Ex Parte Kumar et al

Patent Trial and Appeal Board

Feb 28, 2019

12618126 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/618,126 11/13/2009
106678 7590
Rimon Law - CALLIDUS
2479 E. Bayshore Road
Suite 210
Palo Alto, CA 94303
03/04/2019
FIRST NAMED INVENTOR
Srihari Kumar
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.
R2588-00029 5978
EXAMINER
NGUYEN, NGA B
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
03/04/2019 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):
S VDocketing@Rimonlaw.com
eofficeaction@appcoll.com
Amir. Tabarrok@Rimonlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SRIHARI KUMAR, SHREESHA RAMDAS, and
GURURAJ RA0 1
Appeal 2017-011793
Application 12/618, 126
Technology Center 3600
Before MICHAEL J. STRAUSS, KARA L. SZPONDOWSKI, and
MICHAEL M. BARRY, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
1 According to Appellants, the real party in interest is Callidus Software Inc.
See App. Br. 3.
Appeal 2017-011793
Application 12/618, 126
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
23--42. Claims 1-22 are canceled. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm-in-part. 2
THE INVENTION
The claims are directed to analyzing website visitor behavior and
deducing the meaning of anchor text of links selected by the visitor. Spec.,
Abstract. Claims 23 and 31, reproduced below, are illustrative of the
claimed subject matter:
23. A method comprising:
automatically tracking a visitor behavior interacting with
a client website accessed via Internet, using an input mechanism
to interact with a graphical user interface rendered on a display
device and a sequence associated therewith, wherein the visitor
behavior includes interactions with a first anchor text of the client
website wherein the first anchor text remains unselected, and
wherein the visitor behavior includes interactions with a second
anchor text of the client website wherein the second anchor text
is associated with a hyperlink that is selected, wherein a tag
associated with selection of the second anchor text is generated
and wherein the tag is associated with the client website and user
interaction thereof;
storing data associated with the visitor behavior;
filtering out anchor texts that are not interacted with on the
graphical user interface;
automatically determining, by an electronic device, an
intent of the visitor based on the visitor behavior and further
2 We refer to the Specification, filed November 13, 2009 ("Spec."); the Final
Office Action, mailed November 29, 2016 ("Final Act."); the Appeal Brief,
filed February 14, 2017 as revised on March 23, 2017 ("App. Br."); the
Examiner's Answer, mailed July 27, 2017 ("Ans.") and the Reply Brief,
filed September 27, 2017 ("Reply Br.").
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based on the filtering out by comparing a hierarchical structure
of anchor texts to hierarchical structure of the client website; and
outputting the intent of the visitor, a level of intent of the
visitor, supporting data associated with the intent of the visitor,
and a sales lead based on the intent of the visitor.
31. A method comprising:
accessing a behavior of a visitor interacting with a website
accessed via Internet and a sequence thereof, using an input
mechanism to interact with a graphical user interface rendered
on a display device, wherein the behavior includes interactions
with a first anchor text of the website wherein the first anchor
text remains unselected, and wherein the behavior includes
interactions with a second anchor text of the website wherein the
second anchor text is associated with a hyperlink that is selected,
wherein a tag associated with selection of the second anchor text
is generated and wherein the tag is associated with the website
and user interaction thereof;
automatically determining an intent of the visitor based on
the behavior, wherein the determining is further based on a
combination of semantic, syntactic, and statistics associated with
the visitor interacting with the first anchor text and the second
anchor text, and wherein the determining is by comparing a
hierarchical structure of anchor texts to hierarchical structure of
the website; and
outputting the intent of the visitor, a level of intent of the
visitor, supporting data associated with the intent of the visitor,
and a sales lead base/don the intent of the visitor.
REFERENCES
The following prior art is relied upon by the Examiner in rejecting the
claims on appeal:
Dutta
Miller et al.
Cramer
Karidi
Li et al.
US 2002/0109729 Al
US 2006/0229942 Al
US 2007 /0260597 Al
US 2008/0301541 Al
US 2009/0083244 Al
3
Aug. 15, 2002
Oct. 12, 2006
Nov. 8, 2007
Dec. 4, 2008
Mar. 26, 2009
Appeal 2017-011793
Application 12/618, 126
Farmer
Brave et al.
Oztekin et al.
