Ex Parte Curtiss et al

Patent Trials and Appeals Board

Jul 18, 2018

13775507 - (D) (P.T.A.B. Jul. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/775,507 02/25/2013 Michael Curtiss 91230 7590 07/20/2018 Baker Botts L.L.P./Facebook Inc. 2001 ROSS A VENUE SUITE 900 Dallas, TX 75201 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 079894.1594 8570 EXAMINER CHEUNG, HUBERT G ART UNIT PAPER NUMBER 2157 NOTIFICATION DATE DELIVERY MODE 07/20/2018 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): ptomaill@bakerbotts.com ptomail2@bakerbotts.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL CURTISS and TUDOR BOSMAN Appeal2017-002447 Application 13/775,507 1 Technology Center 2100 Before MICHAEL R. ZECHER, JASON J. CHUNG, and MICHAEL J. ENGLE, Administrative Patent Judges. CHUNG, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the Examiner's Final Rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. INVENTION The invention is directed to using a search query to search for data objects in a data set. Spec. ,r 3. Claims 1 and 11 are illustrative of the invention and are reproduced below: 1. A method comprising: by one or more computing devices, receiving a search query; 1 According to Appellants, Facebook, Inc. is the real party in interest. App. Br. 3. Appeal2017-002447 Application 13/775,507 by one or more computing devices, identifying a set of data objects to search based on the search query; and by one or more computing devices, executing an operation evaluating the search query on a first subset of the set of data objects, comprising: stepping through the set of data objects with a step size of N; determining, at each step, whether the data object at that step is responsive to the search query; counting the number of data objects that are determined to be responsive to the search query; and if the end of the set is reached after X or more data objects are determined to be responsive to the search query and before Y data objects are determined to be responsive to the search query: then multiplying the count of the data objects determined to be responsive to the search query by N and providing the result as an estimate of a number of data objects in the set that are responsive to the query; else modifying N and re-executing the operation on a second subset of the set of data objects. App. Br. 16 (Claims Appendix). 11. A method comprising: by one or more computing devices, receiving a search query; by one or more computing devices, identifying a set of data objects to search based on the search query; and by one or more computing devices, executing an operation evaluating the search query on a subset of the set of data objects, compnsmg: stepping through the set of data objects with a step size of N; determining, at each step, whether the data object at that step is responsive to the search query; counting the number of data objects that are determined to be responsive to the search query; and 2 Appeal2017-002447 Application 13/775,507 if the end of the set is reached after X or more data objects are determined to be responsive to the search query and before Y data objects are determined to be responsive to the search query: then providing as a search-result sample the data objects determined to be responsive to the query or links to the data objects determined to be responsive to the query; else modifying N and re-executing the operation on a second subset of the set of data objects. Id. at 17-18 (Claims Appendix). REJECTIONS AT ISSUE Claims 1, 2, 4, 5, 8-12, 14, 15, and 18-20 stand rejected under 35 U.S.C. § I03(a) as being unpatentable over the combination of Harangsri (Query Result Size Estimation Techniques in Database Systems, submitted Dissertation, 1-297 (1998)) (hereinafter "Harangsri") and Chaudhuri et al. (US 2005/0222965 Al; published Oct. 6, 2005) (hereinafter "Chaudhuri"). Final Act. 4--12. Claims 3, 7, 13, and 17 stand rejected under 35 U.S.C. § I03(a) as being unpatentable over the combination of Harangsri, Chaudhuri, and Han et al. (US 2007/0216905 Al; published Sept. 20, 2007) (hereinafter "Han"). Final Act. 12-13. Claims 6 and 16 stand rejected under 35 U.S.C. § I03(a) as being unpatentable over the combination of Harangsri, Chaudhuri, and Fisse (US 2009/0018915 Al; published Jan. 15, 2009). Final Act. 13-14. 3 Appeal2017-002447 Application 13/775,507 ANALYSIS A. Claim Construction Claim construction is an issue of law that is left for a court or a tribunal. "[W]hen the district court reviews only evidence intrinsic to the patent ( the patent claims and specifications, along with the patent's prosecution history), the judge's determination will amount solely to a determination of law." Teva Pharms. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015). "[T]he ultimate issue of the proper construction of a claim should be treated as a question of law." Id. at 838. We construe claim terms according to their broadest reasonable construction in light of the specification of the patent or application in which they appear. In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004). Consistent with the broadest reasonable construction, claim terms are generally given their ordinary and customary meaning, as understood by a person of ordinary skill in the art, in the context of the entire specification. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Also, we must be careful not to read a particular embodiment appearing in the written description into the claim if the claim language is broader than the embodiment. See In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) ("[L ]imitations are not to be read into the claims from the specification."). However, a term may be defined in the specification with reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). 1. Claim 1 Claim 1, a method claim, recites several limitations stated in conditional language. In particular, claim 1 recites: 4 Appeal2017-002447 Application 13/775,507 if the end of the set is reached after X or more data objects are determined to be responsive to the search query and before Y data objects are determined to be responsive to the search query: then multiplying the count of the data objects determined to be responsive to the search query by N and providing the result as an estimate of a number of data objects in the set that are responsive to the query. App. Br. 16 (Claims Appendix) (hereinafter "if A, then perform step X limitation of claim 1 "). Moreover, claim 1 also recites "else modifying N and re-executing the operation on a second subset of the set of data objects" (hereinafter "if not A, then perform step Y limitation of claim 1 "). Claim 1 in the present case is similar to claim 1 in Ex parte Schulhauser, No. 2013-007847, 2016 WL 6277792 (PTAB Apr. 28, 2016) (precedential). In Schulhauser, the Board held that in method claim 1, only one of the following conditional limitations needed to be satisfied in the prior art to render the claim anticipated or obvious: (1) "triggering an alarm state if the electro cardiac signal data is not within the threshold electrocardiac criteria" and (2) "determining the current activity level of the subject from the activity level data if the electrocardiac signal data is within the threshold electrocardiac criteria." Id. at *3-5. To paraphrase, in Schulhauser, illustrative method claim 1 recited if A, then perform step X; if not A, then perform step Y. Id. We, therefore, conclude that it is appropriate to apply Schulhauser to the present case because: (1) claim 1 in Schulhauser is similar to claim 1 in the present case; and (2) Schulhauser is precedential. 2 2 The same analysis might not apply if Appellants amended the method claims to the system claims. Schulhauser at *6-8. 5 Appeal2017-002447 Application 13/775,507 Moreover, even if the broadest reasonable construction in light of the specification was not dictated by Schulhauser, which it is, construing claim 1 based on the Specification would have led to the same construction. According to Appellants, paragraphs 33 through 35 of the Specification correspond to this limitation. App. Br. 5 ( citing Spec. ,r,r 33-35). Paragraphs 33 through 35 correspond to Fig. 2. See Spec. ,r,r 33-35, Fig. 2. Figure 2 illustrates an example teaching of a logical path through the flowchart that uses only the "if A, then perform step X" limitation of claim 1. Spec. Fig. 2. That is, ifwe follow a path in the following order of 210, 220, 230, 240 (i.e., in decision block 240, the "No" branch "[a]t each step: have Y data objects been determined to be responsive to the query?" And the "Yes" branch at "[h ]as the end of the data set been reached?"), 250 (i.e., in decision block 250, the "No" branch), and 260, then the method is completed using only conditions existing between X or more data objects have been determined to be responsive to the query, and before Y data objects have been determined to be responsive to the query. Id. In addition, there is no requirement in the Specification that the path through Figure 2 must follow both the "Yes" and "No" branch at decision 250. See Spec. ,r,r 33-35. And there is no requirement in the Specification that the path through Figure 2 must follow both the "Yes" and "No" branch at other decision blocks in Figure 2. See id. Because the broadest reasonable construction in light of the specification specifically teaches that one aspect of the present invention logically includes a method that relies only on conditions existing between X or more data objects have been determined to be responsive to the query, and before Y data objects have 6 Appeal2017-002447 Application 13/775,507 been determined to be responsive to the query (id. at Fig. 2), then the Specification cannot be said to teach against it. Therefore, as a matter of law, we conclude only one of: (1) the "if A, then perform step X" limitation of claim 1 and (2) the "if not A, then perform step Y" limitation of claim 1 needs to be satisfied in the prior art to render the claim anticipated or obvious. 