Ex Parte Abramovitch

Board of Patent Appeals and Interferences

Oct 5, 2009

10449651 (B.P.A.I. Oct. 5, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte DANIEL Y. ABRAMOVITCH
__________

Appeal 2008-004880
Application 10/449,651
Technology Center 2100
__________

Decided: October 5, 2009
__________

Before JOSEPH L. DIXON, THU A. DANG, and STEPHEN C. SIU,
Administrative Patent Judges.

SIU, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s rejections of claims 1-34. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
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Invention
The invention relates to systems and methods for providing a
standardized format for the representation of instrument data without
dependence upon the device-under-test, the instrument utilized to capture the
data, or the archival system used for data storage (Spec. ¶ [0006]).
Independent claim 29 is illustrative:
29. A method for processing instrument data, comprising:
obtaining instrument data from an instrument;
encoding said instrument data within a first meta-
language file;
translating said first meta-language file into a file format
of a post-processing application;
processing data in said translated file format utilizing
said post-processing application;
encoding said processed data into a second meta-
language file;
communicating data from said second meta-language file
to an instrument.
References
The Examiner relies upon the following references as evidence in
support of the rejections:
Stanley US 2002/0198858 A1 Dec. 26, 2002

XAAF, An XML-Based File Format for Archival Storage of
Analytical Instrument Data, XML Analytical Archive Format,
pp. 1-54 (Oct. 19, 2001) (“XAAF”).
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Rejections
Claims 1, 2, 4, 6-12, 15-17, 20, 21, 24-26, and 28 are rejected under
35 U.S.C. § 102(b) as being anticipated by XAAF.
Claims 3, 5, 13, 14, 18, 19, 22, 23, 27, and 29-34 are rejected under 35
U.S.C. § 103(a) as being unpatentable over XAAF and Stanley.
ISSUE 1
Appellant argues that the Examiner erred in finding that XAAF
teaches translation of a meta-language file into a file format of a selected one
of a plurality of post-processing applications (App. Br. 6). Appellant argues
that “CML [Chemical Markup Language] is no more than a subset of XML
[Extensible Markup Language]” (id.) and “nothing about archival storage
teaches post processing” (App. Br. 7).
Issue: Did Appellant demonstrate that the Examiner erred in finding
that XAAF teaches translation of a meta-language file into a file format of a
selected one of a plurality of post-processing applications?
ISSUE 2
Appellant argues that the Examiner erred in finding that XAAF
teaches “a software interface for obtaining instrument data from an
instrument, wherein said software interface encodes retrieved instrument
data in respective meta-language files” (App. Br. 8). Appellant argues that
“XAAF is wholly silent as to a software interface” (id.).
Issue: Did Appellant demonstrate that the Examiner erred in finding
that XAAF teaches a software interface for obtaining instrument data from
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an instrument, wherein said software interface encodes retrieved instrument
data in respective meta-language files?
ISSUE 3
Appellant argues that the Examiner erred in finding that XAAF
teaches “a parsing software module for parsing instrument data from meta-
language files” (App. Br. 8) and that the disclosure in XAAF of “how data
from an instrument may be arranged in a hierarchical structure . . . does not
describe [a] module that parses instrument data from . . . meta-language
files” (Reply. Br. 5).
Issue: Did Appellant demonstrate that the Examiner erred in finding
that XAAF teaches a parsing software module for parsing instrument data
from meta-language files?
ISSUE 4
Appellant argues that the Examiner erred in finding that XAAF
teaches “encoding [that] includes encoding an array of instrument data with
respective tags” (App. Br. 11). Appellant argues that “at the Examiner’s
citation XAAF merely describes assigning a unit value to a data element”
(id.) and that “assigning of a unit value is not the same as ‘encoding’” (id.).
Issue: Did Appellant demonstrate that the Examiner erred in finding
that XAAF teaches encoding that includes encoding an array of instrument
data with respective tags?
