Ex Parte Nissim et al

Patent Trial and Appeal Board

Dec 29, 2017

14563183 (P.T.A.B. Dec. 29, 2017)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/563,183 12/08/2014 Nitzan Nissim
52021 7590 01/03/2018
Cuenot, Forsythe & Kim, LLC
20283 State Road 7
Ste. 300
Boca Raton, FL 33498
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.
IL920120041US3_8150-0517 2361
EXAMINER
WILLIAMS, CLAYTONR
ART UNIT PAPER NUMBER
2457
NOTIFICATION DATE DELIVERY MODE
01/03/2018 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):
ibmptomail@iplawpro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NITZAN NISSIM, BRIAN L. PULITO, and ASAP ZINGER
Appeal2017-007499
Application 14/563, 183 1
Technology Center 2400
Before MARC S. HOFF, JAMES R. HUGHES, and SCOTT B. HOWARD,
Administrative Patent Judges.
HOW ARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 26--43,2 which constitute all of the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellant, is the Applicant, International Business Machines Corporation,
which, according to the Appeal Brief, is the real party in interest. App. Br.
1.
2 Although the first page of the Final Action indicates that claims 29, 35, and
41 are objected to and not rejected, the body of the Final Action rejects those
claims for not complying with 35 U.S.C. § 101. Compare Final Act. 1, with
id. at 2-4.
Appeal2017-007499
Application 14/563,183
THE INVENTION
The disclosed and claimed invention is directed to "computer
networks supporting SIP." Spec. iJ 2.
Claim 26, reproduced below, is illustrative of the claimed subject
matter:
26. A method for processing mid-dialog SIP messages,
compnsmg:
receiving, from a SIP user agent client, a mid-dialog SIP
message;
creating, based upon the mid-dialog SIP message, a new
SIP session, and
associating the new SIP session with the mid-dialog SIP
message.
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Bakshi
Qiu
Backman
Haserodt
Nissim
(hereinafter "Nissim
'553)
Nissim
(hereinafter "Nissim
'415)
US 2009/0022145 Al
US 2011/0149951 Al
US 2012/0260312 Al
US 2014/0047122 Al
US 8,930,553 B2
US 8,935,415 B2
2
Jan.22,2009
June 23, 2011
Oct. 11, 2012
Feb. 13,2014
Jan. 6,2015
Jan. 13,2015
Appeal2017-007499
Application 14/563,183
REJECTIONS
Claims 26--43 stand rejected under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter. 3 Final Act. 2-4.
Claims 38--43 stand rejected under 35 U.S.C. § 101 as directed to non-
statutory subject matter. Final Act. 4.
Claim 32 stands rejected under pre-AIA 35 U.S.C. § 112 second
paragraph as being indefinite. Final Act. 5.
Claims 26, 27, 32, 33, 38, and 39 stand rejected on the grounds of
nonstatutory double patenting as being unpatentable over claims 1 and 2 of
Nissim '415 in view of Haserodt, Bakshi, and Qiu. Final Act. 6-11.
Claims 26, 27, 32, 33, 38, and 39 stand rejected on the grounds of
nonstatutory double patenting as being unpatentable over claims 1 and 2 of
Nissim '553 in view ofHaserodt, Bakshi, and Qiu. Final Act. 11-15.
Claims 26-28, 30, 32-34, 36, 38--40, and 42 stand rejected under pre-
AIA 35 U.S.C. § 103(a) as being unpatentable over Haserodt in view of
Bakshi and Qiu. Final Act. 16-26.
Claims 31, 37, and 43 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Haserodt in view of Bakshi, Qiu, and
Backman. Final Act. 27-29.
3 Although the rejection states the claims are rejected as directed to non-
statutory subject matter, the body of the rejection addresses whether or not
the claims are patent-ineligible as directed to a judicial exception. Compare
Final Act. 2, with id. at 2--4.
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Application 14/563,183
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellant's
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellant. 4
Claims 26--37 (Section 1 OJ)
Patent-eligible subject matter is defined in § 101 of the Patent Act,
which recites:
Whoever invents or discovers any new and useful
process, machine, manufacture, or composition of matter, or
any new and useful improvement thereof, may obtain a patent
therefor, subject to the conditions and requirements of this title.
There are, however, three judicially created exceptions to the broad
categories of patent-eligible subject matter in § 101: laws of nature, natural
phenomena, and abstract ideas. Alice Corp. Pty. Ltd. v. CLS Bank Int 'l, 134
S. Ct. 2347, 2354 (2014); Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 70-71 (2012). Although an abstract idea, itself, is patent-
ineligible, an application of the abstract idea may be patent-eligible. Alice,
134 S. Ct. at 2355. Thus, we must consider "the elements of each claim both
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, 566 U.S. at 79, 78). The claim must
4 Rather than reiterate the entirety of the arguments of Appellant and the
positions of the Examiner, we refer to the Appeal Brief (filed Nov. 15,
2016); the Reply Brief (filed Apr. 14, 2017); the Final Office Action (mailed
June 15, 2016); and the Examiner's Answer (mailed Feb. 21, 2017) for the
respective details.
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Application 14/563,183
contain elements or a combination of elements that are "sufficient to ensure
that the patent in practice amounts to significantly more than a patent upon
the [abstract idea] itself." Id. (quoting Mayo, 566 U.S. at 72-73).
The Supreme Court set forth a two-part "framework for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts." Id. at
2355.
Id.
First, we determine whether the claims at issue are
directed to one of those patent-ineligible concepts. [Mayo, 566
U.S. at 77]. If so, we then ask, "[w]hat else is there in the
claims before us?" Id., at [78]. To answer that question, we
consider the elements of each claim both individually and "as
an ordered combination" to determine whether the additional
elements "transform the nature of the claim" into a patent-
eligible application. Id., at [79, 78]. We have described step
two of this analysis as a 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., at [72-
73].
"The 'abstract idea' step of the inquiry calls upon us to look at the
'focus of the claimed advance over the prior art' to determine if the claim's
'character as a whole' is directed to excluded subject matter." Affinity Labs
of Tex. v. DirectTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting
Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir.
2016)); see also Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed.
Cir. 2016). There is no definitive rule to determine what constitutes an
"abstract idea." Rather, the Federal Circuit has explained that "both [it] and
the Supreme Court have found it sufficient to compare claims at issue to
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those claims already found to be directed to an abstract idea in previous
cases." Enfish, 822 F.3d at 1334; see also Amdocs (Israel) Ltd. v. Openet
Telecom, Inc., 841F.3d1288, 1294 (Fed. Cir. 2016) (explaining that, in
determining whether claims are patent eligible under § 101, "the decisional
mechanism courts now apply is to examine earlier cases in which a similar
or parallel descriptive nature can be seen-what prior cases were about, and
which way they were decided").
The Examiner concludes the claims are "directed to the abstract idea
of receiving a message, determining whether the message is associated with
an existing session, and, in event message is unassociated, associating the
message with a new session." Final Act. 3. The Examiner further concludes
that "[t]his concept is analogous to following abstract idea listed in July
2015 Update: Interim Eligibility Guidance Identifying Abstract Ideas: 1)
comparing new and stored information and using rules to identify options."
Id.; see also Ans. 3 ("The claimed invention is also analogous to
SmartGene 's 'comparing new and stored information and using rules to
identify options."'). The Examiner further concludes the claimed invention
is also "analogous to following abstract idea listed in December 2016 Quick
Reference Sheet: Classen 's 'collecting and comparing known
information."' Ans. 3.
Appellant argues the Examiner erred in concluding the claim is
directed to an abstract idea. App. Br. 9-16; Reply Br. 2-3. Specifically,
Appellant argues the pending claims are different from those in SmartGene
and Classen. App. Br. 13-14. According to Appellant, SmartGene turned
on the claim at issue encompassing a mental process. App. Br. 13 (citing
SmartGene, Inc. v. Advanced Biological Labs., SA, 555 F. App'x 950, 955
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(Fed. Cir. 2014)). Appellant argues that "[u]nlike SmartGene in which
every step could be performed by a doctor 'in their heads,' the claimed
invention cannot be performed by the human mind." Id. at 14.
Appellant also argues the claimed invention does not resemble the
claims in Classen, which "are directed to the abstract principle that variation
in immunization schedules may have consequences for certain diseases."
Reply Br. 3 (quoting Classen Immunotherapies Inc. v. Biogen IDEC, 659
F.3d 1057, 1067 (Fed. Cir. 2011)).
Based on the current record, we are persuaded by Appellant's
arguments that the Examiner erred. The Examiner has not shown
sufficiently that the claims at issue are analogous to those found to be patent-
ineligible in SmartGene and Classen. 5 Accordingly, we reverse the
Examiner's rejection that claims 26-37 are directed to patent-ineligible
subject matter.
Claims 38--43 (Section 1 OJ)
The Examiner rejected claims 38--43 under 35 U.S.C. § 101 as
directed to non-statutory subject matter. Final Act. 4; Ans. 4.6 Specifically,
the Examiner concludes that "computer readable storage medium" as recited
in claim 38, is broad enough to encompass both non-transitory media and
transitory media. Final Act. 4; Ans. 4.
