Ex Parte Lu

Patent Trial and Appeal Board

Sep 19, 2018

13753062 (P.T.A.B. Sep. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/753,062 01/29/2013
21839 7590 09/21/2018
BUCHANAN, INGERSOLL & ROONEY PC
POST OFFICE BOX 1404
ALEXANDRIA, VA 22313-1404
FIRST NAMED INVENTOR
Lawrence T. Lu
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.
1033165-000032 1000
EXAMINER
STRANGE, AARON N
ART UNIT PAPER NUMBER
2448
NOTIFICATION DATE DELIVERY MODE
09/21/2018 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):
ADIPDOC 1@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LAWRENCE T. LU
Appeal2018-003554
Application 13/753,062 1
Technology Center 2400
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
JOYCE CRAIG, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1, 3-18, and 20-25. Claims 2 and 19 are canceled. We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 According to Appellant, the real party in interest is Array Networks, Inc.
App. Br. 2.
Appeal2018-003554
Application 13/753,062
STATEMENT OF THE CASE2
The Invention
Appellant's disclosed and claimed inventions relate to "a method and
system for web analytics using a proxy, and more particularly, to a method
and system for web analytics using a proxy, which inserts tag(s)(mostly
Javascript) into web (mostly HTML) pages, which are requested from a web
server and received by a web browser from the proxy." Spec. ,r 1.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal (emphasis added to contested limitations):
1. A method for tracking visits to a web page using a proxy,
compnsmg:
receiving a request from a web browser on a proxy for a
web page hosted on a web server;
sending the request for the requested web page from the
proxy to the web server;
receiving the requested web page from the web server on
the proxy;
embedding one or more web page tags into the requested
web page, wherein the one or more web page tags generate data
about traffic to the requested web page;
forwarding the requested web page from the proxy to the
web browser with the one or more web page tags embedded
therein;
executing the one or more web page tags within the
requested web page; and
2 Our Decision relies upon Appellant's Appeal Brief ("App. Br.," filed
Aug. 24, 2017); ReplyBrief("ReplyBr.," filed Feb. 14, 2018); Examiner's
Answer ("Ans.," mailed Dec. 15, 2017); Final Office Action ("Final Act.,"
mailed Dec. 22, 2016); and the original Specification ("Spec.," filed
Jan. 29, 2013).
2
Appeal2018-003554
Application 13/753,062
sending data from the executed one or more web page
tags to a data collection system, wherein the data collection
system is an analytics server, which receives analytics data
directly from the client without being routed through the proxy.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Vincent
Watler et al.
("Watler")
Stevenson et al.
("Stevenson")
US 2003/0046385 Al Mar. 6, 2003
US 2004/0075686 Al Apr. 22, 2004
US 2009/0100154 Al Apr. 16, 2009
Bauer-Hermann et al. US 2015/0127771 Al May 7, 2015
("Bauer-Hermann")
Rejections on Appeal
RI. Claims 1, 3, 7, 8, 11, 12, 18, and 20 stand rejected under 35
U.S.C. § I03(a) as being obvious over the combination of Bauer-Hermann
and Vincent. Final Act. 4.
R2. Claims 4, 9, 10, 16, 17, 21, 24, and 25 stand rejected under 35
U.S.C. § I03(a) as being obvious over the combination of Bauer-Hermann,
Vincent, and Stevenson. Final Act. 6.
R3. Claims 5, 6, 13-15, 22, and 23 stand rejected under 35 U.S.C.
§ I03(a) as being obvious over the combination of Bauer-Hermann, Vincent,
Stevenson and Watler. Final Act. 8.
3
Appeal2018-003554
Application 13/753,062
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. We do not consider arguments that
Appellant could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 4I.37(c)(l)(iv).
We disagree with Appellant's arguments with respect to Rejections
Rl-R3 of claims 1, 3-18, and 20-25, and we incorporate herein and adopt
as our own for these rejections: (1) the findings and reasons set forth by the
Examiner in the action from which this appeal is taken, and (2) the reasons
and rebuttals set forth in the Examiner's Answer in response to Appellant's
arguments. We incorporate such findings, reasons, and rebuttals herein by
reference unless otherwise noted. However, we highlight and address
specific findings and arguments regarding claim 1 for emphasis as follows.
1. § 103(a) Rejection RI: Claims 1, 3, 7, 8, 11, 12, 18, and 20
Issue
Appellant argues (App. Br. 7-8; Reply Br. 3-5) the Examiner's
