Ex Parte Tolson et al

Patent Trial and Appeal Board

Apr 29, 2013

10944441 (P.T.A.B. Apr. 29, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/944,441 09/17/2004 Michael Tolson 101217.00038 3235
33649 7590 04/29/2013
Mr. Christopher John Rourk
Jackson Walker LLP
901 Main Street, Suite 6000
DALLAS, TX 75202
EXAMINER
JAMI, HARES
ART UNIT PAPER NUMBER
2162
MAIL DATE DELIVERY MODE
04/29/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL TOLSON AND ANDREW L. DALE
____________

Appeal 2010-011373
Application 10/944,4411
Technology Center 2100
____________

Before THU A. DANG, JAMES R. HUGHES, and
GREGORY J. GONSALVES, Administrative Patent Judges.

HUGHES, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-25, which are all the claims remaining in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

1 Application filed on Sept. 17, 2004, claiming benefit from U.S.
Provisional Application No. 60/610,086 filed Sept. 14, 2004. The Real
Party in Interest is H.E.B., LLC. (App. Br. 2.)
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Invention
Appellants’ invention relates generally to “associating data access
policies with objects.” (Spec. 1, ¶ [0004].)2
Representative Claim
Independent claim 1, reproduced below further illustrates the
invention:
1. A system for controlling access to policy managed
objects by associating with the policy managed objects a
number of policy objects that determine whether access to the
policy managed object is permitted, comprising:
a payload container object that securely stores a payload
comprising arbitrary data, using data processing hardware, in a
data memory;
one or more interfaces for each policy managed object
that each defines mechanisms for accessing the policy managed
object or the payload;
wherein each policy managed object is associated with a
number of policy objects;
wherein each policy object has executable instructions
that define a policy for determining whether a type of access to
an associated policy managed object is permitted, including
each of a policy in which access is permitted if a user has a
license to access a policy managed object, a policy in which
access is permitted if the user is using a secure viewer, and a
policy in which access is permitted only during business hours;
wherein when a user attempts to access the policy
managed object or the payload, such as by invoking one of the
interfaces, any policies pertaining to the type of access

2 We refer to Appellants’ Specification (“Spec.”), Reply Brief (“Reply Br.”)
filed June 7, 2010 and Appeal Brief (“App. Br.”) filed Jan. 11, 2010. We
also refer to the Examiner’s Answer (“Ans.”) mailed Apr. 6, 2010.
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requested by the user are executed in order to determine
whether the access is permitted; and
wherein if the policies determine that the access is
permitted, the user is allowed to access the policy managed
object or the payload.
Rejections on Appeal
1. The Examiner rejects claim 2 under 35 U.S.C. § 112, second
paragraph as being indefinite for failing to particularly point out and
distinctly claim the subject matter which Applicants regard as the invention.
2. The Examiner rejects claims 2, 4, 5, and 11-13 under 35 U.S.C.
§ 102(b) as being anticipated by Kudoh (U.S. Pat. Pub. No. 2002/0077803
A1, published June 20, 2002 (filed Sept. 7, 2001)).
3. The Examiner rejects claim 1 under 35 U.S.C. § 103(a) as being
unpatentable over Terzis (U.S. Pat. Pub. No. 2004/0243835 A1, published
Dec. 2, 2004 (filed May 28, 2004) and Ram (U.S. Pat. Pub. No.
2002/0194485 A1, published Dec. 19, 2002 (filed July 18, 2002)).
4. The Examiner rejects claims 3, 14-17, and 20 under 35 U.S.C.
§ 103(a) as being unpatentable over Garcia (U.S. Patent No. 7,380,120 B1,
issued May 27, 2008 (filed Feb. 12, 2002) and Shaji (U.S. Pat. Pub. No.
2004/0215650 A1, published Oct. 28, 2004 (filed Apr. 9, 2003)).
5. The Examiner rejects claims 18 and 19 under 35 U.S.C.
§ 103(a) as being unpatentable over Garcia, Shaji, and Tibbetts (U.S. Pat.
Pub. No. 2003/0061463 A1, published Mar. 27, 2003 (Sept. 24, 2001)).
6. The Examiner rejects claims 6-10 under 35 U.S.C. § 103(a) as
being unpatentable over Kudoh and Garcia.
7. The Examiner rejects claims 21-25 under 35 U.S.C. § 103(a) as
being unpatentable over Kudoh and Tibbetts.
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Grouping of Claims
Based on Appellants’ arguments in the Briefs, we will decide the
appeal on the basis of representative claims 1, 2, 3, 4, 5, 12, 13, 14, 21, and
25. See 37 C.F.R. § 41.37(c)(1)(iv).