5 Because we agree with Appellant that the Examiner has not shown
sufficiently that the claims are directed to an abstract idea, we did not have
to address the second step of the Alice/Mayo framework.
6 The Examiner also rejected the claims as directed to patent-ineligible
subject matter based on a judicial exception. See Final Act. 2-4. Because,
as discussed below, the claims are broad enough to encompass non-statutory
subject-matter, we do not address that alternate grounds of rejection.
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Appellant argues the Examiner erred. App. Br. 18-28; Reply Br. 4.
More particularly, Appellant argues, based on the Specification, that "the
Examiner's claim construction that the claimed 'storage mediums'
encompasses a propagating signals is inconsistent with Appellants'
specification." Reply Br. 4; see also App. Br. 21-22 (citing Spec. ,-i,-i 16-
17). Appellant also relies on various patent applications it contends have
nearly identical language within their respective specifications and have
recently had section 101 rejections withdrawn. App. Br. 22-26.
If the broadest reasonable interpretation of a claim covers non-
patentable subject matter such as a transitory signal, the claim is
unpatentable under 35 U.S.C. § 101. See In re Nuijten, 500 F.3d 1346,
1356-57 (Fed. Cir. 2007) (transitory embodiments are not directed to
statutory subject matter). Unless limited to non-transitory embodiments, the
broadest reasonable interpretation of the phrase "computer readable storage
medium" includes both transitory and non-transitory embodiments and
would be unpatentable under section 101. Ex parte Mewherter, 107
USPQ2d 1857, 1862 (PTAB 2013) (precedential).
When determining whether a "computer readable storage medium"
limitation covers non-patentable subject matter, the following factors must
be considered:
(1) Extrinsic evidence relevant to the meaning as
would be understood by one skilled in the art at the time of the
effective filing date of the patent application ....
(2) Whether there is express intent in applicant's
specification to limit the term, i.e., applicant's specification is
not silent as to the meaning of such terms.
(3) Whether the claim expressly limits the medium to
"non-transitory" embodiments.
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(4) Whether the claim implicitly limits the medium to
"non-transitory" embodiments. The most common form of this
is the use of "means plus function" elements in the claim (i.e., a
true Beauregard type claim). Such means plus function
elements are limited by statute to the corresponding structure in
the specification and equivalents thereof. Such a structure
requirement limits the claim to non-transitory embodiments.
Mewherter, 107 USPQ2d at 1860 n.5.
Similar to the facts of Mewherter, Appellant's Specification does not
limit "computer readable storage medium" such that it excludes transitory
propagating signals. See Spec. ,-i,-i 16-17. Although the Specification states
that a computer readable signal medium may be a signal and that a computer
readable signal medium is not a computer readable storage medium, the
Specification does not define readable storage medium such that it cannot be
a signal per se. See Id. Moreover, because the Specification uses the
permissive "may" and not a more mandatory phrase, such as "shall," the
Specification is not sufficient to show that the applicant acted as a
lexicographer and limited the scope of the claim. See In re Paulsen, 30 F.3d
1475, 1480 (Fed. Cir. 1994) (holding that an applicant must provide a
definition of the term in the specification with "reasonable clarity,
deliberateness, and precision" in order to act as a lexicographer).
Accordingly, Appellant has not persuaded us the Examiner erred.
We are also unpersuaded by Appellant's reliance on various decisions
made by Examiners in other, unrelated applications. Those decisions are not
binding on us and we are bound to apply this Board's precedential decision
of Mewherter.
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Accordingly, we sustain the Examiner's rejection of claims 38--43 as
being directed to non-statutory subject matter. 7
Claim 32 (Section 112 Rejection)
The Examiner rejects claim 32 as indefinite. Final Act. 5; Ans. 5.
More specifically, the Examiner concludes that "'and/or' is ambiguous
phrasing that precludes definitive interpretation of what is claimed." Final
Act. 5. According to the Examiner,
The construction "and/or" introduces ambiguity
regarding whether all elements or one element of a group of
elements must be present to satisfy a condition. The "or"
conjunction alone provides for a condition being satisfied if, for
a group of elements, one element, more than one element but
less than all of the elements of a group, or all the elements of a
group are present.
Ans. 5.
