Ex Parte Street et al

Board of Patent Appeals and Interferences

Jul 26, 2012

10188298 (B.P.A.I. Jul. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/188,298 07/02/2002 Nigel Street 218.1032 8503
23280 7590 07/27/2012
Davidson, Davidson & Kappel, LLC
485 7th Avenue
14th Floor
New York, NY 10018
EXAMINER
SAMS, MICHELLE L
ART UNIT PAPER NUMBER
2628
MAIL DATE DELIVERY MODE
07/27/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte NIGEL STREET, ANDREW MCDERMOTT, and
CHRISTOPHER CHERRINGTON,
____________________

Appeal 2009-014305
Application 10/188,298
Technology Center 2600
____________________

Before ALLEN R. MacDONALD, KALYAN K. DESHPANDE, and
JASON V. MORGAN, Administrative Patent Judges.

MacDONALD, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-014305
Application 10/188,298

2
STATEMENT OF CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-10, 12-28, 30-32, and 34-42. We have jurisdiction under 35 U.S.C. § 6(b).

Exemplary Claim(s)
Exemplary claims 1 and 8 under appeal read as follows:
1. A method for providing an overview of a plurality of
contexts of a target environment, the method comprising:
receiving event data representing a plurality of events in the
plurality of contexts over a monitoring period;
displaying a schematic representation of the event data over the
monitoring period using only a portion of the event data, the
schematic representation being indicative of an activity density of the
event data over the monitoring period;
displaying, together with the schematic representation, a
detailed graphical representation of the event data over a specified
portion of the monitoring period using the event data for the specified
portion of the monitoring period; and
receiving from a user, a selection generating a marker
associated with an item of the schematic representation, wherein the
displaying the schematic representation includes displaying said
marker in the schematic representation, and wherein the displaying the
detailed graphical representation includes displaying an indication of
the marker in the detailed graphical representation.

8. The method as recited in claim 1 wherein the displaying of
the schematic representation includes displaying an event intensity
graph including a plurality of graphical elements, each graphical
element being indicative of an event intensity at one of the plurality of
contexts.
Appeal 2009-014305
Application 10/188,298

3
Examiner’s Rejections
The Examiner rejected claim 1-10, 12-28, 30-32, 34, and 39-42 under
35 U.S.C. § 103(a) as being unpatentable over Wilner (US 5,872,909) and
Desautels (US 4,975,636). 1
The Examiner rejected claims 35-38 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Wilner, Desautels, and Onda
(US 5,860,067). 2
Appellants’ Contentions
1. Appellants contend that the Examiner erred in rejecting claim 1
under 35 U.S.C. § 103(a), because:
[T]he “user events” of Wilner are in no way analogous to the
[“]marker associated with an item of the schematic
representation” as recited in the claim 1 of the present invention
because the “user events” of Wilner are not generated by the
user of the host device, but instead are generated by the target
device once the parameters defined by the user are met.
(App. Br. 10).
2. Also, Appellants contend that the Examiner erred in rejecting
claim 1 under 35 U.S.C. § 103(a), because:
Applicants believe that the Wilner patent does not teach or
suggest “the schematic representation being indicative of an
activity density of the event data over the monitoring periods”
in claim 1.
(App. Br. 11).

1 Separate patentability is not argued for claims 2-7, 10, 12-19, 21-26, 28,
34, 39 and 41. Except for our ultimate decision, these claims are not
discussed further herein.
2 Separate patentability is not argued for claim 36. Except for our ultimate
decision, this claim is not discussed further herein.
Appeal 2009-014305
Application 10/188,298

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3. Appellants contend that the Examiner erred in rejecting claims
31 and 32 under 35 U.S.C. § 103(a) for essentially the same basis as set forth
in above contention 1, that is:
[N]either Wilner nor Desautels teach or suggest “receive a
selection, from a user, generating a marker associated with an
item of the schematic representation, to display the marker in
the schematic representation, and to display an indication of the
marker in the detailed graphical representation” as claimed in
claim 31.
(App. Br. 14) (emphasis omitted).
4. Appellants contend that the Examiner erred in rejecting
claim 20 under 35 U.S.C. § 103(a) for the same basis as set forth in above
contention 2. (App. Br. 15-16).
5. Appellants contend that the Examiner erred in rejecting claims
8 and 26 under 35 U.S.C. § 103(a), because:
[T]he Wilner patent does not teach or suggest “an event
intensity graph including a plurality of graphical elements, each
graphical element being indicative of an event intensity at one
of the plurality of contexts,” [as claimed] in claims 8 and 26.
(App. Br. 16).
6. Appellants contend that the Examiner erred in rejecting
claims 9 and 27 under 35 U.S.C. § 103(a) because Wilner “does not disclose
or suggest ‘a color intensity of each of the plurality of [detailed] graphical
elements is indicative of the event intensity,’ as recited in claims 9 and 27.”
(App. Br. 17).
7. Appellants contend that the Examiner erred in rejecting
claim 35 under 35 U.S.C. § 103(a) for essentially the same basis as set forth
in above contention 1. (App. Br. 18).
Appeal 2009-014305
Application 10/188,298

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8. Appellants contend that the Examiner erred in rejecting
claim 37 under 35 U.S.C. § 103(a) for essentially the same basis as set forth
in above contention 1. (App. Br. 19-20).
9. Appellants contend that the Examiner erred in rejecting
claim 38 under 35 U.S.C. § 103(a) for essentially the same basis as set forth
in above contention 1. (App. Br. 21-22).

Issues on Appeal
Did the Examiner err in rejecting claims 1-10, 12-28, 30-32, 34, and
39-42 as being anticipated or obvious because Wilner and Desautels fail to
teach or suggest the argued limitations?
Did the Examiner err in rejecting claims 35-38 as being anticipated or
obvious because Wilner, Desautels, and Onda fail to teach or suggest the
argued limitations?

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred.
We agree with Appellants’ above contentions 5 and 6 regarding
claims 8, 9, 26, and 27.
We disagree with Appellants’ above contentions 1, 3, and 7-9. The
argument is not commensurate with the scope of the claim language. The
claim language “from a user” in no way limits how the user provides the
selection. Therefore, the claim encompasses every way of a user preforming
the selecting, including the way shown in Wilner. We concur with the
conclusion reached by the Examiner.
Appeal 2009-014305
Application 10/188,298

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We also disagree with Appellants’ above contentions 2 and 4. While
we struggle to find the argued claim limitation in Wilner, Appellants
explicitly state that in Wilner “[t]he user can then to [sic] search for a dense
area of activity and ‘zoom in’ on that area for a more detailed analysis.”
(Appellants’ Spec. ¶ [0004]). Appellants’ arguments are unavailing so long
as Appellants’ admission to the contrary remains unresolved. Note that
mere cancellation of the admission from the Specification is not alone
sufficient absent an explanation of error in the admission.

CONCLUSIONS
(1) Appellants have established that the Examiner erred in rejecting
claims 8, 9, 26, and 27 as being unpatentable under 35 U.S.C. § 103(a).
(2) The Examiner did not err in rejecting claims 1-7, 10, 12-25, 28,
30-32, and 34-42 as being unpatentable under 35 U.S.C. § 103(a).

DECISION
The Examiner’s rejection of claims 8, 9, 26, and 27 is reversed.
The Examiner’s rejections of claims 1-7, 10, 12-25, 28, 30-32, and
34-42 are affirmed.

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-IN-PART

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