Ex Parte Stibel et al

Patent Trial and Appeal Board

Oct 12, 2018

14140158 (P.T.A.B. Oct. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/140,158 12/24/2013 Jeffrey M. Stibel
27623 7590 10/12/2018
OHLANDT, GREELEY, RUGGIERO & PERLE, LLP
ONE LANDMARK SQUARE, 10TH FLOOR
STAMFORD, CT 06901
UNITED ST A TES OF AMERICA
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.
384.9539USX2 5517
EXAMINER
GUILIANO, CHARLES A
ART UNIT PAPER NUMBER
3623
MAIL DATE DELIVERY MODE
10/12/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY M. STIBEL and AARON B. STIBEL
Appeal 2017-003011
Application 14/140,158
Technology Center 3600
Before ST. JOHN COURTENAY III, JAMES W. DEJMEK, and
MATTHEW J. McNEILL, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-7, 9, 14, 16, 18, 19, and 23-31, which are all the
claims pending in this Application. Claims 8, 10-13, 15, 17, and 20-22 are
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Invention
The disclosed and claimed invention on appeal relates to "a system,
methods, and software products for managing entity credibility." Spec. ,r 2.
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Representative Claim
1. A computer-implemented method for facilitating real-
time management of entity credibility across a plurality of
different online sites, the computer-implemented method
compnsmg:
providing a real-time communication interface to a network
enabled device of a particular entity;
aggregating over the Internet to non-transitory computer-
readable memory of a credibility management system machine,
a plurality of posts in real-time as said posts are published by a
plurality of different users to the plurality of online sites,
wherein each post of the plurality of posts comprises a message
body storing text of the post,
wherein the credibility management system machine
comprises a microprocessor and said non-transitory
computer-readable memory, and
wherein the microprocessor culls a set of posts impacting
credibility of a particular entity from the plurality of
posts,
wherein said culling comprises retaining at least one post
from the plurality of posts comprising within the message
body of the post
(i) sentiment expressing positivity or negativity and
(ii) an entity identifier identifying the particular entity as at
least one of a subject and target of the post while removing at
least one post from the plurality of posts not comprising within
the message body of the post at least one of said sentiment and
the entity identifier;
[L 1] derives a score for the particular entity based on the
sentiment expressed in each post of the set of posts;
generates a first notification comprising the text from the
message body of each post of the set of posts as a unified
stream within a single graphical user interface ( GUI) that is
customized for the particular entity, wherein the first
notification comprises at least the text from the message body
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of a first post from a first user that is published to a first online
site of the plurality of online sites and the text from the message
body of a second post from a second different user that is
published to a second different online site of the plurality of
online sites;
[L2] transmits the first notification over the Internet to the
network enabled device of the particular entity in real-time
using the real-time communication inteiface to the device,
wherein the first notification activates the GUI on the device
to display the set of posts from the plurality of online sites
impacting credibility of the particular entity;
[L3] adjusts said score based on
(i) timeliness with which the particular entity submits
a response to a particular post of the set of posts after
transmitting said first notification,
(ii) sentiment of the particular post, and
(iii) sentiment of the response provided by the
particular entity; and
transmits a second notification over the Internet to the
network enabled device of the particular entity, wherein the
second notification activates the GUI to display the score as
adjusted based on said
(i) timeliness of the particular entity response
(ii) the particular post sentiment, and
(iii) the response sentiment.
App. Br. 24--25 (Claims Appendix) (Contested limitations LI, L2, and L3
are emphasized).
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Re} ections 1
A. Claim 1 is rejected under pre-AIA 35 U.S.C. § 112, second
paragraph, as being indefinite for failing to particularly point out
and distinctly claim the subject matter which the inventor or a joint
inventor, regards as the invention.
