Ex Parte Francis

Board of Patent Appeals and Interferences

Apr 28, 2009

10449878 (B.P.A.I. Apr. 28, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ANDREW FRANCIS
____________

Appeal 2008-4039
Application 10/449,878
Technology Center 2100
____________

Decided:1 April 28, 2009
____________

Before JOHN C. MARTIN, STEPHEN C. SIU, and ST. JOHN
COURTENAY III, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Data (electronic delivery).

Appeal 2008-4039
Application 10/449,878

STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s rejection of claims 1-4, 6-8, 10, 12, 14, 15, 19-25, 27, 29, 31-34,
38-46, and 49-61. Claims 5, 9, 11, 13, 16-18, 26, 28, 30, 35-37, 47, and 48
have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We
AFFIRM IN PART.
INVENTION
The invention on appeal describes systems and techniques relating to
reuse meta information in electronic documents. More particularly,
Appellant’s invention is directed to meta information embedded in a Web
page to indicate reusable components of the page. (Spec. 1).

ILLUSTRATIVE CLAIMS
Claims 1 and 43, which further illustrate the invention, follow:

1. A computer implemented method comprising:

generating multiple components of a markup language
document to be rendered, the multiple components being
derived from one or more information sources;

designating the multiple components in the markup
language document using a recognized identifier of document
sections; and

adding reuse information to the designated components
in the markup language document so that the reuse information
is readable with the components but not revealed when the
markup language document is rendered, the reuse information
specifying how the components may be repurposed.

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43. A system comprising:
a processor;
a machine-readable medium coupled with the processor;
and

a Web publishing software product tangibly stored on the
machine-readable medium, the Web publishing software
product comprising instructions operable to cause the processor
to perform operations comprising:

receiving a Web page;

identifying a reusable component of the Web page, the
reusable component being designated within the Web page, the
reusable component containing reuse information, where the
reuse information is not rendered when the Web page is
rendered; and

in response to a selection of the reusable component,
using the reuse information contained in the reusable
component to facilitate repurposing of the reusable component.

PRIOR ART
The Examiner relies upon the following references as evidence in
support of the rejections:
Fletcher US 6,985,939 B2 Jan. 10, 2006

Interwoven, Inc., “XML in a Content Infrastructure: Conducting
Business on the Web”, 2001, pp. 1-21. (Hereinafter “Interwoven”).

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THE REJECTIONS
Claims 43-46 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Fletcher.
Claims 1-4, 6, 7, 12, 14, 22-25, 41, 42, 49, and 51-53 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Interwoven.
Claims 8, 10, 12, 14, 15, 19-21, 27, 29, 31-34, 38-40, 50, and 54-61
stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
Interwoven in view of Fletcher.2

APPELLANT’S CONTENTIONS
Regarding the Examiner’s anticipation rejection of claims 43-46 over
Fletcher, Appellant makes the following principal contention:
Assuming for argument's sake that a portlet is a reusable
component, rendering a web page that invokes the portlet's
service method will cause the portlet to return content to be
incorporated into the rendering of the web page. As addressed
above, the web page and the content generated by the portlet do
not contain the portlet's reuse information - this information
is housed in a separate registry. The examiner argued that since
XSLT transformations can be used to selectively render
information in an XML document, it follows that portlet reuse
information does not have to be rendered. But since portlet
reuse information is not part of the web page in the first place,
the [E]xaminer's assertion is of no consequence.

(App. Br. 5).

2 We note that the Examiner has rejected dependent claims 12 and 14 under
two separate rejections.
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Regarding the Examiner’s rejection of claims 1-4, 6, 7, 12, 14, 22-25,
41, 42, 49, and 51-53 as being unpatentable over Interwoven, Appellant
makes the following principal contention:
In contrast to claim 1 which requires reuse information to be a
designated component of a markup language document that is
rendered, the reuse information in Interwoven (i.e., syndication
rules, etc.) is used to manage the distribution of content but is
not itself a designated component of a markup language
document presentation of the content. Rather, the reuse
information in Interwoven is merely “defined on the server.”
The examiner argued that XLST could be used to remove the
reuse information from markup language documents to prevent
the information from being rendered. But this is irrelevant since
the reuse information is not distributed with the content it
governs. (See p. 13, §4 of Interwoven for a brief discussion of
the metadata that is included with content.)