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ISSUE 5
Appellant argues that the Examiner erred in finding that XAAF
teaches “tags [that] are associated within [sic] attribute values [sic] that
defines the format of the data in [an] array” (App. Br. 11) because “the unit
values mentioned [at the Examiner’s XAAF citation], even if they could be
construed as the claimed ‘tags,’ are not associated with values that define the
data format” (id.).
Issue: Did Appellant demonstrate that the Examiner erred in finding
that XAAF teaches tags that are associated with an attribute value that
defines the format of the data in an array?
ISSUE 6
Appellant argues that the Examiner erred in finding that XAAF
teaches an “attribute value [that] is a default value defined in an item
selected from the list consisting of: a schema and a Document Type
Definition (DTD)” (App. Br. 12) because at “the Examiner’s citation XAAF
mentions ensuring that a document being read is properly formatted against
a particular schema” (id.).
Issue: Did Appellant demonstrate that the Examiner erred in finding
that XAAF teaches an attribute value that is a default value defined in an
item selected from the list consisting of: a schema and a Document Type
Definition (DTD)?
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ISSUE 7
Appellant argues that the Examiner erred in finding that XAAF
teaches a “format [that] defines . . . data in [an] array as being
mathematically complex values” (App. Br. 12). Appellant argues that “at
the Examiner’s citation XAAF is wholly silent as to mathematically
complex values” (id.).
Issue: Did Appellant demonstrate that the Examiner erred in finding
that XAAF teaches a format that defines data in an array as being
mathematically complex values?
ISSUE 8
Appellant argues that the Examiner erred in combining XAAF and
Stanley because “the motivation provided by the Examiner is improper, as
the motivation must establish the desirability for making the modification”
(App. Br. 13).
Issue: Did Appellant demonstrate that the Examiner erred in
combining XAAF and Stanley?
ISSUE 9
Appellant argues that the Examiner erred in finding that XAAF and
Stanley teach “communicating data from [a] second meta-language file to an
instrument” (App. Br. 14). Appellant argues that “at the Examiner’s
citation, Stanley merely discloses a direct instrument acquisition and control
interface [DIAC] which provides communication between the IOH
(Intelligent Object Handler) and IMO (Intelligent Molecular Object) and
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diverse instrumentation” (id.) and that “neither the IOH or IMO is a second
meta-language file” (id.). Appellant further argues that the cited disclosure
in Stanley “only describes the use of Java or XML with a GUI [Graphical
User Interface] or a user interface, [not with] the communication of data to
an instrument” (Reply Br. 7).
Issue: Did Appellant demonstrate that the Examiner erred in finding
that XAAF and Stanley teach communicating data from a second meta-
language file to an instrument?
ISSUE 10
Appellant argues that the Examiner erred in finding that XAAF and
Stanley teach a “software interface [that] retrieves data from . . . converted
meta-language files to be communicated to [an] instrument” (App. Br. 16)
because “Stanley merely describes a GUI utilizing a DIAC which provides
bi-directional communication between the IOH and instrumentation” (id.).
Appellant further argues that the cited disclosure in Stanley “only describes
the use of XML with a GUI or a user interface, [not with] the
communication of data to an instrument” (Reply Br. 9).
Issue: Did Appellant demonstrate that the Examiner erred in finding
that XAAF and Stanley teach a software interface that retrieves data from
converted meta-language files to be communicated to an instrument?
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FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
1. XAAF teaches that
if it is necessary to encapsulate additional information
within the data that cannot be described by the elements
and attributes in that schema, data can be included within
the same file, but use a different schema. This can also
be used for encapsulating analytical instrument data into
an XML document that is interpreted and validated using
a different schema.
. . . .
In addition, the proposed format can be
encapsulated into documents using other data types by
identifying the information as coming from a different
schema within the construct of the overall document.
(p. 27), with an example of Generalized Analytical Markup
Language (GAML) data embedding CML data and with an
example of GAML data embedded within another schema
comprising project, notebook, sample, and plate tags (id.).