B. Claims 1, 3-7, 9, 14, 16, 18, 19, and 23-27 are rejected underpre-
AIA 35 U.S.C. § I03(a) as being obvious over the combined
teachings and suggestions of Ward et al. (US 7,720,835 B2;
May 18, 2010) (hereinafter "Ward"), in view of Kenton et al. (US
2010/0325107 Al; Dec. 23, 2010) (hereinafter "Kenton"), and
further in view of Elenbaas et al. (US 2009/0204471 Al; Aug. 13,
2009) (hereinafter "Elenbaas").
C. Claim 2 is rejected under pre-AIA 35 U.S.C. § I03(a) as being
obvious over the combined teachings and suggestions of Ward in
view of Kenton and Elenbaas, in further view of Bandaru et al. (US
2008/0133488 Al; June 5, 2008) (hereinafter "Bandaru").
D. Claims 28-31 are rejected under pre-AIA 35 U.S.C. § 103(a) as
being obvious over the combined teachings and suggestions of
Ward in view of Kenton and Elenbaas in further view of
Vaidyanathan et al. (US 2004/0128155 Al; July 1, 2004)
(hereinafter "Vaidyanathan").
1 The Examiner withdrew the 35 U.S.C. § 101 rejection of all claims 1-7, 9,
14, 16, 18, 19, and 23-31. Ans. 3.
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ANALYSIS
We have considered all of Appellants' arguments and any evidence
presented. We reverse the Examiner's rejection A under 35 U.S.C. § 112,
second paragraph, for the reasons discussed infra.
Regarding the remaining § 103 rejections B, C, and D over the cited
combinations of prior art, we disagree with Appellants' arguments, and we
adopt as our own: (1) the findings and legal conclusions set forth by the
Examiner in the Final Office Action (pages 12-31) from which this appeal is
taken, and (2) the findings, legal conclusions, and explanations set forth in
the Answer (pages 6-23) in response to Appellants' arguments. We provide
the following explanations to highlight and address specific arguments and
findings primarily for emphasis. We consider Appellants' arguments
seriatim, as they are presented in the Appeal Brief, pages 5-22.
Rejection A under 35 USC§ 112, second paragraph
Regarding claim 1, the Examiner focuses on the claimed "wherein the
microprocessor" clause. The Examiner notes the claim includes the
language:
"wherein the microprocessor ... culls ... derives ... generates
... transmits ... adjusts, and transmits .... " It is unclear
whether the steps recited in the wherein clause are being
performed or are merely describing what the microprocessor is
configured to perform. Under a narrower interpretation, the
microprocessor, in response to the said providing and
aggregating, culls, derives, and generates etc.
Final Act. 9
The Examiner concludes:
Under the broadest reasonable interpretation, the wherein clause
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merely describes what the microprocessor is configured to
perform. In other words, the steps claimed in the wherein
clause are not being performed in the claimed method.
Examiner adopts the broadest reasonable interpretation.
Id. ( emphasis added).
Appellants disagree:
There is no legal basis supporting the Examiner's
position that claim 1 is indefinite or that the steps of claim 1 are
improperly formatted. The rejection is based on nothing more
than the Examiner's preferred manner of drafting
method/process claims. The claim necessarily requires the
steps to be performed without any suggestion that the steps are
optional. The steps are therefore positively recited and are not
optional, indefinite, or ambiguous. Accordingly, claim 1 is
particularly and distinctly recited in full compliance with
35 U.S.C. § 112(b) or 35 U.S.C. [§] 112 (pre-AIA), second
paragraph.
App. Br. 7.
In response, the Examiner essentially restates the basis for the
rejection in the Answer:
Pursuant to the broadest reasonable interpretation, the wherein
clause that follows these elements (i.e. "wherein the
microprocessor ... culls ... ; derives ... ; generates ... ;
transmits ... ; adjust ; transmits ... , ") could be interpreted as
merely a description of additional functions that the
microprocessor is capable of performing, rather than steps that
are performed in claimed method.
Ans. 4--5 ( emphasis added).
