Ex Parte Bharat et al

Board of Patent Appeals and Interferences

Nov 23, 2010

10813586 (B.P.A.I. Nov. 23, 2010)

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.
10/813,586 03/31/2004 Krishna Bharat 0026-0067 4339
44989 7590 11/23/2010
HARRITY & HARRITY, LLP
11350 Random Hills Road
SUITE 600
FAIRFAX, VA 22030
EXAMINER
DANG, THANH HA T
ART UNIT PAPER NUMBER
2163
MAIL DATE DELIVERY MODE
11/23/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte KRISHNA BHARAT,
MICHAEL CURTISS, DUANE SCOTT HESS,
KERAH PELCZARSKI, and MARISSA MAYER
____________________

Appeal 2009-005642
Application 10/813,586
Technology Center 2100
____________________

Before: ST. JOHN COURTENAY III, DEBRA K. STEPHENS, and
JAMES R. HUGHES, Administrative Patent Judges.

STEPHENS, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-005642
Application 10/813,586

2
Appellants appeal under 35 U.S.C. § 134(a) (2002) from a final
rejection of claims 1, 4, 5, 7-12, 14-23, and 48-55. Claims 2, 3, 6, 13,
and 24-47 have been canceled. (App. Br. 2.) We have jurisdiction under
35 U.S.C. § 6(b) (2008).
We AFFIRM.

Introduction
According to Appellants, the invention is a system and method for
browsing aggregated historical content (Spec. 1).

STATEMENT OF CASE
Exemplary Claim(s)
Claim 1 is an exemplary claim and is reproduced below:
1. A method of plotting one or more sequences of news
articles with respect to time, comprising:

receiving one or more search queries, wherein data
comprising a time period is associated with at least one of the
one or more search queries;

executing the one or more search queries to search
content that was published within the time period;

receiving results of the one or more executed search
queries; and

providing a document that plots one or more sequences
of published news articles, with respect to time, corresponding
to the results of the one or more executed search queries,
wherein each of the news articles is depicted as at least one of a
dot, an icon, a color, or a character on the document and
wherein the dot, icon, color or character indicates that an
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associated news article is one of an original news article, a
duplicate news article, a breaking news article, an editorial, or a
news article from a preferred source.

Prior Art
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
de Vries
Herz
US 5,819,032
US 6,029,195
Oct. 6, 1998
Feb. 22, 2000
Landau US 2004/0027349 A1 Feb. 12, 2004

REJECTIONS
Claims 1, 4, 5, 7-12, 14, 17-19, 22, 23, 48, 49, and 52-54 stand
rejected under 35 U.S.C. § 102(e) as being anticipated by Landau (Ans. 3).
Claims 15, 16, 20, 50, and 51 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Landau and Herz (Ans. 11).
Claims 21 and 55 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Landau and de Vries (Ans. 14).

GROUPING OF CLAIMS

35 U.S.C. § 102(e) rejections

(1) Appellants argue claims 1, 4, 5, 7-9, 11, 12, 14, and 17-19, 23, 48,
49, and 52-54 based on the same arguments (App. Br. 7-10). We select
independent claim 1 as the representative claim and will treat claims 4, 5, 7-
9, 11, 12, 14, and 17-20, 23, 48, 49, and 52-54 as standing or falling
therewith.
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(2) Appellants argue claim 10 independently (App. Br. 10-12). We
will consider claim 10 separately.
(3) Appellants argue claim 22 independently (App. Br. 12-13).
Therefore, we will consider claim 22 separately.

35 U.S.C. § 103(a) rejections

(4) Appellants argue claims 15 and 50 based on the same arguments
(App. Br. 20-22). Therefore, we will consider claims 15 and 50 together.
(5) Appellants argue claim 16 and 51 based on the same arguments
(App. Br. 22-24). Therefore, we will consider claims 16 and 51 together.
(6) Appellants argue claim 20 independently (App. Br. 24). We will
address claim 20 separately.
(7) Appellants argue claims 21 and 55 based on the same arguments
(App. Br. 29-31). Therefore, we will consider claims 21 and 55 together.