2. XAAF teaches that CML, “an XML-based format for
chemical information,” “is currently used as a data interchange
mechanism by many mainstream business applications and has
been proposed to be a universal data interchange standard for
all types of data via networked applications” (p. 8).
3. XAAF teaches examples “from different types of
analytical instrumentation as it would be represented in the
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proposed format” (p. 22), including Chromatogram, LC-PDA
Spectra, GC/LC-MS and MSn Spectra (Centroided Scans), TGA
Analysis, Simple Optical and FTIR Spectroscopy (FTIR, UV-
Vis, NIR, Raman, etc.), 1D NMR Spectroscopy, nD NMR
Spectroscopy, and Imaging Spectroscopy (pp. 22-26).
4. XAAF discloses that
[t]he XML document model gives the ability to link to
other documents (many times on the publicly-accessible
web sites) that describe exactly what each piece of data
means and how it is related. These documents, called
Data Type Definitions or DTDs (now being replaced
with a newer technology called XML Schema), exactly
describe how the XML language is used to store a
particular type of information. With the appropriate
DTD or Schema, a software application can parse data
from any XML data structure . . . .
(p. 7).
5. XAAF discloses “[an] XML Schema Definition for the
Generalized Analytical Mark[up] Language data format
(GAML) [that] was developed according to the [May 2, 2001]
XML Schema definition language proposal” (p. 47).
6. XAAF teaches that “[t]he overall design of the format is
based on the fact that nearly any data collected from an
instrument can be represented as arrays of numbers” (p. 9), that
“[e]ach element is required to have a ‘units’ attribute
that describes the units of the abscissa values it encapsulates”
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(p. 13), and that “[t]he element stores the actual arrays
of data values” (p. 15).
7. XAAF teaches an “Enumerated Attribute List of Axis
Units” (pp. 29-30) that includes units such as Meters,
Kilometers, and Nanometers (id.).
8. XAAF teaches that the elements “have a
‘format’ attribute attached to them describing the binary
representation of the decoded data” (p. 15) where the formats
are either FLOAT32 for IEEE 32-bit floating point numbers or
FLOAT64 for IEEE 64-bit floating point numbers (id.).
9. XAAF teaches that
XML-based data formats require a “root element.” This
provides parsing applications with a definitive place to
start reading the encapsulated data. . . .
The root elements of XML documents in a specific
format have a number of standard attributes. In many
cases, there will be an “xmlns” attribute indicating the
XML namespace which tells parsers what Schema was
used to write the document.
(p. 11).
10. XAAF teaches storage of data that includes “real” and
“imaginary” components (p. 25).
11. XAAF teaches an “XML-based data format designed
specifically for archiving data from analytical instrumentation”
(p. 9).
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12. Stanley teaches “[a]n architecture for an information
technology platform using Intelligent Molecular Object
software . . . which addresses all steps of data processing from
data acquisition through diverse sources and instrumentation to
final output of diverse data analysis results” (Abstract).
13. Stanley teaches that the interfaces of the architecture may
include “a direct instrument acquisition and control interface
(DIAC), which provides bi-directional real-time
communication between the IOH, the IMO and diverse
instrumentation” (¶ [0119]).
PRINCIPLES OF LAW
Claim interpretation
“In the patentability context, claims are to be given their broadest
reasonable interpretations. . . . [L]imitations are not to be read into the
claims from the specification.” In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993) (citations omitted).
Anticipation
In rejecting claims under 35 U.S.C. § 102, “[a] single prior art
reference that discloses, either expressly or inherently, each limitation of a
claim invalidates that claim by anticipation.” Perricone v. Medicis Pharm.
Corp., 432 F.3d 1368, 1375 (Fed. Cir. 2005) (citation omitted).
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Obviousness
The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, and
(3) the level of skill in the art. Graham v. John Deere Co., 383 U.S. 1, 17-
18 (1966). One cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references.
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results,”
KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007), especially if the
combination would not be “uniquely challenging or difficult for one of
ordinary skill in the art,” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485
F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418).
