)).
Furthermore, Appellant's arguments that "[i]t is unclear how at least
the [claimed] features could possibly be construed as a 'fundamental
economic practice"' (App. Br. 14) and that the Examiner "has failed to
adequately categorize the claims as a fundamental economic practice" (id. at
16) are not persuasive because abstract ideas are not limited to fundamental
economic practices. Therefore, regardless of whether the claims are directed
to a fundamental economic practice, the "combination of ... abstract-idea
processes," e.g., the "process of gathering and analyzing information of a
specified content, then displaying the results," is "directed to an abstract
idea" (see Elec. Power Grp., 830 F.3d at 1354).
Second Step
Appellant contends the Examiner erred in concluding the invention as
recited in claims in claims 1-16 and 18-23 does not recite significantly more
than an abstract idea itself (App. Br. 17-19; Reply Br. 4--8). Specifically,
6
Appeal2016-008756
Application 11/374,816
Appellant argues the claims recite significantly more than the abstract idea
itself because the claims recite "a software tool that manipulates Internet
data by collecting and displaying it" and provide "solutions to problems that
involve the effectiveness of an Internet-related tool and that are caused by
factors external to the Internet-related tool" (Reply Br. 7; App. Br. 18).
Appellant further argues "the claimed invention provides a technical solution
to a technical problem that did not exist before the invention of computing
devices and computer networks," namely, "'a specific way' of creating a
composite webpage" (App. Br. 18-19; Reply Br. 6).
We are not persuaded. We agree with the Examiner that, even as an
ordered combination, the claimed invention does not transform the abstract
idea into significantly more because the abstract idea is performed by a
"general purpose computing device [that] merely performs generic computer
functions for retrieving data and outputting a generated report that
aggregates data," i.e., "routine and conventional activities that could be
performed by any computer implementation" (Final Act. 3; Ans. 3--4).
Indeed, the claims merely recite the abstract idea is performed with "a
computing device," "a display device" (claims 1, 9), or "a processor" (claim
18). Even further, the Specification teaches that the invention can be
implemented with "a general-purpose computer selectively activated or
reconfigured by a computer program stored in the computer" (Spec. i-f 22)
and that the "algorithms and displays presented herein are not inherently
related to any particular computer or other apparatus" (Spec. i-f 23). As a
result, the claims do not transform the abstract idea into patent-eligible
subject matter because "[ n ]othing in the claims, understood in light of the
specification, requires anything other than off-the-shelf, conventional
7
Appeal2016-008756
Application 11/374,816
computer, network, and display technology for gathering, sending, and
presenting the desired information" (Elec. Power Grp., 830 F.3d at 1355).
Furthermore, we are not persuaded by Appellant's argument that the
invention is significantly more than the abstract idea itself because the
claimed invention "provides a technical solution to a technical problem"
(App. Br. 18) and because the claims recite "a software tool that manipulates
Internet data by collecting and displaying it" (Reply Br. 7). The Federal
Circuit has "caution[ ed] ... that not all claims purporting to address
Internet-centric challenges are eligible for patent" (DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1258 (Fed. Cir. 2014)). As discussed
supra, the claims are directed to gathering data, analyzing data, and
displaying data. Simply because that data is Internet data does not transform
that abstract idea into significantly more because the claimed invention does
not improve the operation of the Internet itself or improve the computing
systems performing the claimed invention. Rather than improving the
Internet or computer functionality, the invention gathers Internet data to
create a report on that Internet data. Labeling the data as Internet data
instead of data does not change what is done with the data. As such, limiting
the abstract idea to a particular technological data, i.e., Internet data, does
not transform the claims into significantly more than the abstract idea itself
(Alice, 134 S. Ct. at 2358 (stating that "the prohibition against patenting
abstract ideas cannot be circumvented by attempting to limit the use of [the
idea] to a particular technological environment" (internal quotations and
citations omitted; alteration in original))).
Appellant has not proffered sufficient evidence or argument to
persuade us that any of the limitations in the dependent claims provide a
8
Appeal2016-008756
Application 11/374,816
meaningful limitation that transforms the claims into a patent-eligible
application. Accordingly, Appellant has not persuaded us claims 1-16 and
18-23 are directed to patent-eligible subject matter. Therefore, we sustain
the rejection of claims 1-16 and 18-23 under 35 U.S.C. § 101 as not being
directed to patent-eligible subject matter.
