Kirk J. KraussDownload PDFPatent Trials and Appeals BoardOct 24, 201915081458 - (D) (P.T.A.B. Oct. 24, 2019) Copy Citation 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. 15/081,458 03/25/2016 Kirk J. Krauss SVL920130055US4/ IBMP094C3 2968 63056 7590 10/24/2019 MOLLBORN PATENTS, INC. 2840 COLBY DRIVE BOULDER, CO 80305 EXAMINER KHOSHNOODI, FARIBORZ ART UNIT PAPER NUMBER 2157 NOTIFICATION DATE DELIVERY MODE 10/24/2019 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): MOLLBORN@MOLLBORN.COM admin@mollborn.com eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KIRK J. KRAUSS Appeal 2018-007151 Application 15/081,458 Technology Center 2100 Before MARC S. HOFF, BETH Z. SHAW, and MATTHEW J. McNEILL, Administrative Patent Judges. SHAW, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant,1 International Business Machines Corporation, appeals from the Examiner’s decision to reject claims 1–3, 6, and 7. Final Act. 1. Claims 1–8 are currently pending. Id. Claims 4, 5, and 8 are objected to. Id. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. RELATED APPEALS 1 We use the word “Appellant” to refer to “Applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as International Business Machines Corporation Inc. Appeal Br. 1. Appeal 2018-007151 Application 15/081,458 2 This appeal relates to Appeal No. 2018-006995, Application No. 15/081,438. That appeal “contains computer program product claims and system claims corresponding to the claims of the present application.” Appeal Br. 2. CLAIMED SUBJECT MATTER The claims are directed to scoring relationships between entities based on proximity in space and time. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A computer program product for determining a relationship score between a first physical entity and a second physical entity, the computer program product comprising a computer readable storage medium having program code embodied therewith, the program code executable by a processor to: generate, by the processor, a first computer-readable representation of a first spatial region containing the first physical entity; generate, by the processor, a second computer-readable representation of a second spatial region containing the second physical entity; compare, by the processor, the first computer-readable representation and the second computer-readable representation at decreasing spatial resolutions until a matching condition is reached; and assign, by the processor, a relationship score to one or more of the first physical entity and the second physical entity based on the resolution at which the matching condition is reached. REFERENCES The prior art relied upon by the Examiner is: Bell Fireman US 5,422,989 US 2009/0099862 A1 June 6, 1995 Apr. 16, 2009 Appeal 2018-007151 Application 15/081,458 3 Adair Guntur Simms US 2010/0161566 A1 US 8,346,020 B2 US 2014/0280318 A1 June 24, 2010 Jan. 1, 2013 Sept. 18, 2014 REJECTIONS Claims 1, 2, and 6 are rejected under 35 U.S.C. § 103 as being unpatentable over Adair, Guntur, and Bell. Final Act. 3. Claim 3 is rejected under 35 U.S.C. § 103 as being unpatentable over Adair, Bell, and Fireman. Final Act. 7. Claim 7 is rejected under 35 U.S.C. § 103 as being unpatentable over Adair, Guntur, Bell, and Simms. Final Act. 8. OPINION Claim 1 Appellant argues that Adair is not directed to “determining a relationship score between a first physical entity and a second physical entity.” App. Br. 10–11. The Examiner finds, however, and we agree, that Adair teaches this limitation because Adair teaches determining a “likeness score” between a respective entity in the set of candidate entities and each entity in the plurality of entities not included in the set of candidate entities. Ans. 4 (citing Adair ¶ 7). To the extent Appellant argues the “relationship score” is based on other factors recited in the claim that Adair allegedly does not teach, such as “comparing two candidates at decreasing resolutions” (App. Br. 11–12; Reply Br. 2), we are not persuaded because the Examiner relied on Bell, not Adair alone, to teach the decreasing spatial resolutions. Ans. 5–6. Therefore, Appellant’s arguments do not show nonobviousness Appeal 2018-007151 Application 15/081,458 4 where, as here, the rejection is based on the cited references’ collective teachings. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). To the extent Appellant argues Bell does not teach comparison of images at decreasing spatial resolutions (Appeal Br. 14; Reply Br. 3), we disagree, and we agree with and adopt the Examiner’s findings. The Examiner relied on Bell to show decreasing spatial resolutions of images to a prescribed base resolution, until matching is reached. Final Act. 5; Ans. 5– 6 (citing Bell, 11:52–63, 5:60–67, 6:1–4). We agree with the Examiner’s findings that the combination of Adair and Bell therefore teaches “compare, by the processor, the first computer-readable representation and the second computer-readable representation at decreasing spatial resolutions unit a matching condition is reached,” as recited in claims 1 and 9. Ans. 8–9 (citing Bell, 11:52–63, 5:60–67, 6:1–4). Appellant also argues, without further explanation, that Gunter’s “CAD views cannot reasonably be construed as spatial regions containing first and second physical entities, as claimed.” App. Br. 13; Reply Br. 3. We are not persuaded by this argument because mere lawyer’s 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) (“An assertion of what seems to follow from common experience is just attorney argument and not the kind of factual evidence that is required to rebut a prima facie case of obviousness.”); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). We see no error in the Examiner’s finding that Guntur teaches a system that generates a first 3D model of an object (first spatial region) (Gunter 31:54–57) and a second model of the object (second spatial region) (Gunter 31:66–67). Ans. 7–8. Appeal 2018-007151 Application 15/081,458 5 To the extent Appellant generally argues that the combination of Adair and Gunter would not “work together” (App. Br. 13), we are similarly unpersuaded. Not only is this contention unsubstantiated by any persuasive evidence on this record, it is well settled that “a determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (citations omitted). Nor is the test for obviousness whether a secondary reference’s features can be bodily incorporated into the structure of the primary reference. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. Id. When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. . . . [I]f a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Accordingly, we sustain the Examiner’s rejection of claim 1. Dependent Claim 2 Appellant argues that Adair’s likeness score is not a “matching condition” and is not used for determining when to stop comparing two computer readable representations, as claimed. App. Br. 15. We are not persuaded by this argument. We agree with the Examiner’s finding that Adair teaches exact matching, which is one of the “one or more” conditions recited in dependent claim 2. Ans. 11 (citing Adair ¶ 35 (“100 percent Appeal 2018-007151 Application 15/081,458 6 likeness score”)). Accordingly, for this reason and for the reasons discussed above with respect to claim 1, we sustain the Examiner’s rejection of dependent claim 2. Dependent Claim 3 Appellant argues that Fireman’s “tracking time . . . cannot reasonably be considered to be equivalent to taking into account a temporal proximity when determining a relationship score between two physical entities, as claimed.” App. Br. 16. We disagree. As the Examiner explains, Fireman was introduced to teach “a temporal proximity between the first entity and the second entity when assigning the relationship score.” Final Act. 7 (citing Fireman ¶ 38). We agree with the Examiner that Fireman’s teaching of “a proximity between at least two of the plurality of entities” and “a temporal extent of the proximity” (Fireman ¶ 38) teaches the disputed limitation. Accordingly, we sustain the Examiner’s rejection of dependent claim 3. Dependent Claim 6 Appellant argues: “A word search in Adair shows that the phrase ‘bit vector’ does not exist anywhere in Adair. Further, the cited lines of Guntur read ‘generating a final 3D model of the object in the 3D global physical view using the first and second 3D models.’.” App. Br. 16. The Examiner explains in the Answer how Gunter teaches the disputed limitations of claim 6. Ans. 12–13 (citing Gunter 16:1–3; 8:7–23). Appellant does not address column 8, lines 7–23 of Gunter. Absent persuasive rebuttal or technical reasoning to the contrary, we agree with the Appeal 2018-007151 Application 15/081,458 7 Examiner’s findings. Accordingly, we sustain the Examiner’s rejection of dependent claim 6. Dependent Claim 7 Merely reciting the language of the claims and asserting that the cited prior art reference does not teach or suggest each claim limitation is insufficient. See 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.”); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Because Appellant reiterates the same argument for dependent claim 7 as presented for claim 1, we sustain the Examiner’s rejection of dependent claim 7. DECISION The Examiner’s rejections are affirmed. SUMMARY In summary: Claims Rejected Basis Affirmed Reversed # 1, 2, 6 § 103 # 1, 2, 6 # 3 § 103 # 3 # 7 § 103 # 7 Appeal 2018-007151 Application 15/081,458 8 FINALITY AND 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation