Ex Parte Enyeart et al

Patent Trial and Appeal Board

Oct 12, 2018

11624785 (P.T.A.B. Oct. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
11/624,785 01/19/2007
45602 7590 10/16/2018
SCULLY, SCOTT, MURPHY & PRESSER, P.C.
400 GARDEN CITY PLAZA
SUITE 300
GARDEN CITY, NY 11530
David M. Enyeart
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.
RSW920060102US1(34325) 7278
EXAMINER
GOLDBERG, IV AN R
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
10/16/2018 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):
IBMPAIRENotify@ssmp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID M. ENYEART,
KEVIN P. MCAULIFFE, BILLY R. ROWE JR.,
andERICD. WAYNE
Appeal2017-006269
Application 11/624, 785 1
Technology Center 3600
Before HUBERT C. LORIN, ANTON W. PETTING, and
SCOTT C. MOORE, Administrative Patent Judges.
LORIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
David M. Enyeart, et al. (Appellants) seek our review under 35 U.S.C.
§ 134(a) of the Examiner's Final rejection of claims 1-22 and 34--44. We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 The Appellants identify IBM Corporation as the real party in interest.
App. Br. 2.
Appeal2017-006269
Application 11/624, 785
THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A method of bookmarking a dashboard view in a
dashboard system comprising:
displaying, by a computer, the dashboard view
comprising graphical metaphors for real-time data related to
monitoring of an operational environment of an enterprise;
creating, by the computer, a performance bookmark of
the dashboard view, comprising:
assigning, by the computer, a name to said performance
bookmark;
providing, by the computer, a timestamp to said
performance bookmark;
storing, by the computer, said name and said timestamp
in a bookmark data store;
storing, by the computer, visual properties of said
dashboard view at the time said performance bookmark is
created; and
storing, by the computer, relationships of information
displayed by said dashboard view at the time said
performance bookmark is created;
receiving, by the computer, from a dashboard user
interface of the dashboard system, instructions to recall the
created performance bookmark;
in response to the instructions, recalling, by the
computer, the created performance bookmark, and
based on the recalled performance bookmark,
configuring, by the computer, the dashboard system to
display a recalled dashboard corresponding with said visual
properties and relationships of information of the dashboard
view stored at the time said performance bookmark was
created.
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THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Gagnon et al.
("Gagnon")
Ducheneaut et al.
("Ducheneaut")
US 2002/0194090 Al
US 2007/0240119 Al
The following rejections are before us for review:
Dec. 19, 2002
Oct. 11, 2007
Claims 1-22 and 34--44 are rejected under 35 U.S.C. § 101 as being
directed to judicially excepted subject matter.
Claims 1-22 and 34--44 is rejected under 35 U.S.C. § I03(a) as being
unpatentable over Gagnon and Ducheneaut.
ISSUES
Did the Examiner err in rejecting claims 1-22 and 34--44 under 35
U.S.C. § 101 as being directed to judicially excepted subject matter?
Did the Examiner err in rejecting claims 1-22 and 34--44 under 35
U.S.C. § I03(a) as being unpatentable over Gagnon and Ducheneaut?
ANALYSIS
The rejection of claims 1-22 and 34-44 under 35 US.C. §101 as being
directed to judicially excepted subject matter.
Alice Corp. Proprietary Ltd. v. CLS Bank International, 134 S.Ct.
234 7 (2014) identifies a two-step framework for determining whether
claimed subject matter is judicially excepted from patent eligibility under 35
U.S.C. § 101.
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According to Alice step one, "[ w ]e must first determine whether the
claims at issue are directed to a patent-ineligible concept," such as an
abstract idea. Alice, 134 S.Ct. at 2355.
In that regard, for independent claim 1, the Examiner
determined that
[ c ]laim 1 is directed to an abstract idea, specifically: "assigning
... a name to said performance bookmark" (See Cybeifone,
July 2015 Guidance, pg. 5- using categories to organize, store
and transmit information); "recalling ... the previously created
performance bookmarks." This is similar to the identified
abstract idea of []using categories to organize, store and
transmit information (See Cybeifone, July 2015 Guidance, pg. 5
- using categories to organize, store and transmit information).
This is an "idea of itself' and accordingly, is viewed as an
abstract idea.
Final Act. 5---6. The Examiner takes the same position with respect to
independent claims 12 (Final Act. 11) and 34. Final Act. 14--15. The
dependent claims were treated but also determined to be directed to an
abstract idea.
Step two is "a search for an 'inventive concept'-i.e., an element or
combination of elements that is 'sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the [ineligible
concept] itself."' Alice, 134 S.Ct. at 2355 (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 US 66, 73 (2012)).
In that regard, for claim 1, the Examiner determined that
[ t ]he claim does not include additional elements that are
sufficient to amount to "significantly more" than the
judicial exception (i.e. the abstract idea) because the
additional element(s) or combination of elements in the
claim( s) other than the abstract idea per se amount( s) to no
more than: 1) generic computer functions that are well-
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understood, routine, and conventional activities previously
known to the industry; and 2) insignificant extra-solution
(mere data gathering).
All the claim limitations were addressed. See Final Act. 6-9. The Examiner
also determined that
[ c] laim 1 is directed to being performed by a "computer",
but these limitations add nothing of substance to the
underlying abstract idea. The claim can be interpreted as
person choosing to "bookmark" a view, naming a view (but
storing the name in a data store of the computer), the
computer providing a timestamp for the bookmark, and
allowing a person to recall previously "bookmarked" views
based on the stored information associated with the
bookmark. Accordingly, the claim does not recite
significantly more than the abstract idea as the claim recites
a series of conventional computer functions of storing and
displaying information.
Final Act. 8. The Examiner takes the same position with respect to
independent claims 12 (Final Act. 12-13) and 34 (Final Act. 15-16). The
dependent claims were treated but also determined not to include additional
elements sufficient to amount to "significantly more" than the abstract idea.
Accordingly, the Examiner concluded that the claimed subject matter
was patent-ineligible.
The Appellants challenge the rejection for various reasons. The thread
running through them is a view of the claims as being directed to a
"technological solution." App. Br. 15.
The difficulty with the Appellants' view is that the claims have been
drafted so that as a whole they provide a result-oriented solution but without
any of the computer-centric details for accomplishing it. The Appellants
suggest the existence of such details in arguing that the invention "improves
how a user of a software application interacts with that vast amount of data
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available to be monitored and improves the timeliness of providing
information to the user by dashboard view of real-time data that presents
numerical data with graphical metaphors." See App. Br. 17 ( emphasis
added). But the claim does not now reflect those details. Cf Intellectual
Ventures I LLC v. Capital One Financial Corp., 850 F.3d 1332, 1342 (Fed.
Cir. 2017) (Explaining that "[ o ]ur law demands more" than claim language
that "provides only a result-oriented solution, with insufficient detail for how
a computer accomplishes it.") and Electric, 830 F.3d at 1354 (Explaining
that claims are directed to an abstract idea where they do not recite "any
particular assertedly inventive technology for performing [ conventional]
functions.")
The Appellants argue that claim 1, for example, "clearly did not seek
to tie up any judicial exception so that others cannot practice it." App. Br.
13.
This argument confuses the pre-emption concern (Alice, 134 S.Ct. at
235) with the level of abstraction describing the abstract idea. With respect
to the pre-emption concern, "[ w ]hat matters is whether a claim threatens to
subsume the full scope of a fundamental concept, and when those concerns
arise, we must look for meaningful limitations that prevent the claim as a
whole from covering the concept's every practical application." CLS Bank
Intern. v. Alice Corp. Pty. Ltd., 717 F.3d 1269, 1281 (Fed. Cir. 2013)
(Lourie, J., concurring). Here, the Appellants point to various claim 1
limitations, such as
a) displays the dashboard view with graphical metaphors for real-time
data, b) creates a performance bookmark of the dashboard view that
includes both the visual properties of the dashboard view and
relationships of information displayed by the dashboard view, and c)
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recalls the performance bookmark so as to configure the dashboard
system to display the recalled dashboard view,
App. Br. 14, that do indeed limit the scope of the claim. But they simply
narrow the abstract idea of, e.g., displaying, to certain information, so that
the abstract idea is described at a lower level of abstraction.
When "the focus of the asserted claims" is "on collecting information,
analyzing it, and displaying certain results of the collection and analysis,"
the claims are directed to an abstract idea. Elec. Power Grp., LLC v. Alstom
S.A., 830 F.3d 1350, 1343 (Fed. Cir. 2016). Information collection, analysis,
and display including when limited to particular content is within the realm
of abstract ideas. See, e.g., Internet Patents Corp. v. Active Network, Inc.,
790 F.3d 1343, 1349 (Fed. Cir. 2015); Digitech Image Techs., LLC v. Elecs.
for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014); and CyberSource
Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011). See
SAP America, Inc. v. Investpic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018)
("Contrary to InvestPic's suggestion, it does not matter to this conclusion
whether the information here is information about real investments. As many
cases make clear, even if a process of collecting and analyzing information
is "limited to particular content" or a particular "source," that limitation does
not make the collection and analysis other than abstract.") (quoting Electric
Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1355 (Fed. Cir. 2016))
(citing cases). Displaying in particular a "dashboard view," "creat[ing] a
performance bookmark," and "recall[ing] the performance bookmark so as
to configure the dashboard system to display the recalled dashboard view"
further limit the information collection/display but only as to content. They
do not, however, render the abstract idea any less an abstract.
Furthermore, pre-emption is not a separate test.
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To be clear, the proper focus is not preemption per se, for
some measure of preemption is intrinsic in the statutory
right granted with every patent to exclude competitors, for
a limited time, from practicing the claimed invention. See
35 U.S.C. § 154. Rather, the animating concern is that
claims should not be coextensive with a natural law,
natural phenomenon, or abstract idea; a patent-eligible
claim must include one or more substantive limitations
that, in the words of the Supreme Court, add "significantly
more" to the basic principle, with the result that the claim
covers significantly less. See Mayo 132 S. Ct. at 1294.
Thus, broad claims do not necessarily raise § 101
preemption concerns, and seemingly narrower claims are
not necessarily exempt.
Id.; see also Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
13 79 (Fed. Cir. 2015) ("While preemption may signal patent ineligible
subject matter, the absence of complete preemption does not demonstrate
patent eligibility."). Because we find the claims are directed to patent-
ineligible subject matter, the pre-emption concern is necessarily addressed.
"Where a patent's claims are deemed only to disclose patent ineligible
subject matter under the Mayo framework, [] preemption concerns are fully
addressed and made moot." Ariosa, 788 F.3d at 1379.
In challenging the Alice step one determination, the Appellants next
argue that
[ C]laim 1, when read in light of the specification and
when read at the proper level of abstraction is directed to a
computer-implemented method that displays a dashboard
view for real-time data related to monitoring an
operational environment of an enterprise, creating a
performance bookmark of the dashboard view and
recalling the performance bookmark when instructed by a
user. Claim 1 is directed to a computer-implemented
method that provides a technological solution to that
problem. When considered at a permissible level of
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abstraction, the claim features recited in claim 1 are unlike
any abstract idea previously identified as patent ineligible
and, thus, Appellants urge that claim 1 is directed to patent
eligible subject matter.
App. Br. 15.
We do not disagree that claim 1 recites "a computer-implemented
method that displays a dashboard view for real-time data related to
monitoring an operational environment of an enterprise, creating a
performance bookmark of the dashboard view and recalling the performance
bookmark when instructed by a user" as the Appellants argue. But the
question is whether, in reciting such subject matter, the claim is directed to
an abstract idea.
The Appellants argue that said limitations show "[ c ]laim 1 is directed
to a computer-implemented method that provides a technological solution to
that problem" and not to an abstract idea. App. Br. 15. We do not see it that
way. The Specification is quite clear that generic computers can be
employed to practice the invention. See Spec., paras. 15-19. "The 'abstract
idea' step of the inquiry calls upon us to look at the 'focus of the claimed
advance over the prior art' to determine if the claim's 'character as a whole'
is directed to excluded subject matter."' Affinity Labs of Texas v. Direct TV,
LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting Elec. Power Grp., LLC
v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)); see also Enfzsh, LLC
v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). The Specification
is devoted to "providing performance bookmarks that capture the state of
business performance for advanced monitoring and analysis of business
metrics." Spec., para. 1. Claim 1 reflects that. The claim's "character as a
whole" does not pertain to any assertively inventive technology, but instead
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relates to a scheme for bookmarking a dashboard view in a dashboard
system. Cf Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354
(Fed. Cir. 2016) ("The advance they purport to make is a process of
gathering and analyzing information of a specified content, then displaying
the results, and not any particular assertedly inventive technology for
performing those functions.")
