Ex Parte Luchi et al

Patent Trial and Appeal Board

Jun 15, 2016

13406774 (P.T.A.B. Jun. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/406,774 02/28/2012
46320 7590 06/17/2016
CRGOLAW
STEVEN M. GREENBERG
7900 Glades Road
SUITE 520
BOCA RATON, FL 33434
FIRST NAMED INVENTOR
Duccio Luchi
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.
FR920090013US2
(7161-674D
CONFIRMATION NO.
1028
EXAMINER
FINK, THOMAS ANDREW
ART UNIT PAPER NUMBER
2129
NOTIFICATION DATE DELIVERY MODE
06/17/2016 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):
docketing@crgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DUCCIO LUCHI, DARIO MELLA, and
STEFANO ZAMPIERI
Appeal2014-007523
Application 13/406,774
Technology Center 2100
Before BRUCE R. WINSOR, LINZY T. McCARTNEY, and
NATHAN A. ENGELS, Administrative Patent Judges.
McCARTNEY, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Appellants request rehearing of our March 28, 2016 decision
affirming the Examiner's rejections of claim 1-7 and 15-17. We have
reconsidered the decision in light of Appellants' arguments, but we decline
to change the decision.
Appeal2014-007523
Application 13/406,774
ANALYSIS
The pending claims recite, among other things, a "distribution of
values." App. Br. 11-13. Appellants contend we erroneously found that
Appellants failed to provide evidence to support their construction of this
term, "a set of measured values and a specification of a frequency of
appearance of each specifically unique value amongst the measured values."
See Request for Reh'g. 5; Reply Br. 4. Appellants assert they "proffered the
claim construction of a distribution in accordance with the plain meaning of
the term widely understood in the field of statistics as stated by Appellants at
page 4 of the Reply Brief in reference to paragraph [0043] of Appellants'
specification." Request for Reh'g. 5. Appellants argue the Merriam-
Webster Dictionary of "distribution" and at least one other paragraph of
Appellants' specification support Appellants' construction:
Appellants' argued definition of 'distribution' as stated at page 4
of the Reply Brief pertains only the dictionary definition of
'distribution' of 'the position, arrangement, or frequency of
occurrence (as of the members of a group) over an area or
throughout a space or unit of time' as supported by paragraph
[0043] of the originally filed specification and again at paragraph
[0017] of the originally filed specification whereas an exemplary
distribution is a 'multivariate normal distribution.'
Id. at 6 (quoting MERRIAM-WEBSTER DICTIONARY, http://www.merriam-
webster.com/dictionary/ distribution). 1 Appellants argue their definition does
1 Appellants' supporting citation references the "Merriam-Webster's
Leamer' s Dictionary" but includes a URL for the Merriam-Webster
Dictionary. Req. for Reh' g 5 n.1. We assume the citation should refer to the
Merriam-Webster Dictionary. The definition of "distribution" quoted by
Appellants is nearly identical to part of the definition found at the provided
URL and departs substantially in form from the Learner's Dictionary's
definition. Compare id. at 5---6, with MERRIAM-WEBSTER DICTIONARY,
2
Appeal2014-007523
Application 13/406,774
not improperly import a "frequency" limitation into the claims because
"Appellants believe that it is not 'importing' to construe a claim term
properly." Id.
We find Appellants' arguments unpersuasive. In the Reply Brief,
Appellants stated "it is well known that a distribution of measured values is
a set of measured values and a specification of a frequency of appearance of
each specifically unique value amongst the measured values" and asserted
that Appellants "provided as much at page 11 of the originally filed
specification," specifically paragraph 43. Reply Br. 4. But paragraph 43
states in its entirety "[p ]lotting the frequency distribution of the CPU %
values, the figure lb is obtained." Spec. i-f 43. This paragraph does not
define "distribution," much less support the assertion that "it is well known
that a distribution of measured values is a set of measured values and a
specification of a frequency of appearance of each specifically unique value
amongst the measured values." Rather, as explained in our March 2016
decision, paragraph 43 simply describes how a prior art figure was created.
See Decision 5; Spec. i-f 37 ("Figure 1 illustrates approaches of the prior
art."), i-f 53 ("Plotting the frequency distribution of the CPU% values, the
figure 1 b is obtained."), Figs. 1 a-1 c (labeled "Prior Art").
We find Appellants' belated reliance on paragraph 1 7 of the
specification and the Merriam-Webster Dictionary also fails to support
Appellants' interpretation. Appellants did not cite either paragraph 1 7 of the