US 2009/0109037 Al
US 7,698,270 B2
US 8,078,607 B2
REJECTIONS
Apr. 30, 2009
Apr. 13, 2010
Dec. 13, 2011
The Examiner made the following rejections3:
Claims 23--42 are rejected underpre-AIA 35 U.S.C. § 101 because the
claimed invention is directed to non-statutory subject matter. Final Act. 4---6.
Claims 23, 26-31, and 34--38 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Brave, Oztekin, Miller, Karidi, and Li.
Final Act. 7-20.
Claims 39 and 42 stand rejected under pre-AIA 35 U.S.C. § I03(a) as
being unpatentable over Brave, Oztekin, Miller, Karidi, Li, and Farmer.
Final Act. 20-31.
Claims 24 and 32 stand rejected under pre-AIA 35 U.S.C. § I03(a) as
being unpatentable over Brave, Oztekin, Miller, Karidi, Li4, and Cramer.
Final Act. 31-32, Ans. 12.
Claim 40 stands rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over Brave, Oztekin, Miller, Karidi, Li, and Farmer5. Id.
3 The rejection of claims 23--42 under 35 U.S.C. § 112, first paragraph, has
been withdrawn. Ans. 3.
4 The Examiner and Appellants acknowledge the rejection relies on Li in
addition to those references listed at page 31 of the Final Action. Ans. 12,
Reply Br. 12.
5 The Examiner and Appellants acknowledge the rejection relies on Li and
Farmer in addition to those references listed at page 31 of the Final Action.
Ans. 12, Reply Br. 12.
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Claims 25 and 33 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Brave, Oztekin, Miller, Karidi, Li 6, and Dutta.
Final Act. 32-33, Ans. 12.
Claim 41 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Brave, Oztekin, Miller, Karidi, Li, Farmer 7, and Dutta.
Id.
ANALYSIS
Appellants waive unmade arguments. 37 CPR§ 4I.37(c)(l)(iv) ("The
arguments shall explain why the examiner erred as to each ground of
rejection contested by appellant. . . . [ A ]ny arguments or authorities not
included in the appeal brief will be refused consideration by the Board for
purposes of the present appeal."); Cf In re Baxter Travenol Labs., 952 F.2d
388, 391 (Fed. Cir. 1991) ("It is not the function of this court to examine the
claims in greater detail than argued by an appellant").
We have reviewed the Examiner's rejections in light of Appellants'
contentions of reversible error. With regard to the rejection of claims 23-30
under 35 U.S.C. § 103(a), we disagree with Appellants' conclusions. In
connection with those rejections we adopt the findings and reasoning of the
Examiner as set forth in the Final Rejection and in the Answer. However, in
connection with the rejection of claims 23--42 under 35 U.S.C. § 101 and the
6 The Examiner and Appellants acknowledge the rejection relies on Li in
addition to those references listed at page 32 of the Final Action. Ans. 12,
Reply Br. 12.
7 The Examiner and Appellants acknowledge the rejection relies on Li and
Farmer in addition to those references listed at page 32 of the Final Action.
Ans. 12, Reply Br. 12.
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rejections of claims 31--42 under 35 U.S.C. § 103(a), for the reasons
discussed below, we agree with Appellants that the Examiner erred.
A. The 35 US.C. § 101 Rejection
1. Principles of Law
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. E.g., Alice Corp. v. CLS Bank Int 'l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging, or protecting
against risk.").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611 );
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes (Gottschalkv. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
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such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
( 1981) ); "tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores" (id. at 184 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267---68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an 'inventive
concept' sufficient to 'transform' the claimed abstract idea into a patent-
eligible application." Alice, 573 U.S. at 221 ( quotation marks omitted). "A
claim that recites an abstract idea must include 'additional features' to
ensure 'that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea]."' Id. (quoting Mayo, 566 U.S. at 77).
"[M]erely requir[ing] generic computer implementation[] fail[ s] to transform
that abstract idea into a patent-eligible invention." Id.
The USPTO recently published revised guidance on the application of
§ 101. USPTO's January 7, 2019 Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance ("Memorandum"). Under that
guidance, we first look to whether the claim recites:
( 1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human interactions such as a fundamental economic practice, or
mental processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a}-(c), (e}-(h)).
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Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that are not
"well-understood, routine, conventional" in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Memorandum.