FINDINGS OF FACT
We adopt the Examiner’s findings in the Answer and the Final Office
Action as our own, except as to those findings that we expressly overturn or
set aside in the analysis as follows.

ANALYSIS
§ 112, second paragraph Rejection of Claim 2
Issue
Under § 112, second paragraph, did the Examiner err in determining
that the “means plus function limitations” are indefinite?
Discussion
The Examiner contends that claim 2 is indefinite because Appellants’
“written description fails to clearly link or associated [sic] the disclosed
structure, material, or acts to the claimed function such that one of ordinary
skill in the art would recognize what structure, material, or acts perform the
claimed functions.” (Ans. 3-4.) We disagree.
“The test for indefiniteness is whether one skilled in the art would
understand the bounds of the claim when read in light of the specification.”
Miles Labs., Inc. v. Shandon, Inc., 997 F.2d 870, 875 (Fed. Cir. 1993)
(citation omitted). Under § 112, second paragraph and sixth paragraph, a
means-plus function clause is indefinite if a person or ordinary skill in the art
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would be unable to recognize the structure in a specification and associate it
with the corresponding structure in the claim. B. Braun Medical Inc., v.
Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cr. 1997)
We agree with Appellants that one skilled in the art would recognize
the structure in a specification and associate it with the corresponding
structure in claim 2. We conclude that one skilled in the art would associate
the structure of the chart shown in Figure 3 (elements 115 and 302), and the
flowchart shown in Figure 6 of the present application with the
corresponding structure recited in claim 2, for essentially the same reasons
argued by Appellants. (App. Br. 12-13.)
Based on this record, we conclude that the Examiner erred in
determining that claim 2 is indefinite. Accordingly, we reverse the
Examiner’s rejection of claim 2 under § 112, second paragraph.

Anticipation Rejection of Claim 2
Issue
Under § 102, did the Examiner err in finding that Kudoh discloses
“means for defining a policy for determining whether a type of access to an
associated policy managed object is permitted” (emphasis added), within
the meaning of representative claim 2?
Discussion
Appellants contend that Kudoh fails to disclose “a means for defining
a policy for determining whether a type of access to an associated policy
managed object is permitted.” (App. Br. 15.) We agree for the following
reasons.
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We agree with Appellants that the portions of Kudoh relied on by the
Examiner to disclose the preset limitation – specifically Kudoh, ¶ [0023] and
Figure 5 (Ans. 5) – fail to disclose defining a policy as required by the claim.
The relied upon portions of Kudoh (Ans. 5 citing Kudoh, ¶ [0023], and Fig.
5) disclose a process for determining whether to permit or inhibit access in
response to an access request. We find that those sections relate to the
function of applying access request conditions, not defining a policy. As
such, we agree with Appellants that the cited portions of Kudoh fail to
disclose “defining a policy” as recited in claim 2.
Based on this record, we conclude that the Examiner erred in rejecting
claim 2. Accordingly, we reverse the Examiner’s § 102 rejection of claim 2.

