Ex Parte Zinda

Patent Trials and Appeals Board

Mar 25, 2013

10440281 - (D) (P.T.A.B. Mar. 25, 2013)

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.
10/440,281 05/16/2003 Kenneth Zinda 25394/04016 1114
41939 7590 03/25/2013
JEANNE E. LONGMUIR
2836 CORYDON ROAD
CLEVELAND HEIGHTS, OH 44118
EXAMINER
WILSON, KIMBERLY LOVEL
ART UNIT PAPER NUMBER
2167
MAIL DATE DELIVERY MODE
03/25/2013 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 KENNETH ZINDA
____________

Appeal 2010-007966
Application 10/440,281
Technology Center 2100
____________

Before JOHN A. JEFFERY, DENISE M. POTHIER,
and BRUCE R. WINSOR, Administrative Patent Judges.

WINSOR, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-7 and 10-26, which constitute all the claims pending in this
application. Claims 8 and 9 are cancelled. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm-in-part and institute a new ground of rejection within the
provisions of 37 C.F.R. § 41.50(b).

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Application 10/440,281

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STATEMENT OF THE CASE
Appellant’s invention “relates generally to data mining, and more
specifically to data mining for improved patent searching and visual
analyses.” Spec. 1:8-9. Claims 1, 11, and 15, which are illustrative of the
invention, read as follows:
1. A computer implemented data mining method,
comprising:
programmatically generating a series of cross tabulated
searches;
electronically retrieving one or more documents from a
document database based on the series of cross tabulated
searches;
removing irrelevant documents from the retrieved
documents based upon their dissimilarity to the subject matters
of the cross tabulated searches; and
producing and outputting or displaying a matrix of
retrieved relevant documents that facilitate visualizing one or
more relationships between the retrieved relevant documents
resulting from the subject matters of the cross tabulated
searches.
11. A computerized data mining system, comprising:
a query generator that generates a set of cross tabulated
queries for retrieving a cross-referenceable set of documents;
a search engine that searches a document database using
the set of queries and returns one or more documents; and
a graphical user interface that displays a matrix or a
multi-dimensional spreadsheet or graph.
15. A computer implemented data mining system,
comprising:
a pattern matcher computer component in data
communication with a document database, the pattern matcher
programmed to extract one or more documents from the
document database;
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a technical attribute identifier computer component that
identifies the presence of one or more technical attributes in an
extracted document;
a data analyzer computer component that generates a
matrix of information that relates two or more extracted
documents based, at least in part, on a technical attribute; and
a logic that produces a bubble plot.
Claims 1-7, 10-12, 14, and 21-26 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Rivette (US 5,991,751; Nov. 23, 1999).
Claims 13 and 15-20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Rivette and Barg (US 6,707,454 B1; issued Mar. 16,
2004; filed Oct. 12, 1999).
Rather than repeat the arguments here, we refer to the Briefs1 (App.
Br. filed Aug. 13, 2009; Supp. App. Br. filed Nov. 30, 2009; Reply Br. filed
May 3, 2010) and the Answer (mailed Mar. 3, 2010), for the respective
positions of Appellant and the Examiner. Only those arguments actually
made by Appellant have been considered in this decision. Arguments that
Appellant did not make in the Briefs have not been considered and are
deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).