(App. Br. 6, emphasis added).

Appellant further applies the same arguments regarding Interwoven
and Fletcher to traverse the Examiner’s rejection of claims 8, 10, 12, 14, 15,
19-21, 27, 29, 31-34, 38-40, 50, and 54-61 as being unpatentable over
Interwoven in view of Fletcher (App. Br. 7).

EXAMINER’S RESPONSE
In the “Response to Arguments” section of the Answer, the Examiner
maintains that the limitations argued by Appellant are taught and/or
suggested by the cited respective references. (Ans. 16-23).

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Regarding the Fletcher reference, the Examiner finds that Fletcher’s
portlets contain reuse information (Ans. 17). The Examiner further contends
that “[i]n contrast to the prior art portlets which were visually rendered on
the portal page, Fletcher teaches an improved portlet [as shown in Fig. 3]
which was designed for program-to program interaction, and thus did not
need to be visually rendered on the page.” (Ans. 18). The Examiner reasons
that “[b]ecause Fletcher discloses that the portlets were not required to be
rendered in the web page, the reuse information contained in the portlet
interface was not rendered when the web page was rendered.” (Id.).
The Examiner makes the following further findings regarding
Fletcher:
Even if Appellant's statement that the reuse information
disclosed by Fletcher was not a part of the web page were
correct, the disclosure of Fletcher would still meet the claim
limitations of claim 43, because while the reusable component
is claimed as "being designated within the Web page", the
reusable component containing reuse information is not claimed
as being contained in the Web page in its entirety. As claimed,
if a web page had a single link to "designate" a reusable
component, it would meet the claim.

(Ans. 19).

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Regarding the Interwoven reference, the Examiner finds that
“Interwoven teaches designating components of the XML document and/or
markup language document using metadata, at p. 13-14, Sect. 4, and adding
reuse information specifying how the components may be repurposed, at p.
16-18, Sect. 5.” (Ans. 20). The Examiner proffers that “even if Appellant
were correct in that the reuse information was ‘defined on the server’, the
disclosure of Interwoven still meets the limitations of claim 1, ‘. . . adding
reuse information to the designated components of the markup language
document so that the reuse information is readable with the components but
not revealed when the markup language document is rendered.’” (Ans. 21).
The Examiner finds that “Interwoven teaches the above limitations of claim
1, because claim 1 does not specify where the markup language document is
stored. Interwoven teaches that the reuse information is stored within the
XML markup language document components as discussed above.” (Id.).
In particular, the Examiner observes that “Interwoven at p. 18, Sect. 5.2
discloses ‘syndication’, which was the final step of content distribution after
content had been tested and approved in the previous steps disclosed in the
reference.” (Ans. 21).

APPELLANT’S REPLY BRIEF
Regarding the Examiner’s appraisal of the Fletcher reference,
Appellant responds in the Reply Brief as follows:
First, portlet reuse information is stored in a registry and not in
a portlet as contended by the Examiner. See col. 8, lines 42-46.
Second, it does not follow that rendering a portlet renders the
portlet's reuse information. According to Fletcher, rendering a
portlet is accomplished by invoking the portlet's service method
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which causes the portlet to return markup language for
incorporation into a portal page. See col. 6, lines 41 -51.
Fletcher is not understood to disclose that the returned markup
language includes the portlet's reuse information.

