Adobe Inc.Download PDFPatent Trials and Appeals BoardMay 27, 20212020005753 (P.T.A.B. May. 27, 2021) 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. 14/959,890 12/04/2015 Eunyee Koh AD01.P5677US 4791 111003 7590 05/27/2021 Adobe / Finch & Maloney PLLC 50 Commercial Street Manchester, NH 03101 EXAMINER DIVELBISS, MATTHEW H ART UNIT PAPER NUMBER 3624 NOTIFICATION DATE DELIVERY MODE 05/27/2021 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): docketing@finchmaloney.com nmaloney@finchmaloney.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte EUNYEE KOH and NEDIM LIPKA Appeal 2020-005753 Application 14/959,890 Technology Center 3600 Before BRADLEY W. BAUMEISTER, ERIC B. CHEN, and DAVID J. CUTITTA II, Administrative Patent Judges. Opinion for the Board filed by Administrative Patent Judge CUTITTA. Opinion Concurring filed by Administrative Patent Judge BAUMEISTER. CUTITTA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–14 and 17–22.2 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Adobe Inc. as the real party in interest. Appeal Brief filed March 26, 2020 (“Appeal Br.”) 3. 2 Appellant cancelled claims 15 and 16. Appeal Br. 29. Appeal 2020-005753 Application 14/959,890 2 CLAIMED SUBJECT MATTER Summary Appellant’s claimed subject matter relates to “characterizing consumer interactions that are observed by a cross-section of data providers, which may include, for example, website administrators, campaign managers, application developers, and the like.” Spec., Abstract.3 The observed consumer interaction data “includes device and login identifiers for a particular interaction.” Id. A statistical “model allows inferences to be drawn with respect to whether a given device is a private device, a shared device, or a public device. This, in turn, allows private devices which are ‘owned’ by a single consumer to be identified” and associated with that consumer. Id. Illustrative Claim Claims 1, 11, and 17 are independent. Claim 17, reproduced below with certain dispositive limitations at issue italicized, illustrates the claimed subject matter: 17. A device modeling system that comprises a memory device and a processor that is operatively coupled to the memory device, wherein the processor is configured to execute instructions stored in the memory device that, when executed cause the processor to carry out a device modeling process that comprises: 3 In addition to the above-noted Appeal Brief, throughout this Decision we refer to: (1) Appellant’s Specification filed December 4, 2017 (“Spec.”); (2) the Final Office Action (“Final Act.”) mailed October 21, 2019; (3) the Examiner’s Answer (“Ans.”) mailed July 31, 2019; and (4) the Reply Brief filed August 6, 2020 (“Reply Br.”). Appeal 2020-005753 Application 14/959,890 3 receiving, by the device modeling system, observational data from a plurality of data providers, wherein: the observational data characterizes a plurality of consumer authentication interactions between a plurality of consumers and the plurality of data providers, each of the consumer authentication interactions is characterized by a device identifier, a digital certificate, and a login identifier that are provided from one of the consumers to one of the data providers so that the consumer may access a resource provided by the data provider, the device identifier being associated with a corresponding device that the consumer uses to provide the login identifier to the data provider, and the observational data includes a plurality of device identifiers that are associated with a corresponding plurality of devices, each of the plurality of devices being associated with one or more of the plurality of consumer authentication interactions; generating, by a device modeling software module executable on the processor, a distribution of login identifiers observed as having been provided by the plurality of devices associated with the plurality of device identifiers included in the observational data received by the device modeling system; determining, by the device modeling software module, a first quantity of unique login identifiers observed by a first data provider as having been provided by the first device, wherein the first quantity is extracted from the generated distribution of login identifiers; defining a first node that corresponds to the first device; setting, by the device modeling software module, a Device- Type parameter for the first node based on the first quantity; and recording, in a data structure stored in the memory device, metadata characterizing the Device-Type parameter for the first device. Appeal Br. 30 (Claims Appendix). Appeal 2020-005753 Application 14/959,890 4 REFERENCES AND REJECTIONS The Examiner rejects claims 1, 2, 4–7, 9–12, 14, 17, 18, and 20–22 under 35 U.S.C. § 103 as obvious over the combined teachings of Rathod (US 2011/0208822 A1, published Aug. 25, 2011), Mahaffey et al. (US 2015/0163121 A1, published June 11, 2015) (“Mahaffey”), and Faith et al. (US 2017/0235786 A9, published Aug. 17, 2017) (“Faith”). Final Act. 2– 34. The Examiner rejects claims 3, 8, 13, and 19 under 35 U.S.C. § 103 as obvious over the combined teachings of Rathod, Mahaffey, Faith, and Muddu et al. (US 9,516,053 B1, issued Dec. 6, 2016) (“Muddu”). Id. at 34– 40. OPINION We review the appealed rejections for error based upon the issues identified by Appellant and in light of Appellant’s arguments and evidence. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). The Examiner finds that Rathod teaches or suggests “setting, by the device modeling software module, a Device-Type parameter for the first node based on the first quantity,” as recited in claim 17. Final Act. 4 (citing Rathod ¶ 251). In particular, the Examiner finds Rathod “teaches an initialization action is performed” and “this action is performed by a responder and a central server in communication with each other.” Id. The Examiner further finds the initialization “may include . . . specification of data for identifying or locating the responder, type or capabilities of the responder’s client device, and the like).” Id. Appeal 2020-005753 Application 14/959,890 5 Appellant agrees with the Examiner’s finding that Rathod “discloses an ‘initialization action.’” Appeal Br. 20. Appellant also does not dispute that the action “‘is performed by a responder and a central server.’” Id. Appellant argues, however, that the “Examiner has not explained how the ‘initialization action’ disclosed in Rathod ¶ [0251] is understood as being based on ‘a first quantity of unique login identifiers observed by a first data provider as having been provided by the first device,’” as required by claim 17. Id. According to Appellant, “[t]o the contrary, Rathod ¶ [0251] simply discloses that the initialization action may include ‘specification of data for identifying . . . type or capabilities of the responder’s client device.’” Id. In the Examiner’s Answer, the Examiner subsequently expands upon the factual findings underlying the rejection, by citing paragraph 129 of Rathod for the first time. In particular, the Examiner finds the newly cited paragraph of Rathod teaches that: [T]he active note(s) provider(s) or active resources & actions provider(s) to submit one or more public, private or shared domain or subject or purpose or categories specific profile(s) from the client device to the central server for storing, indexing and updating of said submitted profile(s) for matchmaking of active note(s) and/or active note(s) provider(s) with the active resources & actions providers and/or active resources & actions by the central server. Ans. 7 (citing Rathod ¶ 129). Appellant argues that Rathod’s “storing of information as private or shared is wholly unrelated to setting a Device-Type parameter for a particular node ‘that corresponds to [a] first device’” and therefore “none of the disparate portions of Rathod cited by the Examiner can be understood as Appeal 2020-005753 Application 14/959,890 6 disclosing ‘setting . . . a Device-Type parameter for [a] first node [that corresponds to the first device] based on the first quantity.’” Appeal Br. 18. Appellant’s arguments are persuasive. The first paragraph from Rathod relied on by the Examiner describes “an initialization . . . performed by a responder and a central server.” Rathod ¶ 251. In one embodiment, the action may include “specification of data for identifying or locating the responder, type or capabilities of the responder's client device.” Id. In finding Rathod’s initialization teaches setting a parameter, as claimed, we agree with Appellant that the Examiner has not sufficiently explained how the initialization action is based on “a first quantity of unique login identifiers observed by a first data provider as having been provided by the first device,” as required by claim 17. Appeal Br. 20. The second paragraph from Rathod relied on by the Examiner describes allowing providers to submit one or more public, private or shared domain specific profile(s) from a client device to the central server for matchmaking of active notes with active resources. Rathod ¶ 129. Appellant’s Specification, on the other hand, discloses that setting “a Device-Type parameter” for a node, as claimed, includes setting a parameter for the node that indicates that the device is a private, shared, or public device. Spec. ¶ 40. Here also, although the Examiner appears to find Rathod’s domain specific profile teaches setting a parameter as claimed, we agree with Appellant that the Examiner has not sufficiently explained how the profile is based on “a first quantity of unique login identifiers observed by a first data provider as having been provided by the first device,” as required by claim 17. Appeal 2020-005753 Application 14/959,890 7 Even though the Examiner additionally finds that “[t]hese citations teach that the system in Rathod teach[es] setting device parameters based upon the user device in addition to identifying the particular user,” the Examiner has not sufficiently explained how the cited paragraphs teach identifying the particular user, nor has the Examiner shown how identifying a user teaches that the device setting is based on “a first quantity of unique login identifiers observed by a first data provider as having been provided by the first device,” as required by claim 17. Ans. 7. Nor does the Examiner demonstrate that Mahaffey and Faith, alone or in combination, compensate for the argued deficiency of Rathod. Thus, given the current record, the Examiner has not demonstrated that the combination of Rathod, Mahaffey, and Faith teaches or suggests “setting, by the device modeling software module, a Device-Type parameter for the first node based on the first quantity,” as recited in claim 17. Because we agree with at least one of the dispositive arguments advanced by Appellant, we need not reach the merits of Appellant’s other arguments. We do not sustain the Examiner’s rejection of independent claim 17 under 35 U.S.C. § 103. For similar reasons, we do not sustain the Examiner’s rejection of independent claims 1 and 11, which recite limitations similar to those at issue in claim 17. In addition, we do not sustain the Examiner’s rejections of claims 2–6, 8–12, and 18–22, which depend directly or indirectly from claims 1, 7, 13, and 14. Appeal 2020-005753 Application 14/959,890 8 DECISION SUMMARY In summary: REVERSED Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4–7, 9–12, 14, 17, 18, 20–22 103 Rathod, Mahaffey, Faith 1, 2, 4–7, 9–12, 14, 17, 18, 20–22 3, 8, 13, 19 103 Rathod, Mahaffey, Faith, Muddu 3, 8, 13, 19 Overall Outcome 1–14, 17– 22 Appeal 2020-005753 Application 14/959,890 9 BAUMEISTER, Administrative Patent Judge, concurring. I agree with the Majority’s conclusions and reasoning in reversing the obviousness rejections. I write separately because I would exercise the Board’s discretionary authority under 37 C.F.R. § 41.50(b) and reinstate the withdrawn rejection of the claims under 35 U.S.C. § 101 for being directed to patent-ineligible subject matter without reciting significantly more. See Non-Final Action 2–6, mailed June 12, 2019. The Examiner’s conclusion regarding the lack of patent eligibility was correct at that time, and none of Appellant’s subsequent amendments warrant the withdrawal of the rejection. The Majority’s decision not to reinstate this rejection should not be interpreted as the Majority agreeing that the claims are directed to patent- eligible subject matter. Rather, the Majority merely chooses to limit its review to the questions raised on appeal. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (setting forth that the Board’s primary function is to review the appealed rejections for error based upon the issues identified by Appellant and in light of Appellant’s arguments and evidence). Copy with citationCopy as parenthetical citation