ANALYSIS
Issue 1
We do not find persuasive Appellant’s argument that the Examiner
erred because “CML is no more than a subset of XML” (App. Br. 6). It does
not matter if this characterization is proper: the argument does not
distinguish the claimed invention from XAAF.
XAAF teaches the GAML, which is defined as an XML-based
language (FF 5). CML is a separate XML-based data interchange
mechanism format (FF 2). Appellant’s argument that “data can be
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represented in CML, which is a type of XML schema, without being
translated from an XML format” is not persuasive because encapsulation of
CML data within a GAML (meta-language) file translates it into a GAML-
with-CML data file (a file format of a selected one of a plurality of post-
processing applications) (FF 1). Furthermore, XAAF teaches embedding
GAML data within another, unnamed schema (translating a GAML file into
another file format) (FF 1).
Appellant’s argument that “nothing about archival storage teaches
post processing” (App. Br. 7) is not appurtenant to the claimed invention.
Appellant does claim post-processing, but merely translation of a meta-
language file into a file format of a post-processing application. Both
examples in XAAF show translations to file formats of post-processing
applications. CML is used as a data interchange mechanism by mainstream
business applications (FF 2) while the unnamed schema organizes project,
notebook, sample, and plate data (FF 1). These teachings of file formats of
post-processing applications are commensurate with Appellant’s recitations
of file formats of “applications [that] may perform desirable processing
[such as creating] appropriate visual presentations of the instrument data [or
performing] various mathematical transforms” (Spec. ¶ [0035]).
Appellant makes similar arguments for claims 12 (App. Br. 7-8), 21
(App. Br. 9-10), and 29 (App. Br. 14-15). Claim 21 recites “a plurality of
means for translating parsed instrument data into respective files for each of
a plurality of post-processing software applications.” We interpret this as a
plurality of “translator software program[s] [that] may parse an XML file
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according to the respective schema or DTD to generate a file adapted
according to [one of] a selected post-processing application[s]” (Spec.
¶ [0030]; App. Br. 4). With respect to this issue, Appellant has not
distinguished these claims from claim 1. Thus, claims 1, 12, 21, and 29
stand or fall together with respect to this issue.
For at least these reasons, we find that Appellant has not sustained the
requisite burden on appeal in providing arguments or evidence persuasive of
error in the Examiner’s 35 U.S.C. § 102(b) rejections of claims 1, 2, 4, 6-12,
15-17, 20, 21, 24-26, and 28 or in the Examiner’s 35 U.S.C. § 103(a)
rejections of claims 3, 5, 13, 14, 18, 19, 22, 23, 27, and 29-34 with respect to
this issue.
Issue 2
We find unpersuasive Appellant’s argument that “XAAF is wholly
silent as to a software interface” (App. Br. 8). XAAF teaches several
“different types of analytical instrumentation as it would be represented in
[GAML]” (FF 3). We find that this fits within a reasonable interpretation of
the broadly term “software interface.”
Appellant makes similar arguments for claim 21 (App. Br. 10), which
recites the limitation of “a plurality of interface means for obtaining
instrument data from a plurality of instruments.” We interpret these means
as “code in a variety of computer languages to enable the instrument data to
be obtained” or a stage that “obtains the data and encodes the data as an
XML file . . . according to an appropriate XML schema and/or document
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type description (DTD)” (Spec. ¶ [0029]-[0030]; App. Br. 4). With respect
to this issue, Appellant has not distinguished claim 21 from claim 12. Thus,
we find Appellant’s arguments unpersuasive of error with respect to claims
12 and 21 which stand or fall together with respect to this issue.
For at least these reasons, we find that Appellant has not sustained the
requisite burden on appeal in providing arguments or evidence persuasive of
error in the Examiner’s 35 U.S.C. § 102(b) rejections of claims 12, 15-17,
20, 21, 24-26, and 28 or in the Examiner’s 35 U.S.C. § 103(a) rejections of
claims 13, 14, 18, 19, 22, 23, and 27 with respect to this issue.