2. The Examiner's Determinations
The Examiner finds all pending claims recite a method for tracking
visitor behavior including "tracking, storing, filtering, comparing, and
determining data in order to output information." Final Act. 4. According
to the Examiner, the recited steps "can be performed mentally or in a
computer and [are] similar to the kind of 'organizing human activit[ies]' and
[overall] is an idea of itself." Id. According to the Examiner, the claims are
directed to concepts "similar to [those] that have been identified as abstract
by the courts, such as using categories to organize, store and transmit
information in Cyberfone[SJ, or comparing new and stored information and
using rules to identify options in SmartGenel 9J." Id. Furthermore, according
to the Examiner, "[t]he additions of limitations that narrow the idea ...
further describe the abstract idea, but do not make it less abstract." Id. at 4--
5. The Examiner further determines the claims do not recite additional
8 Cyberfone Systems, LLC v. CNN Interactive Group, Inc., 558 F. App'x
988 (Fed. Cir. 2014).
9 SmartGene, Inc. v. Advanced Biological Labs., SA, 555 F. App'x 950
(Fed. Cir. 2014).
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limitations that, when considered individually and as an ordered
combination, amount to significantly more than the judicial exception,
because the additional limitations require only generic computer technology
that performs well-understood, routine, and conventional activities
previously known in the industry and do not provide any improvement to the
functioning of the computer or computer network itself. Id. at 5-6.
Step One of Alice
Prong 1 : Whether Claims Are Directed to an Abstract Idea
Appellants disclose "[t]he present invention is in the field of
e[-]commerce and pertains particularly to methods and apparatus for
inferring intent of Web visitors and generating leads based on the inferred
intent other information about visitors and Website visits." Spec. p 1, 11. 16-
18. The Specification describes the desirability of collecting information
about visitors to e-commerce website pages by monitoring a visitor's
webpage navigation behavior in order to determine interests of the visitor.
Spec., p. 1, 1. 21-p. 2, 1. 3. To address this problem, Appellants identify the
need for
a system for monitoring and recording visitor behavior and for
inferring intent of visitors to a Web interactive or Website in a
manner that correlates the inference data with other data gathered
using more traditional techniques that would result in better
granularity of visitor intent at the site and in general would
provide more robust information for group categorization and
generation of better qualified leads.
Spec. p. 2, 11. 20-25. That is, Appellants disclose a need to obtain
information about potential customers rather than solve a technical problem
of obtaining customer behavior information that is peculiar or specific to a
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website platform or the Internet. At most, Appellants identify prior art
methods of collecting user behavioral information, such as by using tracking
cookies, but do not describe any technical problems associated with the prior
art methods that are to be overcome. Instead, the claims recite monitoring
how a user interacts with a website, its hyperlinks, anchor text and
information associated with the hyperlinks to determine the user's intent.
Thus, rather than being directed to a technical problem and its
solution, the claims are directed to tracking the behavior of a visitor to a
website to determine an intent of the visitor and, in response, providing a
sales lead, i.e. generate marketing information. Collecting potential
customer information is a marketing function involving data gathering,
analysis, and generation, which are considered to be methods of organizing
human activities. See MPEP § 2106.04(a)(2)(II)(B) and (D). Accordingly,
the claims are akin to those our reviewing court has deemed abstract
in Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1369-70 (Fed. Cir. 2015) (customizing and tailoring web page content based
on navigation history and known user information), Internet Patents Corp. v.
Active Network, Inc., 790 F.3d 1343, 1349 (Fed. Cir. 2015) (information
collection and analysis, including when limited to particular content, is
within the realm of abstract ideas), and Affinity Labs of Texas, LLC v.
Amazon.com Inc, 838 F.3d 1266, 1271 (Fed. Cir. 2016) (customizing a user
interface to have targeted advertising based on user information).
We are not persuaded by Appellants' argument that certain features,
such as the recited tag associated with selection of the second anchor text, do
not correspond to organizing a human activity. App. Br. 18-19. Additional
elements may integrate the exception into a practical application or result in
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an inventive concept by providing significantly more than the recited
judicial exception, factors discussed below. However, the addition of
elements does not transform an abstract idea into a non-abstract idea.
The claims further recite determining an intent of a visitor based on
the tracked behavior using a combination of semantic, syntactic, and
statistics associated with the visitor interacting with the first anchor text and
the second anchor text (independent claims 31 and 39), and wherein the
determining is by comparing a hierarchical structure of anchor texts to
hierarchical structure of the website (independent claims 23 and 31 ). These
determinations of visitor intent can be performed manually using, at most, a
pen and paper, without need of any computer or other machine. See
CyberSource, 654 F.3d at 1372-73 ("[A] method that can be performed by
human thought alone is merely an abstract idea and is not patent-eligible
under§ 101."); see also In re Comiskey, 554 F.3d 967, 979 (Fed. Cir.