2. Claim 11 Claim 11, a method claim, recites several limitations stated in conditional language. In particular, claim 11 recites: if the end of the set is reached after X or more data objects are determined to be responsive to the search query and before Y data objects are determined to be responsive to the search query: then providing as a search-result sample the data objects determined to be responsive to the query or links to the data objects determined to be responsive to the query. App. Br. 17-18 (Claims Appendix) (hereinafter, "if A, then perform step X limitation of claim 11 "). Moreover, claim 11 also recites "else modifying N and re-executing the operation on a second subset of the set of data objects" (hereinafter, "if not A, then perform step Y limitation of claim 11 "). For the same reasons stated supra in§ A. I., we conclude that it is appropriate to apply Schulhauser to the present case because: (1) claim 1 in Schulhauser is similar to claim 11 in the present case and (2) Schulhauser is precedential. Furthermore, the same analysis of Figure 2 for claim 1 applies to Figure 3 for claim 11. Therefore, as a matter of law, we conclude only one of: (1) the "if A, then perform step X" limitation of claim 11 and (2) the "if not A, then perform step Y" limitation of claim 11 needs to be satisfied in the prior art to render the claim anticipated or obvious. 7 Appeal2017-002447 Application 13/775,507 B. Obviousness Rejections 1. Claims 1, 2, 5-7, 9-12, 15-17, 19, and 20 The Examiner finds the combination of Harangsri and Chaudhuri teaches the "if A, then perform step X" limitation of claim 1, and the "if A, then perform step X" limitation of claim 11. Ans. 3--4; Final Act. 5-7, 10- 11. The Examiner concludes it would have been obvious to a person having ordinary skill in the art at the time of the invention to modify Harangsri to include Chaudhuri' s threshold boundary to guarantee yield of an efficient sample relation and produce a high quality estimate. Final Act. 7, 11; see also Ans. 3--4 ( stating Chaudhuri is relied upon by the Examiner to teach boundaries only). Appellants argue the combination of Harangsri and Chaudhuri fails to teach the "if not A, then perform step Y" limitation of claim 1 because the Examiner did not provide a motivation. App. Br. 10-11. And Appellants argue the combination of Harangsri and Chaudhuri fails to teach the "if not A, then perform step Y" limitation of claim 1 because the combination does not teach modifying N when boundary conditions are violated. Reply Br. 2- 4. 3 3 Appellants' argument is timely because the Examiner appeared to initially rely on Chaudhuri for additional limitations before explaining in the Answer that the Examiner is relying on Chaudhuri for teaching X and Y boundaries only. See 37 C.F.R. § 4I.41(b)(2); compare Final Act. 7 ("It would have been obvious to one of ordinary skill in the art at the time of invention to modify Hara[ ngsri] 's systematic sampling stop condition to include threshold boundary teachings of Chaud[huri], by introducing a stop condition based on the number of data objects satisfies the query is within a range with upper and lower bound, and adjust sample size when the number falls outside the range.") (emphases added), with Ans. 3 ("Hara[ngsri] does not introduce [X, Y] boundary as recited in claim 1. Chaud[huri] is brought 8 Appeal2017-002447 Application 13/775,507 We agree with the Examiner's findings and conclusions. As an initial matter, as stated supra in § A. I., we need not consider whether both (1) the "if A, then perform step X" limitation of claim 1 and (2) the "if not A, then perform step Y" limitation of claim 1 need to be satisfied in the prior art to render the claim anticipated or obvious. It is sufficient for one of the conditions in the preceding sentence to be satisfied in the prior art to render the claim anticipated or obvious. Also, we need not consider whether both ( 1) the "if A, then perform step X" limitation of claim 11; and (2) the "if not A, then perform step Y" limitation of claim 11 need to be satisfied in the prior art to render the claim anticipated or obvious; only one condition needs to be satisfied. See supra § A.2. Furthermore, in the present case, the Examiner's findings that the combination of Harangsri and Chaudhuri teaches the "if A, then perform step X" limitation of claim 1 (Ans. 3--4; Final Act. 5-7) and the "if A, then perform step X" limitation of claim 11 (Ans. 3--4; Final Act. 10-11) are not rebutted by Appellants. 4 And the Examiner's conclusion that it would have been obvious to a person having ordinary skill in the art at the time of the invention to modify Harangsri to include Chaudhuri' s threshold boundary to in to disclose this limitation only. Chaud[huri] is not brought in to disclose 'modify N and re-executing the operation on a second set of data objects."') ( emphasis added). 4 We have only considered those arguments that Appellants actually raised in the Briefs. Arguments that Appellants could have made, but chose not to make, in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 4I.37(c)(l)(iv). 