35 US.C. § 103(a): Claims 1-13 and 18-23
Appellant contends the invention as recited in claims 1-13 and 18-23,
is patentable over Cereghini, Pokorny, Fawcett, Omoigui, and Pathak (App.
Br. 20-30). The issues presented by the arguments are:
Issue 2a: Has the Examiner shown Fawcett teaches "retrieving the
augment information from a calendar module separate from the web
analytics tool ... wherein the augment information is distinct from the web
analytics data," as recited in claim 1 and similarly recited in claim 9?
Issue 2b: Has the Examiner shown Cereghini teaches "creating ... a
web site usage report by combining the target information and the subset of
the web analytics data," as recited in claim 1 and similarly recited in claim
9?
Issue 2c: Has the Examiner shown the combination of Cereghini,
Omoigui, and Pathak teaches "combining based at least in part on the time
period such that the target information is correlated with the occurrence of
the event," as recited in claim 1 and similarly recited in claims 9 and 18.
Issue 2 d: Has the Examiner shown the combination of Cereghini and
Pokorny teaches "displaying an annotation providing the information about
the subset of the web site usage data proximate to a display location of the
subset of the web site usage data," as recited in claim 18?
9
Appeal2016-008756
Application 11/374,816
Issue 2 e: Has the Examiner improperly combined Cereghini,
Pokorny, Fawcett, Omoigui, and Pathak?
ANALYSIS
Issue 2a
Appellant contends the Examiner erred in finding Cereghini teaches
"retrieving the augment information from a calendar module separate from
the web analytics tool ... wherein the augment information is distinct from
the web analytics data," as recited in claim 1 and similarly recited in claim 9
(App. Br. 22-23). Specifically, Appellant argues "Cereghini discloses that
the data for these displays is retrieved from the same source, namely
database 200" (id. at 22).
We are not persuaded. The Examiner finds, and we agree, Fawcett
teaches "calendar information is distinct from the web services information,
i.e., separate from the web analytics tool and data" (Final Act. 13-14 (citing
Fawcett i-fi-160, 72, 93, Figs. 4, 15a)). In particular, Fawcett teaches
"additional application modules," i.e., separate modules, including "a
calendar module 420 for listing dated events" and a "client web services
module 425 to facilitate the synchronous request/response of data on the
server" (Fawcett i160, Fig. 4). Appellant's argument that Cereghini does not
teach the disputed limitations (App. Br. 22) does not address the Examiner's
finding that Fawcett teaches the disputed limitations. Accordingly, we are
not persuaded the Examiner erred in finding Fawcett teaches "retrieving the
augment information from a calendar module separate from the web
analytics tool ... wherein the augment information is distinct from the web
analytics data," as recited in claim 1 and similarly recited in claim 9.
10
Appeal2016-008756
Application 11/374,816
Issue 2b
Appellant contends the Examiner erred in finding Cereghini teaches
"creating ... a web site usage report by combining the augment information
and the subset of the web analytics data," as recited in claim 1 and similarly
recited in claim 9 (App. Br. 23-24). Specifically, Appellant argues "the
cited displays of Cereghini and [the] information within the displays are
presented in distinct, separate regions," rather than in "a single, combined
web site usage report" (id. at 23).
We are not persuaded. We agree with the Examiner's finding (Final
Act. 9-10) that Cereghini teaches "web analytics data" associated with "an
event relating to a metric of interaction with the website," as claimed,
because Cereghini discloses that "[ w ]eb traffic generated by a customer visit
to an e-store is captured and stored" (Cereghini i-f 47). The Examiner further
relies on (Final Act. 11) Cereghini' s disclosure that the captured web traffic
can be categorized by the "Type of shoppers," e.g., "Customers Only"
( Cereghini Figs. 6-9; see Cereghini i-f 111)) to teach "a subset of web
analytics data." Further, the Examiner finds, and we agree, Cereghini
disclosure of the date range for tracked web traffic events teaches "augment
information" (Final Act. 9 (citing Cereghini Figs. 6-9)). Additionally, the
Examiner finds Cereghini teaches "creating ... a web site usage report by
combining the augment information and the subset of the web analytics
data" by creating a visual report which includes date ranges, i.e., "augment
information," and shopper type, i.e., "subsets of web analytics data" (id. at
11 (citing Cereghini Figs. 6-9)).