(Reply Br. 1).
Appellant also notes that claim 43 requires “using the reuse
information contained in the reusable component to facilitate repurposing of
the reusable component.” Appellant contends that the Examiner has read
out and ignored this positively recited limitation. (Reply Br. 2).
Regarding the Examiner’s appraisal of the Interwoven reference,
Appellant responds as follows:
As a preliminary matter, the Appellant notes that the Examiner
has failed to identify what constitutes reuse information in the
relied upon example. In fact, assuming for argument's sake that
the XML tags in Example 1 (e.g., "",
", etc.) constitute document section identifiers for
components, there is no reuse information added to the
designated components, as required by the above claims. This
may be because the reuse information in Interwoven is separate
from the components. By way of illustration, Example 4 on p.
13 of Interwoven contains the reuse information for the press
release in Example 1 on p. 5.

(Reply Br. 2-3).
ISSUES
We consider the following issues that flow from the contentions of the
Appellant and the Examiner:

1. Has Appellant shown the Examiner erred in finding that
Fletcher teaches and/or suggests a “reusable component
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being designated within the Web page, the reusable
component containing reuse information, where the reuse
information is not rendered when the Web page is
rendered?” (See independent claim 43 and the
commensurate limitations recited in each of independent
claims 8 and 27).
2. Has Appellant shown the Examiner erred in finding that
Interwoven teaches and/or suggests “adding reuse
information to the designated components in the markup
language document so that the reuse information is readable
with the components but not revealed when the markup
language document is rendered?” (See independent claim 1
and the commensurate limitations recited in each of
independent claims 22 and 41).

PRINCIPLES OF LAW
Anticipation
In rejecting claims under 35 U.S.C. § 102, “[a] single prior art
reference that discloses, either expressly or inherently, each limitation of a
claim invalidates that claim by anticipation.” Perricone v. Medicis Pharm.
Corp., 432 F.3d 1368, 1375-76 (Fed. Cir. 2005) (citation omitted).
“Absence from the reference of any claimed element negates anticipation.”
Kloster Speedsteel AB v. Crucible, Inc., 793 F.2d 1565, 1571 (Fed. Cir.
1986).

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Obviousness
“What matters is the objective reach of the claim. If the claim extends
to what is obvious, it is invalid under § 103.” KSR Int’l Co. v. Teleflex, Inc.,
550 U.S. 398, 419 (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.
Appellant has the burden on appeal to the Board to demonstrate error
in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir.
2006). Therefore, we look to Appellant’s Briefs to show error in the
Examiner’s proffered prima facie case.

FINDINGS OF FACT
In our analysis infra, we rely on the following findings of fact (FF)
that are supported by a preponderance of the evidence:

APPELLANT’S SPECIFICATION
1. Appellant’s Specification discloses that “[t]he reuse information can
include terms of use information. The reuse information can be an
identifier indicating a source of reuse information describing how the
components are reusable via access to the one or more information
sources. The reuse information can be syndication information.”
(Spec. 4, para. [0012]).

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APPELLANT’S ADMISSIONS
2. Appellant acknowledges that Interwoven teaches reuse information:
“By way of illustration, Example 4 on p. 13 of Interwoven contains
the reuse information for the press release in Example 1 on p. 5.”
(Reply Br. 3). See also Appeal Brief page 6, para. 1: “the reuse
information in Interwoven (i.e., syndication rules, etc.) is used to
manage distribution of content . . . .”

THE FLETCHER REFERENCE
3. Fletcher discloses that “[a] portlet according to the present invention
thus defines a service provider type that includes the port types
necessary for portal integration of software resources and service
interaction and management. (‘Port types’ is a term used in the art to
signify the specification of a portlet's operations, and ‘service provider
type’ is a term used to signify a collection of port types.)” (Col. 8, ll.
13-19).
4. Fletcher discloses that “[a]ccording to preferred embodiments, the
deployment and system port types are represented as WSDL
documents for registration in a registry.” (Col. 8, ll. 42-46).
5. Fletcher discloses that “[p]ortlets functioning according to the present
invention are also referred to herein as ‘web service intermediaries’ or
‘web service proxies’, or simply as ‘intermediaries’ or ‘proxies’. That
is, a portlet may now act as an intermediary between an application or
software resource requesting a particular service and a software
resource providing that service.” (Col. 8, ll. 20-25).
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6. Fletcher discloses that “the portlet proxy receives request messages
and forwards them to the software resource to which it is bound; once
the software resource has completed the requested function, it returns
its response to the portlet proxy which then forwards the response to
the requester.” (Col. 7, ll. 32-36).