Anticipation Rejection of Claims 4, 11, and 13
Issue
Under § 102, did the Examiner err in finding that Kudoh discloses a
“means for performing at least one operation on the data object,” within the
meaning of claim 4?
Discussion
We agree with and adopt the Examiner’s findings with respect to
claims 4. (Ans. 5-6.) We observe that independent claim 4, recites “[a] data
object comprising . . . .” Therefore, claim 4 is directed to an arrangement of
“data” which constitutes non-functional descriptive material and does not
distinguish the present invention from the prior art. Ex parte Nehls, 88
USPQ2d 1883, 1889 (BPAI 2008) (precedential).
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Appellants contend that the Examiner failed to cite functional
descriptive material that discloses the structure corresponding to the
limitation at issue. (Reply Br. 3-7; App. Br. 16.) We disagree.
Assuming, arguendo, that the limitations of claim 4 are afforded
patentable weight, we find, as did the Examiner, that the access control
system performs operations on the data object. (Ans. 6 citing Kudoh, ¶¶
[0085], [0091].) Figure 2 of Kudoh is a flowchart showing an algorithm for
the operation performed by access control system in Figure 1. Therefore, we
disagree with Appellants that the Examiner failed to cite an equivalent
structure for the limitation at issue.
Appellants further contend that the cited portion of Kudoh teaches
allowing access to the access controller (Kudoh, Fig. 5, S809), which is not
the same as making a determination as to “whether at least one operation
requested to be performed on the object is allowed.” (App. Br. 16.) We
agree with the Examiner’s findings. (Ans. 6, 27.) Kudoh’s Figure 5
discloses making a determination as to whether at least one operation
requested to be performed on the object is allowed. (Kudoh, Fig. 5, S809.)
If access to the object is not allowed, access to the access controller is not
granted and the requested operation is not allowed. (See Kudoh, ¶ [0105].)
Therefore, we do not find Appellants’ arguments persuasive.
Regarding claim 13, we observe that claim 13 essentially recites
“data” within a “data object” (“the at least one policy object comprises,
within the at least one policy object, at least one other policy object”). The
other data object is not positively recited. Therefore, for essentially for the
reasons discussed above, claim 13 is directed to non-functional descriptive
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material that does not distinguish the claimed invention from the prior art of
record.
Based on this record, we conclude that the Examiner did not err in
rejecting independent claim 4 and dependent claim 13. Appellants did not
argue for the patentability of dependent claim 11 with particularity. (App.
Br. 13-17.) Accordingly, we affirm the Examiner’s § 102 rejection of claims
4, 11, and 13.
Anticipation Rejection of Claim 5
Issue
Under § 102, did the Examiner err in finding that Kudoh discloses
“means for allowing an operation to be performed on the data object by
invocation of one of the interfaces,” within the meaning of claim 5?
Discussion
Appellants contend that the cited portions of Kudoh are functional
descriptive material and are not algorithms. (App. Br. 16.) We observe that
dependent claim 5 is directed to data, and is therefore non-functional
descriptive material, similar to the discussion (supra) regarding claim 4.3
In addition, we agree with the Examiner that Figure 4 of Kudoh
discloses information sets (interfaces) that are exchanged by the blocks of
the access control system. (Kudoh, ¶ [0096].) As discussed supra, the
access control system is described in the flowchart of Figure 5. Thus, the
cited portions of Kudoh are directed to algorithms, which are equivalent to
the structure recited by claim 5.