1 The Appeal Brief filed March 30, 2009, has not been considered as it is
deemed to have been superseded.
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ANTICIPATION REJECTION OVER RIVETTE
CLAIMS 1-7, 10-12, 14, 21, AND 22
Issue
The dispositive issue presented by Appellant’s contentions is as
follows: Did the Examiner err in finding that Rivette discloses “cross
tabulated searches,” as recited in claim 1?2
Analysis
The Examiner finds that Rivette discloses all of the limitations of
claim 1. Ans. 4-5 (citing Rivette, Figs. 57, 61, 121, 122, 140, 141; col. 25, l.
38—col. 30, l. 40; col. 34, ll. 12-22). More particularly, the Examiner finds
that Rivette discloses cross tabulated searches at Figures 57, 121, 122, 140,
and 141 and at column 25, line 38 through column 30, line 40, and
particularly column 26, lines 7-16 and 34-46 et seq. Ans. 4.
Appellant contends:
Rivette does not disclose the use of cross tabulated searches or
of programmatically generating a series of such searches. In a
cross tabulated search, multiple search variables are considered.
. . . . Rivette does not provide or illustrate the subject
matters of the cross tabulated search results either in Figure 61,
140 or in any of the figures.
App. Br. 8-9.
In response, the Examiner explains:
The term ‘cross tabulated search’ does not have an
accepted meaning in the art of data retrieval, and the
Appellant’s specification fails to define the term. In their

2 Appellant’s contentions raise additional issues with regard to claims 1-7,
10-12, 14 and 21-25. Because we are persuaded of Examiner error with
regard to the identified issue, which is dispositive the appeal regarding
claims 1-7, 10-12, 14 and 21-25, we do not reach the additional issues.
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arguments, the Appellant states that “In a cross tabulated
search, multiple search variables are considered.”
The search capabilities of the system disclosed in the
Rivette et al. reference provides the capability to perform
searches based upon any combination of attributes, and as such
anticipates the claimed ‘cross tabulated search’.
Ans. 21 (citation omitted).
We agree with Appellant. A pertinent definition is “crosstab query
n. A query that calculates a sum, an average, a count, or other type of total
on records, and then groups the results by two types of information—one
down the left side of the data sheet and the other across the top.”
MICROSOFT COMPUTER DICTIONARY 135 (5th ed. 2002); see also AskDefine,
Define crosstabulation, http://crosstabulation.askdefine.com (last visited
Mar. 20, 2013) (“A cross tabulation (often abbreviated as cross tab) displays
the joint distribution of two or more variables.”). As pointed out by
Appellant, “crosstab” is shorthand for “cross tabulation” and “query” is a
synonym for “search.” Reply Br. 1. Appellant also points out that crosstab
queries, denominated as such, were used in commercial database and
spreadsheet applications prior to Appellant’s filing date. Id.; accord Barg,
Fig. 1; col. 2, ll. 25-46. We conclude that “cross tabulated search” is a term
of art in the data retrieval art synonymous with “crosstab query” as defined
supra. This meaning is consistent with uses of the term by persons of
ordinary skill in the art and with Appellant’s Specification. See, e.g., Figs.
11, 12.
The Examiner has failed to demonstrate that Rivette discloses a query
that calculates a sum, average, count, or other type of total on records, then
groups the results by two types of information—one down the left side of the
sheet and the other across the top. Rivette’s Figures 57, 121, 122, and 140
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illustrate user interface display formats for entering search commands.
Rivette, col. 5, ll. 41-43; col. 7, ll. 21-22, 49-50; col. 26, ll. 63-67. Rivette’s
Fig. 141 is a listing of retrieved document records with data extracted from
the retrieved records. Rivette, col. 7, ll. 51-52. We note that both Figure 543
and Figure 141 illustrate the display of a “score” (i.e., number of search term
“hits” (Rivette, col. 27, l. 50)) which is a “a sum, an average, a count, or
other type of total on records.” See MICROSOFT COMPUTER DICTIONARY at
135. However, Rivette’s scores (i.e., the query “results”) are only grouped
by a single type of information: the patent document to which the score
relates.
Accordingly, we do not sustain the rejection of (1) claim 1; (2) claims
11, and 21, which were argued together with claim 1 (App. Br. 10) and
include a limitation substantially the same as the cross tabulated search
limitation we find missing from Rivette; and (3) claims 2-7, 10, 12, 14, and
22, which include by reference the limitations of claim 1, 11, or 21, (id.).
CLAIMS 23-26
Appellant contends that “[t]he rejection of independent Claims . . . 23-
24 and 26 [is] likewise in error for the reasons set forth above with respect to
the lack of cross tabulation queries recited, which are not disclosed or
suggested in Rivette and [is] thus not anticipated.” App. Br. 10. Regarding
claims 23 and 24, Appellants further state that Rivette does not teach or
suggest “cross tabulated data . . . from either an attribute landscape or a
technology landscape.” Id.