Appellant's argument that Cereghini's report displays information in
"distinct, separate regions" (App. Br. 23) is not commensurate with the
11
Appeal2016-008756
Application 11/374,816
scope of the claims. The claims recite that the report "combin[ es]" augment
information and a subset of the web analytics data, but the claims do not
limit how the report combines those elements, much less preclude the report
from providing those elements in different regions. As shown in Figure 6 of
Cereghini, the "Overview" report taught by Cereghini combines "07-01-
2000 to 09-30-2000" date range information (i.e., "augment information")
and "Customers Only" type of shopper data (i.e., "subsets of web analytics
data"). Moreover, even under Appellant's unduly narrow interpretation of
the claims, Figure 6 of Cereghini shows the date range information and
shopper type data in the same "Filters" region (see Cereghini i-f 165).
Accordingly, we are not persuaded the Examiner erred in finding
Cereghini teaches "creating ... a web site usage report by combining the
augment information and the subset of the web analytics data," as recited in
claim 1 and similarly recited in claim 9.
Issue 2c
Appellant contends the Examiner erred in finding the combination of
Omoigui and Pathak teaches "combining based at least in part on the time
period such that the target information is correlated with the occurrence of
the event," as recited in claim 1 and similarly recited in claims 9 and 18
(App. Br. 25-28; Reply Br. 2-3). Specifically, Appellant argues "Omoigui's
events are calendar events" rather than "events relate[ d] 'to a metric of
interaction with the web site"' (App. Br. 26). Appellant further argues
Omoigui "teach[ es] that event data can be retrieved, not that the event data
is correlated with any other data" (Reply Br. 3). Additionally, Appellant
argues Pathak' s teaching of "providing certain content if a condition is
12
Appeal2016-008756
Application 11/374,816
satisfied does not teach or suggest combining different data sets based on a
time period such that target information is correlated with an event" (Reply
Br. 3; see App. Br. 27). Still further, Appellant argues "even in
combination, the Omoigui and Pathak combination merely teaches a system
that can retrieve event data (as disclosed in Omoigui) and select certain rules
based on different goals being met (as disclosed in Pathak)," but that "lacks
the claimed relationship between event data and target information (i.e., that
two data sets are combined based on a time period such that the target
information is correlated with an event)" (Reply Br. 4).
We are not persuaded. As discussed supra, we agree with the
Examiner's finding that Cereghini teaches a report is created based on a date
range, i.e., a "time period," and on recorded interactions with a web site, i.e.,
"event[ s] relating to a metric of interaction with the website" (Final Act. 10
(citing Cereghini i-f 47, Figs. 6-9)). We further agree with the Examiner's
finding (Final Act. 17) that Pathak's disclosure relating to "particular
business goal[s]" (Pathak 3: 1-5 (a "metric for measuring whether or not a
particular business goal has been achieved" and "a comparison between the
goal and the metric")) teaches "target information." For example, Pathak
teaches a goal with rules including "how many times a user has visited a
web site," i.e., target information correlated with the occurrence of the web
site visit event (Pathak 6:45--49; see also (Pathak 10:4--5, 12-32 (goals also
include "the number of units sold"), 4: 13-20).
Appellant's arguments directed to Omoigui do not address the
Examiner's findings regarding Cereghini and Pathak. Specifically,
Appellant's argument that Omoigui's events are not related to a metric of
interaction with a web site (App. Br. 26) does not address the Examiner's
13
Appeal2016-008756
Application 11/374,816
finding that both Cereghini and Pathak teach events that are web site
interactions, e.g., web site visits and purchases (Final Act. 10 (citing
Cereghini i-f 47), 17 (citing Pathak 3: 1-5, 6:45--49); see also Pathak 10: 12-
32). Further, Appellant's argument that Omoigui's event data is not
correlated to other data (Reply Br. 3) does not address the Examiner's
finding that Pathak teaches event data correlated to target information (Final
Act. 17 (citing Pathak 3: 1-5) ), such as actual web site visits correlated to a
goal number of web site visits and actual sales correlated to a goal number
of sales (Pathak 6:45--49, 10: 12-32).
Additionally, Appellant's argument that Pathak does not combine data
sets based on a time period (Reply Br. 3; see App. Br. 27) is not persuasive
because the Examiner finds Cereghini's date range filtered reports display
web site visit events over a specified period of time (Final Act. 10 (citing
Cereghini Figs. 6-9)), i.e., a report "combining the augment information and
the subset of the web analytics data ... based at least in part on the time
period."