3 With respect to claim 5, we further observe that the phase “by invocation
of one of the interfaces” (emphasis added) lacks antecedent basis.
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Based on this record, we conclude that the Examiner did not err in
determining that Kudoh discloses “means for allowing an operation to be
performed on the data object by invocation of one of the interfaces,” within
the meaning of claim 5. Accordingly, we affirm the Examiner’s § 102
rejection of claim 5.
Anticipation Rejection of Claim 12
Issue
Under § 102, did the Examiner err in finding that Kudoh discloses
“wherein the at least one policy object is configured to receive input from at
least one service, such input contributing at least partially to resolving
whether conditions defined by the at least one policy object are satisfied”
(emphasis added), within the meaning of claim 12?
Discussion
Appellants contend that the Examiner failed to identify how anything
that the Examiner has variously relied on as a “policy object” of Kudoh is
“configured to receive input from at least one service.” (App. Br. 16.) We
agree for essentially the same reasons argued by Appellants.
The Examiner relied on paragraph [0078] and Figure 1 of Kudoh to
disclose the present limitation. (Ans. 7.) However, we agree with
Appellants that the Examiner has not established, nor do we find, where the
cited portions of Kudoh disclose “receiving input from at least one service”
as required by claim 12.
Based on this record, we conclude that the Examiner erred in rejecting
claim 12. Accordingly, we reverse the Examiner’s § 102 rejection of claim
12, for essentially the reasons argued by Appellants.
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Obviousness Rejection of Claim 1
Issue
Under § 103, did the Examiner err in rejecting independent claim 1?
Discussion
Appellants further contend that the cited combination of references
fails to teach or suggest:
one or more interfaces for each policy managed object
that each defines mechanisms for accessing the policy managed
object or the payload;
. . . .
wherein each policy object has executable instructions
that define a policy for determining whether a type of access to
an associated policy managed object is permitted, including
each of a policy in which access is permitted if a user has a
license to access a policy managed object, a policy in which
access is permitted if the user is using a secure viewer, and a
policy in which access is permitted only during business hours;
as recited in claim 1. (App. Br. 17.)
At the outset, we note that claim 1 recites a system that comprises one
or more interfaces that define mechanisms for accessing the policy managed
object or the payload. We do not find Appellants’ arguments persuasive.
Regarding the limitation reciting “one or more interfaces for each
policy managed object that each defines mechanisms for accessing the
policy managed object or the payload” (claim 1) (emphasis added), we note
that under a broad but reasonable interpretation, the present limitation is
written in the alternative. Thus, the prior art need only teach or suggest
accessing the payload. As a result, the second limitation at issue, which is
directed policy objects, is moot if accessing the payload is taught or
suggested. The Examiner concluded that Terzis (Terzis, ¶ [0052]) teaches “a
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payload container object that securely stores a payload comprising arbitrary
data, using a data processing hardware.” (Ans. 8.) (emphasis omitted.) The
Examiner also concluded that Terzis would have taught or suggested a user
interface for accessing computer resources (payload). (Ans. 28.) Appellants
did not dispute the Examiner’s findings. (See App. Br. 17.) Accordingly,
Appellants’ arguments regarding the second limitation at issue are moot.4
Based on this record, we conclude that the Examiner did not err in
rejecting claim 1. Accordingly, we affirm the Examiner’s § 103 rejection of
claim 1.
Obviousness Rejection of Claim 3
Issue
Under § 103, did the Examiner err in finding that the cited
combination of references collectively would have taught or suggested
“receiving a request to access a policy managed object in a data memory
using data processing hardware, wherein the policy managed object
comprises a payload container object that securely stores a payload of data,
a plurality of policy objects, and a plurality of interfaces” (emphasis added),
within the meaning of claim 3?
Discussion
Appellants contend that the cited references would not have taught or
suggested the limitation at issue. (App. Br. 18.) We agree.