The Appellants argue that "the claim recites a method to improve the
way a computer system works a) to manipulate information in a more timely
manner and b) to interact with users of a computer system in a more
responsive manner." App. Br. 16. But we do not see and the Appellants do
not adequately explain how the claimed process improves a generic
computer. To the extent the Appellants are arguing that a computer makes
the bookmarking process "more timely," the inclusion of a generic computer
per se for its routine function cannot alone tum what is an abstract idea into
one that is not. See, e.g., OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d
1359, 1363 (Fed. Cir. 2015) ("[R]elying on a computer to perform routine
tasks more quickly or more accurately is insufficient to render a claim patent
eligible.").
In challenging the Alice step two determination, the Appellants argue
that "the features recited in claim 1 add significantly more to that abstract
idea." App. Br. 16.
In particular, claim 1 is directed to an adaptive process that
a) displays the dashboard view with graphical metaphors for
real-time data, b) creates a performance bookmark of the
dashboard view that includes both the visual properties of
the dashboard view and relationships of information
displayed by the dashboard view, and c) recalls the
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performance bookmark so as to configure the dashboard
system to display the recalled dashboard view.
App. Br. 17. The argument is unpersuasive. We have already addressed
these argued-over limitations, having determined that "they simply narrow
the abstract idea of, e.g., displaying certain information, so that the abstract
idea is described at a lower level of abstraction." Accordingly, they do not
add significantly more to the abstract idea.
The Appellants argue that
[i]mproving the manner in which users interact with a computer
system and improving the manner in which time sensitive
information is processed has been identified specifically as
examples of when a claim, considered as a whole, amounts to
significantly more than the judicial exception and, accordingly,
is drawn to patent eligible subject matter.
App. Br. 17.
We have no disagreement that a claim to [i]mproving the manner in
which users interact with a computer system and improving the manner in
which time sensitive information is processed" is the type of technical
improvement that could warrant a patent-eligible determination. But that is
not what is claimed. We do not see now any claim limitation that reflects
such a technical improvement. A series of "displaying," "creating" by
"assigning," "providing" and "storing," "receiving" and "recalling" steps for
different types of information requiring nothing more than to be "by a
computer" is insufficient to ensure that the claimed subject matter in practice
amounts to significantly more than an abstract idea itself. "Generally, a
claim that merely describes an 'effect or result dissociated from any method
by which [it] is accomplished' is not directed to patent-eligible subject
matter." Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1244 (Fed. Cir. 2016)
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(quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348
(Fed. Cir. 2015)).
We have considered the Appellants remarks with respect to claims
2-22 and 34--44. App. Br. 17-22. These claims point to what is claimed. A
statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim. 37 C.F.R.
41.37( C )(1 )(vii).
We have considered all of the Appellant's remaining arguments
(including those made in the Reply Brief) and find them unpersuasive.
Accordingly, because we are not persuaded as to error in the determinations
that representative claim 1, and claims 2-22 and 34--44 which stand or fall
with claim 1, are directed to an abstract idea and do not present an
"inventive concept," we sustain the Examiner's conclusion that they are
directed to patent-ineligible subject matter that is judicially excepted from
35 U.S.C. § 101. Cf LendingTree, LLC v. Zillow, Inc., 656 Fed.Appx. 991,
997 (Fed. Cir. 2016) ("We have considered all of LendingTree's remaining
arguments and have found them unpersuasive. Accordingly, because the
asserted claims of the patents in suit are directed to an abstract idea and do
not present an 'inventive concept,' we hold that they are directed to
ineligible subject matter under 35 U.S.C. § 101."); see also, e.g., OIP
Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1364 (Fed. Cir.
2015) and FairWarning IP, LLC v. Iatric Systems, Inc., 839 F.3d 1089, 1098
(Fed. Cir. 2016).
The rejection of claims 1-22 and 34-44 is rejected under 35 USC§ 103(a)
as being unpatentable over Gagnon and Ducheneaut.
Claims 1, 6-11
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The Appellants argue that
Gagnon discloses creating dashboards and populating
dashboards in a bifurcated manner. In particular, a user can
create a dashboard template and store it but that dashboard
template is not populated with information that includes
graphical metaphors for real-time data related to monitoring of
an operational environment of an enterprise. (See paragraph
[0056] of Gagnon). That user can then separately select a
stored dashboard template so that it is populated with
previously collected data in order to "generate" a dashboard.