Still further, Appellant's argument that the combination of Omoigui
and Pathak "lacks the claimed relationship between event data and target
information (i.e., that two data sets are combined based on a time period
such that the target information is correlated with an event)" (Reply Br. 4)
does not address the Examiner's combination of Cereghini, Omoigui, and
Pathak. In particular, the Examiner combines Cereghini, teaching web site
metric reports in which web site interaction events are filtered, i.e.,
combined, with a specified date range (Cereghini Figs. 6-9), with Pathak,
teaching web site target goals based on the number of web site interaction
events (Pathak 6:45--49), to teach "combining based at least in part on the
14
Appeal2016-008756
Application 11/374,816
time period such that the target information is correlated with the occurrence
of the event" (see Final Act. 18).
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Cereghini, Omoigui, and Pathak teaches "combining based
at least in part on the time period such that the target information is
correlated with the occurrence of the event," as recited in claim 1 and
similarly recited in claims 9 and 18.
Issue 2d
Appellant contends the Examiner erred in finding Pokorny teaches
"displaying an annotation providing the information about the subset of the
web site usage data proximate to a display location of the subset of the web
site usage data ... usable to compare the target information to the subset of
the web site usage data," as recited in claim 18 (App. Br. 25). Specifically,
Appellant argues "Pokorny's reports do not display target information with
any subset of web analytics data" (id. (citing Pokorny i-fi-1 44, 259--261, Figs.
13-18)).
We are not persuaded. The Examiner relies on (Final Act. 11-12)
Cereghini' s disclosure that "web traffic data is sent to a Shop Viz engine
215" which "graphically lays out the acquired web traffic information for
viewing" (Cereghini i147, Figs. 6-9). As discussed supra, we agree with the
Examiner that Pathak' s web site goals teach "target information" (Final Act.
17 (citing Pathak 6:45--49, 10: 12-32)). The Examiner further relies on
(Final Act. 13, 19) Pokorny's disclosure that "results may be displayed ...
with embedded or hyperlinked report details" (Pokorny i1259).
15
Appeal2016-008756
Application 11/374,816
Appellant's argument (App. Br. 25) inappropriately attacks Pokorny
individually when the rejection is based on the combination references (In re
Keller, 642 F.2d 413, 426 (CCP A 1981) (citation omitted)). In particular,
Appellant does not address the Examiner's finding that Cereghini, which
visually reports web site analytics, and Pathak, which provides web site
target goals, and Pokorny, which annotates reports with embedded details,
teach, in combination, "displaying an annotation providing information
about web site data usage ... usable to compare the target information to the
subset of the web site usage data" (Final Act. 19-20). Accordingly, we are
not persuaded the Examiner erred in finding the combination of Cereghini,
Pathak, and Pokorny teaches "displaying an annotation providing the
information about the subset of the web site usage data proximate to a
display location of the subset of the web site usage data ... usable to
compare the target information to the subset of the web site usage data," as
recited in claim 18.
Issue 2e
Appellant contends the Examiner improperly combined Cereghini,
Pokorny, Fawcett, Omoigui, and Pathak (App. Br. 28-30). Specifically,
Appellant argues "[ n ]othing in the cited portions of the references supports
the" Examiner's stated motivation for the combination (id. at 28-29).
Appellant further argues the Examiner "does not indicate why it would have
been obvious at the time the invention was made" to combine the references
(id. at 29-30).
We are not persuaded. Appellant's argument that the references
themselves do not support the Examiner's stated motivation (id. at 28)
16
Appeal2016-008756
Application 11/374,816
incorrectly requires the reason to combine to be found in the references
themselves, when the reason to combine need not be found in the references
themselves. See KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
("Often, it will be necessary for a court to look to interrelated teachings of
multiple patents; the effects of demands known to the design community or
present in the marketplace; and the background knowledge possessed by a
person having ordinary skill in the art, all in order to determine whether
there was an apparent reason to combine the known elements in the fashion
claimed by the patent at issue"). Furthermore, contrary to Appellant's
argument that the Examiner does not "indicate why it would have been
obvious" (App. Br. 29), the Examiner has provided articulated reasoning
with rational underpinning to support the Examiner's conclusion of
obviousness. Specifically, the Examiner states that the combination
"enables a performance assessment" (Final Act. 18), "improve[ s] user
satisfaction based on increased customization" (id. at 16), "enabl[ es] more
specific customized evaluative processes" (id. at 14), and "enable[s] the
identification of adverse effects on the quality and productivity of a process"
(id. at 13). Appellant does not provide any argument or evidence addressing
the motivations provided by the Examiner. Accordingly, we are not
persuaded the Examiner improperly combined Cereghini, Pokorny, Fawcett,
Omoigui, and Pathak.