Appellants respond in the Reply Brief:
The wherein clause and its recited steps give "meaning and
purpose to the manipulative steps" and therefore limit the claim
as steps of the methodology rather than capable functionality
of the microprocessor. See, e.g., Griffin v. Bertina, 283 F .3d
1029, 1034 ... (Fed. Cir. 2002). Moreover, the wherein clause
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and its recited steps are material to patentability and the overall
methodology and therefore cannot be ignored or interpreted as
optional steps that the microprocessor is capable of performing.
See Hoffer v. Microsoft Corp., 405 F.3d 1326, 1329 ... (Fed.
Cir. 2005). Accordingly, the Examiner's position with respect
to the § 112 rejection is not legally supported.
Reply Br. 4.
Based upon our review of the record, we reverse the Examiner's
rejection under 35 U.S.C. § 112, second paragraph, by applying the guidance
of Griffin and Hoffer, as cited in MPEP § 2111.04. This section of the
MPEP guides that "[ c ]laim scope is not limited by claim language that
suggests or makes optional but does not require steps to be performed." Id.
( emphasis added).
Here, we find no optional language in the subject "wherein" clause.
We agree with Appellants that the computer-implemented steps of claim 1
are ''positively recited and are not optional, indefinite, or ambiguous." App.
Br. 7, ( emphasis added). Therefore, the Examiner erred in rejecting claim 1
under 35 U.S.C. § 112, second paragraph.
Rejection B of Independent Claim 1 under 35 US.C. § 103(a)
Issues: Under pre-AIA 35 U.S.C. § 103(a), did the Examiner err by
finding the cited combination of Ward, Kenton, and Elenbaas teaches or
suggests contested limitations L 1-L3: "wherein the microprocessor ... "
[L 1] derives a score for the particular entity based on the
sentiment expressed in each post of the set of posts; ...
[L2] transmits the first notification over the Internet to the
network enabled device of the particular entity in real-time
using the real-time communication inteiface to the device,
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[L3] adjusts said score based on (i) timeliness with which the
particular entity submits a response to a particular post of the
set of posts after transmitting said first notification, (ii)
sentiment of the particular post, and (iii) sentiment of the
response provided by the particular entity[,]
within the meaning of representative claim 1? 2 ( emphasis added).
Contested Limitation LI (Claim 1)
Appellants contend the cited combination of Ward, Kenton, and
Elenbaas does not teach or suggest contested L 1 limitation: "wherein the
microprocessor ... [L 1] derives a score for the particular entity based on
the sentiment expressed in each post of the set of posts." Claim 1 ( emphasis
added).
Appellants note the Examiner relies on paragraphs 55-70 of Kenton.
In particular, Appellants contend:
Although Kenton teaches a score, the derivation and
components of the score are altogether different than the
recitations of claim 1. Paragraph 56 of Kenton states " ... an
icon 253 indicative of the composite sentiment for the incident,
calculated from individual sentiment scores for that incident"
2 We give the contested claim limitations the broadest reasonable
interpretation ("BRI") consistent with the Specification. See In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997); see, e.g., Spec. ,r 83 ("While the
invention has been described with reference to numerous specific details,
one of ordinary skill in the art will recognize that the invention can be
embodied in other specific forms without departing from the spirit of the
invention. Thus, one of ordinary skill in the art would understand that the
invention is not to be limited by the foregoing illustrative details, but rather
is to be defined by the appended claims" ( emphasis added).). Because
"applicants may amend claims to nmTow their scope, a broad construction
during prosecution creates no unfairness to the applicant or patentee." In re
ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007)
(internal citation omitted).
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( emphasis added). An incident in Kenton involves " ...
[ capturing] relevant online conversations related to the entity, to
store in the memory each captured relevant online conversation
as a discrete incident associated with the entity to which it is
relevant, to score each discrete incident according to a set of
metrics, and to present scored incidents to the entity to which
relevant online conversation relates ... ". See Kenton,
paragraph 2 ( emphasis added). Kenton therefore teaches
deriving scores for each incident rather than deriving a score
for the entity to which the incidents relate. [(Emphasis added)].