Other users that have the appropriate permissions can select
and view a previously generated dashboard for viewing data
that is not real-time monitored data but is data from some past
period. Applicants urge that the system of Gagnon does not
teach or suggest displaying a dashboard view that comprises
graphical metaphors that reflect real-time data that is being
monitored. In other words, the dashboard generated by
Gagnon populates a graphical element with a stored data value
and stops. In contrast, a dashboard view, as recited in amended
claim 1, has a dynamic element in that it is displayed so as to
comprise graphical metaphors that reflect changing real-time
data being monitored.
App. Br. 23.
As we understand it, the argument is that the claimed dashboard is
distinguished from that of Gagnon in that it "includes graphical metaphors
for real-time data related to monitoring of an operational environment of an
enterprise" ( claim 1 ).
However, there is insufficient evidence showing that the claim 1 step
of "displaying, by a computer, the dashboard view" is functionally affected
by the view "includ[ing] graphical metaphors for real-time data related to
monitoring of an operational environment of an enterprise" ( claim 1 ), rather
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than some other graphical element as the Appellants concede Gagnon
already discloses.
The Specification does not provide an express definition for the claim
terms "dashboard" or "graphical metaphor." "Dashboard" ordinarily and
customarily means in the style of controls and gauges that a car panel
displays. See Webster's New World Dictionary 351, 3rd ed. 1988,
(entry for "dashboard"). Likewise, "graphical metaphor" ordinarily and
customarily means a representation (i.e., a metaphor) via a graphic (i.e.,
graphical). The Specification disclosure is consistent with these ordinary and
customary meaning, to wit;
[0033] The information from the KPI data store 38 is
retrieved by the portal 28 and is coupled to the dashboard
user interface 30 in an appropriate manner, such as may be
dictated by the selected visual metaphor utilized to visualize
the underlying data. The portal 28 may be implemented by
any suitable means for conveying information from the
dashboard data stores 2 6 to the dashboard user interface 3 0.
For example, the portal 28 may comprise a service, agent, a
network based applications server, web server etc.
[0034] The dashboard user interface 30 is a customizable
visualization tool that associates at least one KPI with
visual indicia. The visualization may comprise graphs,
charts, lists, tables, alarms, and other visual aids to analyze
and interpret the displayed KPis. As the KPI values change
over time, the view in the dashboard user interface 30 is
updated to reflect the appropriate changes. The available
KPis can be filtered, sorted and displayed in any appropriate
manner. Accordingly, the dashboard data stores 26 may
further comprise a dashboard configuration data store 40
that stores various configurations, views and other
information that defines the visual presentation of the KPI
information.
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Based on this, we do not see the difference between a "dashboard"
with "graphical metaphors" and Gagnon's dashboard with graphical
elements, except that the claimed "graphical metaphors" are ''for real-time
data related to monitoring of an operational environment of an enterprise"
( claim 1 ). However, there is insufficient evidence that being ''for real-time
data related to monitoring of an operational environment of an enterprise"
( claim 1) functionally affects the dashboard or the displaying of it.
Given said lack of sufficient evidence, it is thus reasonable to
characterize said claimed "graphical metaphors" as nonfunctional
descriptive material; that is, akin to printed matter. Just as printed matter is
not given patentable weight, similarly the "graphical metaphors for real-time
data related to monitoring of an operational environment of an enterprise"
( claim 1) claim limitations, as a distinction over Gagnon' s dashboard with
graphical elements, are not patentably consequential. "[N]on-functional
descriptive material, being useful and intelligible only to the human mind, is
given no patentable weight." Ex parte Graf, Appeal 2012-003941, 2013 WL
3873066, at *4 (PTAB July 23, 2013) (non-precedential), aff'd, In re Graf,
585 F. App'x. 1012 (Fed. Cir. 2014) (non-precedential); cf In re DiStefano,
808 F.3d 845 (Fed. Cir. 2015); as explained in In re Xiao, 462 F.App'x. 947,
950-52 (Fed. Cir. 2011) (non-precedential):
[T]he Board did not create a new "mental distinctions" rule in
denying patentable weight. ... On the contrary, the Board simply
expressed the above-described functional relationship standard in an
alternative formulation----consistent with our precedents-when it
concluded that any given position label's function ... is a distinction
"discemable only to the human mind." Board Decision at 6; see In re
Lowry, 32 F.3d 1579, 1583 (Fed. Cir. 1994) (Describing printed
matter as "useful and intelligible only to the human mind.") ( quoting
In re Bernhart, 417 F.2d 1395, 1399 (CCPA 1969)).