THE INTERWOVEN REFERENCE
7. Interwoven teaches that “[s]yndication permits rules, schedules,
profiles, and transformations to be defined on the server so that
subscriptions can be effectively managed for content delivery to users,
partners, and suppliers.” (Page 18, section 5.2).
8. Interwoven teaches that “[t]he metadata is captured in XML, which
facilitates subsequent processing.” (Page 13, see last sentence of the
paragraph that describes PRISM (Publishing Requirements for
Industry Standard Metadata)).
9. Interwoven teaches that metadata may be manually assigned to
content by content creators for use in later integration efforts or the
metadata may be automatically extracted from content based upon
pre-defined taxonomies and vocabularies using a process called
“metatagging” that uses a parser to create a metadata description of
the content (page 14, § 4.1, both paragraphs).

ANALYSIS
Dependent claims 12, 31, 32, and 33
At the outset, we note that each of claims 12, 31, 32, and 33
improperly depend upon a cancelled claim. Appellant contends that claim
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12 is allowable for the same reasons discussed in the Brief for independent
claim 8, from which claim 12 purportedly depends (App. Br. 6). However,
we note that claim 12 actually depends upon cancelled claim 11. Appellant
further contends that claims 31-33 are allowable for the same reasons
discussed in the Brief for independent claim 27, from which claims 31-33
purportedly depend (App. Br. 7). However, we note that claim 31 actually
depends upon cancelled claim 30, and claims 32 and 33 actually depend
upon cancelled claim 28.
Because Appellants have not sustained the requisite burden on appeal
of providing arguments or evidence persuasive of error in the Examiner’s
rejections of dependent claims 12, 31, 32, and 33, we summarily sustain the
Examiner’s rejection of these claims as being unpatentable under 35 U.S.C.
§ 103(a) in view of Interwoven and Fletcher. Likewise, we summarily
sustain the Examiner’s second rejection of claim 12 as being unpatentable
under 35 U.S.C. § 103(a) in view of Interwoven alone.

ISSUE 1
We decide the question of whether Appellant has shown the Examiner
erred in finding that Fletcher teaches and/or suggests a “reusable component
being designated within the Web page, the reusable component containing
reuse information, where the reuse information is not rendered when the
Web page is rendered. (See independent claim 43 and the commensurate
limitations recited in each of independent claims 8 and 27).

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We begin our analysis by broadly but reasonably construing the
meaning of the claimed “reuse information.” During prosecution, “the PTO
gives claims their ‘broadest reasonable interpretation.’” In re Bigio, 381
F.3d 1320, 1324 (Fed. Cir. 2004) (quoting In re Hyatt, 211 F.3d 1367, 1372
(Fed. Cir. 2000)).
Here, when we look to Appellant’s Specification for context, we find
examples of reuse information that “can include terms of use information,”
or “an identifier indicating a source of reuse information describing how the
components are reusable via access to the one or more information sources,”
or “[t]he reuse information can be syndication information.” (FF 1).
Therefore, consistent with Appellant’s Specification, we broadly but
reasonably construe the claimed “reuse information,” as any information that
indicates how the content associated with a component (e.g., a web page or
document component) may be reused.
Based upon our review of the Fletcher reference, we find the weight
of the evidence supports Appellant’s arguments as presented in the Briefs.
In particular, Appellant avers that even assuming arguendo that a portlet is a
reusable component (as proffered by the Examiner), the web page and the
content generated by the portlet do not contain the portlet’s reuse
information (App. Br. 5). Instead Appellant contends that this reuse
information is housed in a separate registry. (Id.).
The Examiner responds as follows:
Even if Appellant's statement that the reuse information
disclosed by Fletcher was not a part of the web page were
correct, the disclosure of Fletcher would still meet the claim
limitations of claim 43, because while the reusable component
is claimed as "being designated within the Web page", the
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reusable component containing reuse information is not claimed
as being contained in the Web page in its entirety. As claimed,
if a web page had a single link to "designate" a reusable
component, it would meet the claim.