4 With respect to all claims before us on appeal, arguments which Appellants
could have made but chose not to make have not been considered and are
deemed to be waived. Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI
2010) (informative).
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The Examiner relied on Garcia to disclose or suggest the present
limitation. (Ans. 11, 29.) We agree with Appellants that the cited portions
of Garcia (Garcia, Fig. 2B, (elements 222, 224)) disclose only a header 222
and an encrypted portion 224, wherein the header 222 is not contained with
the encrypted portion 224 and, therefore, cannot securely store policy
objects and interfaces of the policy managed object as claimed.
Based on this record, we conclude that the Examiner erred in rejecting
claim 3. Accordingly, we reverse the Examiner’s § 103 rejection of claim 3.
Obviousness Rejection of Claims 14-17 and 20
Issue
Under § 103, did the Examiner err in determining that the cited
combination of references would have taught or suggested “at least one
payload container object that securely stores at least one payload
comprising data” (emphasis added), within the meaning of claim 14?
Discussion
Appellants contend that the cited references would have taught or
suggested the limitation at issue. (App. Br. 18-19.)
At the outset, we note that independent claim 14 recites “[a]n
execution context for managing data objects.” Similar to the discussion,
supra, regarding independent claim 4, it is our view that claim 14 recites
“data” (payload) stored within “data” (payload container object) within data
(execution context) which is merely “data” that is nonfunctional descriptive
material and does not distinguish claim 14 from the prior art. Nehls, 88
USPQ2d at 1889.
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Based on this record, we find that the Examiner did not err in rejecting
independent claim 14. Accordingly, we affirm the Examiner’s § 103
rejection of claim 14.
Regarding dependent claims 15-17 and 20, we observe that
Appellants’ arguments essentially consist of a recitation of the claim, a
recitation of the Examiner’s prima facie rejection and a conclusion that the
cited references fail to teach or suggest the limitation recited in each of the
claims. (App. Br. 19-20.)
Merely reiterating the language of the claim is insufficient. This form
of argument does not amount to a separate patentability argument and is
unpersuasive of error in the Examiner’s rejection. See Ex parte Belinne, No.
2009-004693, 2009 WL 2477843 at *3-4 (BPAI Aug. 10, 2009)
(informative); see also 37 C.F.R. § 41.37(c)(iv) (“A statement which merely
points out what a claim recites will not be considered an argument for
separate patentability of the claim.”). Appellants’ argument “do[es] not . . .
explain why the Examiner’s explicit fact finding is in error.” Belinne, 2009
WL 2477843 at *4. Mere attorney arguments and conclusory statements
that are unsupported by factual evidence are entitled to little probative value.
In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De
Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). This is applicable in the
present case.
Based on this record, we conclude that Appellants have not shown the
Examiner erred in rejecting claims 15-17 and 20. Accordingly, we affirm
the Examiner’s § 103 rejection of claims 15-17 and 20.

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Obviousness Rejection of Dependent Claims 18 and 19
Appellants contend that the cited combination of references fail to
teach or suggest the limitations of the preset claims. (App. Br. 21.) We
observe that claims 18 and 19 depend from claim 14 discussed supra.
Similar to the above discussion, claims 18 and 19 recite an “execution
context” which is non-functional descriptive material and the recited
limitations, therefore, do not distinguish the present claims from the cited
prior art. We agree with and adopt the Examiner’s findings with respect to
claims 18 and 19. (Ans. 15-17.) Further, the cited portions of Tibbetts teach
lifecycle occurrences. (Tibbetts, ¶ [0005].) Appellants’ argument regarding
claim 19 does not address the Examiner’s findings, instead merely recites
the claim language and concludes that the prior art fails to teach or suggest
the claim limitation. (App. Br. 21.) We find this type of argument
unavailing for the reasons discussed supra.
Based on this record, we conclude that the Examiner did not err in
finding the cited references would have taught or suggest the limitations
recited in claims 18 and 19. Accordingly, we affirm the Examiner’s § 103
rejection of claims 18 and 19.
Obviousness Rejection of Dependent Claims 6-10
We observe that claims 6-10 depend from claim 4 discussed supra.
Similar to the above discussion, claims 6-10 recite a “data object” which is
non-functional descriptive material and the recited limitations, therefore, do
not distinguish the present claims from the cited prior art. We agree with
and adopt the Examiner’s findings with respect to claims 6-10. (Ans. 17-19,
31.)
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Based on this record, we conclude that the Examiner did not err in
finding the cited references would have taught or suggest the limitations
recited in claims 6-10. Accordingly, we affirm the Examiner’s § 103
rejection of claims 6-10.
Obviousness Rejection of Claims 21-24
Issue
Under § 103, did the Examiner err in rejecting independent claim 21?
Discussion
Appellants contend:
Claim 21 also includes determining, based on the
execution of the at least one policy, whether performing the
requested operation on the data object is allowed. The
Examiner has admitted that Kudoh fails to disclose the
preceding steps, but asserts that Kudoh discloses this step.
However, the cited reference must disclose the method steps in
the order required by the claims. E-Pass Corp. v. 3COM Corp.,
473 F.3d 1213, 1222 (Fed. Cir. 2007) (“Substantively, because
the language of most of the steps of its method claim refer to
the completed results or the prior step, E-Pass must show that
all of those steps were performed in order.) Since Kudoh fails
to disclose the preceding steps, it cannot possibly disclose this
step which depends on the preceding steps.
(App. Br. 23.) Before making the above assertion, Appellants recite the
previous two preceding limitations and conclude that the prior art (Kudoh)
fails to disclose these elements. (Id.)
The Examiner relied on Tibbetts to teach or suggest each of the
limitations. (Ans. 20.) We observe that Appellants did not dispute the
Examiner’s specific findings in either the Principal Brief or Reply Brief. We
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agree with and adopt the Examiner’s findings with respect to claim 21.
(Ans. 19, 32.)
As shown above, Appellants do not dispute the Examiner’s findings
with respect to the limitation at issue. Appellants argue that the limitation is
not taught or suggested because the two previous method limitations are not
disclosed. We do not find this argument persuasive because as discussed
above, the Examiner found that Tibbetts would have taught or suggested the
two preceding limitations.
Regarding claims 22-24, similar to the discussion, supra, regarding
claims 16-19, Appellants’ arguments consist of reciting the claim language
and concluding that Kudoh fails to teach or suggest the limitation recited in
each of claims 22-24. (App. Br. 24.) As discussed above, we find this type
of argument unavailing.
Based on this record, Appellants have not shown the Examiner erred
in rejecting independent claim 21 and dependent claims 22-24.
Accordingly, we affirm the Examiner’s § 103 rejection of representative
claim 21 and claims 22-24.
Obviousness Rejection of Claim 25
Issue
Under § 103, did the Examine err in finding that the cited references,
collectively, would have taught or suggested “determining whether
performing the requested operation on the data object is allowed further
comprises receiving input from a service,” (emphasis added) within the
meaning of claim 25?

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Discussion
Appellants contend:
As previously discussed, the services performed by the various
system components of Kudoh are not services that provide
input to data object, which the Examiner construes to be a table
of Kudoh. The items identified by the Examiner as allegedly
being “services” do not do anything to the tables of Kudoh.
(App. Br. 24.) We agree. As discussed, supra, regarding claim 12, the cited
portions of Kudoh, (Kudoh, ¶ [0078]; Fig. 1.) fail to teach or suggest
services that provide input to a data object as claimed.
Based on this record, we conclude that the Examiner erred in rejecting
claim 25. Accordingly, we reverse the Examiner’s § 103 rejection of claim
25.

CONCLUSIONS OF LAW
Appellants have shown the Examiner erred in rejecting claim 2 under
112, second paragraph.
Appellants have shown the Examiner erred in rejecting claims 2 and
12 under 102(b).
Appellants have not shown that the Examiner erred in rejecting claims
4, 5, 11, and 13, under 35 U.S.C. § 102(b).
Appellants have shown the Examiner erred in rejecting claims 3 and
25 under 35 U.S.C. § 103(a).
Appellants have not shown the Examiner erred in rejecting claims 1,
6-10, 14-24 under 35 U.S.C. § 103(a).

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DECISION
We reverse the Examiner’s rejection of claim 2 under 35 U.S.C.
§ 112, second paragraph.
We reverse the Examiner’s rejection of claims 2 and 12 under 35
U.S.C. § 102(b).
We affirm the Examiner’s rejection of claims 4, 5, 11, and 13 under
35 U.S.C. § 102(b).
We reverse the Examiner’s rejection of claims 3 and 25 under 35
U.S.C. § 103(a).
We affirm the Examiner’s rejection of claims 1, 6-10, 14-24 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. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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