In other words, the equivalent claim 1 limitation to the
teachings of Kenton would be if the limitation read deriving a
score for each post of the set of posts. This however is not how
the limitation is recited. Instead, the limitation recites scoring
the particular entity, whereas Kenton teaches scoring incidents
directed to an entity. Thus, the prior art does not disclose or
teach the limitation at issue.
App. Br. 14--15.
In response, the Examiner further explains the basis for the rejection.
The Examiner additionally points to Kenton at paragraphs 3, 48, 55, 57, 59,
and 120, and finds:
While the score in Kenton is related to each particular incident
in the list, the incidents in the list are nonetheless about the
entity and each incident in the list includes at least one
captured post, and thus, each score is "~ score for the particular
entity" and it is based on the sentiment in "each post of the set
of posts." Accordingly, Kenton "derives a score for the
particular entity based on the sentiment expressed in each post
of the set of posts."
Ans. 7-8.
Applying a broad but reasonable interpretation fully consistent with
Appellants' Specification, we construe the scope of "a particular entity"
( claim 1) as at least covering an individual or a business. See Spec. ,r 4
("where the entity can include an individual or a business.").
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We find Kenton (i-f 2) describes an "entity" within the scope of claim
1: "Every day, thousands of bits of information are entered onto the Web
that impact business by affecting the 'social reputation' of an entity or an
entity's products and services."
Kenton further describes relevant online conversations (i.e., posts):
The online conversation monitoring system is configured to
create and manage search topics and queries, to search sites on
the network utilizing the search topics and queries to identify
relevant online conversations related to an entity, to capture
relevant online conversations related to the entity, to store in
the memory each captured relevant online conversation as a
discrete incident associated with the entity to which it is
relevant, to score each discrete incident according to a set of
metrics, and to present scored incidents to the entity to which
relevant online conversation relates.
Id. ,r 3 ( emphasis added).
Based upon a preponderance of the evidence, as discussed above, we
find contested limitation L 1 of claim 1 ("wherein the microprocessor ...
[L 1] derives a score for the particular entity based on the sentiment
expressed in each post of the set of posts" ( emphasis added)) is taught or
suggested by the cited combination of references. 3
3 Our reviewing court guides: "'the question under 35 USC[§] 103 is not
merely what the references expressly teach but what they would have
suggested to one of ordinary skill in the art at the time the invention was
made."' Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir.
1989) ( quoting In re Lamberti, 545 F .2d 7 4 7, 7 50 ( CCP A 197 6)) ( emphasis
added); see also MPEP § 2123.
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Contested Limitation L2 (Claim 1)
Appellants contend the cited combination of Ward, Kenton, and
Elenbaas does not teach or suggest contested limitation L2 of claim 1
( emphasis added):
[L2] transmits the first notification over the Internet to the
network enabled device of the particular entity in real-time
using the real-time communication interface to the device.
The Examiner finds limitation L2 is taught or suggested by Ward at
Figures lB, 2-5, and column 8:
i.e. the Discovery Robot Manager can act in real time using the
RSS feeds to transmit the first notification to an entity's device
(210) and display (250) ), wherein the first notification
activates[] the GUI on the device to display the set of posts
from the plurality of online sites impacting credibility of the
particular entity (Fig. 15-17 and col.18 i.e. the notification
causes user's GUis to display the newly received information
based on the user's authority);
Final Act. 15.
Appellants contend:
the cited teachings and Kenton's disclosure with respect to the
RSS and atom feeds apply only to the aggregation of data.
Now here does Kenton disclose or teach that the RS S feeds or
any other data is transmitted "to the network enabled device of
the particular entity in real-time using the real-time
communication interface to the device".
The FOA also cites [F]igures 15-17 and column 18 of
Kenton in rejecting the limitation at issue. See FOA, page 15.
These disclosures offer nothing more than different website
screenshots. Column 18, lines 26 and 27 of Kenton recite
"FIG. 15 shows an example screenshot of user interface
homepage 1300"; column 18, lines 50 and 51 of Kenton recite
"FIG 16 shows an example screenshot of the account manager
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1305"; and column 18, lines 59 and 60 of Kenton recite "FIG.
17 shows an example screenshot of the user manager 1310."
App. Br. 15-16.
In the Answer (8), the Examiner notes that Kenton was not relied
upon to teach this limitation. Instead, the Examiner found Ward taught or
suggested contested limitation L2, not Kenton. See Final. Act. 15. We find
Appellants' arguments are unavailing because: ( 1) Appellants are arguing
the references separately, 4 and (2) Appellants have not addressed the
Examiner's specific findings. See id. Therefore, on this record and based
upon a preponderance of the evidence, we are not persuaded the Examiner
erred regarding contested limitation L2 of claim 1.
Contested Limitation L3 (Claim 1)
Appellants contend the cited combination of Ward, Kenton, and
Elenbaas does not teach or suggest contested limitation L3:
[L3] adjusts said score based on (i) timeliness with which the
particular entity submits a response to a particular post of the
set of posts after transmitting said first notification, (ii)
sentiment of the particular post, and (iii) sentiment of the
response provided by the particular entity.
App. Br. 17 (emphasis added).
The Examiner maps limitation L3 to the corresponding portions of
Kenton, finding Kenton:
adjusts said score based on sentiment of all relevant posts (Fig.
11-13, [i-fi1J 54-56, 65-70, 122-126, and 131-143. The system
uses Natural Language Processing (NLP) techniques to derive a
4 One cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
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sentiment score for every incoming and responding posts.
Positive indicia and negative indicia of each posts can be
combined to impact an entity's overall score).
Final Act. 15.
Appellants contend:
The FOA cites [F]igures 11-13 and paragraphs 54-56, 65-70,
122-126, and 131-143 of Kenton and paragraphs 170-179 of
Elenbaas in rejecting this limitation. See FOA, pages 15 and
17. The rejection is piecemeal and attempts to address each
element (i), (ii), and (iii) independently and separate from one
another. As a result, the rejection fails to disclose or teach
adjusting a score based on (i) timeliness, (ii) sentiment of the
original post, and (iii) sentiment of the response as disclosed by
the limitation at issue.
App. Br. 16.
Appellants then summarize the aforementioned paragraphs of Kenton
and Elenbaas, and assert limitation L3 is not taught or suggested. Id. at 16-
17. However, Appellants acknowledge Elenbaas (i-f 177) teaches "a job
owner's reputation score that is based on 'an average time elapsed between a
worker's submission of a question and the job owner's response thereto."'
App. Br. 17.
In response, the Examiner further explains the basis for the rejection
regarding the timeliness aspect of limitation L3: "adjust[ing] said score
based on (i) timeliness with which the particular entity submits a response to
a particular post." App. Br. 24 (Claim 1 ).
In Elenbaas, a job owner's reputation score on timeliness
approval is determined by averaging the time between the
worker's submission of a question to the job owner (i.e. after
transmitting said first notification) and the job owners response
thereto ([0176]-[0177]). Further, the process may be reiterated
and the average approval time may be obtained for multiple
submissions and responses (i.e. adjusted) ([0176]).
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Ans. 11.
The Examiner additionally finds Kenton (i-f 122) teaches a timeliness
score. Ans. 13. We note Kenton (i-f 122) expressly teaches: "The timeliness
metric may be measured by the time of the last comment or post."
Based upon a preponderance of the evidence, as discussed above, we
find contested limitation L3 of claim 1 is taught or suggested by the cited
combination of references. For at least the reasons discussed above
regarding contested limitations Ll-L3, we are not persuaded the Examiner
erred regarding rejection B under § 103 of sole independent claim 1.