http://www.merriam-webster.com/dictionary/distribution, and MERRIAM-
WEBSTER's LEARNER'S DICTIONARY,
http://leamersdictionary.com/ definition/ distribution. Accordingly, we refer
to the Merriam-Webster Dictionary definition of "distribution," not the
Merriam-Webster's Learner's Dictionary's definition.
3
Appeal2014-007523
Application 13/406,774
specification or the Merriam-Webster Dictionary in support of their
construction of "distribution" in their initial briefing. Regardless, like
paragraph 43 of the specification, the relevant part of paragraph 17 concerns
the prior art and does not define "distribution." Paragraph 17 merely
discloses that "[p ]rior approaches analyze data using mean and variance
values and assume a 'multivariate normal distribution."' Spec. i-f 17.
Moreover, paragraph 16 indicates Appellants' alleged invention does not use
the "exemplary" multivariate normal distribution cited by Appellants. See
id. i-f 16 ("Most of approaches of the prior art make assumptions that the
distribution of the values is a multivariate normal distribution; embodiments
of the invention do not make such hypothesis .... " (emphasis added)).
As for the Merriam-Webster Dictionary definition of "distribution,"
the quoted portion of the definition does not demonstrate "it is well known
that a distribution of measured values is a set of measured values and a
specification of a frequency of appearance of each specifically unique value
amongst the measured values." Reply Br. 4. To the contrary, the dictionary
definition is consistent with the Examiner's findings that the term
"distribution" includes "the position, arrangement, or frequency of
occurrence (as of the members of a group) over an area or throughout a
space or unit of time." MERRIAM-WEBSTER DICTIONARY,
http://www.merriam-webster.com/dictionary/distribution (emphasis added);
see Ans. 15. This does not limit "distribution" to "a specification of a
frequency of appearance of each specifically unique value amongst the
measured values" as argued by Appellants. Reply Br. 4.
Moreover, as found by the Examiner, Appellants made clear that the
term "distribution of values" is not limited to a particular type of distribution
4
Appeal2014-007523
Application 13/406,774
function. See Ans. 11-12. Appellants amended the claims to recite "a
distribution of values defining a quantized distribution function."
Amendment and Remarks 3, August 5, 2013. Appellants later amended the
claims again to remove the words "defining a quantized distribution
function." Amendments and Remarks 3, October 21, 2013. Thus,
Appellants recognized the term "distribution of values" alone does not
specify a distribution function type, and Appellants added-and then
removed-language limiting the "distribution of values" to a particular
distribution function. This belies Appellants' contention that "distribution of
values" is limited to a frequency distribution or any other type of
distribution.
Finally, Appellants contend neither the Examiner nor this panel
construed the term "distribution." Req. for Reh'g 5. Appellants request we
"go on record with a claim construction of 'distribution' as the claim
construction of 'distribution' [is] at the crux of the present appeal." Id. at 7.
We disagree with Appellants' characterization of the record. The
Examiner concluded the plain and ordinary meaning of the term
"distribution" includes both "[t]he way something is divided or spread out"
and "[ t ]he position arrangement, or frequency of occurrence (as of the
members of a group) over an area or throughout a space or unit of time."
See Ans. 15 (quoting MERRIAM-WEBSTER DICTIONARY,
http://www.merriam-webster.com/dictionary/distribution), 21 (same); see
also id. at 22-23 (annotated reproduction of Merriam-Webster Dictionary's
definition of "distribution"). We adopted the Examiner's conclusion as to
the meaning of this term in our March 2016 decision. See Decision 3 ("We
adopt the Examiner's findings, reasoning and conclusions set forth in the
5
Appeal2014-007523
Application 13/406,774
Final Rejection and Answer .... "). We reiterate that adoption here. We
again adopt as our own the Examiner's construction of "distribution" as
including "[ t ]he way something is divided or spread out" and "[ t ]he position
arrangement, or frequency of occurrence (as of the members of a group)
over an area or throughout a space or unit of time."
DECISION
For the reasons set forth above, we grant Appellants' request to the
extent we have reconsidered our decision, but we deny Appellants' request
to make changes to the decision. Our decision on Appellants' request is
final for the purposes of judicial review. See 37 C.F.R. § 41.52(a)(l).
No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
DENIED
6