3 Rivette’s Figure 54 was cited by the Examiner in connection with claims
15, 17, 21, and 24 (Ans. 8, 10, 15-16), and discussed by Appellant in
connection with claim 1 (App. Br. 9).
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Whether Rivette discloses cross-tabulated data or data from an
attribute landscape generation or a technology landscape generation is not
relevant to the anticipation issue regarding claims 23 and 24. The
characterization of the data in the matrices as cross-tabulated or from an
attribute landscape generation or a technology landscape generation merely
describes the content, rather than the function of the matrices. The content
of the matrices constitutes nonfunctional descriptive matter. Whether or not
the matrices contain cross-tabulated data or data from an attribute landscape
generation or a technology landscape generation does not functionally
change the method because the content is not tied to and does not alter how
the recited process steps are performed to achieve the utility of the invention.
The contents of the matrices neither enhance nor diminish the functionality
of the recited steps of accessing, identifying and presenting. Therefore, the
contents are analogous to printed matter in that they merely represent
underlying descriptions in a data set that lack patentable weight. See In re
Lowry, 32 F.3d 1579, 1583 (Fed. Cir. 1994); Ex Parte Nehls, 88 USPQ2d
1883, 1887-89 (BPAI 2008) (precedential) (discussing cases pertaining to
non-functional descriptive material).
Additionally, Appellant’s argument is not commensurate with the
scope of claim 26 because claim 26 does not recite cross tabulation queries.
See App. Br. 19. Claim 25, which depends from claim 24, was not
separately argued with particularity. See App. Br. 10. Accordingly we
sustain the rejection of claims 23-26.

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OBVOUSNESS REJECTION OVER RIVETTE AND BARG
CLAIM 13
Claim 13 depends from claim 11, discussed supra. Because we do not
sustain the rejection of claim 11, we do not sustain the rejection of claim 13.
CLAIMS 15-20
Issue
The issue presented by Appellant’s contentions is as follows: Has
Appellant demonstrated that the Examiner erred in finding that the
combination of Rivette and Barg teaches or suggests all of the limitations of
claims 15 and 17?
Analysis
Appellant contends as follows
Independent Claims 15 and 17 are erroneously rejected,
as they recite a system and method, respectively, requiring the
use of a specific two component search. Claim 15 recites the
need for a pattern matcher computer component and a technical
attribute identifier computer component, and that the
documents extracted by each component are provided to a data
analyzer computer component which generates a matrix relating
at least in part to a technical attribute. Claim 17 recites a
method for one or more data stores that are searchable on
relationships between documents and one or more of a
technology landscape and a company landscape. The output is
provided as a matrix related to the one or more landscapes with
a graph bubble plot to illustrate the multi-dimensional
relationships. As the failure of Rivette to provide the specific
component searching required is not overcome by the addition
of the bubble plot of Barg. The scope and content of the prior
art cited does not disclose the invention of Applicant’s claims,
and the differences cited between the prior art and the claimed
invention highlight the failures of the cited references and their
combination.
App. Br. 11.
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Appellant’s contentions are little more than a recitation of claim
language and an assertion that the prior art does not teach or suggest the
recited limitations. See 37 C.F.R. § 41.37(c)(1)(vii) (2010) (“A statement
which merely points out what a claim recites will not be considered an
argument for separate patentability of the claim.”); see also 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.”).
Nonetheless, we have reviewed the Examiner’s findings (Ans. 14-17)
and explanations (Ans. 27-30) in light of Appellant’s contentions. We find
the Examiner’s findings and explanations to be reasonable and to present
prima facie cases of unpatentability for claims 15 and 17, which Appellant
has not persuasively rebutted. While the Examiner bears the initial burden
of establishing an initial case of unpatentability, once that burden has been
met the burden of coming forward with evidence or arguments
demonstrating error in the Examiner’s rejection shifts to Appellant. In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Mere lawyer’s 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).
On this record Appellant has not persuaded us of error in the rejection
of claims 15 and 17. Accordingly, we will sustain the rejection of claims 15
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and 17, and claims 16 and 18-20, which depend respectively from claim 15
and 17 and were not separately argued with particularity.