Rejection C of Dependent Claim 2
Appellants urge that the cited combination of Ward, Kenton,
Elenbaas, and Bandaru does not teach or suggest the contested claim
limitation: "wherein said first notification further comprises highlighting
sentiment expressed in the message body of each post of the set of posts to
differentiate from other words in the message body of each post." App.
Br. 19 ( emphasis added).
Appellants acknowledge that "Bandura teaches highlighting
frequently mentioned words and phrases." Id. However, Appellants
contend: "This teaching is different than and fails to disclose or teach the
claim 2 limitation for 'highlighting sentiment expressed in the message body
of each post of the set of posts to differentiate from other words in the
message body of each post."' Id. ( emphasis added).
We disagree, and find a preponderance of the evidence supports the
Examiner's underlying factual findings and ultimate legal conclusion of
obviousness. We note the Abstract of Bandaru ( emphasis added) teaches:
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A method and system for collecting and analyzing data found
across multiple sites on the internet or stored in a self-contained
or pre-loaded database, is disclosed which captures, extracts,
analyzes, categorizes, synthesizes, summarizes and displays, in
a customizable format, both the substance and sentiment
embodied within user-generated content, such as comments or
reviews, found across such sites and/or stored within such
databases.
We note Bandaru (i-f 146 ( emphasis added) ( cited by the Examiner))
expressly teaches: "collected reviews are primarily describing user
sentiments and experiences." Bandaru further describes an embodiment in
which
Id.
a synopsis or summary may also be provided that is organized
around attributes such as "frequency of mentions" and
segmentation by food, service and ambiance. These results can
then be used indicate whether a restaurant has good food,
service or ambiance or some combination of these attributes, in
a visual way.
Further, as noted by Appellants (App. Br. 19) Bandaru expressly
teaches highlighting: Bandaru describes a "tag cloud" that is a "simple
representation of keywords or phrases depicted by highlighting the relevant
items." Id. (emphasis added).
We emphasize the Examiner's rejection of claim 2 is based on the
combined teachings and suggestions of the cited references. See supra n.3,
n.4. For at least these reasons, we are not persuaded the Examiner erred
regarding rejection C of dependent claim 2.
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Rejection B of Dependent Claim 25
Appellants urge that the cited combination of Ward, Kenton, and
Elenbaas does not teach or suggest the contested claim limitation: "wherein
the microprocessor further identifies from the set of posts, a subset of posts
with each post of the subset of posts comprising negative sentiment that is
directed to (i) the particular entity or (ii) an offering of the particular entity"
( emphasis added).
In support, Appellants contend:
The FOA cites paragraphs 120-129 and 94-103 of Kenton in
rejecting this limitation. See FOA, page 24. Paragraphs 120-
129 of Kenton relate to incident scoring and make no mention
of identifying a subset of posts with negative sentiment from
other posts. Paragraphs 94-103, at best, disclose "[p ]rocessing
to automatically exclude similar incidents in future scans, or to
automatically target similar incidents in future scans, or to
automatically target similar incidents in future scans. For
example, classified advertisements may be collected to help the
Natural Language Processing system identify and filer out
classified advertisements from the incident pipeline in the
future." Kenton, paragraph 99. Thus, Kenton teaches an
entirely different method of filtering than the limitation recited
in claim[] 25.
App. Br. 20.
We note paragraph 1 of Kenton expressly describes: "This invention
relates to a system and method of identifying tracking, measuring and
managing positive or negative comments published on the internet regarding
an entity." (Emphasis added). We particularly note the alternative "or"
language regarding the contested limitation: "comprising negative sentiment
that is directed to (i) the particular entity or (ii) an offering of the particular
entity" ( emphasis added). When a claim covers several alternatives, the
claim may be unpatentable if any of the alternatives within the scope of the
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claim are taught by the prior art. See Brown v. 3M, 265 F.3d 1349, 1351
(Fed. Cir. 2001).