Appellant argues the term "and/or" is not ambiguous and informs
those of ordinary skill in the art the scope of the invention with reasonable
certainly. App. Br. 28-30; Reply Br. 5. Appellant further argues that the
Board has previously held "and/or" has a definitive meaning and "covers
embodiments having element A alone, element B alone, or elements A and
7 We note that both the Examiner and the US PTO has suggested amending
claims such as these so that the claims only read on non-transitory statutory
embodiments. See Final Act 4 ("Examiner suggests that 'computer readable
storage medium' be amended to recite 'non-transitory computer readable
storage medium."'); David J. Kappos, Subject Matter Eligibility of
Computer Readable Media, 1351 Off. Gaz. Pat. & Trademark Office 212
(Feb. 23, 2010).
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B taken together." App. Br. 29 (quoting In re Gross, Appeal No. 2011-
004811, 2013 WL 6907805 (PTAB Dec. 31, 2013)).
"[W]e apply the approach for assessing indefiniteness approved by the
Federal Circuit in Packard, i.e., '[a] claim is indefinite when it contains
words or phrases whose meaning is unclear."' Ex parte McAward, No.
2015-006416, 2017 WL 3669566, at *5 (PTAB Aug. 25, 2017)
(precedential) (quoting In re Packard, 751F.3d1307, 1310, 1314 (Fed. Cir.
2014)). "Put differently, 'claims are required to be cast in clear-as opposed
to ambiguous, vague, indefinite-terms."' Id. (quoting Packard, 751 F.3d at
1313); see also MPEP § 2173 .02(I). "At the same time, this requirement is
not a demand for unreasonable precision." Packard, 751 F.3d at 1313.
Applying the standard set forth in Packard, we agree with Appellant
that the claim is sufficiently clear. That is, as we held in Gross, the claim
covers a system that either initiates, performs, or both initiates and performs
the claimed steps.
According, we reverse the Examiner's rejection of claim 32 as
indefinite.
Claims 26, 27, 32, 33, 38, and 39 (Double Patenting)
Appellant has not identified any errors in the Examiner's findings
regarding the two double patenting rejections. "If an appellant fails to
present arguments on a particular issue - or, more broadly, on a particular
rejection - the Board will not, as a general matter, unilaterally review those
uncontested aspects of the rejection." Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential).
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Accordingly, we affirm the Examiner's rejections of claims 26, 27,
32, 33, 38, and 39 on the grounds of obviousness-type double patenting.
Claims 26, 32, and 48(Section103)
As detailed in the Final Action and the Answer, the Examiner relies
on a combination of the teachings of Haserodt, Bakshi, and Qiu to teach the
"creating, based upon the mid-dialog SIP message, a new SIP session" step
recited in claim 26. Final Act. 16-18; Ans. 5-6.
Appellant argues the Examiner erred for three reasons. App. Br. 31-
36; Reply Br. 5-7. First, Appellant argues "Haserodt is directed to
reconstructing an existing session - not creating a new session." App. Br.
31; see also id. at 31-32; Reply Br. 5-6 ("Haserodt does not create a session
(new or old) 'based upon the mid-dialog SIP message.' Instead, Haserodt
teaches creating a new message."). Second, Appellant argues because "the
Examiner now admits that Haserodt fails to teach the 'new SIP session' ...
the alleged fact that Qiu teaches a 'new SIP session' does not cure the
deficiency of Haserodt." App. Br. 34; see also id. at 35 ("The alleged fact
that Qiu teaches 'creating ... a new SIP session' does not cure the
deficiencies of Haserodt since Qiu also fails to tie the creation of the new
SIP session with the receipt of the mid-dialog SIP message."); see also
Reply Br. 6-7. Third, Appellant argues "that the Examiner's response,
while establishing that Qiu teaches creating a new SIP session, does not cure
the aforementioned deficiencies in the Examiner's combination of
references." App. Br. 36.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
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disclosures. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The
test for obviousness is not whether the claimed invention is expressly
suggested in any one or all of the references, but whether the claimed subject
matter would have been obvious to those of ordinary skill in the art in light
of the combined teachings of those references. In re Keller, 642 F.2d 413,
425 (CCPA 1981). Because each of Appellant's arguments are premised on
addressing the references individually and not the combination of teachings
as relied upon by the Examiner, we are not persuaded that the Examiner
erred. Instead, we find the Examiner's findings regarding the references is
supported by the record and that the Examiner's finding provides a "rational
underpinning to support the legal conclusion of obviousness." See In re
Kahn, 441F.3d977, 988 (Fed. Cir. 2006), cited with approval in KSR Int'!
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Accordingly, we agree with
and adopt the Examiner's findings and ultimate conclusion on obviousness.
Therefore, we sustain the Examiner's rejection of claim 26 as obvious,
along with the rejection of claims 32, and 38, which are argued on the same
grounds.