2009) ("[M]ental processes--or processes of human thinking--standing alone
are not patentable even if they have practical application."); Gottschalk v.
Benson, 409 U.S. 63, 67 (1972) ("Phenomena of nature ... , mental
processes, and abstract intellectual concepts are not patentable, as they are
the basic tools of scientific and technological work" ( emphasis added)).
Additionally, mental processes remain unpatentable even when automated to
reduce the burden on the user of what once could have been done with pen
and paper. CyberSource, 654 F.3d at 1375 ("That purely mental processes
can be unpatentable, even when performed by a computer, was precisely the
holding of the Supreme Court in Gottschalk v. Benson.'').
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Prong 2: Whether Additional Elements Integrate the Exception
into a Practical Application
Under Prong 2 we determine whether an additional element ( or
combination of elements) integrate the exception into a practical application.
Memorandum, 84 Fed. Reg. at 54--55. Although, as part of the guidance
provided by the recently issued Memorandum, this prong was not explicitly
discussed as a separate consideration during the prior prosecution of
Appellants' application, the relevant facts and considerations are addressed
in connection with Step 2 of the Alice/Mayo framework. See Final Act. 5-
6. In particular, the Examiner finds "the additional limitations of an
electronic device, a display device, an input mechanism, and a graphic user
interface [are] generic computer components [that] perform their basic
functions of tracking a visitor behavior." Id. at 5. Addressing the recitation
of a client website access via the Internet, the Examiner finds these elements
do not provide any improvement to the function of the computer or
computer network itself. Id.
Appellants argue the claims are tied to and rooted in computer
technology to overcome a problem arising in e-commerce. App. Br. 15. In
support of their contention, Appellants direct attention to the requirement for
interaction with anchor text and for "automatically determin[ing] an intent of
the visitor based on the visitor behavior and further based on the filtering out
by comparing a hierarchical structure of anchor texts to hierarchical
structure of the client website." Id. at 16-17.
Under Prong 2 we are guided by exemplary considerations indicative
of factors identifying additional elements that may integrate the exception
into a practical application, including an additional element that:
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1. reflects an improvement in the functioning of a computer, or an
improvement to other technology or technical field;
2. applies or uses a judicial exception to effect a particular
treatment or prophylaxis for a disease or medical condition;
3. implements a judicial exception with, or uses a judicial
exception in conjunction with, a particular machine or
manufacture that is integral to the claim;
4. effects a transformation or reduction of a particular article to a
different state or thing; and
5. applies or uses the judicial exception in some other meaningful
way beyond generally linking the use of the judicial exception
to a particular technological environment, such that the claim as
a whole is more than a drafting effort designed to monopolize
the exception.
See Memorandum, 84 Fed. Reg. at 55.
Appellants' arguments are directed to the first factor, i.e., computer
functionalities (App. Br. 15-19) while the remaining factors are neither
argued to be present nor do we ascertain the remaining factors as applicable
to the claims. In particular, Appellants argue "the recited features are not
generic because the recited features in a very specific manner improve E-
Commerce, e.g., sales lead, and therefore confine the claim to a particular
useful application and are thus patent eligible." Id. at 19. According to
Appellants, the additional elements "improve sales lead in E-Commerce
through the specific steps of tracking, storing, filtering, automatically
determining, and outputting in the claimed fashion." Id. at 20; see also App.
Br. 17.
Appellants' argument is not persuasive because, as acknowledged by
Appellants, the improvement is to providing sales leads in E-commerce, not
to the operation or functioning of the underlying technology, e.g. computer
system or communication network. See App. Br. 17. Likewise, Appellants'
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argument that "[ c ]laim 23 is patent eligible because it is inextricably tied to
the computer technology and are necessarily rooted in computer technology
to overcome a problem specifically arising in E-Commerce" is unpersuasive.
The Specification discloses "data monitor and gatherer 111 is provided on
server 109 and is adapted to monitor visitor activity at a Website and gather
any relevant data about the visitor and visit to the Website." Spec. p. 10, 11.