Therefore, on this record, and based upon a preponderance of the
evidence, we are not persuaded the Examiner erred in finding the contested
limitation of claim 25 would have been taught or suggested by the cited
combination of references.
Rejection B of Dependent Claim 26
Appellants urge that the cited combination of Ward, Kenton, Elenbaas
does not teach or suggest the contested claim limitation: "wherein
transmitting the first notification comprises displaying the text from the
message body of each post from the subset of posts while omitting the text
from the message body of any post of the set of posts that is not also within
the subset of posts." App. Br. 29 (Claim 26) (emphasis added); id. at 20-
26.5
5 See also Ex parte Nehls, 88 USPQ2d 1883, 1889 (BPAI 2008)
(precedential) ("[T]he nature of the information being manipulated does not
lend patentability to an otherwise unpatentable computer-implemented
product or process."). The Manual of Patent Examining Procedure
("J\1PEP") provides further guidance: "where the claim as a whole is
directed to conveying a message or meaning to a human reader independent
of the intended computer system, and/or the computer-readable medium
merely serves as a support for information or data, no functional relationship
exists." MPEP § 2111.05 (III) (9th Ed., Rev. 08.2017, Last Revised Jan.
2018). Therefore, we broadly but reasonably construe the recited displayed
or omitted text (claim 26) as non-functional descriptive material (NFDM)
merely intended for human perception.
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The Examiner finds:
Ward further teaches: displaying the identification of each post
from the subset of posts while omitting any posts of the set of
posts that is not also within the subset of post ( col[s].12-13 and
[Fig.] 31, i.e. infiltering the gathered messages, the system is
able to recognize relevant messages based on linguistic parsing
and sentiment sorting, the system is able to remove all the posts
that lack the entity identifier i.e. Sony V AIO and the required
sentiment element to present user only the relevant posts).
While Ward does not explicitly teach presenting the message
body of each post, Kenton teaches: presenting relevant text in
respect to the keyword searches (Fig[ s]. 4, 5 and 10 i.e. the
system presents relevant text content based on the search
inquiry).
Final Act. 24.
The Examiner also finds: "since the claimed invention is merely a
combination of old elements, and in the combination each element merely
would have performed the same function as it did separately, one of ordinary
skill in the art would have recognized that the results of the combination
were predictable." Id. at 25.
We agree with the Examiner that "omitting the text from the message
body of any post of the set of posts that is not also within the subset of
posts" ( claim 26 ( emphasis added)) would have been nothing more than a
predictable result. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,401
(2007) ("[A] combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.").
Moreover, we note Ward teaches selectively displaying content: "The
system, in one embodiment, of databases which receive topic relevant,
analyzed content is connected to a series of web-based visualizations to
allow users of the UI to understand valuable information about the
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discussions captured by the system, in one embodiment. Visualizations are
shown in FIGS. 27-38." Ward, col. 14, 11. 11-17; see particularly Fig. 31, as
relied on by the Examiner. Final Act. 24. Therefore, on this record, we are
not persuaded the Examiner erred regarding rejection B of dependent claim
26.
Rejection D of Dependent Claim 29
Appellants urge that the cited combination of Ward, Kenton,
Elenbaas, and does not teach or suggest the contested claim limitation:
"wherein said adjusting comprises increasing the score as a result of said
promotion or coupon." App. Br. 29 (Claim 29); id. at 21.
The Examiner finds V aidyanathan teaches "increasing the score as a
result of said promotion or coupon (i1[i1J 73-75 i.e. removing negative
feedback score when a dispute is resolved)." Final Act. 29. The Examiner
finds an artisan would have been motivated to modify Ward, Kenton, and
Elenbaas with Vaidyanathan, because:
Id.
Ward, Kenton and Elenbaas demonstrate the process for
managing an entity's credibility score. Vaidyanatha[n]
demonstrates how resolving a customer's complain via forum
communications increases the entity's credibility.