9 Appeal2017-002447 Application 13/775,507 guarantee yield of an efficient sample relation and produce a high quality estimate (Final Act. 7, 11; Ans. 3--4) is not rebutted by Appellants. 5 Appellants argue independent claim 11 with independent claim 1. App. Br. 9--11. Appellants do not argue separately dependent claims 2, 5-7, 9, 10, 12, 15-17, 19, and 20 with particularity, but assert the obviousness rejections of those claims should be withdrawn for at least the same reasons as argued in independent claims 1 and 11. Id. at 14. Accordingly, we sustain the Examiner's obviousness rejections of: (1) independent claims 1 and 11 and (2) dependent claims 2, 5-7, 9, 10, 12, 15-17, 19, and 20. 2. Claims 3, 4, 13, and 14 Claim 3 recites, "[t]he method of claim 2, wherein increasing N comprises doubling N." App. Br. 16 (Claims Appendix) (emphasis added). Claim 2 recites, "wherein modifying N comprises increasing N if Y data objects are determined to be responsive to the search query before the end of the set is reached." Id. ( emphasis added). Claim 1 recites, "else modifying N." We conclude claim 3 is part of the "if not A, then perform step Y" limitation of claim 1. We also conclude the limitations recited in claim 13 are part of the "if not A, then perform step Y" limitation of claim 11 for similar reasons. Therefore, we need not consider Appellants' arguments (see App. Br. 11-12) pertaining to claims 3, 4, 13, and 14 because we agree with the Examiner's findings and conclusion pertaining to the "if A, then perform step X" limitation of claim 1 and the "if A, then perform step X" limitation of claim 11. See supra §§ A. I., A.2., and B.1. 5 See n.4. 10 Appeal2017-002447 Application 13/775,507 Accordingly, we sustain the Examiner's obviousness rejections of claims 3, 4, 13, and 14. 3. Claims 8 and 18 Claims 8 and 18 recite, "wherein N, X, and Yhave pre-determined values based on a data-object type of the data objects in the set." App. Br. 1 7-18 ( Claims Appendix). The Examiner finds Harangsri teaches N has a pre-determined value and Chaudhuri teaches X and Yhave pre-determined values based on a data- object type of the data objects in the set. Final Act. 8. In response, Appellants argue the combination of Harangsri and Chaudhuri fails to teach "based on a data-object type of the data objects in the set" as recited in claims 8 and 18 because the Examiner does not provide an explanation as to how this limitation is met. App. Br. 13 (emphasis omitted). In response, the Examiner provides a new finding that Harangsri teaches systematic sampling in Chapter 2, and the N, X, and Y parameters of systematic sampling are based on a model tree constructed based on the data type of the data item. Ans. 5---6 (citing Harangsri, 67-70, 72, 74, 142; Chaudhuri, Fig. 12). Appellants argue the cited portions of Harangsri's Chapter 2 relied upon by the Examiner do not teach systematic sampling as alleged by the Examiner, but rather Chapter 2 teaches machine-learning techniques and Chapter 3 teaches systematic sampling. Reply Br. 5. 6 Appellants argue the Examiner provides a conclusory assertion without a sufficient explanation as to how partitioning data while constructing a model tree in step 1 of a machine-leaning technique implicates any parameter of the 6 Appellants' argument is timely because it is responsive to the Examiner's new finding in the Answer. See 37 C.F.R. § 4I.41(b)(2). 11 Appeal2017-002447 Application 13/775,507 disparate systematic sampling technique and any pre-determination of the values of those parameters. Id. at 5---6. We agree with Appellants. The cited portions of Harangsri relied upon by the Examiner pertain to Chapter 2. Ans. 5-6 (citing Harangsri, 67-70, 72, 74). Harangsri's Chapter 2 teaches five major approaches: (1) parametric; (2) histogram; (3) curve- fitting; (4) machine-learning; and (5) sampling. Harangsri, 25. However, the Examiner finds the cited portions of Harangsri' s Chapter 2 teach systematic sampling. The Examiner's finding is incorrect because only Harangsri's Chapter 3 teaches systematic sampling. See Harangsri, 98-99; Reply Br. 6-7. The Examiner is combining Harangsri's systematic sampling taught in Chapter 3 with Harangsri's machine-learning techniques without an adequate explanation or rationale as to how a skilled artisan at the time of the invention would make this combination. Ans. 5---6. Put another way, the Examiner provides a conclusory statement that Harangsri' s Chapter 2 adopts the systematic sampling of Harangsri' s Chapter 3 absent a sufficient explanation or rationale for doing so. Id. Accordingly, we do not sustain the Examiner's obviousness rejection of claims 8 and 18. DECISION We affirm the Examiner's decision rejecting claims 1-7, 9-17, 19, and 20 under 35 U.S.C. § 103(a). We reverse the Examiner's decision rejecting claims 8 and 18 under 35 U.S.C. § 103(a). 12 Appeal2017-002447 Application 13/775,507 No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED-IN-PART 13