6-8. No specific details are provided about server 109, e.g., it is not
described as a new type of server. Rather, the server is described as
performing a generic computer function of executing computer code (i.e.,
data monitor and gatherer 111 ). Id. Similarly, the recited display is not
described in detail and, instead, is considered to be a generic computer
component. See, e.g. Spec. p. 6, 11. 18-19 ("Internet 101 is navigable by
visitors operating an Internet-capable appliance such as ... a personal
computer.") Merely implementing an abstract idea using a generic computer
is insufficient to render a claim patent-eligible. See, e.g., DDR Holdings,
773 F.3d at 1256 ("[A]fter Alice, there can remain no doubt: recitation of
generic computer limitations does not make an otherwise ineligible claim
patent-eligible. The bare fact that a computer exists in the physical rather
than purely conceptual realm is beside the point" (internal citation and
internal quotation marks omitted)). Unlike the claims in DDR, the claimed
invention does not improve computers as tools, but rather improves
independently abstract ideas that use computers as tools. See App. Br. 14--
15 ("the recited features ... improve E-Commerce, e.g., sales lead[ s ].").
For the reasons discussed above, we are unpersuaded the Examiner
erred in determining the claims are directed to an abstract idea and we find
insufficient evidence or argument that additional elements, singly or in
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combination, integrate the abstract idea judicial exception into a practical
application.
Step Two of Alice
In the second step of the Alice inquiry, Appellants argue the
additional elements are not generic, Appellants particularly directing
attention to functionality including
automatically tracking a visitor behavior . . . [that] includes
interactions with a first anchor text ... wherein the first anchor
text remains unselected, and wherein ... a second anchor text ...
associated with a hyperlink is selected, wherein a tag . . . is
generated . . . filtering out anchor texts that are not interacted
with ... automatically determining ... an intent of the visitor
based on . . . the filtering out by comparing a hierarchical
structure of anchor texts to hierarchical structure of the client
website
App. Br. 20. In connection with the identified functionalities, the Examiner
finds "[ t ]heir collective functions merely provide [a] conventional computer
implementation." Final Act. 6. The Examiner further finds "[t]he
claimed invention recites generic computer structure that serves to perform
generic computer functions that are well-understood, routine, and
conventional activities previously known to the pertinent industry." Final
Act. 34. In particular, the Examiner finds "displaying information" and "a
client website accessed via Internet" are well-known or well-understood,
routine and/or conventional activities. Final Act. 35.
Under examination procedure published by the US PTO on April 19,
2018, entitled "Changes in Examination Procedure Pertaining to Subject
Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v.
HP, Inc.)" ("Berkheimer Memorandum"), the Examiner is required to
provide specific types of evidence to support a finding that claim elements
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( or combinations of elements) are well-understood, routine, and
conventional. Here, the Examiner's determination that the claims are
directed to an abstract idea and do not amount to significantly more than the
abstract idea is predicated, at least in part, on an unsupported finding that
Appellants' claims are directed to routine, conventional, computer
operations. See, e.g., Ans. 4-5. Appellants have challenged this finding.
App. Br. 19--20 ("the recited claimed features amount to significantly more
... because the recited claimed features ... [ add] specific limitation other
than what is well-understood, routine, conventional activity in the field or
unconventional steps that confine the claim to a particular useful
application"). In light of this challenge, the burden shifts to the Examiner to
provide evidence in support of the finding. See Berkheimer, 881 F .3d at
1369. Insufficient evidence has been provided. Other than the requirements
to display information and access a website via the Internet, the Examiner
does not provide evidence addressing the additional elements recited by the
claims. For example, the Examiner has not provided evidence that "filtering
out by comparing a hierarchical structured of anchor texts to hierarchical
structure of the client website" (independent claims 23 and 31) or "wherein
the determining is further based on a combination of semantic, syntactic, and
statistics associated with the visitor interacting with the first anchor text"
( claims 31 and 39) are well-understood, routine, conventional activity in the
field.
In the absence of sufficient evidence required by (1) Berkheimer (881
F.3d at 1369), and (2) the Berkheimer Memorandum, which requires the
examination procedures be fully compliant with Berkheimer, we do not
sustain the rejection of Appellants' claims under 35 U.S.C. § 101.
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B. The§ 103(a) Rejections
1. Claims 23-30
The Examiner finds Li's web page filtering based on an extracted set
of navigation paths to obtain desired web pages teaches or suggests the
disputed filtering step of filtering out anchor texts that are not interacted
with on the graphical user interface as recited by claim 23. Final Act. 15
( citing Li ,r 51 ). Appellants contend Li collects the entire directory structure
without regard to user interaction with the graphical user interface thereby
failing to teach the disputed filtering step. App. Br. 21-22. The Examiner
responds, finding the combination of Brave' s parsing of links used by people
and Brave' s identification of an unused link as a "dead link" in combination
with Li's web page filtering teaches or suggests the disputed filtering step.