Implementing Ward, Kenton and Elenbaas' mechanism into
V aidyanatha[ n] 's environment/ scenario would yield a
predictable result because the combination merely implements a
well-known commercial practice in an old and well-known
reputation management process.
We note paragraph 7 4 of Vaidyanathan ( emphasis added) expressly
describes:
an automated negotiation process to agree to reputation or
feedback retraction or correction. Reputation correction module
34D applies processes to ensure that reputation database 22,
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marketplace database 30 and compliance database 38 are
updated to, for example, remove negative feedback in the event
a dispute is resolved.
Appellants contend:
However, Vaidyanatha[ n] merely recites "remove negative
feedback in the event a dispute is resolved". See
Vaidyanatha[n], paragraph 74. The equivalent claim 29
limitation to Vaidyanatha[ n] 's teaching would be if claim 29
recited removing the post targeting the particular entity.
However, claim 29 does not recite removing any post, rather
increasing a score for the particular entity based on a response
from the entity to at least one post targeting the entity. As
such, the cited references do not disclose or teach the limitation
at issue and the rejection should be withdrawn and reversed.
App. Br. 21 ( emphasis added).
However, we find a preponderance of the evidence supports the
Examiner's findings:
Vaidyanatha[ n] describes a means for retraction of negative
feedback to provide dispute resolution because buyers' and
sellers' ability to transact in online market places, such as eBay,
is dramatically impacted by their reputation rating (i.e. a
reputation score) ([0010). A reputation correction module may
update a database to remove negative feedback in the event
parties have resolved a dispute ([0074]). Such a removal of
negative feedback would increase the buyers and sellers
reputation ratings (i.e. increase the user's score) ....
Furthermore, in addition to the reputation rating (i.e. a score),
Vaidyanatha[ n] also teaches reputation ratio of the positive to
negative feedback, which is a another score that would increase
upon removal of negative feedback ([0041 ], a first user may be
automatically notified based on the ratio of positive to negative
feedback i.e., ratio to of positive to negative feedback would
increase if negative feedback is removed).
Ans. 19.
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We additionally emphasize the Examiner's rejection of claim 29 is
based upon the combined teachings and suggestions of the cited references.
See supra n.3, n.4. For at least these reasons, we are not persuaded the
Examiner erred regarding rejection D of dependent claim 29.
Rejection D of Dependent Claim 30
Appellants urge that the cited combination of Ward, Kenton,
Elenbaas, and V aidyanathan does not teach or suggest the contested claim
limitation: "wherein said adjusting comprises increasing said score based
on said response providing support resolving a customer issue identified in
the particular post." App. Br. 30 (Claim 30) ( emphasis added); id. at 21-22.
However, in addition to the reasons discussed supra regarding
rejection D of dependent claim 29, we agree with the Examiner's findings
that "removing negative feedback scores will increase the entity's overall
score" and that "Vaidyanatha[n] demonstrates how resolving a customer's
complain[t] via forum communications increases the entity's credibility."
Final Act. 30.
Therefore, based upon a preponderance of the evidence, we are not
persuaded the Examiner erred regarding rejection D of dependent claim 30.
Remaining Claims rejected under§ 103 Rejections B or D
To the extent Appellants have not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are waived.
See 37 C.F.R. § 4I.37(c)(l)(iv) (2015).
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Reply Brief
To the extent Appellants may advance new arguments in the Reply
Brief 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, which Appellants have not
shown. See 37 C.F.R. § 4I.41(b)(2).
DECISION
We reverse the Examiner's decision rejecting claim 1 under pre-AIA
35 U.S.C. § 112, second paragraph.
We affirm the Examiner's decision rejecting claims 1-7, 9, 14, 16, 18,
19, and 23-31 under pre-AIA 35 U.S.C. § 103(a).
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner's decision is affirmed. See
37 C.F.R. § 4I.50(a)(l).
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. § 4I.50(f).
AFFIRMED
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