Therefore, we sustain the rejection of claims 1, 9, and 18 under 35
U.S.C. § 103(a) as being unpatentable over Cereghini, Pokorny, Fawcett,
Omoigui, and Pathak. We likewise sustain the Examiner's rejection of
claims 2-8, 10-13, and 19-23 under 35 U.S.C. § 103(a) as being
unpatentable over Cereghini, Pokorny, Fawcett, Omoigui, and Pathak, for
17
Appeal2016-008756
Application 11/374,816
which Appellant offers no additional persuasive arguments for patentability
(see App. Br. 30).
35 USC § 103(a): Claims 14-16
Appellant contends the invention as recited in claims 14--16 is
patentable over Cereghini, Pokorny, Fawcett, Omoigui, and Pathak (App.
Br. 30-32). The issue presented by the arguments is:
Issue 3: Has the Examiner shown the combination of Pathak and
Pokorny teaches "determining whether a measured interaction with the
website in the web analytics data exceeds the target value; and providing an
alert if the measured interaction with the website in the web analytics data
exceeds the target value," as recited in claim 14?
ANALYSIS
Appellant contends the Examiner erred in finding Pokorny teaches
"determining whether a measured interaction with the website in the web
analytics data exceeds the target value; and providing an alert if the
measured interaction with the website in the web analytics data exceeds the
target value," as recited in claim 14 (App. Br. 30-32). Specifically,
Appellant argues "instead of providing an alert in response to a determining
that a measured interaction with a web site exceed[ s] a target value,
Pokorny's alerts are" based on an analysis of data from "manufacturing
events such as shutdowns, waste events, or delay events" (id. at 31 (citing
Pokorny iii! 44, 72, 259--261, Figs. 13-18)).
We are not persuaded. As discussed supra, the Examiner relies on
(Final Act. 17, 27) Pathak's disclosure of a "metric for measuring whether or
18
Appeal2016-008756
Application 11/374,816
not a particular business goal has been achieved" and "a comparison
between the goal and the metric" for web site interactions (Pathak 3: 1-5,
9:30-48, 10: 12-32). The Examiner further relies on (Final Act. 26)
Pokorny' s disclosure that "[a ]lerts comprising electronic reports may also be
issued ... in response to other information extracted by analysis of event
data" such as an "increased rate of occurrence of one type of event"
(Pokorny i-f 72).
Appellant's arguments (App. Br. 31) inappropriately attack Pokorny
individually when the rejection is based on the combination of Pathak and
Pokorny. See Keller, 642 F .2d at 426 (citation omitted). In particular,
Appellant does not address the Examiner's combination of Pathak, teaching
target goals for web site interaction events (Pathak 6:45--49, 10:12-32), with
Pokorny, teaching alerts based on an alert when a threshold is exceeded
(Pokorny i-f 72), to teach "determining whether a measurement exceeds the
target value; ... and providing an alert if the base data exceeds the target
value" (Final Act. 27-28).
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Pathak and Pokorny teaches "determining whether a
measured interaction with the website in the web analytics data exceeds the
target value; and providing an alert if the measured interaction with the
website in the web analytics data exceeds the target value," as recited in
claim 14.
Therefore, we sustain the rejection of claim 14 under 35 U.S.C.
§ 103(a) as being unpatentable over Cereghini, Pokorny, Fawcett, Omoigui,
and Pathak. We likewise sustain the Examiner's rejection of claims 15 and
16, depending from claim 14, under 35 U.S.C. § 103(a) as being
19
Appeal2016-008756
Application 11/374,816
unpatentable over Cereghini, Pokorny, Fawcett, Omoigui, and Pathak, for
which Appellant offers no additional persuasive arguments for patentability
(see App. Br. 32).
DECISION
The Examiner's rejection of claims 1-16 and 18-23 under 35 U.S.C.
§ 101 as being directed to patent-ineligible subject matter is affirmed.
The Examiner's rejection of claims 1-16 and 18-23 under 35 U.S.C.
§ 103(a) as being unpatentable over Cereghini, Pokorny, Fawcett, Omoigui,
and Pathak is affirmed.
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.
§ 41.50(±).
AFFIRMED
20