Claims 27, 33, and 39(Section103)
Appellant argues the Examiner erred in finding Haserodt teaches the
additional limitation recited in claim 27. App. Br. 36; Reply Br. 8.
Specifically, Appellant states as follows:
Regarding these limitations, on page 18 of the Third
Office Action, the Examiner made the following Graham
findings of fact regarding the scope and content of Haserodt:
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Haserodt, [0047], lines 5-10: a message
processor encapsulates the second SIP message
into another SIP message. The message is
associated with a session different from the first
SIP session.
Notably, neither the Examiner's analysis nor the
Examiner's cited passage makes any mention of the claimed
"unsuccessfully associating the mid-dialog SIP message with a
pre-existing SIP session" (emphasis added).
App. Br. 36.
The Examiner finds that Haserodt teaches the additional limitation
recited in claim 27:
The method of claim 26, wherein the creating and the
associating are responsive to unsuccessfully associating the
mid-dialog SIP message with a pre-existing SIP session
(Haserodt, [0047], lines 5-10: a message processor encapsulates
the second SIP message into another SIP message. The
message is associated with a session different from the first SIP
session).
Final Act. 18 (emphasis added); see also Ans. 6-7. The Examiner further
finds that to the extent the different SIP session in Haserodt is not new, "Qiu
is relied upon for its disclosure of creation of a new SIP session for a SIP
message for which call state information is unavailable (par. 0020)." Ans. 7.
We are not persuaded by Appellant's argument that the Examiner
erred. First, the quotation of the Examiner's findings in the Appeal Brief
was incomplete. Specifically, the material emphasized above-which uses
the language Appellant states is missing-was omitted from Appellant's
reproduction. Thus, the Examiner's findings includes the language recited
in claim 27 and explained how it was taught and Haserodt.
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Second, there is no requirement in an obviousness analysis for the
prior art to "contain a description of the subject matter of the appealed claim
in ipsissimis verbis." In re May, 574 F.2d 1082, 1090 (CCPA 1978). Thus,
it is irrelevant that the section of the reference relied on by the Examiner
does not use the same words of the claims. Instead, we agree with and adopt
the Examiner's findings.
Accordingly, we sustain the Examiner's rejection of claim 27 as
obvious, along with the rejections of claims 33 and 39, which are argued on
the same ground.
Claims 28, 30, 34, 36, 40, and 42 (Section 103)
Appellant argues the Examiner erred in rejecting claim 28 because the
section of Haserodt relied on by the Examiner does not make "any mention
of the claimed 'receiving, from the application, an acknowledgement that
the application will accept the mid-dialog SIP message' (emphasis added).
Consequently, the Examiner has not established that Haserodt teaches all of
the limitations for which Haserodt is being relied upon to teach." App. Br.
37; see also Reply Br. 9.
However, as discussed above, there is no requirement in an
obviousness analysis for the prior art to "contain a description of the subject
matter of the appealed claim in ipsissimis verbis." May, 574 F.2d at 1090.
Therefore, we are not persuaded by Appellant's argument that the Examiner
erred. Instead, we agree with and adopt the Examiner's findings.
Accordingly, we sustain the Examiner's rejection of claim 28 as
obvious, along with the rejections of claims 34, and 40, which are argued on
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the same grounds, and dependent claims 30, 36, and 42, which are not
argued separately.
Claims 31, 37, and 43(Section103)
With respect to dependent claims 31, 37, and 43, Appellant merely
contends that because the additional reference used in the rejections of these
claims (Backman) does not cure the shortcomings of the other references
applied against claim 28, 34, and 40, the proposed combination of references
would not yield the claimed invention. App. Br. 37-38. Because we
determine that the rejections of claims 28, 34, and 40 are not erroneous for
the reasons discussed above, we sustain the rejections of these claims.
DECISION
For the above reasons, we reverse the Examiner's decisions rejecting
claims 26-37 under 35 U.S.C. § 101.
For the above reasons, we affirm the Examiner's decisions rejecting
claims 38--43 under 35 U.S.C. § 101.
For the above reasons, we reverse the Examiner's decision rejecting
claim 32 under 35 U.S.C. § 112, second paragraph.
For the above reasons, we affirm the Examiner's rejection of claims
26, 27, 32, 33, 38, and 39 on the grounds of double patenting.
For the above reasons, we affirm the Examiner's decisions rejecting
claims 26-28, 30-34, 36--40, 42, and 43 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a)(l)(iv). See
37 C.F.R. § 41.50(±).
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AFFIRMED-IN-PART
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