rejection of claim 1 under 35 U.S.C. § 103(a) as obvious over the
combination of Bauer-Hermann and Vincent is in error. These contentions
present us with the following issue:
Did the Examiner err in finding the cited prior art teaches or suggests
a method that includes, inter alia, the steps of:
sending data from the executed one or more web page
tags to a data collection system, wherein the data collection
system is an analytics server, which receives analytics data
directly from the client without being routed through the proxy,
as recited in claim 1? (Emphasis added).
4
Appeal2018-003554
Application 13/753,062
Analysis
Appellant contends, Bauer-Herman does not teach the disputed
limitation "receives analytics data directly from the client without being
routed through the proxy," as recited in claim 1. App. Br. 5---6 ( emphasis
added).
We are not persuaded by Appellant's arguments because Appellant is
arguing the references separately when the rejection is for obviousness,
relying upon what the reference combination would have suggested to a
person of ordinary skill in the art. "[O]ne cannot show non-obviousness by
attacking references individually where ... the rejections are based on
combinations of references." In re Keller, 642 F.2d 413,426 (CCPA 1981).
The Examiner cites Vincent, not Bauer-Hermann, for teaching or
suggesting an analytics server, which receives analytics data directly from
the client without being routed through the proxy. Final Act. 5; Ans. 2-3.
Appellant also argues:
Bauer-Hermann teaches away from providing analytics data to
a third party server distinct from the proxy server and without
first routing the data through proxy since Bauer-Hermann
specifically embeds script, which is of a submit-event type, i.e.,
data that is to be submitted to the service provider 54. (See
para. [0083] of Bauer-Hermann).
App. Br. 7.
As our reviewing court holds, a reference does not teach away if it
merely expresses a general preference for an alternative invention from
amongst options available to the ordinarily skilled artisan, and the reference
does not discredit or discourage investigation into the invention claimed. In
re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
5
Appeal2018-003554
Application 13/753,062
We are not persuaded by Appellant's teaching away argument (App.
Br. 7), because Bauer-Hermann does not explicitly disavow providing
analytics data to a third party server distinct from the proxy server and
without first routing the data through proxy. Ans. 3--4.
Accordingly, on this record, and in view of the Examiner's findings
above, we are not persuaded by Appellant's assertions regarding Bauer-
Hermann's alleged teaching away.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitations of claim 1, nor do we find error in the Examiner's
resulting legal conclusion of obviousness.
We also sustain the Examiner's rejection of independent claims 11
and 18 for which Appellant advances essentially identical arguments. App.
Br. 8-15.
In view of the lack of any substantive or separate arguments directed
to obviousness Rejections RI of dependent claims 3, 7, 8, 12, 19, and 20
(App. Br. 7-8, 11-12, 15-16), we sustain the Examiner's rejection RI of
these claims. Arguments not made are waived.
2. Rejections R2 and R3: Claims 4---6, 9, 10, 13-17, and 21-25
In view of the lack of any substantive or separate arguments directed
to obviousness Rejections R2 and R3 of claims 4---6, 9, 10, 13-17, and 21-25
(App. Br. 7-8, 11-12, 15-16), under§ I03(a), we sustain the Examiner's
rejection of these claims. Arguments not made are waived.
6
Appeal2018-003554
Application 13/753,062
REPLY BRIEF
To the extent the Appellant may advance new arguments in the Reply
Brief (Reply Br. 1-8) not in response to a shift in the Examiner's position in
the Answer, we note arguments raised in a Reply Brief that were not raised
in the Appeal Brief or are not responsive to arguments raised in the
Examiner's Answer will not be considered except for good cause (see 3 7
C.F.R. § 41.4I(b)(2)), which Appellant has not shown.
CONCLUSION
The Examiner did not err with respect to obviousness Rejections RI
through R3 of claims 1, 3-18, and 20-25 under 35 U.S.C. § I03(a) over the
cited prior art combinations of record, and we sustain the rejections.
DECISION
We affirm the Examiner's decision rejecting claims 1, 3-18,
and 20-25.
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). See 37
C.F.R. § 41.50(±).
AFFIRMED
7