Ex Parte Grieselhuber et al

Patent Trial and Appeal Board

Feb 3, 2014

11689414 (P.T.A.B. Feb. 3, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte RAY GRIESELHUBER, BRIAN BARTELL, DEMA ZLOTIN,
and RUSS MANN1
__________

Appeal 2011-008771
Application 11/689,414
Technology Center 2100
__________

Before DONALD E. ADAMS, ERIC GRIMES, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a system
and computer program product, which have been rejected for obviousness.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

1 Appellants identify the Real Party in Interest as Covario, Inc. (App. Br. 3).
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STATEMENT OF THE CASE
Claims 6-18 and 24-39 are on appeal. Claim 6 is illustrative and reads
as follows:
6. A computer program product, comprising a computer usable
medium having a computer readable program code embodied therein, said
computer readable program code adapted to be executed to implement a
method, comprising:
classifying each of a plurality of websites using at least one of a
plurality of classifications;
acquiring data associated with the plurality of websites, wherein the
data includes data pertaining to one or more ranked positions within a range
of ranked positions that are associated with the plurality of websites and
associated with one or more search engine results with respect to one or
more keywords; and
analyzing the data to achieve a result.

The claims stand rejected under 35 U.S.C. § 103(a) as follows:
• Claims 6-10, 12-18, 24-28, and 30-38 based on Schachter2 and
Horowitz3 (Ans. 13) and
• Claims 11, 29, and 39 based on Schachter, Horowitz, and Hartog4
(Ans. 31).
DISCUSSION
Issue
The Examiner has rejected claims 6-10, 12-18, 24-28, and 30-38
based on Schachter and Horowitz (Ans. 13). The Examiner finds that
Schachter discloses a computer program product meeting most of the

2 Schachter et al., US 2007/0067217 A1, published Mar. 22, 2007.
3 Horowitz et al., US 2005/0149396 A1, published Jul. 7, 2005.
4 Hartog, US 2006/0080239 A1, published Apr. 13, 2006.
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limitations of claim 6 (Ans. 13-14) but “does not explicitly teach ‘wherein
the data includes data pertaining to one or more ranked positions within a
range of ranked positions that are associated with the plurality of websites’”
(id. at 14).
The Examiner finds that Horowitz discloses the relevant limitation “as
shown in Figure 8 where the different keywords are associated with ranked
positions (Horowitz, Figure 8)” and also cited Horowitz’s paragraphs 7, 9-
11, and 46 as clarifying what is shown in its Figure 8 (id. at 14-15). The
Examiner concluded that it would have been obvious “to modify Schachter
to include Horowitz’s teachings since it is common for search engines to
deliver paid listings, which includes descriptive words, phrases, sentences,
etc, in ranked orders according to CPC [cost-per-click] (Horowitz,
Paragraph 0005-0013)” (id. at 15).
Appellants contend that Horowitz’s “Figure 8 pertains to an
‘advertiser GUI window for Best Available Placement,’ where an
advertiser visually reviews and determines a suitable cost-per click for
its paid listing before its listing is presented to an end user” (App. Br. 5).
Appellants also contend that the portions of Horowitz’s text cited by the
Examiner do not relate to Figure 8 (id. at 6), and conclude that “Figure 8 and
paragraphs 0007, 0009-0011 and 0046 of Horowitz do not teach data that
pertains to at least one ranked position within a range of ranked positions
that is associated with a plurality of websites” (id.). Appellants also present
separate arguments directed to claims 7, 8, 10, 12-18, 25, 26, 28, and 30-38
(id. at 7-9).
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The principal issue presented is whether Horowitz’s Figure 8
disclosed to a person of ordinary skill in the art “data pertaining to one or
more ranked positions within a range of ranked positions that are associated
with the plurality of websites,” as recited in claim 6.
Findings of Fact
1. The Examiner finds that Schachter discloses a computer program
product meeting most of the limitations of claim 6 (Ans. 13-14). Appellants
do not dispute this finding.
2. Horowitz discloses a “method and system for online advertising”
(Horowitz 1, ¶ 3).
3. Horowitz states that “[p]ay-for-performance advertising typically
involves a targeted advertising campaign, via a pay-for-performance search
engine (PFPSE), wherein an advertiser can pay on a CPC [cost-per-click]
basis for clicks that deliver a user to a designated Web page or Web site” (id.
at 1, ¶ 9).
4. Horowitz states that the “pay-for-performance search engine can
aggregate advertisements in the form of paid listings that relate to specific
keywords” (id.).
5. Horowitz states that
[w]hen paid listings are delivered by pay-for-performance
search engines to distribution partners, such as other search
engines, etc., the paid listings typically are delivered in ranked
orders according to CPC . . . with the advertisement or listing
with the greatest designated CPC presented as the first result
that is returned among the search results.
(Id. at 1, ¶ 10.)
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6. “For example, a pay-for-performance search engine may have
twenty paid listings that will be returned as the result of a search for the term
‘television’ and such paid listings will be displayed in descending order,
beginning with the paid listing with the highest designated CPC” (id.).
7. Horowitz describes the following process for keyword serving by a
search engine: in response to a query by an End User, the Search Engine
“returns search results with corresponding keyword placement chosen for
display” (id. at 4, ¶ 45) and, if the End User clicks-through one of the
keyword links (id.), the Search Engine “redirect[s] the Web browser of the
End User . . . to the destination (e.g., Web page, Web site, . . .) of the
Advertiser Site 106 corresponding to the selected keyword” (id. at 4, ¶ 46).
8. Horowitz’s Figure 8 is reproduced below:

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Figure 8 shows “the advertiser GUI window for Best Available
Placement” (id. at 2, ¶ 25).
Principles of Law
[T]he PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in
the art, taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant’s specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
Analysis
The Examiner finds, and Appellants do not dispute, that Schachter
discloses a computer program product that comprises computer readable
program code that carries out the “classifying” and “analyzing” steps of
claim 6, as well as acquiring data associated with a plurality of websites,
wherein the data includes data associated with search engine results with
respect to keywords (Ans. 13-14). Appellants also do not dispute the
Examiner’s conclusion that it would have been obvious to combine
Schachter’s computer program product with the data disclosed by Horowitz.
Appellants argue, however, that Horowitz “do[es] not teach data that
pertains to at least one ranked position within a range of ranked positions
that is associated with a plurality of websites” (App. Br. 6), because
Horowitz’s “Figure 8 and the relevant portions of paragraphs 0009-0011
allegedly provide two different teachings that cannot be combined to teach
the present invention” (id.).
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We do not find Appellants’ argument persuasive. The disputed issue
is whether Horowitz discloses “data pertaining to one or more ranked
positions within a range of ranked positions that are associated with [a]
plurality of websites,” as recited in claim 6. Horowitz’s Figure 8 shows an
“advertiser GUI window for Best Available Placement” (FF 8). The figure
includes a table showing the amounts (e.g., $0.12) that certain advertisers
(e.g., Current #1) have agreed to pay in order to have their listing appear in a
certain position among the results that are returned to a user searching for a
specific keyword (e.g., Car).
Horowitz explains that advertisers “pay on a CPC [cost-per-click]
basis for clicks that deliver a user to a designated Web page or Web site”
(FF 3) and that “the advertisement or listing with the greatest designated
CPC [is] presented as the first result that is returned among the search
results” (FF 5). Specifically, the search engine returns search results ranked
according to how much each advertiser has agreed to pay on a CPC basis
(FF 6) and if the end user clicks-through on one of the links, the search
engine redirects the user’s browser to the destination Web page or Web site
(FF 7).
Thus, Horowitz’s Table 8, understood in the context of its discussion
of online advertising sold on a CPC basis, includes data (the CPC cost
currently paid by advertisers for a certain placement in search results for
certain keywords) pertaining to ranked positions (Current #1, Current #2,
etc.) within a range of ranked positions (Current #1 through Current #5) that
are associated with a plurality of websites (the advertisers’ websites to which
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a user will redirected upon clicking-through on the search result sponsored
by each advertiser).
We agree with the Examiner that Horowitz discloses the disputed
limitation of claim 6. Appellants have not disputed any other aspect of the
Examiner’s rejection. We therefore affirm the rejection of claim 6 as
obvious based on Schachter and Horowitz. Claims 9, 24, and 27 fall with
claim 6 because they were not argued separately. 37 C.F.R.
§ 41.37(c)(1)(vii).
With regard to claims 7 and 25, Appellants argue that “Horowitz does
not teach data pertaining to one or more ranked positions that includes a first
number of ranked positions associated with a subset of the one or more
websites,” as claimed (App. Br. 7). The Examiner cites “Figure 8 where the
different keywords are associated with ranked positions” (Ans. 15, 24) but,
as Appellants point out (App. Br. 7), these claims require an association
between ranked position and a subset of the websites (e.g., a subset of the
websites of advertisers paying for placement in Horowitz’s Figure 8), not
between ranked positions and different keywords. We therefore reverse the
rejection of claims 7 and 25. We also reverse the rejection of separately
argued claims 8 and 26 (App. Br. 7), which depend from claim 7 and claim
25, respectively.
With regard to claims 10 and 28, Appellants argue (App. Br. 7) that
“determining an average ranking of ranked positions,” as recited in the
claims is not the same as determining the weighted averages of the values
paid for each keyword, as relied on by the Examiner to meet this limitation
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(see Ans. 17-18). Appellants’ argument is persuasive. We therefore reverse
the rejection of claims 10 and 28.
With regard to claims 12 and 30, Appellants argue that the Examiner
has not pointed to a disclosure in the cited references of text associated with a
website and acquired from search engine results, as required by the claims
(App. Br. 7-8). We agree. The Examiner reasons that it is common in the art
to use keyword matching to classify websites based on their content and to
sell such classification information to, among others, Internet search services
(Ans. 18). The Examiner’s reasoning, however, provides no persuasive basis
for concluding that the data in Horowitz’s Figure 8 – which is the data relied
on to meet the corresponding limitation of claim 6 – includes text associated
with the websites recited in claim 6 and acquired from search engine results,
or that it would have been obvious to include such data in Horowitz’s Figure
8. We therefore reverse the rejection of claims 12 and 30, as well as
separately argued claims 13-16 and 31-34, which depend on either claim 12
or claim 30.
With regard to claims 17 and 35, Appellants argue that the Examiner’s
citation of a “Click-Through Rate (CTR) for an advertisement” does not
correspond to the average click rate required by the claims because the
advertisements disclosed by Horowitz reside on websites, while the claims
recite “an average click rate for a web link . . . listed within one or more
search engine results” (App. Br. 9).
Appellants’ argument is not persuasive. The Examiner cited
Horowitz’s disclosure of a Click-Through Rate (CTR) for an advertisement,
which Horowitz defines as “[t]he number of times that an advertisement is
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clicked on, divided by the number of times that it has appeared” (Horowitz 1,
¶ 6). The ranked listings in Horowitz’s Figure 8 are the placements for
advertisements (“our current list of what other advertisers are paying,” FF 8)
in search results for specific keywords. Horowitz also states that, prior to its
invention, “advertisers currently struggle to understand the reasons for the
variances in ROI and CTR in a given CPC campaign with pay-for-
performance search engines” (id. at 3, ¶ 34, emphasis added). Thus, we agree
with the Examiner that it would have been obvious to include CTR data for
the advertisements in each position of Horowitz’s ranked listings, because
such data is disclosed to be important to advertisers conducting CPC
campaigns with pay-for-performance search engines.
With regard to claims 18 and 36, Appellants argue that Horowitz’s
“paragraph 0006 does not disclose determining a number of visits to a
website from a search engine result in relation to the total amount of visitors
to that website,” as required by these claims (App. Br. 9). We agree. The
Examiner again relies on Horowitz’s disclosure of a Click-Through Rate
(CTR) for an advertisement in its paragraph 6 (Ans. 21). Claims 18 and 36,
however, require determining the amount of visitors to a website that is
attributable to a search engine’s results in relation to the total visitors to a
website. Horowitz defines a CTR as “[t]he number of times that an
advertisement is clicked on, divided by the number of times that it has
appeared” (Horowitz 1, ¶ 6). The Examiner has not explained how a CTR,
by itself, meets the limitations of claims 18 and 36. The rejection of these
claims is therefore reversed.
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With regard to claims 37 and 38, Appellants argue that Schachter’s
paragraphs 4 and 5, which are cited by the Examiner, “pertain to an AdSense
program for serving advertisements on a webpage, not for classifying a
website based on a business relationship between the website and a
user” (App. Br. 9).
This argument is not persuasive. Claim 37 further limits the
“classifying” step of claim 6 to “include[ ] classifying at least one of the
plurality of websites based on a business relationship between each of the at
least one of the plurality of websites and a user.” Schachter describes
“Google’s AdSense program . . . [which] allows a website publisher to
dynamically serve relevant advertisements on web pages” (Schachter 1, ¶ 4).
Schachter also states that AdSense “implements a filtering system that
allows webmasters to prevent a specific domain’s ads from being served on
any websites in their account. By performing ad blocking, webmasters
could prevent their competitor’s ads from being dynamically served on their
websites.” (Id. at 1, ¶ 5.)
Claim 37 does not define the “user” who has a “business relationship”
with the website(s), based on which the websites are classified. The claim
language therefore reasonably includes a user who is a webmaster setting up
the AdSense filtering system to prevent ads for a specific domain (website)
belonging to a competitor (i.e., one in a competitive business relationship)
from being served on the websites in their account. Claim 37 therefore reads
on the webmaster, described by Schachter, classifying websites as
competitors in order to block ads for those websites from being served on
websites in the webmaster’s account. We affirm the rejection of claim 37.
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SUMMARY
We affirm the rejection of claims 6, 17, and 37 under 35 U.S.C.
§ 103(a) based on Schachter and Horowitz. Claims 9, 24, 27, 35, and 38 fall
with claims 6, 17, and 37. See 37 C.F.R. § 41.37(c)(1)(vii).
We affirm the rejection of claims 11, 29, and 39 under 35 U.S.C.
§ 103(a) based on Schachter, Horowitz, and Hartog, because Appellants rely
solely on their argument with regard to claim 6 (App. Br. 9-10), which was
not persuasive.
We reverse the rejection of claims 7, 8, 10, 12-16, 18, 25, 26, 28, 30-
34, and 36.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

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