Ex Parte Miller

Patent Trial and Appeal Board

Sep 25, 2013

11837955 (P.T.A.B. Sep. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte LANDON C. G. MILLER
____________________

Appeal 2011-0028661
Application 11/837,955
Technology Center 2100
____________________

Before JEAN R. HOMERE, MICHAEL STRAUSS, and
JUSTIN BUSCH, Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

DECISION ON APPEAL

1 The real party in interest is International Business Machines, Corp. (App.
Br. 2.)

Appeal 2011-002866
Application 11/837,955

2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-8 and 21. Claims 9-20 have been canceled. (App. Br.
2.) We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellant’s Invention
Appellant invented a method for programming a plurality of smart
sensors to recreate known emergent information (e.g., a consolidated
response). (Spec. [0016].) In particular, a controlling software describing a
plurality of search data patterns, each identifying specific data types within a
predefined time limit, is downloaded in the sensors. Upon detecting an
external stimulus (e.g., a perceived condition), each of the sensors compares
the received data with its internal search patterns, and subsequently votes to
indicate a degree of the match. If the consolidated votes exceed a
predetermined threshold, the relevant sensors are activated thereby causing a
CCTV camera to start recording. (Spec. [0036]-[0039].)
Illustrative Claim
Independent claim 1 further illustrates the invention as follows:
1. A method for recreating known emergent information,
the method comprising:
storing initial data in a database;
developing multiple data patterns that are based on the
stored initial data, wherein each data pattern is based on a
creation of specific data of specific data types within a
predefined time limit;
Appeal 2011-002866
Application 11/837,955

3
ranking multiple data patterns according to each data
pattern’s historic accuracy in creating a known emergent
information;
applying newly received data to a highest-ranked data
pattern to recreate the known emergent information; and
performing a response to address the emergent
information.

Prior Art Relied Upon
The Examiner relies on the following prior art as evidence of
unpatentability:
Wong U.S. 5,809,499 Sep. 15, 1998
Schrader U.S. 6,257,354 B1 Jul. 10, 2001
Yagesh U.S. 2003/0171939 A1 Sep. 11, 2003
Hoffberg-Borghesani U.S. 2007/0061022 A1 Mar. 15, 2007
Breed U.S. 2008/0094212 A1 Apr. 24, 2008

Rejections on Appeal
The Examiner rejects the claims on appeal as follows:
1. Claim 1 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Hoffberg-Borghesani and
Wong.
2. Claim 2 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Hoffberg-Borghesani, Wong,
and Yagesh.
3. Claims 3-5, 7, 8, and 21 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Hoffberg-Borghesani,
Wong, Yagesh, and Schrader.
Appeal 2011-002866
Application 11/837,955

4
4. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Hoffberg-Borghesani, Wong,
Yagesh, and Breed.

ANALYSIS
We consider Appellant’s arguments seriatim as they are presented in
the Appeal Brief, pages 5-8.
Dispositive Issue: Under 35 U.S.C. § 103(a), did the Examiner err in
finding that the combination of Hoffberg-Borghesani and Wong teaches or
suggests (1) developing multiple data patterns based on initial stored data
wherein each data pattern is based on specific data types within a
predefined time limit, and (2) ranking the data patterns according to each
data pattern’s historic accuracy in creating a known emergent information,
as recited claim 1?
Appellant argues that the proposed combination does not teach or
suggest the disputed limitations emphasized above. (App. Br. 5-7.) First,
according to Appellant, Hoffberg-Borghesani discloses an image recognition
process that compares a captured image to a plurality of templates stored in
memory to determine which of the templates best matches the image to
subsequently use a contingent program. (Id. at 6.) Appellant submits,
however, while the stored templates have different characteristics, they are
not based on stored initial data nor are they based upon the creation of
specific data types within a predefined time limit. (Id.) In response, the
Examiner finds because Hoffberg-Borghesani discloses a data pattern
Appeal 2011-002866
Application 11/837,955