Issue 3
We are not persuaded by Appellant’s efforts to show that XAAF does
not describe a module that parses instrument data from meta-language files
(App. Br. 8-9). XAAF teaches that DTDs or XML Schemas “exactly
describe how the XML language is used to store a particular type of
information” (FF 4). An XML Schema goes beyond merely showing “how
data from an instrument may be arranged in a hierarchical structure” (Reply
Br. 5). This level of precision enables parsing of the data described.
XAAF discloses an XML Schema for parsing GAML (FF 5). It
follows that this XML Schema exactly describes how XML is used to store
GAML data. Thus, XAAF teaches a parsing software module (the XML
Schema) for parsing (by exactly describing) instrument data from meta-
language files (GAML-encoded data).
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Appellant makes similar arguments for claim 21 (App. Br. 10-11),
which recites the limitation of “means for parsing encapsulated instrument
data from meta-language files.” We interpret these means to include “a
suitable XML schema or DTD to define tags that represent instrument data
in [a] manner that facilitates parsing of the instrument data from associated
XML files” (Spec. ¶ [0023]; App. Br. 4). With respect to this issue,
Appellant has not distinguished claim 21 from claim 12. Thus, we find
Appellant’s arguments unpersuasive of error with respect to claims 12 and
21 which stand or fall together with respect to this issue.
For at least these reasons, we find that Appellant has not sustained the
requisite burden on appeal in providing arguments or evidence persuasive of
error in the Examiner’s 35 U.S.C. § 102(b) rejections of claims 12, 15-17,
20, 21, 24-26, and 28 or in the Examiner’s 35 U.S.C. § 103(a) rejections of
claims 13, 14, 18, 19, 22, 23, and 27 with respect to this issue.
Issue 4
Appellant argues that “at the Examiner’s citation XAAF merely
describes assigning a unit value to a data element” (App. Br. 11) and that
“assigning of a unit value is not the same as ‘encoding’” (id.), thus showing
that XAAF does not teach encoding that includes encoding an array of
instrument data with respective tags (id.). Yet, the Examiner’s citation on
page 13 specifically discusses the use of elements (respective tags)
to encapsulate (encoding) of values (an array of instrument data) (FF 6).
Moreover, XAAF teaches that its overall design “is based on the fact that
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nearly any data collected from an instrument can be represented as arrays of
numbers” (FF 6) and that “ element[s] store[] the actual arrays of
data values” (FF 6).
Appellant makes similar arguments for claim 8 (App. Br. 11-12), but
Appellant does not distinguish claims 7 and 8 with respect to this issue.
Thus, claims 7 and 8 stand or fall together with respect to this issue.
For at least these reasons, we find that Appellant has not sustained the
requisite burden on appeal in providing arguments or evidence persuasive of
error in the Examiner’s 35 U.S.C. § 102(b) rejections of claims 7-11 with
respect to this issue.
Issue 5
Appellant argues that the unit values (mentioned at the Examiner’s
XAAF citation) are not associated with values that define the data format
(App. Br. 11). We do not find this persuasive.
The Examiner’s citation teaches that each element is
required to have a units attribute (FF 6). A varied list of units is given,
including multiple units of length (FF 7). A value of one meter can be
encoded in multiple ways, depending on the unit used (e.g., “1 meter,”
“0.001 kilometer,” “1,000,000,000 nanometers”). Thus, the units attribute
describes how the data values are encoded. Furthermore, XAAF teaches that
elements have a format attribute that specifies whether the values
are stored as IEEE 32-bit floating point numbers or as IEEE 64-bit floating
point numbers (FF 8).
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For at least these reasons, we find that Appellant has not sustained the
requisite burden on appeal in providing arguments or evidence persuasive of
error in the Examiner’s 35 U.S.C. § 102(b) rejections of claims 8-11 with
respect to this issue.
