Ex Parte Bogdany et al

Patent Trial and Appeal Board

Feb 14, 2018

13425509 (P.T.A.B. Feb. 14, 2018)

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.
13/425,509 03/21/2012 Richard J. Bogdany END920120052US1 9243
79980 7590 02/16/2018
Keohane & D'Alessandro
1881 Western Avenue Suite 180
Albany, NY 12203
EXAMINER
ALGIBHAH, HAMZA N
ART UNIT PAPER NUMBER
2454
NOTIFICATION DATE DELIVERY MODE
02/16/2018 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):
drubbone @ kdiplaw. com
Docket @ Kdiplaw .com
lcronk @ kdiplaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD J. BOGDANY,
THOMAS B. HARRISON, BRIAN M. O’CONNELL,
and HERBERT D. PEARTHREE
Appeal 2017-008842
Application 13/425,509
Technology Center 2400
Before JUSTIN BUSCH, JOHN D. HAMANN, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner’s decision to reject claims 1—22, which constitute all the claims
pending in this application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
CLAIMED SUBJECT MATTER
Claims 1, 8, 15, and 22 are independent claims. Appellants’ invention
“relate[s] to the allocation of computing resources based on social
networking trends in a networked computing environment.” Spec. 17.
More specifically, the claims are directed to methods and systems for
determining a computing resource allocation protocol based on a comparison
Appeal 2017-008842
Application 13/425,509
of a baseline allocation based on historical use and a forecasted allocation
based on social media trend data. Spec. 110. Claim 1 is reproduced below:
1. A computer-implemented method for allocating
computing resources based on social networking trends in a
networked computing environment, comprising:
determining a baseline computing resource
allocation for the networked computing environment based
upon historical computing resource data stored in at least
one computer storage device;
receiving live publically available topic-based social
networking trend data that is external to the networked
computing environment and corresponds to usage of a set
of social networking websites that are unaffiliated with the
networked computing environment;
analyzing the social networking trend data as the
social networking trend data is being received to determine
a forecasted computing resource allocation for the
networked computing environment based on real-time
social networking trends found in the external social
networking trend data;
comparing the baseline computing resource
allocation to the forecasted computing resource allocation;
and
determining a computing resource allocation
protocol based on the comparing.
REJECTION
Claims 1—22 stand rejected under 35 U.S.C. § 103(a) as obvious in
view of Meier (US 2013/0159501 Al; June 20, 2013) and Andrews (US
2012/0316916 Al; Dec. 13,2012). Final Act. 2-5.
ANALYSIS
Claims 1—5, 7—12, 14—19, 21, and 22
The Examiner rejects all pending claims as obvious in view of Meier
and Andrews. Final Act. 2—5. Of particular note, the Examiner finds Meier
2
Appeal 2017-008842
Application 13/425,509
teaches or suggests “determining a computing resource allocation protocol
based on the comparing,” and Andrews teaches or suggests “analyzing the
social networking trend data as the social networking trend data is being
received to determine a forecasted computing resource allocation based on
real-time social networking trend data.” Final Act. 3 (citing Meier 125,
Abstract; Andrews H 41, 50-51, Figs. 1, 3, 4, Abstract); Ans. 8 (citing
Meier 124). The Examiner further finds it would have been obvious “to
incorporate Andrews[’] teachings into Meier as claimed because this would
have provided a way to quickly process information pertaining to current
events to enable informed decision making in light of the effect of current
events or related sentiment and in consideration of the effect.” Final Act. 4
(citing Andrews 13); Ans. 9.
Appellants contend neither Andrews nor Meier teaches or suggests
altering a computer resource allocation plan based on real-time social
networking trends, as recited in Appellants’ independent claims. App.
Br. 6—7; Reply Br. 1—2. Appellants argue Meier’s resource allocation
changes are based on current needs, not real-time social networking trends.
App. Br. 7. Additionally, although Appellants acknowledge that Andrews
teaches determining social media trends, Appellants assert Andrews does not
teach or suggest using the real-time social networking trends to forecast
future computer resource usage or modify a computer resource allocation
plan. App. Br. 7. Appellants further contend “there is no conceivable way
that” Andrews’ determination of social media trends could be a basis for
Meier’s computer resource allocation because Andrews “is completely
unrelated to the allocation of computer resources.” App. Br. 7; Reply Br. 2.
3
Appeal 2017-008842
Application 13/425,509
The Examiner reiterates that the rejection is based on a combination
of Meier and Andrews, wherein Meier is relied on for teaching changing a
computer resource allocation plan and Andrews is relied on for teaching
receiving and analyzing real-time social media network trends. Ans. 8—9
(citing Meier 124; Andrews 141).
Only those arguments actually made by Appellants have been
considered in this decision. Arguments Appellants did not make in the
Briefs have not been considered and are deemed to be waived. See
37 C.F.R. § 41.37(c)(l)(iv) (2014). We find Appellants’ arguments
unpersuasive of Examiner error. Where a rejection rests on a combination of
references, an appellant cannot establish nonobviousness by attacking the
references individually. See In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986). “[T]he test for combining references is not what the
individual references themselves suggest but rather what the combination of
disclosures taken as a whole would suggest to one of ordinary skill in the
art.” In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971); see In re
Keller, 642 F.2d413, 425 (CCPA 1981).
Here, as discussed above, the Examiner finds Meier teaches