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"The rationale behind this line of cases is preventing the indefinite patenting
of known products by the simple inclusion of novel, yet functionally
unrelated limitations." King Pharms., Inc. v. Eon Labs, Inc., 616 F.3d 1267,
1279 (Fed. Cir. 2010).
Accordingly the argument that the claimed dashboard distinguishes
from that of Gagnon in that it "includes graphical metaphors for real-time
data related to monitoring of an operational environment of an enterprise"
( claim 1) is unpersuasive as to error in the rejection.
There being no other argument, the rejection of claims 1 and 6-11 is
sustained.
Claims 2-5
The Appellants argue that claim 2 ( and claims 3-5 that depend from
claim 2) calls for a "triggering event and in response to detecting the
triggering event creating the performance bookmark." App. Br. 24. The
Examiner cites, variously, Gagnon and Ducheneaut. But nowhere in them
can we find disclosure of a triggering event, a detecting of the triggering
event, and in response to said detecting creating a bookmark. The Examiner
cites in particular Ducheneaut:
Ducheneaut also discloses the claim - See par. 0088, FIG.
9 - wait for data update event 905, then generate time-
stamped metric. A 'post instrument update event
procedure 913 then posts an instrument update event to
cause any instrument using the static metric to update its
presentation; See FIGS. 16-18- showing playback over
time of past data for a metric; meaning that new data is
recorded for each change over time, which would be an
event).
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Final Act. 35. But, as the Appellants points out, "Ducheneaut discloses
updating an instrument in a dashboard view but does not create a
performance bookmark of the dashboard view." App. Br. 24. We see nothing
there about creating a bookmark in response to detecting a triggering event.
The rejection of claims 2-5 is not sustained.
Claims 12 and 17-22
The Appellants challenge the rejection of these claims for the same
reason used to challenge the rejection of claim 1. App. Br. 26. That reason
not being persuasive as to error in rejecting claim 1, similarly is
unpersuasive as to error in the rejection of these claims.
Claims 13-16
These claims include the same limitations to a triggering event, a
detecting of the triggering event, and in response to said detecting creating a
bookmark discussed above with respect to claim 2. The Examiner's position
that these features are disclosed in the prior art is the same. Final Act. 35.
The rejection is not sustained for the same reasons discussed above
regarding the rejection of claim 2.
Claims 3 4 and 3 9-44
The Appellants challenge the rejection of these claims for the same
reason used to challenge the rejection of claim 1. App. Br. 27. That reason
not being persuasive as to error in rejecting claim 1, similarly is
unpersuasive as to error in the rejection of these claims.
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Claims 35, 3 7, and 38
These claims include the same limitations to a triggering event, a
detecting of the triggering event, and in response to said detecting creating a
bookmark discussed above with respect to claim 2. The Examiner's position
that these features are disclosed in the prior art is the same. Final Act. 35.
The rejection is not sustained for the same reasons discussed above
regarding the rejection of claim 2.
Claim 36
Unlike claims 37 and 38, claim 36 does not appear to depend from
claim 35, and thus does not include the argued-over limitations to a
triggering event, a detecting of the triggering event, and in response to said
detecting creating a bookmark. Accordingly, the discussion above with
respect to claim 2 regarding the cited prior art not disclosing said limitations
does not apply to claim 3 6. There being no other argument challenging the
rejection of claim 36 but that which applies to claim 2 (App. Br. 27), the
rejection is not overcome and is therefore sustained.
CONCLUSIONS
The rejection of claims 1-22 and 34--44 under 35 U.S.C. § 101 as
being directed to non-statutory subject matter is affirmed.
The rejection of claims 1, 6-12, 17-22, 34, 36 and 39-44 under 35
U.S.C. § 103(a) as being unpatentable over Gagnon and Ducheneaut is
affirmed.
The rejection of claims 2-5, 13-16, 35, 37, and 38 under 35 U.S.C.
§ 103(a) as being unpatentable over Gagnon and Ducheneaut is reversed.
18
Appeal2017-006269
Application 11/624, 785
DECISION
The decision of the Examiner to reject claims 1-22 and 34--44 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)(l )(iv).
AFFIRMED
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