Issue 6
Appellant argues that XAAF’s teaching that “ensuring that a
document being read is properly formatted against a particular schema”
(App. Br. 12) does not show that XAAF teaches “an attribute value [that is a
default value] defined in an item selected from the list of a schema and
DTD” (id.). The Examiner contends that this “disclosure explains that . . .
elements of any XML document will have at least one standard or default
attribute” (Ans. 16-17). But Appellant does not show any specific error in
the Examiner’s reasoning, offering conclusory statements instead (App. Br.
12; Reply Br. 6).
XAAF teaches that “XML-based data formats require a ‘root
element’” where the “root elements of XML documents in a specific format
have a number of standard attributes” (FF 9). XAAF also teaches a schema
for GAML (FF 5). Thus, we agree with the Examiner that XAAF teaches an
attribute value that is a default value (one of the number of standard
attributes) defined in an item selected from the list consisting of: a schema
and a Document Type Definition (DTD) (the GAML schema).
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Appellant makes similar arguments for claim 32 (App. Br. 15), but
Appellant does not distinguish claims 9 and 32 with respect to this issue.
Thus, claims 9 and 32 stand or fall together with respect to this issue.
For at least these reasons, we find that Appellant has not sustained the
requisite burden on appeal in providing arguments or evidence persuasive of
error in the Examiner’s 35 U.S.C. § 102(b) rejection of claims 9 or in the
Examiner’s 35 U.S.C. § 103(a) rejection of claim 32 with respect to this
issue.
Issue 7
We find unpersuasive Appellant’s argument that “at the Examiner’s
citation XAAF is wholly silent as to mathematically complex values” (App.
Br. 12). The term “mathematically complex values” can mean values that
have both real and imaginary components (Spec. ¶ [0025]). The term can
also mean values that are complicated, such as a complex set of calibration
parameters (Ans. 17). To adopt Appellant’s position, we would need to
inappropriately read limitations from the specification into the claim.
Even if we interpreted “mathematically complex values” as being
limited to values with both real and imaginary components, Appellant’s
arguments would be unpersuasive. XAAF provides multiple examples of
storage of data with both real and imaginary components (FF 10).
Appellant makes similar arguments for claims 16, 17, 25, 26, and 33
(App. Br. 12, 15-16), but Appellant does not distinguish these from claim 10
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with respect to this issue. Thus, claims 10, 16, 17, 25, 26, and 33 stand or
fall together with respect to this issue.
For at least these reasons, we find that Appellant has not sustained the
requisite burden on appeal in providing arguments or evidence persuasive of
error in the Examiner’s 35 U.S.C. § 102(b) rejections of claims 10, 16, 17,
25, and 26 or in the Examiner’s 35 U.S.C. § 103(a) rejection of claim 33
with respect to this issue.
Issue 8
Appellant argues that the Examiner erred in combining XAAF and
Stanley because the Examiner’s proffered motivation was improper and
relied on circular reasoning (App. Br. 13). Yet, the teachings of XAAF and
Stanley are complementary. XAAF teaches an XML-based data format
designed specifically for archiving data from analytical instrumentation
(FF 11) while Stanley provides an architecture that addresses all steps of
data processing from data acquisition through diverse sources and
instrumentation to final output of diverse data analysis results (FF 12). It
would have been obvious to one of ordinary skill in the art to implement an
architecture that includes data acquisition, as taught by Stanley, to seek out
examples, such as XAAF, of known data formats for archiving acquired
data.
For at least these reasons, we find that Appellant has not sustained the
requisite burden on appeal in providing arguments or evidence persuasive of
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error in the Examiner’s 35 U.S.C. § 103(a) rejections of claims 3, 5, 13, 14,
18, 19, 22, 23, 27, and 29-34 with respect to this issue.
Issue 9
We are not persuaded by Appellant’s efforts to show that XAAF and
Stanley do not teach “communicating data from [a] second meta-language
file to an instrument” (App. Br. 14). Appellant argues that “neither the IOH
[n]or the IMO is a second meta-language file” (id.), but this fails to address
the Examiner’s finding that the “IMO data [which is communicated to the
diverse instrumentation] is analogous to the claimed data” (Ans. 19)
(emphasis added). It is immaterial whether “IMO is a software platform”
(App. Br. 14) when it is the communication of that software platform’s data
that is at issue. Stanley teaches bi-directional real-time communication
between the IMO and diverse instrumentation (FF 13), therefore Stanley
teaches that the data of the IMO is communicated to the diverse
instrumentation.