We accept Appellants’ grouping of the claims. See 37 C.F.R.
§ 41.37(c)(1)(vii).
ISSUE 1
35 U.S.C. § 102(e): claims 1, 4, 5, 7-9, 11, 12, 14, 17-19,
23, 48, 49, and 52-54
Appellants argue their invention is not anticipated by Landau (App.
Br. 7-10) because Landau does not disclose or suggest providing a document
that plots one or more sequences of published news articles, with respect to
time, corresponding to the results of the one or more executed search
queries, wherein each of the news articles is depicted as at least one of a dot,
an icon, a color, or a character on the document (App. Br. 7-10). Appellants
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also argue Landau does not disclose or suggests that the point on the graph
on which a user clicks indicates whether the associated textual document is
one of an original news article, a duplicate news article, a breaking news
article, an editorial, or a news article from a preferred source (id.).
In response, the Examiner maintains that Landau discloses the news
articles are depicted by many elements (Ans. 15-16). Further, the Examiner
finds Landau illustrates a plot showing business event activity (the published
news article) (id.). Additionally, the Examiner contends the “or” condition
requires that only one of the elements be shown in the reference (Ans. 16-
17).

Issue 1: Has the Examiner erred in finding that Landau discloses
“providing a document that plots one or more sequences of published news
articles, with respect to time, corresponding to the results of the one or more
executed search queries, wherein each of the news articles is depicted as at
least one of a dot, an icon, a color, or a character on the document and
wherein the dot, icon, color or character indicates that an associated news
article is one of an original news article, a duplicate news article, a breaking
news article, an editorial, or a news article from a preferred source?”

ANALYSIS
Appellants’ arguments for patentability are that Landau does not
disclose that the dot, icon, color or character indicates what type of article an
associated news article is (App. Br. 7-10). However, we find Appellants’
arguments are predicted on non-functional descriptive material. In
particular, Appellants’ arguments urging patentability are directed to the
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content of a document (id.). The indication of the type of the “associated
news article” is not positively recited as affecting the function of the plotting
method and the claimed indicator is not functionally related to the recited
“providing a document” function (claims 1 and 48) or “providing a graph”
(claim 23). Instead, the recited indicator is directed toward the visual
aspects of the document.
The appearance or content of this nonfunctional descriptive material is
not entitled to weight in the patentability analysis. Such nonfunctional
descriptive material does not further limit the claimed invention either
functionally or structurally. Ex parte Nehls, 88 USPQ2d 1883, 1887-89
(BPAI 2008) (precedential) (discussing cases pertaining to non-functional
descriptive material); Ex parte Mathias, No. 2005-1851 (BPAI 2005), aff'd.
In re Mathias, 84 USPQ2d 1276 (BPAI 2005) (nonprecedential)(191 Fed.
Appx. 959 (Fed. Cir. 2006)); Ex parte Curry, 84 USPQ2d 1272 (BPAI
2005), (nonprecedential) (Fed. Cir. Appeal No. 2006-1003, aff’d Rule 36
June 12, 2006) (both cases treating data as nonfunctional descriptive
material).
Regarding the content of the claimed document, we note that an
original work of authorship fixed in a tangible medium of expression (e.g., a
document), being nonfunctional descriptive material, is properly accorded
protection under existing copyright laws. See 17 U.S.C. §§ 102(1), 102(5)
(“literary works” and “pictorial, graphic, and sculptural works”).
Since Appellants have not disputed the other limitations, Appellants
have not shown the Examiner erred in finding Landau anticipates the
invention as recited in claim 1 and commensurately recited in claims 23 and
48. Claims 4, 5, 7-9, 11, 12, 14, 17- 19, 49, and 52-54 depend from
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independent claims 1 and 48 and were not argued separately. Accordingly,
Appellants have not shown the Examiner erred in finding Landau discloses
the invention as recited in claims 1, 4, 5, 7-9, 11, 12, 14, 17- 19, 23, 48, 49,
and 52-54.

ISSUE 2
35 U.S.C. § 102(e): claim 10
Appellants argue their invention is not anticipated by Landau because
the reference does not disclose a multi-dimensional graph which comprises a
three-dimensional graph as recited in claim 10. (App. Br. 10-12).
ANALYSIS
As set forth above with respect to Issue 1, we consider the content of
the document to be non-functional descriptive material. Accordingly,
Appellants have not shown the Examiner erred in finding Landau describes
the invention as recited in claim 10.

ISSUE 3
35 U.S.C. § 102(e): claim 22
Appellants argue their invention is not anticipated by Landau because
Landau does not disclose fetching updates news content from a plurality of
news source servers (App. Br. 12-13).
In response, the Examiner maintains that Landau discloses the
application server 108 fetches time series from a quantitative data repository
106 (Ans. 18).

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Issue 3: Has the Examiner erred in finding that Landau discloses
fetching updated news content from a plurality of news source servers?

FINDINGS OF FACT (FF)
Landau
(1) An application server 108 fetches time series data from the
quantitative data repository 106 which can be a database or a connection to
a data source 110 (Fig. 2, step 204 and pg. 4, [0071]).

ANALYSIS
We begin our analysis by noting that the Court of Appeals for the
Federal Circuit has repeatedly emphasized “that an indefinite article ‘a’ or
‘an’ in patent parlance carries the meaning of ‘one or more’ in open-ended
claims containing the transitional phrase ‘comprising.’” KCJ Corp. v.
Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000) (citing Elkay
Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 977 (Fed. Cir. 1999); Abtox, Inc.
v. Exitron Corp., 122 F.3d 1019, 1023 (Fed. Cir. 1997); North Am. Vaccine,
Inc. v. American Cyanamid Co., 7 F.3d 1571, 1575-76, (Fed. Cir. 1993)).
This reasoning is applicable here. Therefore, the method of claim 22
“comprising fetching updated news content from a plurality of news source
servers” broadly reads on one or more news source servers. Accordingly,
we find no reversible error in the Examiner’s anticipation rejection of claim
22. (Ans. 9 and FF 1).
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ISSUE 4
35 U.S.C. § 103(a): claims 15 and 50
35 U.S.C. § 103(a): claims 16 and 51
Appellants assert their invention is not obvious over Landau and Herz
because the combination of references does not teach or suggest (i) a first
sequence of news articles is plotted as splitting into a plurality of second
sequences of news articles with relational indicators indicating that the
plurality of second sequences have split from the first sequence (App. Br.
20-22) and (ii) a plurality of first sequences of articles is plotted as
converging into a single second sequence of news articles with relational
indicators indicating that the first sequences of news articles have converged
into the second sequence (App. Br. 22-26). Specifically, Appellants contend
Herz discloses hierarchical clustering of target objects (App. Br. 22 and 27).
Appellants further contend that no motivation exists to combine
Landau and Herz as Landau is directed to correlating time-series data with
events derived from text mining and Herz is directed to customized
electronic identification of desirable objects (App. Br. 21-28). Moreover,
Appellants contend, that even if combined, the result would not be the
invention as recited (App. Br. 21, 22, 25, and 26).
The Examiner finds that Herz teaches plotted target objects (new
articles) and splitting the plotted target objects into two sets, each set
illustrated as a tree representation (Ans. 20, 21, 23, and 24). The Examiner
then finds each set of target objects cluster read on a sequence of news
articles having relational indicators limitation (Ans. 21-23). The relational
indicator is represented by a link of each target object in the cluster set, as
illustrated as a tree representation (id.). The Examiner indicates Herz
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suggests a skilled artisan would have been motivated to establish an
improved method for aggregating a collection of data that is relevant to a
user over a period of time (Ans. 12 and 25). The Examiner further finds
Landau and Herz are in the same field of data processing and more
specifically related to data query and structure, data representation, and
output data according to a user’s requirement (Ans. 25-26). Therefore, the
Examiner concludes combining the teachings of the two references would
have been obvious to establish an improved method for displaying a
collection of relevant data easily accessible to users (Ans. 26).
Issue 4: Has the Examiner erred in finding that (1) the combination of
Landau and Herz teaches the limitations recited in claims 15, 50, 16, and 51
and (2) one of ordinary skill in the art would have been motivated to
combine the techniques of Herz into the system of Landau?

ANALYSIS
As set forth above in Issue 1, we conclude the recitation of the content
and/or presentation of information in a document is nonfunctional
descriptive material. Claims 15 and 50 and claims 16 and 51 recite further
details of the content and presentation of the content of the document. Thus,
claims 15 and 50 and claims 16 and 51 also recite nonfunctional descriptive
material.
Since the additional limitations recited in these claims are not given
any patentable weight, we conclude the issue of whether one of ordinary
skill in the art would have been motivated to combine the techniques of Herz
into the system of Landau is moot. Accordingly, Appellants have not shown
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the Examiner erred in finding Landau and Herz teach or suggest the
limitations as recited in claims 15, 16, 50, and 51.

ISSUE 5
35 U.S.C. § 103(a): claim 20
Appellants argue claim 20 based on its dependence from claim 1
without presenting any additional evidence or arguments. Accordingly,
since previously we have found the Examiner’s rejection of claim 1 to be
without error, Appellants have not shown the Examiner erred in finding the
combination of Landau and Herz teaches or suggests the invention as recited
in claim 20.

