13337787 (P.T.A.B. Oct. 24, 2016)

Ex Parte Wickstrom

Patent Trial and Appeal BoardOct 24, 2016

13337787 (P.T.A.B. Oct. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/337,787 12/27/2011 88032 7590 10/26/2016 Jordan IP Law, LLC c/o CPA Global 900 2nd A venue South, Suite 600 Minneapolis, MN 55402 FIRST NAMED INVENTOR Larry E. Wickstrom 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. P40284 4500 EXAMINER RUSSELL, RICHARD M ART UNIT PAPER NUMBER 2618 NOTIFICATION DATE DELIVERY MODE 10/26/2016 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): info@jordaniplaw.com admin@jordaniplaw.com inteldocs _ docketing@cpaglobal.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LARRY E. WICKSTROM Appeal2015-006810 Application 13/337 ,787 1 Technology Center 2600 Before ST. JOHN COURTENAY III, THU A. DANG, and LARRY J. HUME, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. Â§ 134(a) of the Final Rejection of claims 1-28. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We REVERSE. 1 According to Appellant, the real party in interest is Intel Corp. App. Br. 3. Appeal2015-006810 Application 13/337,787 STATEMENT OF THE CASE2 The Invention Appellant's disclosed and claimed invention relates to "interactive display of very large files using B plus trees and stabilized sub sampling." Title. Exemplary Claim Claim 1, reproduced below, is representative of the subject matter on appeal (emphasis added to contested limitation): data; 1. A computer implemented method comprising: receiving a set of data; parsing the set of data; populating a B plus tree with the parsed set of data; receiving a display request associated with the set of identifying one or more visibility parameters based on the display request, wherein the one or more visibility parameters include one or more of a visibility region and a number of visible pixels; using a hierarchical sampling scheme to identify one or more sample points in the B plus tree based on the one or more visibility parameters; using the one or more sample points to obtain sample data from the B plus tree; and automatically generating a display response based on the sample data. 2 Our decision relies upon Appellant's Appeal Brief ("App. Br.," filed Jan. 13, 2015 ); Reply Brief ("Reply Br.," filed July 13, 2015 ); Examiner's Answer ("Ans.," mailed May 13, 2015 ); Final Office Action ("Final Act.," mailed May 14, 2014 ); and the original Specification ("Spec.," filed Dec. 27, 2011 ). 2 Appeal2015-006810 Application 13/337,787 Prior Art The Examiner relies upon the following prior art as evidence in rejecting the claims on appeal: Pichumani et al. ("Pichumani") US 8,005,992 Bl Aug. 23, 2011 Rejection on Appeal Claims 1-28 stand rejected under 35 U.S.C. Â§102(e) as being anticipated by Pichumani. Final Act. 6. ISSUE Appellant argues (App. Br. 10-16, Reply Br. 5-8) the Examiner's rejection of claims 1, 5, 3 and 21 under 35 USC 102( e) as being anticipated by Pichumani is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art discloses a "computer implemented method" that includes, inter alia, the step of "populating a B plus tree with the parsed set of data," as recited in claim 1, and as commensurately recited in each of independent claims 5, 13 and 21? ANALYSIS We agree with the particular arguments advanced by Appellant with respect to independent claims 1, 5, 13 and 21 for the specific reasons discussed below. We highlight and address specific findings and arguments regarding claim 1 for emphasis below. 3 Appeal2015-006810 Application 13/337,787 Appellant contends Pichumani "does not expressly or inherently teach a B plus tree. In contrast, Pichumani expressly and repeatedly teaches a different, less specific type of tree; namely, a B tree." App. Br. 10. Appellant further contends "a genus still does not inherently disclose all species within that broad category." App. Br. 12, see also 13-14. Appellant further argues: Accordingly, there are many different types of B trees and one of ordinary skill in the art would not necessarily envision a B plus tree when encountered with a B tree. Indeed, a mere invitation (if any) to investigate other types of B trees is not an inherent disclosure and a disclosure of a B tree amounts to, at most, probabilities or possibilities that cannot establish inherency. App. Br. 12. Appellant also presents evidence, as indicated in the Appellant's Appeal Brief (Section X. "Evidence Appendix"), providing descriptions of the terms of art: B tree and B plus tree, describing the differences between a B tree and a B plus tree, noting that "In a B plus tree, in contrast to a B tree, all records are stored at the leaf level of the tree; only keys are stored in interior nodes." App. Br. 12-13. Appellant further argues the Examiner's cited sections of Pichumani do not disclose B plus trees, nor the B plus-specific term "leaf level," but instead describes structure consistent with a conventional B tree. App. Br. 15. We agree with Appellant's contentions regarding the argued differences between a B tree and the contested limitation of a "B plus tree." In particular, we find persuasive Appellant's argument that the B tree genus 4 Appeal2015-006810 Application 13/337,787 does not inherently disclose the B plus tree species. See Perricone v. Medicis Pharmaceutical Corp., 432 F.3d 1368, 1377 (Fed. Cir. 2005) ("disclosure of a broad genus does not necessarily specifically disclose a species within that genus. ")(internal citation omitted). We also find persuasive that Pichumani's "appropriate level" and "sample nodes" do not disclose the B plus specific "leaf level," as recited in independent claims 5 and 13. App. Br. 15. We agree with Appellant that Pichumani fails to disclose the disputed step, particularly the "B plus tree" limitation as recited in the independent claims 1, 5, 13 and 21. We find this contested limitation is not expressly or inherently described, under Â§ 102, by the B tree as found by the Examiner. 3 Final Act. 7-8. Therefore, based upon the findings above, on this record, and for essentially the same reasons argued by Appellant, we are persuaded of error in the Examiner's reliance on the disclosure of the cited prior art to disclose the disputed limitation of independent claim 1, and independent claims 5, 13 and 21 which recite the contested limitation in commensurate form. 3 Because a rejection under Â§ 103 is not before us on appeal, we do not reach and express no opinion as to whether claim 1 might be obvious over the teachings and suggestions of the Pichumani reference, considered alone, or considered in combination with one or more additional references. In the event of further prosecution, we invite the Examiner's attention to Appellant's proffered evidence, and leave it to the Examiner to determine whether these claims should instead be rejected under 35 U.S.C. Â§ 103(a) as being obvious over Pichumani, considered together with Appellant's evidence, and/ or in combination with one or more additional references. While the Board is authorized to reject claims under 37 C.F.R. Â§ 41.50(b), no inference should be drawn when the Board elects not to do so. See Afanual of Patent Exarnining Procedure (MPEP) Â§ 1213.02. 5 Appeal2015-006810 Application 13/337,787 Accordingly, we find error in the Examiner's resulting finding of anticipation and do not sustain the Examiner's anticipation rejection of independent claims 1, 5, 13 and 21, and dependent claims 2--4, 6-12, 14--20 and 22-28, which depend therefrom and stand therewith. CONCLUSION The Examiner erred with respect to the anticipation rejection of claims 1-28 under 35 U.S.C. Â§ 102(e) over the cited prior art of record, and we do not sustain the rejection. DECISION We reverse the Examiner's decision rejecting claims 1-28. REVERSED 6