GOOGLE LLC

Patent Trials and Appeals Board

Sep 4, 2020

14010428 - (D) (P.T.A.B. Sep. 4, 2020)

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.
14/010,428 08/26/2013 Martin Brandt FREUND 25832.2570 (L2570) 8313
101198 7590 09/04/2020
LOWENSTEIN SANDLER LLP / Google
Patent Docket Administrator
One Lowenstein Drive
Roseland, NJ 07068
EXAMINER
SADANANDA, ABHIJIT B
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
09/04/2020 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):
patents@lowenstein.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARTIN BRANDT FREUND and YUANYING XIE
____________

Appeal 2019-006781
Application 14/010,428
Technology Center 3600
____________

Before CYNTHIA L. MURPHY, KENNETH G. SCHOPFER, and
BRADLEY B. BAYAT, Administrative Patent Judges.

BAYAT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1–7 and 9–21 under 35 U.S.C. § 103 as
unpatentable over Spivack2 and Zhang.3 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as “Google LLC.” Appeal Br. 3.
2 Spivack et al., US 2013/0298084 A1, pub. Nov. 7, 2013 (“Spivack”).
3 Zhang et al., US 2010/0005105 A1, pub. Jan. 7, 2010 (“Zhang”).
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Invention
Appellants’ invention is titled “DETECTING TRENDS FROM
IMAGES UPLOADED TO A SOCIAL NETWORK.” The Abstract of
Appellant’s Specification describes the invention as follows:
A system and method is disclosed for detecting marketable
subjects within digital images uploaded to the social network.
Software associated with a social network detects a marketable
subject in a plurality of images provided to a social stream by a
group of users who share a relationship in the social network. A
popularity of the marketable subject within the group of users is
determined based on the detecting, and a current trend is
identified for the group of users based on the popularity and a
relevant time period for the images. A vendor related to the
marketable subject may be notified that the current trend applies
to one or more of the group of users.

Claimed Subject Matter
Method claim 1, machine-readable medium claim 13, and system
claim 20 are independent and recite substantially similar subject matter.
Claim 1, reproduced below, is representative of the claimed subject matter
on appeal.
1. A computer-implemented method, comprising:
for each of a plurality of images uploaded to a social
stream of an electronic social network via a first user interface
by a user of a predetermined group of users sharing a common
connection in the social network, automatically analyzing, by
one or more computing devices, image data embedded within
the uploaded image to identify a predetermined object displayed
in the uploaded image in response to the image being uploaded
to the social stream;
determining, based on identifying the predetermined
object, a popularity of the predetermined object in the plurality
of images uploaded to the social stream for the predetermined
group of users;
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identifying, for the predetermined group of users, a
current trend based on the popularity and a relevant time period
for the images;
determining, for each user of the predetermined group of
users, a level of relevancy of the identified predetermined
object based on information associated with the user; and
providing, by the one or more computing devices, an
electronic notification to a second user interface, the electronic
notification indicating that the current trend applies to one or
more users of the predetermined group of users whose level of
relevancy satisfies a predetermined threshold, wherein the
second user interface is different than the first user interface
associated with uploading the plurality of images to the social
stream and is accessed by an entity different from the group of
users.
Appeal Br. 11, Claims App.
OPINION
The Examiner rejects independent claims 1–7 and 9–21 under
35 U.S.C. § 103 as unpatentable over Spivack and Zhang. Final Act. 3–13.
Appellant argues claims 1–7 and 9–21 as a group and designates
independent claim 1 as representative of the group. Appeal Br. 6; Reply Br.
3. We also select claim 1 as representative for the group, with claims 2–7
and 9–21 standing or falling therewith. 37 C.F.R. § 41.37(c)(1)(iv)(2019).
In contesting the Examiner’s rejection of claim 1 as unpatentable over
Spivack and Zhang, Appellant’s sole argument is that “[t]he combination of
Spivack and Zhang fails to teach or suggest ‘providing, by the one or more
computing devices, an electronic notification to a second user interface, the
electronic notification indicating that the current trend applies to one or more
users of the predetermined group of users whose level of relevancy satisfies
a predetermined threshold,’ as recited in claim 1.” Appeal Br. 7. In
particular, Appellant reproduces paragraphs 192–94 of Spivack and asserts
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that Spivack does not disclose that “alerts can be in any way related to trends
applied to users, let alone to trends allied [sic, applied] to users whole level
of relevancy of an identified object satisfies a predetermined threshold.” Id.
at 8. On page 9 of the Appeal Brief, Appellant reproduces portions of
paragraphs 48 and 56 of Zhang and asserts that “nowhere does Zhang teach
or suggest that an alert provided to marketers indicates that an emerging
fashion trend applies to users of a predetermined group whose level of
relevancy of a particular object satisfies a predetermined threshold.”
Appellant then concludes that “the combination of Spivack and Zhang does
not teach or suggest the above-recited feature of claim 1.” Id. at 10.
In response to Appellant’s argument, the Examiner provides a detailed
explanation as to how the above contested limitation is disclosed by the prior
art. See Ans. 4–7. The Examiner takes issue with Appellant’s argument,
which attacks each reference individually, because the rejection of the
contested limitation in claim 1 is based on the combined teachings of
Spivack and Zhang. Ans. 4.4 According to the Examiner:
Specifically, Fig. 5A and 7A of Spivack show a display
of trending objects associated with a group of users (par.
[0195] and [0210]). Spivack further states that a requesting
user may detect, identify, predict, determine, and access trends
among objects associated with a particular group of users (par.
[0070]-[0071]). Fig. 2A further shows that the trends are
provided to a computing device of user 217A that is different
from the group of users 216N that are uploading content (par.
[0051] and [0054]). Therefore, Spivack teaches the
limitations, “providing, by the one or more computing devices,
an electronic notification to a second user interface, the

4 Citing In re Keller, 642 F.2d 413 (CCPA 1981) and In re Merck & Co.,
800 F.2d 1091 (Fed. Cir. 1986).
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electronic notification indicating that the current trend applies
to one or more users of the predetermined group of users.”

Spivack further states, “[t]he scoring engine 340 can
determine the relevance of any message/piece of content to a
given concept/theme/trend/topic/person/place, etc.,” wherein
the relevance “can be used for various applications
including…retrieval of the content/message when relevant
(e.g., when a search is conducted for the topic or a related
topic, when a related topic is queried or selected, when the
topic itself if queried or selected)” (par. [0079]). It further
states that the display may provide a visualization of trending
objects and all relevant connected objects, wherein the
visualization may be updated “continuously or periodically…
such that the depicted trends/popularity or relevance levels to
various facets/users are current” and wherein “each node has a
different visual style…which is based on how interesting and
relevant the node is to a facet or a user” (par. [0115]). Fig. 4C
further shows exemplary rules by which a group of users are
selected to be evaluated where conditions such as “people who
follow me” or “people with Klout score > x” indicate a group
of users that are “relevant.” Therefore, Spivack clearly
suggests providing trends that apply to a group of users
wherein the users are determined based on a level of
relevancy, wherein the level of relevancy is determined in
relation to a particular topic/trend or based on configured
rules.

Id. at 4–5. The Examiner asserts that “[t]he only difference between the
argued limitation and Spivack is an explicit teaching of users whose level of
relevancy satisfies a predetermined threshold,” for which Zhang is relied
upon. Id. at 6. The Examiner states that Zhang discloses a system for
facilitating social networking by extracting user preferences from social
media posts and teaches identifying objects in images uploaded by a
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plurality of users to a social stream. Id. (citing Zhang ¶¶ 39–43). According
to the Examiner, Zhang
further teaches clustering users based on similarity measures
between their respective fashion preferences and selecting a
group of users associated with a requesting user (par.[0048]),
wherein the user preferences are identified by the objects
extracted from the images (par. [0054]) and the clusters are
identified based on the similarity measure satisfying a
minimum cost (par. [0052]). It further teaches presenting
information regarding the identified group of users
(par.[0061]-[0064]). Therefore, Zhang teaches providing an
electronic notification regarding one or more users whose
level of relevancy, i.e.“similarity measure,” satisfies a
predetermined threshold, i.e.“minimum-cost.”
Id.
In response to the Examiner, Appellant replicates portions of the
Examiner’s Answer and paragraphs 70, 71, 195, and 210 of Spivack, and
states: “Spivack teaches displaying trending of search results, displaying
aggregated personalized information streams from various social media
sites, and analyzing messages to detect trends with respect to those messages
including trends in activities for a group of users that a user follows in a
social network.” Reply Br. 5. Appellant then argues:
However, nowhere does Spivack teach or suggest that an
electronic notification indicating any of these trends is
provided to a user interface or that any of these trends is a
current trend which is identified based on “a popularity of the
predetermined object in the plurality of images uploaded to the
social stream for the predetermined group of users,” where
“the predetermined group of users” shares “a common
connection in the social network,” as recited in claim language
preceding the above limitation of claim 1, and therefore would
be required to teach or suggest the features of claim 1 under
the alleged interpretation put forth in the Examiner’s Answer.
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Id.
First, we are not persuaded of Examiner error because Appellant does
nothing to call into question the specific underlying factual findings made by
the Examiner and the evidentiary support cited therefor. Spivack is directed
to a system for analyzing streams or sets of messages/content in a network or
across networks to extract information to determine useful data such as
current trends or predict upcoming trends. Spivack ¶¶ 38–39 (cited Final
Act. 4). Spivack discloses that such messages or content include video,
audio, and photo content subject of online or network activity that can be
detected and analyzed to extract useful information for trending. Spivack ¶¶
51–52 (cited Final Act. 4). The Examiner finds that such detection can be
used to identify trends and upcoming trends for a specific group of users.
Ans. 4–5 (citing Spivack ¶¶ 70–71). The Examiner indicates that Figure 2A
shows and paragraphs 51 and 54 of Spivack disclose “that the trends are
provided to a computing device of user 217A that is different from the group
of users 216A that are uploading content.” Ans. 5. In other words,
Appellant does not adequately explain why electronically communicating
and informing current trend data from one group of users to another does not
teach “providing, by the one or more computing devices, an electronic
notification to a second user interface, the electronic notification indicating
that the current trend applies to one or more users of the predetermined
group of users,” as required by claim 1. Moreover, the Examiner finds that
Zhang’s system also identifies emerging fashion trends that can be tracked
over time, which “can enable market research application to automatically
create consumer segments and alert marketers to emerging segments.”
Zhang ¶ 64 (cited Ans. 4).
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Second, Appellant presents an additional argument that Spivack does
not teach or suggest that “any of these trends is a current trend which is
identified based on ‘a popularity of the predetermined object in the plurality
of images uploaded to the social stream for the predetermined group of
users,’ where ‘the predetermined group of users’ shares ‘a common
connection in the social network’.” Reply Br. 5. Appellant uses the Reply
Brief to introduce a new argument based on other limitations in claim 1.
“Any bases for asserting error, whether factual or legal, that are not raised in
the principal brief are waived.” Ex parte Borden, 93 USPQ2d 1473, 1474
(BPAI 2010) (informative); see also Optivus Tech., Inc. v. Ion Beam
Appl’ns. S.A., 469 F.3d 978, 989 (Fed. Cir. 2006) (“[A]n issue not raised by
an appellant in its opening brief . . . is waived.”) (citing Becton Dickinson &
Co. v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed. Cir. 1990)). Appellant could
have presented the newly introduced argument in the Appeal Brief. As
discussed above, Appellant’s sole argument in the Appeal Brief is directed at
the final limitation of claim 1. Appellant, however, may not present
arguments in a piecemeal fashion, holding back arguments until an examiner
answers the original brief, without giving the Examiner an opportunity to
respond. This basis for asserting error is waived. 37 C.F.R. §
41.37(c)(1)(iv).
On page 6 of the Reply Brief, Appellant replicates portions of the
Examiner Answer and paragraphs 79 and 115 of Spivack and argues
“nowhere does Spivack teach or suggest that a notification is provided
indicating that a current trend is applied to users of a predetermined group,
let alone to users of the predetermined group whose level of relevancy of an
identified object satisfies a predetermined threshold.” Similarly here,
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Appellant has not adequately addressed the Examiner’s detailed factual
findings, and support therefor, by presenting arguments that identify the
alleged error in the rejection as to the limitation providing an electronic
notification indicating the current trend applies to one or more users of the
predetermined group of users. Moreover, Appellant’s attack on Spivack for
not teaching users of the predetermined group whose level of relevancy of
an identified object satisfies a predetermined threshold is unpersuasive
because the Examiner relies on Zhang for teaching this feature of the
limitation. See Ans. 6 (“Zhang teaches providing an electronic notification
regarding one or more users whose level of relevancy, i.e. ‘similarity
measure,’ satisfies a predetermined threshold, i.e. ‘minimum-cost.’”).
Appellant acknowledges that “Zhang teaches extracting fashion
preferences of a user from fashion related information that can be in the
form of an image or video, clustering users based on similarities in their
fashion preferences, ranking users based on similarity measures of their
fashion preferences, identifying emerging fashion trends that may
correspond to fashion preference clusters, and alerting marketers to
emerging consumer segments created by market research applications.”
Reply Br. 9. Yet, Appellant argues “nowhere does Zhang teach or suggest
that an alert provided to marketers indicates that an emerging fashion trend
applies to users of a predetermined group whose level of relevancy of a
particular object satisfies a predetermined threshold.” Id. at 10. This
argument is unpersuasive of Examiner error because Appellant fails to
explain why the Examiner’s finding of similarity measure (i.e., minimum
cost) in Zhang as suggesting a predetermined threshold is erronoues, and
Appellant’s argument fails to establish an insufficiency in the combined
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teachings of the references, because the Examiner relies on the combined
teachings of Spivack and Zhang in rejecting this contested limitation.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. See In re Merck, 800 F.2d at 1097.
Accordingly, we sustain the rejection of independent claim 1 as
unpatentable over Spivack and Zhang, and claims 2–7 and 9–21 which fall
with claim 1.
DECISION
The Examiner’s rejection under 35 U.S.C. § 103 is affirmed.
Decision summary:
Claims
Rejected
35
U.S.C. §
Basis Affirmed Reversed
1–7, 9–21 103 Spivack, Zhang 1–7, 9–21

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