ISSUE 6
35 U.S.C. § 103(a): claims 21 and 55
Appellants assert their invention is not obvious over Landau and de
Vries because the combination of references does not teach or suggest “the
document plots the most relevant sequences of the one or more sequences of
published news articles” (App. Br. 29-34). Specifically, Appellants contend
that de Vries teaches that the indicator points to the most recently published
news articles (App. Br. 29-30 and 32-33). Moreover, Appellants argue that
no motivation exists to combine Landau and de Vries as the Examiner’s
allegation is merely a conclusory statement (App. Br. 30 and 32).
Appellants further argue that the method of de Vries is not applicable to the
method of Landau since the Examiner has not explained how de Vries’
indicator moving along a time line, adding or removing graphical article
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boxes indicating publishing time can be incorporated into the system of
Landau (App. Br. 31-33).
The Examiner finds de Vries teaches published articles (news
articles) are distributed electronically over a network (i.e. internet)
(Ans. 26-27) in an indicator relating to distributed articles in Figure 5,
wherein the indicator is restricted to the most recent date, wherein the
indicator can be moved to reflect the most recent date in the time line
in column 8 lines 36-38, in which the restricted to the most recent date
of the indicator read on the most relevant of one sequence of
published news articles claimed limitation. Therefore, the Examiner
concludes, de Vries teaches the limitation of dependent claim 21 (Ans.
26-29).
The Examiner additionally finds that Landau and de Vries are
both directed toward data processing and more specifically, data
query, data representation, and data output according to a user’s
requirements (Ans. 28). Moreover, the Examiner concludes it would
have been obvious to combine the teachings to graphically display
articles using an indicator to demonstrate which article were most
relevantly published within the publishing period (Ans. 28).
Issue 6: Has the Examiner erred in concluding the combination of
Landau and Herz teaches that a document plots the most relevant sequences
of the one or more sequences of published news articles?

ANALYSIS
We conclude that claims 21 and 55 recite nonfunctional descriptive
material based on the reasoning set forth in Issue 1. Specifically, the
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limitations recite additional details regarding the document content and
presentation of the content. Therefore, Appellants have not shown the
Examiner erred in finding the combination of Landau and de Vries teaches
the invention as recited in claims 21 and 55.

CONCLUSION
Appellants have not shown the Examiner erred in finding claims 1,
23, and 48 are anticipated by Landau. Since claims 4, 5, 7-9, 11, 12, 14, 17-
19, 49, and 52-54 either depend from representative and independent claim 1
or claim 48 and were not argued separately, these claims fall with
representative claim 1. Accordingly, Appellants have not shown that the
Examiner erred in rejecting claims 1, 4, 5, 7-9, 11, 12, 14, and 17-19, 23, 48,
49, and 52-54 under 35 U.S.C. § 102(e) as being anticipated by Landau.
Appellants have not shown the Examiner erred in finding claim 10 is
anticipated by Landau. Accordingly, Appellants have not shown the
Examiner erred in rejecting claim 10 under 35 U.S.C. § 102(e) as being
anticipated by Landau.
Appellants have not shown the Examiner erred in finding claim 22 is
anticipated by Landau. Accordingly, Appellants have/have not shown the
Examiner erred in rejecting claim 22 under 35 U.S.C. § 102(e) as being
anticipated by Landau.
Appellants have not shown that the Examiner erred in concluding
claims 15, 16, 20, 50, and 51 are obvious over Landau and Herz.
Accordingly, Appellants have not shown the Examiner erred in rejecting
claim 15, 16, 20, 50, and 51 under 35 U.S.C. § 103(a) as being obvious over
Landau and Herz.
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Appellants have not shown the Examiner erred in concluding claims
21 and 55 are obvious over Landau and de Vries. Accordingly, Appellants
have not shown that the Examiner erred in rejecting claims 21 and 55 under
35 U.S.C. § 103(a) for obviousness over Landau and de Vries.

DECISION
The Examiner’s rejection of claims 1, 4, 5, 7-12, 14, 17-19, 22, 23,
48, 49, and 52-54 under 35 U.S.C. § 102(e) as being anticipated by Landau
is affirmed.
The Examiner’s rejection of claims 15, 16, 20, 50, and 51 under
35 U.S.C. § 103(a) as being obvious over Landau and Herz is affirmed.
The Examiner’s rejection of claims 21 and 55 under 35 U.S.C.
§ 103(a) as being obvious over Landau and de Vries is affirmed.
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) (2009).

AFFIRMED

Vsh

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