Ans. 8-9. Appellants reply, arguing "all that Brave teaches is parsing links
that are used by people which differs from the recited features of filtering
out anchor texts that are not interacted with on the graphical user interface."
Reply Br. 10.
Appellants' contention is unpersuasive because it fails to address the
Examiner's findings and is an improper attack on the references individually
where the rejection is based on the combination of references. See In re
Keller, 642 F.2d 413,426 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d
1091, 1097 (Fed. Cir. 1986). The Examiner finds, and we agree, the
combination ofBrave's parsing of links that are used (i.e., interacted with)
and identification of unused "dead" links in combination with Li's filtering
ofURLs teaches or suggests the disputed step. Thus, Appellants' attack on
Brave fails to take into consideration the teachings of Li in combination with
those of Brave. Accordingly, we sustain the rejection of independent claim
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23 together with the rejections of dependent claims 26-30 which are not
argued separately with particularity.
Appellants additionally argue the rejections of claims 24 and 25 are
improper for failure of the Examiner to include the Li reference upon which
the Examiner relied in rejecting base claim 23. App. Br. 24--26. The
Examiner responds, agreeing all of the references used in rejecting base
claim 23, including the omitted Li reference, should have been cited in
addition to the cited Cramer ( claim 24) and Dutta ( claim 25) references.
Ans. 12-13. Appellants reply, "thank[ing] the Examiner for correcting the
typographical errors in rejection[s] of Claims 24 [and 25]." Reply 12. Thus,
for purposes of this appeal, we treat the rejections of claims 24 and 25 as
having been corrected to include the omitted Li reference. As Appellants
have not provided any additional contentions of error separately arguing
dependent claims 24 and 25, we sustain the rejection of those claims for the
reasons discussed above in connection with base independent claim 23.
2. Claims 31-42
The Examiner finds Li's filtering of links directing web pages in the
same semantic block using heuristic rules for navigation link selection
teaches or suggests the limitation of basing an intent of a visitor on a
combination of semantic, syntactic, and statistics associated with the visitor
interacting with anchor text as recited by independent claims 39 and 42.
Final Act. 28 (citing Li ,r,r 40, 51). Appellants contend Li's determination of
visitor intent does not include the links that direct all web pages to the same
semantic block. App. Br. 23, Reply Br. 11. Appellants further argue Li
discloses filtering only using heuristic rules, which "may be based on
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Appeal 2017-011793
Application 12/618, 126
something other than 'semantic and syntactic."' Reply Br. 11. The
Examiner replies, finding Li's heuristic rules teach the disputed semantic
and syntactic methods. Ans. 9-10. The Examiner further finds Li's
description of link extraction teaches or suggests using statistical methods.
Id. at 10. Furthermore, according to the Examiner, Brave's descriptions of
observing user behaviors, query monitoring, and a library or behavioral
j oumal teach or suggest the disputed limitation. Id. at 10-11.
Appellants' contention is persuasive of Examiner error. The
Examiner fails to provide sufficient evidence or explanation of why one
skilled in the art would have understood Li's heuristic rules to include the
recited combination of semantic, syntactic, and statistics factors. A
definition of heuristic includes "[ a ]n approach or algorithm that leads to a
correct solution of a programming task by non-rigorous or self-learning
means." 10 We find no mention of semantics, syntax, or statistics either in
the definition of heuristics or in the cited portions of the Li or Brave
references. Accordingly, we do not sustain the rejection of independent
claims 31 and 39 under 35 U.S.C. § 103(a) or the rejections of dependent
claims 32-38 and 40-42 which depend from and stand with their respective
base claims.
DECISION
We reverse the Examiner's decision to reject claims 23--42 under 35
U.S.C. § 101.
We affirm the Examiner's decision to reject claims 23-30 under 35
U.S.C. § 103(a).
lO MICROSOFT COMPUTER DICTIONARY 251 (5th ed. 2002)).
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Appeal 2017-011793
Application 12/618, 126
We reverse the Examiner's decision to reject claims 31--42 under 35
U.S.C. § 103(a).
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). See 37
C.F.R. § 41.50(±).
AFFIRMED-IN-PART
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