Appellant further argues that Stanley “only describes the use of Java
or XML with a GUI or a user interface, [not with] the communication of
data to an instrument” (Reply Br. 7). However, Appellant cannot show
nonobviousness by attacking Stanley individually when the rejections are
based on the combination of XAAF and Stanley. See In re Merck & Co.,
Inc., 800 F.2d at 1097. Appellant has not shown that it would be uniquely
challenging or difficult for one of ordinary skill in the art to combine Stanley
(for communicating data to an instrument) with XAAF (where the data is a
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second meta-language file). See Leapfrog Enters., Inc. v. Fisher-Prince,
Inc., 485 F.3d at 1162.
For at least these reasons, we find that Appellant has not sustained the
requisite burden on appeal in providing arguments or evidence persuasive of
error in the Examiner’s 35 U.S.C. § 103(a) rejections of claims 29-34 with
respect to this issue.
Issue 10
Appellant argues that Stanley “only describes the use of XML with a
GUI or a user interface, [not with] the communication of data to an
instrument” (Reply Br. 9). However, Appellant cannot show
nonobviousness by attacking Stanley individually when the rejection is
based on the combination of XAAF and Stanley. See In re Merck & Co.,
Inc., 800 F.2d at 1097. Stanley teaches a software interface that
communicates data to an instrument (FF 13). XAAF teaches converted
meta-language files (FF 1).
For at least these reasons, we find that Appellant has not sustained the
requisite burden on appeal in providing arguments or evidence persuasive of
error in the Examiner’s 35 U.S.C. § 103(a) rejection of claim 19 with respect
to this issue.
CONCLUSIONS OF LAW
Based on the findings of facts and analysis above, we conclude that
Appellant has not demonstrated:
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1. that the Examiner erred in finding that XAAF teaches translation
of a meta-language file into a file format of a selected one of a plurality of
post-processing applications (Issue 1);
2. that the Examiner erred in finding that XAAF teaches a software
interface for obtaining instrument data from an instrument, wherein said
software interface encodes retrieved instrument data in respective meta-
language files (Issue 2);
3. that the Examiner erred in finding that XAAF teaches a parsing
software module for parsing instrument data from meta-language files
(Issue 3);
4. that the Examiner erred in finding that XAAF teaches encoding
that includes encoding an array of instrument data with respective tags
(Issue 4);
5. that the Examiner erred in finding that XAAF teaches tags that
are associated with an attribute value that defines the format of the data in an
array (Issue 5);
6. that the Examiner erred in finding that XAAF teaches an attribute
value that is a default value defined in an item selected from the list
consisting of: a schema and a Document Type Definition (DTD) (Issue 6);
7. that the Examiner erred in finding that XAAF teaches a format
that defines data in an array as being mathematically complex values
(Issue 7);
8. that the Examiner erred in combining XAAF and Stanley
(Issue 8);
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9. that the Examiner erred in finding that XAAF and Stanley teach
communicating data from a second meta-language file to an instrument
(Issue 9); and
10. that the Examiner erred in finding that XAAF and Stanley teach a
software interface that retrieves data from converted meta-language files to
be communicated to an instrument (Issue 10).
DECISION
We affirm the Examiner’s decisions rejecting claims 1, 2, 4, 6-12, 15-
17, 20, 21, 24-26, and 28 under 35 U.S.C. § 102(b) and claims 3, 5, 13, 14,
18, 19, 22, 23, 27, and 29-34 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

msc

AGILENT TECHNOLOGIES INC.
INTELLECTUAL PROPERTY ADMINISTRATION, LEGAL DEPT.
MS BLDG. E
P.O. BOX 7599
LOVELAND, CO 80537