(Ans. 19).
In the Reply Brief, Appellant points to column 8, lines 42-46 of
Fletcher as support for the contention that Fletcher’s reuse information is
housed in a separate registry. This portion of Fletcher discloses that
“according to preferred embodiments, the deployment and system port types
are represented as WSDL documents for registration in a registry.” (FF 4,
emphasis in original). We note that Fletcher expressly discloses that “[a]
portlet according to the present invention thus defines a service provider
type that includes the port types necessary for portal integration of software
resources and service interaction and management.” (FF 3).
Because Fletcher discloses that a “portlet” defines port types (FF 3)
and also that “system port types” are represented in a registry (FF 4), we find
the weight of the evidence supports Appellant’s contention that Fletcher’s
reuse information is housed in a separate registry, instead of being
designated or otherwise contained within a component of the web page or
document to be rendered, as required by the commensurate language of
independent claims 8, 27, and 43.
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While the Examiner argues that “[a]s claimed, if a web page had a
single link to ‘designate’ a reusable component, it would meet the claim,”
we find the Examiner has merely presented a theory (Ans. 19). Moreover,
we find the Examiner has not clearly mapped the disputed claim limitations
to the corresponding portions of the Fletcher reference. For us to affirm the
Examiner on this record would require speculation on our part. We decline
to engage in speculation in deciding this appeal.
Based on the evidence before us, we find Appellant has shown that
the Examiner erred in finding that Fletcher teaches and/or suggests a
reusable component being designated within the web page, the reusable
component containing reuse information. (See independent claim 43).
Accordingly, we reverse the Examiner’s rejection of independent claim 43
(and associated dependent claims 44-46) as being anticipated by Fletcher.

ISSUE 2
We decide the question of whether Appellant has shown the Examiner
erred in finding that Interwoven teaches and/or suggests “adding reuse
information to the designated components in the markup language document
so that the reuse information is readable with the components but not
revealed when the markup language document is rendered.” (See
independent claim 1 and the commensurate limitations recited in each of
independent claims 22 and 41).
We begin our analysis by noting that Appellant has acknowledged that
Interwoven teaches reuse information (FF 2). We further find Appellant’s
Specification discloses that “[t]he reuse information can be syndication
information.” (FF 1). Thus, we find that Interwoven teaches and/or
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suggests syndication information (i.e., reuse information), as follows:
“[s]yndication permits rules, schedules, profiles, and transformations to be
defined on the server so that subscriptions can be effectively managed for
content delivery to users, partners, and suppliers.” (FF 7).
Therefore, since Interwoven teaches reuse information, we see the
question before us to be whether Interwoven teaches and/or suggests adding
reuse information to the designated components in the markup language
document (or including reuse information in the designated components)
(See independent claim 1 and the commensurate limitations recited in each
of independent claims 22 and 41).
Based upon our review of Interwoven, we agree with Appellant that
Interwoven on page 18 clearly teaches that the syndication rules (i.e., reuse
information) are “defined on the server so that subscriptions can be
effectively managed for content delivery to users, partners, and suppliers.”
(FF 7, emphasis added).
However, the Examiner counters that Interwoven still teaches the
limitations of claim 1 “because claim 1 does not specify where the markup
language document is stored.” (Ans. 21). We note that the Examiner also
found that Interwoven teaches that the reuse information is stored within the
XML markup language document components. (Id.). Thus, the Examiner
proffers that one of Interwoven’s XML markup language document
components stored on a server would still meet the limitations of the claim.
(Id.).
We note that Interwoven teaches “[t]he metadata is captured in XML,
which facilitates subsequent processing.” (FF 8). In particular, Interwoven
teaches that metadata may be manually assigned to content by content
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creators for use in later integration efforts, or the metadata may be
automatically extracted from existing content based upon pre-defined
taxonomies and vocabularies using a process called “metatagging” that uses
a parser to create a metadata description of the content (FF 9).
Therefore, we find Fletcher’s XML metadata (reuse information) is
either manually assigned or automatically extracted and created to form a
metatag association with a given content component. However, we do not
find, and the Examiner has not established, that Interwoven’s metatag (reuse
information) becomes part of the component itself by being added to the
component (as required by the language of independent claims 1 and 22) or
by being included in the component (as required by the language of
independent claim 41). For us to affirm the Examiner on this point would
require speculation on our part. We again decline to engage in speculation in
deciding this appeal.
Therefore, we find persuasive Appellant’s argument that Interwoven’s
admitted reuse information (i.e., XML metadata and/or syndication rules) is
used to manage the distribution of content but is not itself part of a
designated component of a markup language document. (See App. Br. 6).
Therefore, Appellant has established that the Examiner erred in
finding that Interwoven teaches and/or suggests “adding reuse information to
the designated components in the markup language document so that the
reuse information is readable with the components but not revealed when the
markup language document is rendered.” (See independent claim 1 and the
commensurate limitations recited in each of independent claims 22 and 41).