NEW GROUND OF REJECTION WITHIN 37 C.F.R. § 41.50(b)
Claim 11 is rejected on a new ground of rejection under 35 U.S.C.
§ 103(a) as unpatentable over Rivette and Barg.
Rivette teaches a computerized data mining system (see generally
Rivette, Abstract) comprising: a query generator that generates a set of
queries (Rivette, col. 28, ll. 29-34) for retrieving a cross-referenceable set of
documents (Rivette, col. 94, ll. 20-27); a search engine that searches a
document database using the set of queries and returns one or more
documents (Rivette, col. 25, l. 38—col. 30, l. 40; see particularly col. 26, ll.
7-16, 34-46); and a graphical user interface (GUI) that displays a matrix
(see, e.g., Rivette, Fig. 61) (i.e., “a matrix or a multi-dimensional
spreadsheet or graph” (emphasis added)). Although not a matrix of cross
tabulated query results, the GUI display illustrated in Rivette’s Figure 61 is a
matrix, i.e., “an arrangement of rows and columns used for organizing
related items . . . .” MICROSOFT COMPUTER DICTIONARY at 330.
Rivette teaches all of the limitations of claim 11 except for the use of
cross tabulated queries. Barg, in the same field of data retrieval, analysis,
and display, teaches the use of cross tabulated queries (Barg, col. 2, ll. 25-
46) and the display of cross tabulated query results in a matrix (Barg, Fig. 1).
Barg further teaches the display of cross tabulated query results as a
multidimensional (e.g., row by column by page) spreadsheet (Barg, col. 2, ll.
30-37) or graph (Barg, Figs. 2, 9).
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It would have been obvious to one of ordinary skill in the art to
combine Barg’s teaching of cross tabulated data queries in order to facilitate
analysis of data extracted from a multidimensional database, e.g., a database
of cross-referenceable documents. See generally Barg, col 1, l. 26—col. 2, l.
67. Such a combination would be a combination of familiar elements
according to known methods that does no more than yield predictable
results—an obvious improvement. KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 416 (2007).
The Patent Trial and Appeal Board is a review body, rather than a
place of initial examination. We have entered new grounds of rejection of
claim 11. However, we have not reviewed claims 1-7, 10, 12-14, 21, and 22
to the extent necessary to determine whether these claims are unpatentable
under 35 U.S.C. § 103(a) over Rivette, Barg, or any other prior art, in view
of our findings herein regarding claim 11. In the event of further
prosecution we leave it to the instant Examiner to determine the patentability
of claims 1-7, 10, 12-14, 21, and 22. Our decision not to enter a new ground
of rejection for all claims should not be considered as an indication
regarding the appropriateness of further rejection or allowance of the non-
rejected claims.

ORDER
The decision of the Examiner to reject claims 15-20, and 23- 26 is
affirmed.
The decision of the Examiner to reject claims 1-7, 10-14, 21, and 22,
is reversed.
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We enter a new ground of rejection for claim 11 under 35 U.S.C.
§ 103(a).
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). Section 41.50(b) provides that “[a] new ground of rejection . . .
shall not be considered final for judicial review.”
Section 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record.
37 C.F.R. § 41.50(b).
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) (2010).

AFFIRMED-IN-PART
37 C.F.R. § 41.50(b)

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