determining a forecasted computer resource allocation and Andrews teaches
analyzing real-time social media network trends. Final Act. 3 (citing Meier
125, Abstract; Andrews Tflf 41, 50—51, Figs. 1, 3, 4, Abstract); Ans. 8 (citing
Meier 124). Accordingly, the Examiner relies on the combination of Meier
and Andrews as teaching or suggesting “analyzing the social networking
trend data as the social networking trend data is being received to determine
a forecasted computing resource allocation for the networked computing
environment based on real-time social networking trends found in the
4
Appeal 2017-008842
Application 13/425,509
external social networking trend data,” as recited in claim 1. Appellants’
arguments that Meier does not alter computer resource allocation based on
social networking trend data and Andrews does not use its social media
trend data to alter computer resource allocation are not persuasive because
they are merely attacks on the references individually, but the extant
rejection is based on the combined teachings of the references. See Merck,
800 F.2d at 1097.
Furthermore, the Examiner’s proposed combination involves using the
network trend data analyzed in Andrews to alter Meier’s resource allocation
protocol in order to “provide[] a way to quickly process information
pertaining to current events to enable informed decision making in light of
the effect of current events or related sentiment and in consideration of the
effect.” Final Act. 4 (citing Andrews 1 3); Andrews 13 (explaining that the
recently increasing prevalence of‘“social media,’ . . . [which] is more
interactive, instantaneous, and often leads to quicker response or reaction
times,” gives rise to the need to collect and use such data “to deliver value
added service to facilitate informed use of the data and predictive patterns
derived from such information”). An obviousness analysis “need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR Int 7 Co. v. Teleflex
Inc., 550 U.S. 398,418 (2007).
Appellants contend “there is no conceivable way that [Andrews’]
analysis could be used as a basis for allocating resources to the enterprise
computing system of Meier,” but offer no further explanation or evidence
supporting the contention. App. Br. 7; see In re Geisler, 116 F.3d 1465,
5
Appeal 2017-008842
Application 13/425,509
1470 (Fed. Cir. 1997) (mere attorney arguments and conclusory statements,
which are unsupported by factual evidence, are entitled to little probative
value). The Examiner’s rationale articulates a reason with a rational
underpinning for combining the identified disclosures in Meier and Andrews
and relies on an ordinarily skilled artisan’s knowledge and skill to
incorporate Andrews’ analysis of social media data into Meier’s computer
resource allocation protocol. Appellants’ conclusory statement that
Andrews’ analysis could not be used with Meier’s system, without more, is
insufficient to rebut the Examiner’s proffered rationale.
For the reasons discussed above, we sustain the Examiner’s rejection
of claims 1, 8, 15, and 22 under 35 U.S.C. § 103(a) as obvious in view of
Meier and Andrews. Appellants do not separately argue the patentability of
dependent claims 2—5, 7, 9—12, 14, 16—19, or 21 with particularity. Thus,
we also sustain the Examiner’s rejection of those claims as obvious in view
of Meier and Andrews.
Claims 6, 13, and 20
Appellants also argue the combination of Meier and Andrews fails to
teach or suggest “the analyzing comprising identifying a set of tags, which
are related to topics of impact to the networked computing environment, in
the social networking trend data to determine a level of social networking
activity,” as recited in claims 6, 13, and 20. App. Br. 8. In particular,
Appellants assert Andrews “teach[es], at best, determining how ‘green’ a
company is, but fail[s] to teach or suggest identifying social networking tags
that are related to topics of impact to an unaffiliated networked computing
environment,” and Meier does not cure the deficiency. Id.
6
Appeal 2017-008842
Application 13/425,509
Appellants, however, offer no explanation regarding why the elements
the Examiner points to are insufficient to teach or suggest the recited
limitation. Specifically, the Examiner finds Andrews teaches the recited
limitation. Final Act. 5 (citing Andrews 26, 41, 50-51, Abstract, Figs. 1,
3, 4); Ans. 11 (citing Andrews 1 52).
Of note, Andrews discloses obtaining social media content and pre­
processing the data to identify “embedded metadata or other descriptors . . .
and attribute relevance to one or more companies.” Andrews 1 65, Fig. 3
item 304; see also id. 51—52. For example, Andrews discloses
“identifying] content related to a particular company or sector or index
based on identifying field or marker in the document or in metadata” and
using “rich metadata, for example: company identifiers; topic codes . . . and
business sector and geographic classification codes” to aid in the analysis.
Id. 1 51 (emphases added). Andrews further discloses using the identified
information to determine “[h]ow many companies are tagged to” an item.
Id. 1 52. Given Andrews’ disclosures discussed above (i.e., identifying
entities using, for example, codes, company identifiers, and markers and
determining the number of companies identified as tagged to a particular
item), we agree with the Examiner that Andrews teaches or suggests the
limitation recited in claims 6, 13, and 20. Therefore, we sustain the
Examiner’s rejection of claims 6, 13, and 20 under 35 U.S.C. § 103(a) as
obvious in view of Meier and Andrews.
CONCEUSION
In reaching this decision, we consider all evidence presented and all
arguments Appellants actually made. For the reasons discussed above, we
7
Appeal 2017-008842
Application 13/425,509
sustain the Examiner’s rejection of claims 1—22 under 35 U.S.C. § 103(a) as
obvious in view of Meier and Andrews.
DECISION
We affirm the Examiner’s decision to reject claims 1—22.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
8