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Accordingly, we reverse the Examiner’s rejection of claims 1-4, 6, 7, 14,
22-25, 41, 42, 49, and 51-53 as being unpatentable over Interwoven under
35 U.S.C. § 103(a).
For the same reasons discussed above regarding ISSUES 1 AND 2, we
also reverse the Examiner obviousness rejection of claims 8, 10, 14, 15, 19-
21, 27, 29, 34, 38-40, 50, and 54-61 as being unpatentable over Interwoven
in view of Fletcher under 35 U.S.C. § 103(a).

CONCLUSION
Appellant has not established that the Examiner erred in rejecting
dependent claims 12, 31, 32, and 33 as being unpatentable under 35 U.S.C.
§ 103(a) in view of Interwoven in view of Fletcher.
Appellant has not established that the Examiner erred in rejecting
dependent claim 12 as being unpatentable under 35 U.S.C. § 103(a) in view
of Interwoven alone.
Appellant has established that the Examiner erred in finding that
Fletcher teaches and/or suggests “reusable component being designated
within the Web page, the reusable component containing reuse information,
where the reuse information is not rendered when the Web page is
rendered.” (See independent claim 43 and the commensurate limitations
recited in each of independent claims 8 and 27; see discussion of ISSUE 1
supra ).
Therefore, Appellant has established that the Examiner erred in
rejecting claims 43-46 under 35 U.S.C. § 102(e) as being anticipated by
Fletcher.
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Appellant has established that the Examiner erred in finding that
Interwoven teaches and/or suggests “adding reuse information to the
designated components in the markup language document so that the reuse
information is readable with the components but not revealed when the
markup language document is rendered.” (See independent claim 1 and the
commensurate limitations recited in each of independent claims 22 and 41;
see discussion of ISSUE 2 supra).
Therefore, Appellant has established that the Examiner erred in
rejecting claims 1-4, 6, 7, 14, 22-25, 41, 42, 49, and 51-53 under 35 U.S.C.
§ 103(a) as being unpatentable over Interwoven.
Likewise, Appellant has established that the Examiner erred in
rejecting claims 8, 10, 14, 15, 19-21, 27, 29, 34, 38-40, 50, and 54-61 under
35 U.S.C. § 103(a) as being unpatentable over Interwoven in view of
Fletcher.

DECISION
We affirm the Examiner’s decision rejecting claims 12, 31, 32, and 33
under 35 U.S.C. § 103(a).
We reverse the Examiner’s decision rejecting claims 43-46 under
35 U.S.C. § 102(e).
We reverse the Examiner’s decision rejecting claims 1-4, 6-8, 10, 14,
15, 19-25, 27, 29, 34, 38-42, and 49-61 under 35 U.S.C. § 103(a).

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

pgc

FISH & RICHARDSON P.C.
P.O. Box 1022
MINNEAPOLIS MN 55440-1022
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