5
recognition system that creates patterns based on different sensed
temperatures as well as a “time constant for assimilation” to thereby take the
appropriate corrective actions, the reference teaches creating different data
patterns based on pattern types within a predefined time limit. (Ans. 20.)
We note at the outset that while Appellant has leveled a general
allegation against certain paragraphs [0382], [0592]-[0594] of the reference
upon which the Examiner’s finding relied to reject the claim, Appellant has
failed to explain how the cited findings made by the Examiner are in error.
In particular, we find nowhere in Appellant’s response any rebuttal of the
Examiner’s specific finding that the disclosure of “different temperature”
teaches “specific data of specific data types” and the disclosure of “time
constant for assimilation” teaches predetermined time limit. Second,
Appellant’s response has similarly failed to show error in the Examiner’s
specific finding that Wong’s disclosure of ranking “patterns of various order
for a data set… representing an event” to thereby identify “statistically
significant among the primary events” teaches the ranking data patterns
based on historic patterns. (Ans. 21-22.) That is, while Appellant’s response
generally discusses the portions of the Wong reference upon which the
Examiner relied in the rejection, Appellant merely confines the discussion of
the cited portion to its alleged disclosure of various pattern orders discovered
in a data set. (App. Br. 6.) However, we find nowhere in Appellant’s
response any rebuttal of the Examiner’s finding that the ordering of the data
patterns based on their statistical significance teaches ranking the data
patterns based on their historic accuracy. Because the Examiner’s findings
Appeal 2011-002866
Application 11/837,955

6
are not unreasonable, and Appellant has failed to show errors therein,
Appellant has thereby not shown error in the Examiner’s rejection of claim 1
over the combination of Hoffberg-Borghesani and Wong.2

Regarding the rejections of claims 2-8 and 21, Appellant substantially
reiterates the same arguments previously submitted for the patentability of
claim 1 above. (App. Br. 7.) As per the foregoing discussion, these
arguments are not persuasive. See 37 C.F.R. § 41.37(c)(1)(vii). Further,

2 We note the Examiner’s detailed response in the Answer. (Ans. 19-23.)
We also particularly note that Appellant has not rebutted the Examiner’s
responsive arguments by filing a Reply Brief. Cf. Harper & Row
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 572 (1985) (“Silence
implies assent.”). Based upon our review of the record before us, we find
Appellant has failed to present substantive arguments supported with
specific factual evidence of sufficient character and weight to persuade us of
error regarding the Examiner’s findings of facts and ultimate legal
conclusion of obviousness. Mere attorney arguments and conclusory
statements that are unsupported by factual evidence are entitled to little
probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see
also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); and Ex parte
Belinne, No. 2009-004693, slip op. at 7-8 (BPAI Aug. 10, 2009)
(informative), available at
http://www.uspto.gov/web/offices/dcom/bpai/its/fd09004693.pdf.
See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the
Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.”); 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, looking for [patentable] distinctions over
the prior art.”). Arguments not made are therefore waived. See 37 C.F.R.
§ 41.37(c)(1)(vii).
Appeal 2011-002866
Application 11/837,955

7
Appellant argues that the additional references do not cure the noted
deficiencies in the Hoffberg-Borghesani and Wong combination. (App. Br.
7.) Because we found no such deficiencies in the proposed combination for
those references to remedy, these arguments are unavailing. Additionally,
regarding claim 21, Appellant provides a general discussion of paragraphs
[0069]-[0073] of the Yagesh reference (id.) without particularly explaining
how the Examiner erred in finding that Yagesh’s disclosure of the receiver
sensor, the positional sensor, and the alarm sensors are an array of sensors
programmed based on a plurality of rules. (Ans. 24.) Consequently,
Appellant has failed to show error in the Examiner’s rejection of claims 2-8
and 21.

DECISION
We affirm the Examiner’s rejections of claims 1-8 and 21 as set forth
above.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

msc